Baker v Harding
[2020] NZHC 1859
•29 July 2020
NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION,
PLEASE SEE judgments/
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2018-404-951
[2020] NZHC 1859
UNDER the Care of Children Act 2004 IN THE MATTER
of an appeal against a decision of Her Honour Judge Malosi in the Family Court at Auckland dated 18 April 2018
IN THE MATTER
of proceedings under the Care of Children Act 2004
BETWEEN
THOMAS BAKER
Appellant
AND
PATRICIA HARDING
Respondent
Hearing: On the papers Counsel:
P Cobcroft for the Appellant
P A Fairbrother for the Respondent
Judgment:
29 July 2020
JUDGMENT OF GORDON J
[As to costs]
This judgment was delivered by me on 29 July 2020 at 3 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
BAKER v HARDING [2020] NZHC 1859 [29 July 2020]
Introduction
[1] This is an application by the respondent, Patricia Harding, for costs. The application follows my judgment, given in November 2018, dismissing an appeal against a decision of the Family Court and refusing a related application.1
[2]The application for costs is opposed by the appellant, Thomas Baker.2
Background
[3] On 7 November 2018, I gave judgment in an appeal by Mr Baker against a decision of the Family Court awarding primary care of their child to Ms Harding. Ms Harding had relocated with the child from Auckland and, under the decision of the Family Court Judge, was given day to day care of the child. Mr Baker would have contact. I also heard a new application by Mr Baker, transferred from the Family Court, for various orders, including that the child relocate to Auckland where she would be in the day to day care of Mr Baker with contact given to Ms Harding.
[4] Mr Baker’s appeal was unsuccessful and his new application was dismissed. Ms Harding now applies for costs. The application is opposed by Mr Baker. The circumstances are somewhat unusual.
[5] At the conclusion of my judgment, I made directions in relation to costs. Ms Harding had filed an application for legal aid. At the time of the hearing, the outcome of that application was unknown. I made the following directions:3
[205] I direct that Mrs Fairbrother [counsel for Ms Harding] advise the Court on the outcome of the application for legal aid as soon as a decision is available. In the event that a decision is delayed, Mrs Fairbrother is to keep the Court advised on the anticipated progress of the application, if that information is available to her.
[206] I will not make any timetable decisions as to the filing of submissions until the legal-aid position for Ms Harding is known. I do, however, indicate at this point my view that the parties should attempt to reach at least some agreement over the question of costs. If agreement cannot be reached, I will give Mrs Fairbrother leave to supplement the submissions already included in
1 Baker v Harding [2018] NZHC 2885.
2 As in my substantive judgment, the names of the parties are anonymised.
3 At [205]-[207].
her written submissions for the appeal with Ms Cobcroft [counsel for Mr Baker] having the opportunity to reply.
[207] However, that all awaits the advice to the Court on the legal-aid application. I will then issue a minute with timetable directions.
[6] On 19 March 2020, Mrs Fairbrother, counsel for Ms Harding, filed a memorandum supplying the required information. She advised Ms Harding’s application for legal aid was successful. That information had been received by Mrs Fairbrother more than 14 months earlier, on 11 January 2019. The Registrar advised Ms Cobcroft, counsel for Mr Baker, who indicated she would respond. The COVID-19 pandemic emergency response then intervened. Nothing was received from Ms Cobcroft at this point. Mrs Fairbrother’s 19 March 2020 memorandum was provided to me on 16 June 2020. I issued a minute that day setting a timetable for submissions on costs. Memoranda have now been received.
Costs claimed
[7]Ms Harding seeks costs in separate proceedings:
(a)The Family Court proceedings (later the subject of the appeal to this Court), in the sum of $25,494.59;
(b)The Family Court proceedings (the subject of Mr Baker’s new application) to the point they were removed to the High Court, in the sum of $5,325.25;
(c)The appeal in this Court, in the sum of $12,168.63.
[8] As 2B scale costs exceed actual costs of the proceeding (paid to Ms Harding as legal aid) Ms Harding seeks actual costs.4
[9] Further, in relation to legal aid, Mrs Fairbrother advises that Ms Harding has not been required to repay any of the legal aid granted for the first set of proceedings
4 See High Court Rules 2016, r 14.2(1)(f). The award of costs is limited to the total fees paid by the Legal Services Commissioner to Mrs Fairbrother: Taunoa v Attorney-General (2004) 8 HRNZ 53 (HC) at [43].
in the Family Court. However counsel has a duty under the Legal Services Act 2011 to apply for costs to recover legal aid where appropriate.
[10] In relation to the appeal to this Court from the first set of proceedings in the Family Court and the second application made in the Family Court (transferred to this Court to be heard with the appeal), Mrs Fairbrother advises that Ms Harding is required to repay all of the legal aid granted.
