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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Arumalla v Kilari

Details

AGLC: Arumalla v Kilari [2009] NZCA 361
Case: [2009] NZCA 361
Decision Date: 19 August 2009

CaseChat Overview and Summary

In Arumalla v Kilari, the parents of a daughter, B, were engaged in a dispute regarding the child's residency and care. The mother, Pavani Arumalla, had taken the child to India with her, and the father, Siva Kilari, sought the child's return to New Zealand through a writ of habeas corpus. The lower court issued the writ, but the mother appealed to the Court of Appeal of New Zealand. The court set aside the writ and, in this case, considered the issue of costs.

The court examined the principles governing costs in habeas corpus cases, particularly in relation to the welfare and best interests of the child. The Habeas Corpus Act 2001 grants the court discretion in awarding costs, and the court in The General Manager, Auckland Central Remand Prison v Mailley highlighted that the usual rule that costs follow the event does not apply in habeas corpus cases. The court further noted that costs may be awarded against unsuccessful applicants in certain circumstances, such as when the habeas corpus procedure was inappropriate.

The court found that the father's arguments for a reduced or nil costs order were not persuasive. The court determined that the application for habeas corpus was misconceived, as there was no jurisdiction to enforce a habeas corpus order on an overseas party. Additionally, the application contained misleading aspects, such as portraying a sense of urgency that was not supported by the facts. The court concluded that the mother was entitled to costs for the appeal.

In light of the above findings, the Court of Appeal of New Zealand awarded costs to the appellant, Pavani Arumalla, for a standard appeal on a Band A basis plus usual disbursements. The court also certified for second counsel.

Orders