AJD v SED

[2014] NZHC 18

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-003714 [2014] NZHC 18

UNDER  Section 91 of the Domestic Violence Act

1995

IN THE MATTER OF       an appeal from the decision of the North

Shore Family Court

BETWEEN  AJD Appellant

ANDSED Respondent

Hearing:                   (On the papers) Appearances:     N Taefi for Appellant

Respondent in Person

Judgment:                28 January 2014

COSTS JUDGMENT OF VENNING J

This judgment was delivered by me on 28 January 2014 at 4.30 pm, pursuant to Rule 11.5 of the High

Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Rhonda G Evans, Auckland

Copy to:            N Taefi, Auckland

Respondent

AJD v SED [2014] NZHC 18 [28 January 2014]

[1]      In  a judgment  delivered  on  28  November  2013  the Court  dismissed  the appellant’s appeal against a decision of the Family Court making a final protection order in the respondent’s favour.

[2]      The respondent represented herself but now seeks costs.  She seeks the costs charged by a barrister who gave her legal advice in relation to the appeal.  She also says the case took up a lot of her time and caused a great deal of stress and anguish. She therefore seeks costs in total of $4,000.  (I infer that includes the barrister’s fee of $1,035.00 including GST).

[3]      The  unsuccessful  appellant,  through  counsel,  opposes  the  application  for costs, noting that the general rule is self represented persons are not entitled to recover costs and that, in accordance with the decision of Hutt City Council v Lower Hutt District Court,1  legal advice incurred by a self represented party does not fit within the scheme of costs provided for in the High Court Rules.

[4]      I decline the application by the respondent for costs in this case. I do so for the following reasons:

(a)      There is no reason to depart from the established rule that generally self represented litigants are not entitled to recover costs for time and trouble:  Re Collier (A Bankrupt);  Commissioner of Inland Revenue v Chesterfields Preschools Ltd (No 1).2

(b)(i)       As for the general costs incurred by the respondent in seeking advice from the barrister, while awards of costs are discretionary the discretion is not unfettered and must be exercised judicially:  Manukau Golf Club Inc v Shoye Venture

Ltd.3  The discretion is qualified by the costs rules.

1      Hutt City Council v Lower Hutt District Court [2013] NZHC 1581.

2      Re Collier (A Bankrupt) [1996] 2 NZLR 438; Commissioner of Inland Revenue v Chesterfields

Preschools Ltd (No 1) [2010] NZCA 400 at [162].

3      Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109, [2013] 1 NZLR 305 at [7].

(ii)The concept underlying the costs regime in the High Court is to provide for a reasonable recovery of solicitor/client (including counsel) costs where parties are represented by solicitors/counsel in Court proceedings.  The respondent was not so represented.  No solicitor entered on record for her.

(iii)The costs regime in the High Court Rules provides for steps taken by solicitor and counsel in the proceeding.  There were no steps taken by solicitor or counsel on behalf of the respondent in this proceeding.

(iv)In the circumstances the costs incurred of the legal advice falls more in the nature of disbursements but does not fit within the category of disbursements provided for in r 14.12.

[5]      For the above reasons I do not consider the respondent is entitled to costs. The application for costs is dismissed.

Venning J