Adamson v Jones

[2023] NZHC 2455

NOTE: ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER

INFORMATION, PLEASE SEE

https://

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2023-485-414

[2023] NZHC 2455

UNDER

the High Court Rules 2016, r 19.2(h); the Habeas Corpus Act 2001; and the New

Zealand Bill of Rights Act 1990

IN THE MATTER OF

an application for a writ of habeas corpus

BETWEEN

IAN ADAMSON

First Applicant

KATE JONES
Second Applicant

AND

KATE JONES

First Respondent

JAMES ROBINSON

Second Respondent

On the Papers

Appearances:

Applicants in person

First Respondent in person
C Nicholls for Second Respondent

Judgment:

4 September 2023

JUDGMENT OF GWYN J

(Costs)

ADAMSON v JONES [2023] NZHC 2455 [4 September 2023]

Introduction

[1]        On 9 August 2023 I gave judgment in the applicants’ application for habeas corpus (the judgment).1

[2]        The first and second applicants are, respectively, the grandfather and mother of Alice, the child in relation to whom the order was sought. The second respondent is Alice’s father.

[3]        The application was brought without notice on the basis that proceeding on notice would cause undue delay or prejudice to the applicants. I was not satisfied that urgency and  prejudice  were  made  out  and  directed  that  the  applicants  serve  Mr Robinson or his counsel with the application.2

[4]        Counsel for Mr Robinson did not become aware of the application until after I had conducted a telephone conference, but counsel subsequently filed a memorandum, advising he had not been aware of the telephone conference in time, and setting out a submission on behalf of Mr Robinson in opposition to the application.3

[5]        I declined the application for habeas corpus on the ground that, even if there was an arguable element of “detention” in the care and contact arrangements relating to Alice, such “detention” was not unlawful, noting that the applicants had not pointed to any invalidity in the parenting order which they challenged.4

[6]        I went on to conclude that even if I had found a technical invalidity in the order, I would have been satisfied that habeas corpus was not the appropriate procedure for considering the allegations made by the applicants.5

[7]        The judgment noted a concern that the application was an attempt to relitigate decisions made by the Family Court, “essentially on the basis that the applicants would

1      Adamson v Jones [2023] NZHC 2115.

2 At [5].

3      At [28]–[29].

4 At [46].

5 At [47].

have preferred the Court to reach a different view”.6 The judgment concluded that the applicants’ proper remedy was to pursue their applications in the Family Court for variation or discharge of the Parenting Order.7

Respondent’s application for costs

[8]        Counsel for Mr Robinson has now sought costs against the applicants in respect of preparing the submission for,  and advising, Mr Robinson.  Mr Nicholls relies on  s 20 of the Habeas Corpus Act 2001 (Act) and s 162 of the Senior Courts Act 2016.

[9]        In a second memorandum filed in support of the costs application, Mr Nicholls notes that he filed written submissions on behalf of his client, on an urgent basis as soon as he was aware of the application. Counsel submits that habeas corpus proceedings are classified under the High Court Rules 2016 (Rules) as Category 3A (with a daily recovery rate of $3,530), although he is not able to cite authority for that proposition. On that basis, Mr Robinson seeks a costs award of $1,765 (being half a day).

Applicants’ submission

[10]      The applicants oppose an order for costs, relying on s 7(5) of the Act which says:

…

In a proceeding for a writ of habeas corpus—

(a)no party to the proceeding is entitled to general or special discovery of the documents of any other party to the proceeding or to an order for security for costs; and

(b)the High Court Rules concerning discovery and inspection of documents and security for costs do not apply.

[11]The applicants say therefore there is no ability for Mr Robinson to seek costs.

6 At [51].

7 At [52].

[12]      Mr Adamson, in his second memorandum filed on behalf of the applicants, also disputes that Mr Nicholls filed “submissions” and observes that neither Mr Nicholls nor his client attended at the telephone hearing on 7 August 2023.

Discussion

[13]      I deal first with the applicants’ submission that s 7(5) of the Act means there is no jurisdiction to order costs.

[14]      Section 7(5) refers to “security for costs”. Security for costs may be ordered under r 5.45 of the Rules. An order under this rule is appropriate where the Court is satisfied that a plaintiff is resident out of New Zealand (or, in relation to a corporate plaintiff, is incorporated outside New Zealand) or that there is reason to believe the plaintiff will be unable to pay the costs of the defendant if the plaintiff is unsuccessful in the plaintiff’s proceeding. The rule allows the Judge to set an appropriate amount to be paid into court by the plaintiff as a precondition to continuing with its proceeding.

[15]      That is not the situation we are concerned with here. No security for costs was ordered in respect of the applicants’ application for a writ of habeas corpus and nor could it have been, because of s 7(5) of the Act.

