Boyd v Kendrick
[2020] NZHC 849
•30 April 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2019-404-2715
[2020] NZHC 849
IN THE MATTER of an appeal against costs order of Family Court BETWEEN
ROGER GRAEME BOYD
Appellant
AND
SUZANNE JOAN KENDRICK
Respondent
Hearing: On the papers Counsel:
Appellant on own behalf
C Townsend for the Respondent
Judgment:
30 April 2020
JUDGMENT OF GORDON J
This judgment was delivered by me on 30 April 2020 at 1 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Solicitors: Urlich Milne, Auckland Counsel: C Townsend, Auckland
Copy To: The Appellant
BOYD v KENDRICK [2020] NZHC 849 [30 April 2020]
Introduction
[1] The appellant, Roger Boyd, appeals a costs order made in the Family Court against him in favour of the respondent, Suzanne Kendrick, following Mr Boyd’s unsuccessful defence of Ms Kendrick’s application for dissolution of their marriage.
[2] Ms Townsend, for Ms Kendrick, submits that the appeal should be struck out or alternatively dismissed.
[3]With the consent of both parties I have determined the appeal on the papers.
Chronology
[4]A chronology is necessary. The sequence of relevant events is set out below.
[5] On 2 August 2018, Judge Burns, sitting in the Family Court at Auckland, heard Ms Kendrick’s application for dissolution of her marriage to Mr Boyd, who opposed the application. Mr Boyd represented himself, as he does on this appeal. Ms Kendrick was represented by Ms Townsend.
[6] On 17 August 2018, Judge Burns delivered his reserved decision,1 granting Ms Kendrick’s application. The Judge also awarded costs on a 2B basis in favour of Ms Kendrick. Ms Townsend says she prepared a draft costs order “immediately” and sent it to Mr Boyd for his input. No response was received. Mr Boyd says he did not receive the draft costs order until after he filed his appeal (see [7] below) but he does not challenge Ms Townsend’s statement that he did not provide a response to her draft costs order.
[7] On 12 September 2018, Mr Boyd filed a Notice of Appeal against the decision of Judge Burns ordering the dissolution of the marriage and awarding costs (the first appeal). The relief sought was that the order dissolving the marriage “be rescinded” and the decision granting costs in favour of Ms Kendrick also “be rescinded”. Although the first appeal was filed within time, it was not served on Ms Kendrick until either 31 December 2018 or 1 January 2019.
1 Kendrick v Boyd [2018] NZFC 6158.
[8] On 1 October 2018, Judge Burns approved the draft order for costs submitted by Ms Townsend and made an order awarding costs in the sum of $7,921.00 (the costs order). Mr Boyd says the costs order was not released to the parties until 18 October 2018. However the sealed order is dated 1 October 2018.
[9] On 17 April 2019, following a hearing on 16 April 2019, Powell J struck out Mr Boyd’s appeal on the grounds that the Court had no jurisdiction to entertain it.2 The appeal was required to be brought, filed and served by 14 September 2018.3 Powell J found that, at the earliest, it was brought on 31 December 2018 when Ms Kendrick was served. Under s 174(4) of the Family Proceedings Act 1980 the Court has no jurisdiction to extend time for appeals against dissolutions of marriage.
[10] On 19 June 2019, Powell J delivered a costs judgment in favour of Ms Kendrick.4
[11] On 22 November 2019 (over a year after Judge Burns made the costs order), Mr Boyd filed an “urgent memorandum” in the Family Court seeking to correct a “clerical mistake or slip” in the costs order relating to item 15: appearance at hearing.5 Mr Boyd’s position, in short, was:
The correct figure is two times the half day rate of $890 which is $1780. [Ms Townsend] has calculated it as two times the daily rate of $1780, a total
$3,560. Her Item 15 is overstated by $1,780. …
Owing to the Clerical Error outlined above Ms Townsend’s costs claim is
overstated by $1,780. I therefore apply under Clause 204 of the Family Court Rules 2002 to have the Mistake corrected, and for her costs claim to therefore
be reduced by $1,780.
