Arumalla v Kilari

[2009] NZCA 361

IN THE COURT OF APPEAL OF NEW ZEALAND

CA240/2009
[2009] NZCA 361

BETWEENPAVANI ARUMALLA

Appellant

ANDSIVA KILARI

Respondent

Hearing:7 May 2009

Court:Glazebrook, Venning and Asher JJ

Counsel:A W Ashmore and E B Parsons for Appellant

W A Endean and E Y Kuo for Respondent (up to 15 June 2009)
M F L Dreaneen for Respondent (from 15 June 2009)

Judgment:19 August 2009 at 11.00 am

JUDGMENT OF THE COURT

Costs are awarded to the appellant for a standard appeal on a Band A basis plus usual disbursements.  We certify for second counsel.

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REASONS OF THE COURT

(Given by Glazebrook J)

Introduction

[1]       The parties are the parents of a daughter, B.  In May 2008, the appellant (the mother) went to India with her daughter.  There was a conflict of evidence between the parties as to the basis on which they went to India:  whether it was permanently, with the agreement of the father (the mother’s position), or for an extended visit (the father’s position). 

[2]       The mother returned to New Zealand to study in late 2008, leaving the child with her parents in India.  On 17 April 2009, the father applied for a writ of habeas corpus seeking the release of the child from “detention in India” by the parents of the appellant and the return of the child to New Zealand.  After granting an oral application for amendment of the application, on 20 April 2009 Potter J made an order that a writ of habeas corpus issue in the following terms:

We command you [the mother] to deliver up the child [B].  The return of the writ is to be at the Auckland Registry of this Court on or before 11 May 2009.

[3]       Following service of the writ, the mother took advice and appealed to this Court against the decision to issue the writ.  At the conclusion of the hearing on 7 May 2009 we allowed the appeal.  The writ was set aside with reasons to follow.  Costs were reserved with leave for memoranda to be filed.  On 19 June 2009 the reasons for allowing the appeal were released:  Arumalla v Kilari [2009] NZAR 450 (CA).

[4]       In the meantime, memoranda on costs had been filed.  The mother seeks costs.  The father argues for a reduced or nil costs order in terms of r 53F of the Court of Appeal (Civil) Rules 2005.  In this judgment, we address the issue of costs.

Costs principles in habeas corpus cases

[5]       Section 14(4) of the Habeas Corpus Act 2001 deals with the question of costs on applications for habeas corpus:

(4)       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.

[6]       This Court recently, in The General Manager, Auckland Central Remand Prison v Mailley [2009] NZCA 314 at [39], said that the general discretion to award costs conferred by s 14(4) excludes the cardinal principle embodied in the High Court Rules that costs normally follow the event. Indeed, the Court said, at [42] ‑ [43], that the High Court Rules costs regime has no direct part to play. In part this is due to the fact that there is a reverse onus on the respondent in habeas corpus cases, whereas the High Court Rules assume a burden on the plaintiff or applicant. Further, the importance of the writ means that, at least in cases involving the exercise of State power, costs will usually not be awarded against unsuccessful applicants for a writ of habeas corpus: see Manuel v Superintendent, Hawkes Bay Regional Prison) [2006] 2 NZLR 63 at [30] – [34] (CA).

[7]       Despite the principle that orders for costs against unsuccessful applicants for habeas corpus writs are often inappropriate (as outlined in Manuel), there are circumstances in which costs will be ordered against such applicants.  Costs may be ordered, for example, where the habeas corpus procedure was inappropriate:  see for example Lyon v Manager, Hawkes Bay Regional Prison HC AK CIV 2006-404-6680 10 May 2007, where the procedure was invoked to expedite an application which was in substance a bail application pending judicial review.

[8]       When deciding on costs orders in habeas corpus cases, a Judge must assess the appropriate level of costs against his or her principal decision.  There cannot be any formulaic approach to what costs are proper, even where applications are successful:  see Mailley at [46] – [47]. This does not mean, however, that the scale costs in the High Court Rules cannot be used as a guide in suitable cases.

[9]       In this case there are two differences from the situation discussed in Mailley.  We are dealing with costs on an appeal and also with the situation of the alleged detention of a child in the course of what we have characterised as essentially a guardianship dispute.  The Habeas Corpus Act itself treats applications involving children in a different manner from other applications.  While normally a respondent has no right of appeal from a successful application for a writ of habeas corpus (see Mailley at [27]), this does not apply where (as here) the decision relates to the welfare of a child under 16 years. There is also the power, under s 13(2) of the Habeas Corpus Act to refer a case to the Family Court, where the substantive issue in an application is the welfare of a child under the age of 16 years.