[16]      However s 14 of the Act is relevant to the question of costs. Subsection(4) provides:

All matters relating to the costs of and incidental to an application are in the discretion of the Court and the Court may refuse costs to a successful party or order a successful party to pay costs to an unsuccessful party.

[17]      The effect of s 14(4) is that the costs regime in the Rules does not apply to habeas corpus costs applications. As the Court of Appeal said in General Manager, Auckland Central Remand Prison v Mailley,8 “we see s 14(4) as conferring a ‘broad discretion’ to which Schedule 2 to the High Court Rules has no sensible application.”

8      General Manager, Auckland Central Remand Prison v Mailley [2009] NZCA 314, [2009] NZAR 649, (2009) 19 PRNZ 736 at [43].

[18]      There are other authorities on the question of costs in a habeas corpus application. In Manuel v Superintendent, Hawkes Bay Regional Prison,9 an unsuccessful application, the Court of Appeal said that an award of costs against an applicant is a rarity,10 and that it is the practice of the courts that costs orders should not be made against unsuccessful applicants.11

[19]      In the Mailley case,12 the Court found that decisions as to costs in habeas corpus proceedings have to bear some proportion to the weight of the argument advanced for the applicant and be assessed having regard to the substantive decision. In that case the High Court had awarded indemnity costs to the successful applicant and the Court of Appeal did not upset that award.

[20]      In AN v Counties Manukau District Health Board13 the Court of Appeal awarded standard costs against the unsuccessful applicant on the basis the applicant had continued to pursue a futile application after the futility had been made clear by the High Court and the Court of Appeal.

[21]      In Palmer v Superintendent of Auckland Prison the High Court set out a list of the particular factors in that case that were relevant to a costs decision.14 The Court concluded that the successful applicant was entitled to a costs order and calculated the amount by analogy with the Rules, being category 2A for commencement steps and 2B for appearances.

[22]      What is plain from these cases and s 14(4) is that the Court does have jurisdiction to award costs in a habeas corpus application; it should be cautious about doing so; and any award is not governed by the costs categories in the Rules (other than by analogy).

9      Manuel v Superintendent, Hawkes Bay Regional Prison [2006] 2 NZLR 63 (CA).

10 At [30].

11     At [34]

12     General Manager, Auckland Central Remand Prison v Mailley, above n 8, at [44] and [46].

13     AN v Counties Manukau District Health Board [2016] NZCA 226, [2016] BCL 276, [2016] NZFLR 468 at [16].

14     Palmer v Superintendent of Auckland Prison [2006] BCL 938, [2007] NZAR 62, (2006) 18 PRNZ 261 at [25].

Are costs appropriate in this case?

[23]      I therefore consider whether a costs award against the applicants is appropriate in this case.

[24]      I start by noting that, as recorded in a number of cases, including Manuel15 and Chu v Director of Area Mental Health Services,16 the primary rationale behind the costs provision in habeas corpus applications is the importance of access to the writ. As the Court of Appeal said in Manuel, “money barriers should not be placed on that avenue of freedom”. I take that as my starting point.

[25]In my assessment the relevant factors specific to this case are:

(a)The application for habeas corpus was unsuccessful.

(b)Habeas corpus was not the appropriate procedure for the allegations made by the applicants.

(c)This is the second unsuccessful application for habeas corpus made by the applicants in respect of Alice, with similar features (the 2022 judgment).17 Multiple other proceedings have been initiated by the applicants in respect of Alice.

(d)The application was initially brought on a without notice basis.

(e)The applicants are self-represented.

Unsuccessful application

[26]      I dismissed the application on the grounds that Alice was not unlawfully detained; even if there had been a technical invalidity in the Parenting Order in question, a habeas corpus application was not the appropriate procedure.

15     Manuel v Superintendent, Hawkes Bay Regional Prison, above n 9, at [34].

16     Chu v Director of Area Mental Health Services [2007] NZAR 415, (2006) 18 PRNZ 266 at [12].

17     Adamson v Oranga Tamariki [2022] NZHC 2153 [2022 judgment].

Not the appropriate procedure

[27]      The judgment concluded that the applicants’ proper remedy was to pursue their applications for variation or discharge of the Parenting Order in the Family Court.

[28]      The judgment also noted18 that the application was “an attempt to relitigate decisions made by the Family Court, essentially on the basis that the applicants would have preferred the Court to reach a different view.”

[29]This is a factor supporting an award of costs against the applicants.

Second unsuccessful application

[30]      The first habeas corpus application in respect of Alice was made in 2022. That application questioned the validity of guardianship and custody orders made by the Family Court, in favour of Oranga Tamariki. As the 2022 judgment records,19 at the time of that application the applicants had an extant application before the Family Court challenging the same orders, as well as judicial review proceedings in this Court20 with grounds that mirrored those in the habeas corpus application.

