McCaig v A Professional Conduct Committee [2016] NZHC 306 (29 February 2016)

Last Updated: 18 March 2016

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-001541 [2016] NZHC 306

IN THE MATTER OF	an appeal pursuant to Section 106(2) of the Health Practitioners Competence Assurance Act 2003
BETWEEN	TEMALESI SENITOVU MCCAIG Appellant
AND	A PROFESSIONAL CONDUCT COMMITTEE Respondent

On the papers
Counsel	A H Waalkens QC for Appellant D La Hood for Respondent
Judgment:	29 February 2016

_{JUDGMENT No 2 (Costs) OF PALMER J}

This judgment was delivered by me on 29 February 2016 at 4:30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date...............

Solicitors: McBride Davenport James, Wellington (P McBride) Luke Cunningham & Clere, Wellington

McCaig v A Professional Conduct Committee [2016] NZHC 306 [29 February 2016]

Summary

[1] Dr McCaig appealed the penalty imposed upon her by the Health Practitioners Disciplinary Tribunal. The parties cannot agree on the costs implications of my judgment of 4 December 2015.¹ The judgment resulted in a material reduction in the penalty. I order costs in Dr McCaig’s favour.

Law Relating to Costs

[2] Costs follow the event – a losing party pays a winning party a contribution towards their legal costs. This is established by Rule 14.2(a) of the High Court Rules which provides that “the party who fails with respect to a proceeding or an interlocutory application should pay costs to the party who succeeds”. It is characterised by the Supreme Court as a “fundamental principle”.²

[3] Here, Dr McCaig claims to have been successful and to deserve a costs award on a 2B basis (and indeed a further award for this further round of argument). The Professional Conduct Committee (PCC) claims to have been partially successful so that costs should lie where they fell. Both parties cited the Court of Appeal’s judgment in Packing in Ltd (in liq) formerly known as Bond Cargo Ltd v Chilcott (“Bond”).³ There, the Court dealt with a case “where in broad terms each party has

had similar success” and set out the factors relevant to awarding costs.⁴ The

Supreme Court has also found that a party which is successful in its submissions on the law but loses on the application of the law to particular facts may have had “a measure of success” meaning costs should not be awarded against it.⁵

[4] The question of who has won and who has lost litigation is not always straightforward. As with other costs issues the answer to this question is at the

_{discretion of the court (r 14.1) guided by the somewhat amorphous test of “the}

¹ _{McCaig v Professional Conduct Committee [2015] NZHC 3063.}

² _{Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109, [2013] 1 NZLR 305 at [8].}

3. Packing in Ltd (in liq) formerly known as Bond Cargo Ltd v Chilcott (2004) 9 NZCLC 263, (2003) 16 PRNZ 958 (CA).

⁴ _{Above n 3, at [5] and [6].}

⁵ Environmental Defence Society Inc v New Zealand King Salmon Company Ltd [2014] NZSC

167.

interests of justice”.⁶ Since this can sit uncomfortably with the principle that the determination of costs should be predictable (r 14.2(g)) I set out the general approach I consider should be taken to court costs in appeals of penalties for professional misconduct.

[5] Where there are a number of aspects of an appeal of a penalty for professional misconduct, success by the appellant on any aspect is likely to lead to some reduction in penalty. What matters is the extent of the reduction in penalty when viewed realistically or, in the words of the Court of Appeal in Bond, “a realistic appraisal of the end result”.⁷ If the effect of the overall reduction is, in reality, minimal or immaterial then it would be difficult to characterise the appellant as having succeeded and the interests of justice are unlikely to favour a costs award in favour of the appellant. If there has been a material reduction in penalty, in reality,

then a costs award in favour of the appellant is likely to be justified. Determining this requires scrutinising the circumstances of each case.

Application of Law to Facts

[6] Here Dr McCaig was successful in:

(a) gaining an increase in credit against a four month period of suspension from three months to the full four months; and

(b) obtaining a reduction in the award of costs in the Tribunal from

$15,000 to $5,940.

[7] She was also successful in her legal submissions regarding the basis on which an appeal of a disciplinary penalty is decided.⁸

[8] Dr McCaig did not succeed in having her suspension or $2,000 fine quashed or name suppression imposed.

⁶ _{Above n 5, at [39].}

⁷ Above n 3, at [6]. See also Waihi Mines Ltd v Auag Resources Ltd (1999) 13 PRNZ 372 (CA) at

_[5].

⁸ Above n 1, at [2]-[15].

[9] I do not consider the parties had broadly similar success. Dr McCaig’s success was material. Indeed, her position is significantly better than if she had not taken an appeal. This is particularly so in the context of Dr McCaig’s financial circumstances outlined in the substantive judgment.⁹ She does not now have to interrupt her career to serve a suspension and the overall financial effects of the penalty decision are less than half of what they had been.

[10] Accordingly, I consider Dr McCaig was the successful party here. Further, I consider that this was relatively clear from the substantive judgment and should reasonably have been able to be agreed between the parties.

[11] Finally, the PCC submits that its public function weighs against a costs order against it. I do not agree. In Roberts v Professional Conduct Committee of the Nursing Council of New Zealand the Court of Appeal has said that the performance by PCCs of a public function may be taken into account in determining court costs.¹⁰

However, the mere performance of its statutory function by a PCC cannot, without

more, be sufficient to disturb the fundamental principle that costs follow the event.

Result

[12] I award costs in favour of Dr McCaig for the substantive appeal on a 2B basis. I also award costs in relation to this costs judgment to Dr McCaig of an additional $1,000.

..............................

_{Palmer J}

⁹ _{Above n 1, at [50]-[53].}

10. Roberts v Professional Conduct Committee of the Nursing Council of New Zealand [2014] NZCA 141, (2014) 21 PRNZ 753 at [31].