CULVERDEN GROUP LTD & ANOR v THE HEALTH AND DISABILITY COMMISSIONER [2002] NZCA 80 (24 April 2002)

IN THE court of appeal of new zealand

ca179/01

	between	Culverden Group Ltd & anor
		Appellants

	and	the health and disability commissioner
		Respondent

Coram:	Richardson P Keith J Blanchard J
Counsel:	G S Millar for Appellants K I Murray for Respondent
Judgment (on the papers):	24 April 2002

judgment of the court

[1] At the request of both counsel, this appeal has been determined on the basis of written submissions.

Background

[2] The present dispute over costs stems from a complaint made in 1997 to the Health and Disability Commissioner concerning the appellants' conduct in respect of a Mr King, who was staying at a rest home operated by the appellants at the relevant time. The then Commissioner, Ms Stent, issued first a provisional opinion and ultimately a final opinion in which she outlined the facts as found in the inquiry, and found that there had been breaches of the Code of Health and Disability Services Consumers' Rights.The appellants immediately indicated an intention to initiate a judicial review proceeding but such a course was not followed because the present Commissioner, Mr Paterson, who had in the meantime succeeded Ms Stent in that role, indicated that he would investigate the entire matter afresh.On 6 July 2000, Mr Paterson sent his own provisional opinion to the appellants' solicitors seeking their comments.The appellants chose not to respond and just 20 days later issued the present proceeding.

[3] As plaintiffs in an application for judicial review in the High Court, the present appellants sought a declaration that the Commissioner's "final conclusions" in his provisional opinion were invalid, and an order quashing them or setting them aside. The grounds of review, as pleaded, comprised breaches of natural justice, the consideration of irrelevant considerations, the failure to take into account relevant considerations, unreasonableness, predetermination or bias, and a breach of s 27(1) New Zealand Bill of Rights Act 1990. None of these causes of action succeeded in the Court below, and the Judge accordingly dismissed the application.She awarded costs on scale 2B, amounting to $13,390, against the present appellants, as well as $378.60 for disbursements.

Nature and grounds of appeal

[4] In this Court, the appellants do not challenge the substantive findings of the Judge, and confine their attack to the award of costs. Pointing to some strong but non-binding recommendations by the Judge in respect of the procedure which should now be undertaken by the Commissioner in finally determining the complaint, including the desirability of issuing a new provisional opinion, the appellants contend that they were essentially successful in their application. They argue that the direction to supply a new opinion obviated any need for the Judge to grant the relief sought (identical in practical terms) viz. quashing the "final conclusions" in the provisional opinion actually challenged. As the "successful" party in the High Court, the appellants argue that they should not have had costs awarded against them.

Reasons

[5] We do not accept the appellants' argument. The award of costs is a matter falling within the discretion of a judge at first instance which will not lightly be interfered with on appeal. In the present appeal, the costs award cannot be shown to be plainly erroneous. Indeed, it appears to be unassailable. The appellants failed on each of the grounds of review pleaded. Their application for judicial review was dismissed. The remarks made by the Judge below concerning the Commissioner's future treatment of the matter were based in part on a concession by the Commissioner and had, in the words of the learned Judge herself, the character of mere "recommendations", and were not the subject of formal orders. As the appellants were thus entirely unsuccessful in legal terms, the costs award made by the Judge was well open to her, particularly when the appellants had elected to bring their proceeding without taking the opportunity offered to them to comment on the Commissioner's provisional opinion and seek changes.

[6] We should not be taken to be expressing a view on whether judicial review is actually available in respect of a draft opinion of this character.

Decision

[7] The appeal is dismissed. Costs of $500 are awarded to the respondent in respect of this appeal.

Solicitors:

Wells & Co, Auckland, for Appellants

K H Greig, Office of the Health and Disability Commissioner, Wellington, for Respondent