[31]      In the 2022 judgment I noted that the issues raised in that habeas application were “already squarely before this Court and the Family Court”21 and did not go to the validity of the custody and guardianship orders.22

[32]      An appeal by the applicants from the Family Court had been determined by Cooke J on 24 September 2021.23 The appeal was dismissed.

[33]      On 10 November 2021 Isac J made an order under r 5.35B(2)(a) of the Rules striking out five proceedings filed by the applicants in the High Court after Cooke J had dismissed their appeal regarding the care and protection orders made by the

18     Judgment, above n 1, at [51].

19     2022 judgment, above n 17, at [12] and [13].

20     Adamson v Chief Executive of Oranga Tamariki HC Wellington CIV-2022-485-414, 5 August 2022 (Minute of Cooke J).

21     2022 judgment, above n 17, at [17].

22 At [18].

23     Adamson v Chief Executive of Oranga Tamariki [2021] NZHC 2530 [appeal from Family Court].

Family Court.24 The five proceedings variously claimed defamation, family violence and an application for judicial review. Justice Isac concluded that all five of the purported proceedings would constitute a misuse of the Court’s processes and should be struck out.25

[34]      Subsequently the applicants filed their application for judicial review of the Family Court decision, covering essentially the same grounds as the appeal proceeding dismissed by Cooke J. Contemporaneously with their application for judicial review the applicants filed a without notice interlocutory application, under the Judicial Review Procedure Act 2016 and Declaratory Judgments Act 1908, seeking to set aside all current orders. Justice Cooke considered that application and recorded in a minute:26

[3]        The current judicial review seems to be a further attempt to challenge the Family Court decisions in a way that circumvents the rights of appeal in  s 341 of the Oranga Tamariki Act 1989.

[4]        The interlocutory application without notice simply seeks orders that the decisions challenged by way of judicial review be set aside without notice to the respondents. This is plainly not an interlocutory order. Neither is there any basis to make orders without notice. The application is an abuse of process. The interlocutory application is accordingly dismissed.

[35]      The judicial review proceeding itself was discontinued by the applicants on 21 November 2022.

[36]      While more than one unsuccessful application for habeas corpus cannot, in itself, be a ground for ordering costs, as the Court of Appeal noted in Manuel:27

If it had been a further application in a series of manifestly unmeritorious and vexatious applications, it might be necessary for a Court to protect the integrity of the writ by some appropriate sanction against a repetition of the same abuse…

[37]      The proceedings before Cooke and Isac JJ were not applications for habeas corpus, but there is nevertheless a substantial overlap in subject matter and what

24     Adamson v Oranga Tamariki [2021] NZHC 3044.

25     At [13] and [14].

26     Adamson v Chief Executive of Oranga Tamariki HC Wellington CIV-2022-485-414, 5 August 2022 (Minute of Cooke J) at [3]–[4].

27     Manuel v Superintendent, Hawkes Bay Regional Prison, above n 9, at [35].

appears to be a pattern of attempting to challenge or circumvent decisions of the Family Court with which the applicants are unhappy, by bringing litigation, including habeas applications, in this Court.

[38]This factor points in favour of a costs award against the applicants.

Without notice application

[39]      In the judgment I concluded there was no proper basis for bringing the application on a without notice basis and directed that the application, and supplementary evidence, be served on the second respondent. Any delay in the second respondent being able to respond to the application before, and to attend at, the telephone conference on 7 August 2023 ultimately arose from a failure to serve the application in the first place.

Self-represented applicants

[40]The applicants were self-represented in this application. As Fisher J said in

Aplin v Lagan:28

While an unrepresented party should not be penalised on that account alone, if the result has been to throw an extra burden of legal cost upon the represented party, there is no reason why some recognition should not be given to that.

[41]      This is a case where the fact of the applicants being self-represented has undoubtedly put an extra burden on the respondent.

Outcome

[42]      Having regard to the matters set out above, I conclude that this is an appropriate case in which to order costs against the applicants.

[43]      If this proceeding was categorised as a civil proceeding under the Rules, I would categorise it as category 2A.29 The time allowance for preparation of the

28     Aplin v Lagan (1993) 10 FRNZ 562 (HC) at 576, cited with approval by Hammond J in Belling v Belling (1996) 9 PRNZ 296 (HC).

29     Rules 14.3 and 14.5.

submissions would be half a day.30 However, I acknowledge the applicants’ submission that the memorandum filed for the second respondent was brief. Accordingly, I make an award of costs of $800 on a discretionary basis in favour of Mr Robinson.

[44]The applicants are to pay Mr Robinson the sum of $800 towards his costs.

Gwyn J

30     Rules, sch 3.