Albert v Beatrice HC Auckland CIV-2006-404-3930

[2007] NZHC 1643

SEARCH OF THE COURT FILE AND DISCLOSURE OF THE NAMES WHICH HAVE BEEN ANONYMISED IN THIS JUDGMENT ARE PROHIBITED

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2006-404-3930

BETWEEN  ALBERT Appellant

AND  BEATRICE

First Respondent

AND  CATHERINE Second Respondent

AND  DAVID

Third Respondent

AND  EMILY

Fourth Respondent

Counsel:        S R Jefferson and S E Bush for Appellant

S Bailey for First and Second Respondents

No appearance for Third Respondent

K Lindberg for Fourth Respondent

Judgment:      21 February 2007 at  3.30 pm

COSTS JUDGMENT OF BARAGWANATH J

This judgment was delivered by Justice Baragwanath on 21 February 2007 at 3.30 pm pursuant to Rule 540(4) of the High Court Rules

Registrar/Deputy Registrar

Solicitors:

Inder Lynch, Auckland Otene & Ellis, Auckland Karen Lindberg, Auckland

Counsel:
S R Jefferson, Auckland

S Bailey, Auckland

Date:………………………

ALBERT V BEATRICE AND ORS HC AK CIV-2006-404-3930  21 February 2007

[1]      Counsel  for  the  child’s  grandmother,  Beatrice,  seeks  an  order  for  costs against  the  child’s  step-father,  Albert,  who  appealed  unsuccessfully  against  a decision of the Family Court that Beatrice should have the day to day care of the child and that Albert’s care of her should be limited substantially to weekends.  Two questions arise.  The first is whether the principle that costs follow the event should be applied in relation to the costs of Beatrice and secondly what, if any, order should be made in relation to the costs of counsel appointed to represent the child.

[2]      As to the former, in resisting a costs order counsel for Albert relies on the judgment of Heath J in R v S (Guardianship) (2003) 22 FRNZ 1017 in an appeal to a Full Court from a costs decision of the Family Court.   Heath J decided that there should be no costs order; the litigation was an important element in establishing the future regime for the family.  Priestley J, the other member of the Full Court, agreed with the views expressed.

[3]      The decision is however distinguishable as relating to costs in the Family Court as the court of first instance.   Here, Beatrice has succeeded both before the Family Court and on Albert’s appeal and it is the costs of the appeal that require determination.

[4]      While  r 46(1)  provides  that  costs  are  at  the  discretion  of  the  Court  the Rules Committee has  provided  guidance  as  to  the  application  of that  power  by succeeding rules including r 47:

47       Principles applying to determination of costs

The following general principles apply to the determination of costs:

(a)       The party who fails with respect to a proceeding or an interlocutory application should pay costs to the party who succeeds:

(b)       An award of costs should reflect the complexity and significance of the proceeding:

(c)       Costs should be assessed by applying the appropriate daily recovery rate to the time considered reasonable for each step reasonably required in relation to the proceeding or interlocutory application:

(d)       An appropriate daily recovery rate should normally be two-thirds of the daily rate considered reasonable in relation to the proceeding or interlocutory application:

…

(g)       So far as possible the determination of costs should be predictable and expeditious.

The Rules Committee revisits the scheduled rates annually.

[5]      The starting point is therefore the scale.  The case has been characterised as a category 2B and I accept the submission for Albert that its application yields a figure of $2,240.

[6]      A further relevant factor is whether and if so to what extent the welfare of the child might be affected by the costs order.  That principle was identified by another Full Court in E v C [1995] 3 NZLR 310, albeit in the context of an appeal against a Family Court costs order. Relevant in this regard is the need to minimise any sense of injustice that might add difficulty to the relationship between, in this case, Albert and Beatrice which, as the judgment emphasises, is of the utmost importance. Considerations of significance include the fact that Albert’s appeal has been unsuccessful and that Beatrice has had to take her own legal advice for the defence of the appeal.

[7]      If these factors stood alone I would simply have made an order that Albert pay scale costs.   But in this case the court appointed psychologist relied upon by Beatrice failed to make sensible concessions as to Albert’s parenting ability and the fact that the child had apparently done quite well in his care in the past.   In the judgment I recorded that I could understand a real sense of grievance on Albert’s part that the expert had overstepped the line.   While it was no personal fault of Beatrice that the expert should have done so, that is a factor that leads me to make a moderate reduction in the costs payable to Beatrice.   They will be fixed at $1,800 plus disbursements.

[8]      Turning to the costs of counsel for the child, there has been no application made  by the experienced counsel appointed by the Court.   While that  does not

relieve the Court of its responsibility to consider whether the parties rather than the consolidated fund should bear her fees I have decided to make no order, so the costs will be carried by the taxpayer.  That is because of the difficulty of the case which at para [57] of the judgment I described as of Solomonesque difficulty.  It raised issues of importance transcending the present case as to the role of counsel for the child and

the Judge’s conduct of an interview of the child in the absence of the other parties.

W D Baragwanath J