[10]     In our view, the cost principles set out in Hawthorne v Cox [2008] NZCA 146 at [26] – [28] should be applied in cases of this kind. In Hawthorne, this Court indicated that it is likely that the starting point when considering costs orders in cases involving the care of children should be the welfare and best interests of the child.  It was also noted that different considerations might arise on appeal, in recognition of the fact that, while parents ought not to be discouraged from raising all responsible arguments in the interests of the child in the lower court, appeals prolong litigation and uncertainty and may therefore be subject to different standards in respect of costs.

[11]     Finally, we note that, although the Habeas Corpus Act has no specific provision dealing with costs on appeal, we consider that the same principles (discussed above at [6] ‑ [9]) apply with regard to appeals as apply under s 14(4) of the Habeas Corpus Act.

Discussion of the father’s submissions

[12]     The first reason put forward by the father for a reduced or nil costs order is that the mother is in receipt of a grant of legal aid.  We do not consider that the fact an appellant is legally aided is a reason for awarding reduced costs if the appeal succeeds.  The second reason put forward is that the father, although not in receipt of legal aid, is of limited financial means.  As we have had no information put before the Court as to the father’s means, we cannot consider this issue (even if it were relevant). 

[13]     The next submission is that the father’s guardianship rights are being ignored by the mother in her refusal to return the child to New Zealand.  As we have noted above at [1], there is a major factual dispute in this case between the mother and the father as to the basis upon which the child was taken to India.  Whichever viewpoint is taken, however, the child was taken to India with the father’s consent.  The dispute between the parties is essentially a guardianship dispute.  The mother considers it is currently in the best interests of the child to be left with her grandparents in India.  The father has a different view.  As we noted in our substantive decision, this would have been better dealt with by the Family Court or by the courts in India:  see our substantive decision in this case at [21] – [22].

[14] The father next submitted that there was no avenue for him to take other than an application for a writ of habeas corpus because the child is located in India which is not a member party to the Hague Convention on the Civil Aspects of International Child Abduction (25 October 1980) 1343 UNTS 89 (the Hague Convention). We do not accept that there was no other legal avenue available. As Ms Parsons for the mother points out, the courts in India are an available forum. The Family Court would also have jurisdiction: see s 126(1)(c) of the Care of Children Act 2004 and our substantive decision in this case at [22].

[15]     In any event there remains the question, left open by this Court in Jayamohan v Jayamohan [1997] 15 FRNZ 486, whether it is objectionable and an abrogation of the power of a foreign court for a New Zealand court to issue a writ (effectively invoking the Hague Convention) when the foreign State is not a party to the Convention.

[16]     We also remark that, if the mother’s evidence is accepted, the child is in India indefinitely with the consent of the father.  Therefore, even if India were a party to the Hague Convention, there would have been no remedy under that Convention.  There is much in the material now before the Court which may support the mother’s position on that issue.

Our assessment

[17]     In this case, (apart from the issues discussed above at [12] ‑ [16]) there are two significant matters that persuade us that the mother is entitled to costs in respect of this appeal.

[18] First, the application for habeas corpus in its original form was totally misconceived, insofar as it sought the child’s release from the mother’s parents in India when there is no jurisdiction to enforce a habeas corpus order on an overseas party – see our substantive decision at [11]. Second, there were a number of misleading aspects to the application, such as an affidavit appended to the application that drew a picture of urgency, when the factual background demonstrated no such urgency – see our substantive decision at [14].

[19] While rr 53 – 53J of the Court of Appeal (Civil) Rules are not directly applicable (see at [11] above), they can be used as a guide. The mother claimed costs in terms of the scale in the Rules and we consider it appropriate to grant her application in these terms.

Result

[20]     Costs are awarded to the appellant for a standard appeal on a Band A basis plus usual disbursements.  We certify for second counsel.

Solicitors:

Corban Revell, Waitakere for Appellant
Dawsons Solicitors, East Tamaki for Respondent (up to 15 June 2009)
Inder Lynch, Papakura for Respondent (from 15 June 2009)