[11] Ms Cobcroft opposes costs. She submits it is not in the best interests of the child; that the delay in seeking costs would make an award “grossly unjust” and that Mr Baker is unable to pay an award of costs due to a substantial reduction in income caused by the impact on his business of the response to the COVID-19 pandemic emergency.
Family Court costs
[12] Costs in the Family Court proceedings are a matter for the Family Court. I put the two parts of Ms Harding’s claim referred to in [7](a) and (b) to one side.
High Court costs
[13] The amount for consideration therefore is the sum of $12,168.63 claimed in respect of the appeal in this Court.
Reduced costs
[14] There was a 14-month delay between the communication of the decision on legal aid and Mrs Fairbrother’s memorandum to the Court. Mrs Fairbrother submits neither party is “unduly prejudiced” by this delay. She accepts responsibility for the delay. She says the final report from Legal Aid was not received until January 2020. This appears to refer to a document from the Legal Services Commissioner dated 8 January 2020, attached to Mrs Fairbrother’s memorandum, finalising the amount paid.
[15] Ms Cobcroft describes the delay as “unconscionable”. She says she was not advised of the outcome of the decision to grant legal aid.
[16] Among the general principles which apply to the determination of costs in this Court is the requirement that “so far as possible the determination of costs should be predictable and expeditious”.5 However, I do not consider this principle is relevant to any assessment of the effect of delay in this case. As McGechan on Procedure observes, the purpose of this principle is to ensure the party entitled to costs is able to recover them within the minimum time.6 In this case, it is the party entitled to costs who has failed to deal with costs expeditiously. It would be at odds with the purpose of the rule to apply it to a litigant in Mr Baker’s position. Costs should be determined expeditiously, but Mr Baker is not the party entitled to costs. I do not see that this principle can assist Mr Baker in these circumstances.
[17]However, r 14.7(f)(i) is relevant to this situation. It provides:
14.7 Refusal of, or reduction in, costs
Despite rules 14.2 to 14.5, the court may refuse to make an order for costs or may reduce the costs otherwise payable under those rules if—
…
(f)the party claiming costs has contributed unnecessarily to the time or expense of the proceeding or step in it by—
(i)failing to comply with these rules or a direction of the court;
…
[18] My direction was that Mrs Fairbrother advise the Court of the outcome of Ms Harding’s legal aid application as soon as a decision was available. That decision was available on 11 January 2019. It was not conveyed to the Court until 19 March 2020. I do not consider this complied with the Court’s direction. Mrs Fairbrother accepts that she was at fault. Ms Harding is the party claiming costs. She failed to comply with a direction of the Court which contributed unnecessarily to the time of a step in the proceeding. I will now consider whether the discretion in r 14.7 should be exercised to refuse or reduce costs.
5 Rule 14.2(1)(g).
6 McGechan on Procedure (online ed, Thomson Reuters) at HR14.2.01(6).
[19] My approach to dealing with this question is by analogy to other cases where costs have been adjusted to reflect failures to comply with directions of the Court. The circumstances in this case are somewhat unusual in that there was no review mechanism to ensure compliance. Mr Baker would not raise the issue of costs unless responding to Ms Harding’s notice on the decision about legal aid and, in any case, he would not be aware of the status of the application until that notice was received. This is in contrast to a case management process where failure to comply with timetable directions would be strictly monitored and steps taken to require compliance, either by way of an award of costs or striking out an application.
[20] So an analogy with other cases requires some care. A strict comparison of timeframes would not be appropriate. A delay of fourteen months in a case management process will likely not occur, because the Court would intervene, but a delay of weeks or several months might be an appropriate analogy.
[21] To that end, I find some assistance in Hall v Roderick. Mander J considered a refusal to award costs was not justified because the defendant was successful in proceedings (interlocutory and substantive) and some award of costs was necessary to reflect her success.7 However, she had also repeatedly failed to comply with timetabling orders and those failures were unexplained. The length of delay caused was not recorded by the Judge but he settled on a reduction of 50 per cent.
[22] A comparison is difficult, but I consider the delay here to be particularly unacceptable, given the circumstances. A 14-month delay in notifying the Court is an egregious failure given the task required only the submission of a brief memorandum. As in Hall, I do not consider costs should be refused. Ms Harding was successful and is entitled to an award of costs to reflect her success. But a substantial reduction in costs to reflect the delay in complying with the Court’s direction is necessary.
