Sharman v New Zealand Association of Counsellors Incorporated [2014] NZHC 1235 (4 June 2014)

Last Updated: 22 July 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-1360 [2014] NZHC 1235

UNDER	the Judicature Amendment Act 1972
IN THE MATTER OF	an application for judicial review
BETWEEN	TINA MARIE SHARMAN Plaintiff
AND	NEW ZEALAND ASSOCIATION OF COUNSELLORS INCORPORATED First Defendant
AND	HEARING PANEL OF THE ETHICS COMMITTEE OF THE NEW ZEALAND ASSOCIATION OF COUNSELLORS Second Defendant

Hearing:	On the papers
Judgment:	4 June 2014

_{COSTS JUDGMENT OF WINKELMANN J}

This judgment was delivered by me on 4 June 2014 at 1.00 pm pursuant to

Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Solicitors:

Vallant Hooker & Partners, Auckland

_{Gilbert Walker, Auckland}

SHARMAN v NEW ZEALAND ASSOCIATION OF COUNSELLORS INCORPORATED [2014] NZHC 1235 [4 June 2014]

[1] In September 2013 I gave judgment in respect of Ms Sharman’s application for judicial review of a decision of the Hearing Panel of the New Zealand Association of Counsellors (NZAC), upholding five of six charges against Ms Sharman and finding her guilty of professional misconduct.¹ I dismissed the second ground of review (error of law based on admission of a statement) and the third ground of review (unreasonableness). In relation to the first ground of review

(breach of natural justice) I found nearly all of the multiple challenges without merit. I found however that Ms Sharman was correct that there was a lack of particulars in connection with an allegation of dishonesty, and that the reasons given for that finding were inadequate. I found however that those errors had no bearing upon the finding of professional misconduct because the Panel had placed no weight at all upon the finding of dishonesty in finding a charge of professional misconduct proved. I found that there was ample in the conduct admitted by Ms Sharman to justify a finding of professional misconduct. I therefore exercised my discretion against the grant of relief. I said that if the parties were unable to agree costs, they may file memoranda.

[2] The parties have been unable to agree costs. The defendant seeks costs on the grounds that costs should follow the event. The plaintiff however seeks an order that costs lie where they fall, or at least a reduced award of costs on the grounds that Ms Sharman would have succeeded but for the Court exercise of the discretion to refuse relief. Ms Sharman says that a finding of dishonesty is a serious allegation and that the fact that a party has partially succeeded is an important factor in terms of costs, citing r 14.1 of the High Court Rules.

[3] The fundamental principle is, that the party who fails with respect to a proceeding should pay costs to the party who succeeds. The first defendant succeeded in the proceeding. Ms Sharman advanced multiple grounds of attack on the Panel’s decision. I found only one had merit. That did not however avail Ms Sharman in terms of the relief that she sought. As I found, there was ample evidence to justify the Tribunal’s finding of professional misconduct. An allegation of dishonesty is a serious allegation, but other serious allegations were proved

against Ms Sharman, sufficient for the finding of professional misconduct to be made out.

[4] I am therefore satisfied that costs should follow the event² and in accordance with the first defendant’s application, they should be on the scale basis on a 2B basis and disbursements, amounting to $17,023.80 as set out in the schedule attached to counsel’s memorandum of 17 March 2014.

Winkelmann J