(emphasis in original)
[12] On 25 November 2019, Mr Boyd filed in this court an “urgent memorandum” in relation to the costs order. Mr Boyd referred to the 17 April 2019 judgment of Powell J dismissing the first appeal and submitted:
2 Boyd v Kendrick [2019] NZHC 873.
3 High Court Rules 2016, r 20.4(2).
4 Boyd v Kendrick [2019] NZHC 1149.
5Item 15 in sch 4 to the District Court Rules 2014 allows “Twice the time occupied by the hearing measured in half days”.
There is no element of “status” in a Costs Order. Therefore the costs claim part of my Appeal is quite separate from the marriage dissolution part, and the provisions of s 174(4) do not apply to it. With the decision that the marriage dissolution part of my Appeal not be allowed to proceed to a hearing, I did not have the opportunity to dispute the costs order of the original decision. I do so now in this Memorandum.
[13] On 28 November 2019, Powell J issued a minute in which he stated that there was no jurisdiction for this Court to address the matters raised by Mr Boyd in his 25 November 2019 memorandum and further said:
[3] Unfortunately for Mr Boyd his attempt to challenge the Family Court costs in this way is misconceived. First, he did not appeal the judgment striking out the appeal and it is now too late for it to be recalled even if grounds existed to do so. Secondly, it is clear from his memorandum that Mr Boyd does not challenge an order for costs on a 2B basis in the Family Court. Rather he challenges the calculation of one of the items claimed on behalf of Ms Kendrick. As the calculation of costs in the Family Court occurred subsequent to the filing of the High Court appeal it was in actual fact not properly before the High Court in any event. Instead it would have been necessary for Mr Boyd to have separately appealed the Family Court cost decision which I understand from Mr Boyd’s memorandum was released on 18 October 2018.
[14] On 4 December 2019, Ms Townsend filed an “Amended Order for Costs” in the Family Court. The time allowance for the hearing under item 15 was recorded as one day (a total of $1,780), as opposed to two days in the 1 October 2018 costs order.6
[15] On 6 December 2019,7 Judge Burns issued an “Amended Order for Costs” in the sum of $6,141, being the amount of the costs order less $1,780 (the amended costs order). A copy of the amended costs order is annexed to this judgment. The schedule at p 3 is in the same terms as the draft filed by Ms Townsend on 4 December 2019.
[16]On 12 December 2019, Mr Boyd filed his Notice of Appeal.
Grounds of appeal
[17] Mr Boyd makes three main submissions. First, he submits that item 9.12: preparing written submissions and item 14: preparation for hearing involve a double
6The memorandum was filed in response to a direction from Judge Burns dated 2 December 2019 that Ms Townsend file a response to Mr Boyd’s 22 November 2017 memorandum.
7The body of the order bears the date of 6 December 2019 (recorded beside the Court’s seal) but the cover page bears the date of 5 December 2019.
counting. He says item 9.12 needs to be removed. He also says, in any event, item
9.12 is inappropriately allocated as all of the activities under item 9 of sch 4 of the District Court Rules relate to interlocutory matters and the hearing before Judge Burns was not an interlocutory matter.
[18] Secondly, Mr Boyd submits that items 14 and 15 are not the correct items. They should be items 17.1 and 18.1 respectively. He submits that the Family Court Rules 2002 incorporate the District Court Rules 2014 only by reference. Rule 207(2) of the Family Court Rules on costs states that the District Court Rules apply in the Family Court only insofar as they are applicable, and with all necessary modifications. Mr Boyd says the main effect of this is that item 14: preparation for hearing and item 15: appearance at hearing are misallocated. Both relate to “simplified trials”. There is no reference or provision in the Family Court Rules for either “short trials” or “simplified trials”. Mr Boyd says therefore the default position is that the hearing should be defined as a “full trial”. This means that preparation is covered by item 17.1 and the appearance at the hearing is covered by item 18.1: appearance at hearing (for sole or principal counsel).
[19] He submits that under item 17.1 the time allocation should be one day, being twice the time occupied by the hearing measured in half days. Two times the half day rate of $890 gives a total of $1,780 (as opposed to the order under item 14: preparation for a hearing being 1.25 days giving a total of $2,225).