[23] Mrs Fairbrother submits neither party is unduly prejudiced by the delay. However, Ms Cobcroft submits that an award of costs against Mr Baker will likely result in bankruptcy. This is because his business has been adversely affected by the response to the COVID-19 pandemic emergency arising from the cancellation of a
7 Hall v Roderick [2015] NZHC 1560 at [19].
significant contract. This would suggest Mr Baker will be substantially prejudiced by the delay. Intervening events have left him in a precarious financial position which would not have arisen had the costs application been pursued with diligence in the first three months of 2019.
[24] However, I also note that financial hardship alone is not a usually an answer to a claim for costs or grounds for refusing or reducing costs under r 14.7(g).8 It is generally only available in exceptional cases. Moreover, claims of limited financial means must be supported by affidavit evidence unless already established by evidence in the substantive proceeding. The latter did not occur. The only information before the Court is contained in Ms Cobcroft’s submissions. It is possible, due to the combination of Mrs Fairbrother’s delay and the COVID-19 pandemic emergency, that Mr Baker’s circumstances are exceptional. But that cannot be determined in the absence of the requisite evidence. Ms Cobcroft does not identify any other prejudice to Mr Baker.
[25] Despite the absence of evidence regarding specific prejudice to Mr Baker, I consider a substantial reduction in costs is justified given Ms Harding’s failure to comply with the Court’s direction and the seriousness of that failure.
[26] However, counsel for both parties have made submissions on the interaction between the Care of Children Act 2004 and the High Court Rules 2016. I will consider these issues before finally determining an award of costs.
[27]Section 4 of the Care of Children Act provides, in part:
4 Child’s welfare and best interests to be paramount
(1)The welfare and best interests of a child in his or her particular circumstances must be the first and paramount consideration—
(a)in the administration and application of this Act, for example, in proceedings under this Act; and
(b)in any other proceedings involving the guardianship of, or the role of providing day-to-day care for, or contact with, a child.
8 Foni v Foliaki [2018] NZHC 3126 at [5].
[28] In addition, s 143(4) provides that the High Court Rules, “with all necessary modifications”, apply to an appeal to the High Court under that section. The Court of Appeal has explained the relationship between the Care of Children Act and High Court Rules in the following terms:9
[26] We did not hear full argument on these decisions and so the following remarks are preliminary only. In our view, the starting point must be section 4(1) of the CCA. This provides that the welfare and best interests of the child must be the first and paramount consideration both in the administration of the CCA, including any proceedings under the Act, and in any other proceedings involving the guardianship of, day-to-day care of or contact with the child. The High Court Rules, as subordinate legislation, have to be interpreted in accordance with that principle.
[29] The welfare and best interests of the child must therefore be the primary consideration in an award of costs. Ms Cobcroft cites other authorities to similar effect. She submits Mr Baker must travel to have contact with his daughter. He incurs cost in doing so. His capacity to pay financial support to Ms Harding and provide a home for the child when in his care will be detrimentally affected by any award of costs. Mrs Fairbrother says Ms Harding is required to repay legal aid and an award of costs will offset that debt. Use of her own funds for this purpose will not be available for the benefit of the child.
[30] The welfare and best interests of the child have to be paramount in the award of costs. Although neither party has provided evidence to support their submissions, the question as between the parents (based on the submissions) is evenly balanced. Both parents say the child will suffer detriment given their respective financial commitments. Mr Baker provides financial support to Ms Harding, must travel to care for his child and his business has been detrimentally affected by the pandemic emergency. Ms Harding has incurred a debt to the Legal Aid Commissioner through these proceedings which she will have to repay.
[31] In the case of both parents, the proceedings have used funds which could otherwise be applied for the benefit of their child. Ms Harding can rightly point to Mr Baker’s lack of success in his appeal and application but she must also carry responsibility for contributing unnecessarily to the time of a step in the proceeding by
9 Hawthorne v Cox [2008] NZCA 146.
failing to comply with a direction of the Court. While the latter has to be a lesser consideration, because the welfare and best interests of the child are paramount, ordering Mr Baker to pay the full amount of costs claimed to Ms Harding so she can repay her legal aid debt would appear to produce no net benefit to the child.
[32] Furthermore, it does not appear to me Ms Harding is without a remedy in the circumstances.
[33] After taking account of the welfare and best interests of the child, a reduction in costs of 50 per cent is appropriate.
Result
[34] I award costs in the sum of $6,084.32 in favour of Ms Harding against Mr Baker.
[35] I direct the Registry to release the sum of $2,230.00, held as security for costs in the Court's trust account, to Ms Harding in part satisfaction of the costs awarded.10
Gordon J
Solicitors: McVeagh Fleming, Albany, Auckland
Fairbrother Family Law, Napier
Counsel: P Cobcroft, Auckland
10 The balance of $3,854.32 is payable by Mr Baker to Ms Harding.
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