Zhao v Legal Complaints Review Officer

[2021] NZHC 882

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2020-404-001268

[2021] NZHC 882

UNDER

The Judicial Review Procedure Act 2016

IN THE MATTER

of a decision made by Legal Complaints Review Officer

BETWEEN

HUAN ZHAO

Applicant

AND

LEGAL COMPLAINTS REVIEW OFFICER

First Respondent

AND

JAMES RICHARD DUCKWORTH

Second Respondent

Hearing:

On the papers

Counsel:

Applicant in person

S R Carey for the Second Respondent

Judgment:

23 April 2021

COSTS JUDGMENT OF CAMPBELL J

This judgment was delivered by me on 23 April 2021 at 12:00 pm Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Solicitors/Counsel:

Crown Law Office, Wellington S R Carey, Barrister, Auckland Copy to:

Applicant

ZHAO v LEGAL COMPLAINTS REVIEW OFFICER [2021] NZHC 881 [23 April 2021]

[1]    On 30 March 2021 I delivered a judgment dismissing Ms Zhao’s claim to judicially review the decision of the LCRO. I said the second respondent, Mr Duckworth, was entitled to costs.

[2]    The parties have not reached agreement on costs. They have filed memoranda. The memoranda reveal the following disputes:

(a)For certain steps Mr Duckworth represented himself. Ms Zhao says he should not be entitled to costs for those steps. But Mr Duckworth is a practising lawyer. He is therefore entitled to costs for steps when representing himself.1

(b)Mr Duckworth claims for commencing his defence. Ms Zhao resists this on the basis that Mr Duckworth’s statement of defence did not comply with the High Court Rules in that it was evasive. I reject Ms Zhao’s argument. The statement of defence was compliant.

(c)Mr Duckworth claims 0.3 of a day for appearance at a case management conference (item 13 of Schedule 3). Ms Zhao resists this, on the basis that the conference lasted less than an hour. I allow Mr Duckworth’s claim. The reasonable time allowances in Schedule 3 will sometimes be more, sometimes less, than the actual time. The difference may, when significant, justify an adjustment for costs purposes. But not in this instance, particularly where item 13 is intended also to allow for preparation time. The close examination that Ms Zhao calls for is inconsistent with the costs principles set out in r 14.2(1)(c), (e) and (g).

(d)Mr Duckworth claims under item 29 for sealing judgment. Ms Zhao says item 29 applies only to interlocutory applications. I disagree with Ms Zhao. Item 29 is of general application.

(e)Mr Duckworth claims under items 30, 32 and 34 on the basis that this was a hearing by way of affidavit. Ms Zhao says that this was not an

1      McGuire v Secretary for Justice [2018] NZSC 116, (2018) 24 PRNZ 350 at [88].

affidavit hearing, and that Mr Duckworth did not provide any affidavit evidence. As my judgment records, the hearing proceeded on affidavit evidence, including an affidavit from Mr Duckworth. I therefore reject Ms Zhao’s position.

(f)Mr Duckworth claims costs on a category 2 basis. Ms Zhao says category 1 should apply.  Palmer J set the proceeding as category 2 in a minute dated 16 October 2020. I agree that is the appropriate categorisation.

(g)Mr Duckworth claims for half a day for appearance at the hearing (item 34). Ms Zhao rejects this, saying the hearing took only around an hour. Ms Zhao is correct. Mr Duckworth’s claim for this item should therefore be reduced to a quarter of a day.

[3]    In her memorandum Ms Zhao also challenges aspects of my judgment. Those are matters for an appeal, if she were so minded. They are irrelevant to costs.

[4]    In summary, Mr Duckworth is entitled to the costs and disbursements set out in his memorandum dated 12 April 2021, except that his claim for item 24 is to be for only a quarter of a day. By my calculations, this means that Ms Zhao must pay him a total of $20,833.50.

Result

[5]Ms Zhao must pay Mr Duckworth costs and disbursements of $20,833.50.

Campbell J