ROYAL AUSTRALASIAN COLLEGE OF SURGEONS v ROBERT FRANCIS PHIPPS [1999] NZCA 156 (24 August 1999)

IN THE court of appeal of new zealand

ca114/99

	between	royal australasian college of surgeons
		Appellant

	and	robert francis phipps
		Respondent

Hearing:	24 August 1999
Coram:	Richardson P Henry J Thomas J
Appearances:	W M Wilson QC and C J Robertson D B Collins and G J Praat for Respondent
Judgment:	24 August 1999

judgment of the court delivered by henry j

[1] This appeal is against a trial Judge's award of costs.As such, to succeed it must be shown that the Judge failed to exercise his discretion properly.In the proceeding the respondent sought judicial review of a report prepared by the appellant on the respondent's professional performance as a general surgeon employed by Health Care Otago Ltd.The appellant's challenge to the Court's jurisdiction to review was rejected by Chisholm J in a judgment now reported as Phipps v Royal Australasian College of Surgeons [1997] 2 NZLR 598.The substantive proceeding went to trial, the grounds for relief propounded being procedural irregularity and unreasonableness.Procedural irregularity only was held to be established, and the report was set aside. On appeal to this Court, the High Court finding as to jurisdiction was upheld. The Court also upheld Chisholm J's finding that the appellant was obliged to exercise procedural fairness in conducting its review, and agreed that three of the instances of breach identified in the High Court were made out and warranted relief.The order quashing the report was rescinded, but declarations of breach were made.The Court declined to make any orders as to costs on the appeal.Costs in the High Court, originally awarded to the respondent in the total sum of $95,253.76 were remitted for further consideration and ultimately fixed by Chisholm J in the sum of $77,971.10.

[2] In the High Court Chisholm J rightly rejected the submission, not now repeated, that the appellant was overwhelmingly the successful party in the litigation.It was not.It unsuccessfully contended for an absence of jurisdiction to review.A submission that the appellant was not obliged to act with procedural fairness also failed.At trial, several heads of unfairness were alleged, some of which were accepted by the Judge.The principal issue in that respect was the failure to put specific allegations to the respondent, on which Chisholm J found in respect of five patients that omissions were established and were significant.He also held that other matters of a general nature should have been put to the respondent.On appeal to this Court, the failures were reduced to three specific matters, and as already stated quashing of the report was replaced by declarations.It can also be noted that the proceeding was a vehicle for identifying and recording what were acknowledged to be factual errors in the report.

[3] For the appellant it is now submitted that because the respondent has failed to obtain the relief sought (quashing of the report), in the High Court there should have been an award in favour of the appellant, or at least no order for costs.In our view that submission is misconceived.

[4] What was sought was relief from the full effects of the report - the form it was to take if entitlement was established was very much a judgmental call for the trial Judge.A plaintiff will always pitch the claim for relief at its maximum.The respondent was the successful party in the High Court, and the Judge was entitled to approach the issue of costs on that basis.No error of principle is demonstrated.Mr Wilson for the appellant submitted that the respondent's position on costs could not be stronger in the High Court than it was in this Court, and an inconsistency has therefore resulted.We are unable to accept that submission.The comparison is inappropriate, different issues and different considerations being applicable to the trial process and the appellate process.The proper comparison is between what originally resulted at trial, and what is the amended result as a consequence of the appeal.

[5] As to quantum, it was not suggested that the Judge's original assessment after trial was in error.In broad terms it represented 45% of actual solicitor and client costs, 25% of fees charged by an expert witness, and other individual matters including third party discovery.On reassessment, the Judge reduced the solicitor and client costs to 35% and the expert costs allowance to 20% of actual.There is nothing in the material before us to indicate that this reduction is inappropriate to represent the overall effects on the conduct of the trial of the failure to establish the grounds of complaint which were reversed on appeal.Chisholm J was in a particularly advantaged position to make the assessment, and he has not been shown to have proceeded on any erroneous basis.

[6] For those reasons the appeal is dismissed.The respondent is entitled to costs in this Court which are fixed in the sum of $1,000, with disbursements to be approved by the Registrar if necessary.

Solicitors

Kensington Swan, Wellington, for Appellant

Rainey Collins, Wellington, for Respondent