[20] As to item 18.1, he says the allowance should be a half day (at $890) as opposed to the two half days allowed in the amended order.
[21] Mr Boyd’s third main submission is that the hearing in the Family Court was a half day, not two half days. That forms part of his argument in relation to both items
17.1 and 18.1.
[22]Mr Boyd therefore submits that Ms Kendrick is entitled to costs in the sum of
$3,026 (being $1,780 for preparation, $890 for appearance at hearing and $356 for sealing order or judgment). He says this sum was paid to Ms Kendrick on
30 September 2019. The remedy he seeks is that the costs order be amended so that the amount payable is $3,026.
The opposition
[23] Ms Townsend submits that the issue raised on the appeal is res judicata. The appeal is against the same order for costs which was the subject of the first appeal struck out by Powell J on 17 April 2019.
[24] Ms Townsend also submits that the appeal is an abuse of the Court’s process. The costs order was amended by consent. Ms Townsend further submits the appeal is out of time, with the costs order having been made on 1 October 2018.
[25] Finally, Ms Townsend refers to the difficulties in trying to apply the District Court Rules on costs by analogy to Family Court matters and submits that Mr Boyd’s schedule of costs, based on a half day hearing, is flawed. The hearing took two half days.
Approach on appeal
[26]The appeal proceeds by way of rehearing.8
[27] Section 171(1) of the Family Proceedings Act 1980 (the Act under which the application for dissolution of marriage was made) gives the Court a wide discretion in making a costs order. It provides:
(1) Subject to any other provision in this Act, the court, on the hearing of any proceedings before it under this Act, may make such order as to costs as it thinks fit.9
[28] To appeal successfully against the exercise of discretion it must be shown that there was: (1) error of law or principle; (2) taking account of irrelevant considerations;
8High Court Rules 2016, r 20.18,; District Court Act 2016, s 127 (applied by s 174(1B) of the Family Proceedings Act 1980).
9See also r 207(1) of the Family Court Rules 2002 which provides that the court has discretion to determine the costs of any proceeding.
(3) failing to take account of a relevant consideration; or (4) a plainly wrong decision.10 This will be relevant when I come to consider the issues in [29](d) to (f) below.
Issues
[29]I will address the following in this judgment:
(a)Is the issue raised in this appeal res judicata?
(b)Has the appeal been brought out of time?
(c)Is the appeal an abuse of process?
(d)Is there a double counting in the allowance for preparing written submissions and preparation for the hearing?
(e)Were the wrong items in sch 4 of the District Court Rules applied?
(f)Should the calculations be based on a hearing of one half day or two half days?
Res judicata
[30] Mr Boyd makes his position clear in his Notice of Appeal. He says the basis of his appeal is that the costs claim as submitted to the Family Court, and as ordered by the Court “is wrongly chosen and does not conform to scale”. He says he is not challenging the order itself, rather the way in which costs were calculated. In the first appeal which was struck out, Mr Boyd’s ground of appeal was that it was not appropriate for Ms Kendrick to be awarded costs at all.
[31] I respectfully agree with what was said by Powell J in his minute of 28 November 2019 set out at [13] above. As the calculation of the costs ordered by Judge Burns occurred after the filing of the first appeal, the costs order was not properly before the High Court in the first appeal. Powell J considered it would have
10 K v B [2010] NZSC 112, [2011] 2 NZLR at [32].
been necessary for Mr Boyd to have separately appealed the costs order made on 1 October 2019.
[32] For the above reasons I do not accept Ms Townsend’s submission that the issue in this appeal, namely the quantum of the costs award and the manner in which the quantum was calculated, is res judicata.
Has the appeal been brought out of time?
[33] Ms Townsend submits the appeal has been brought out of time. She says it should have been brought within 20 working days of 1 October 2018. Mr Boyd submits time runs from 6 December 2019 and so the appeal is not out of time.
[34] The costs order was made on 1 October 2018. The amended costs order, containing a correction under the slip rule, was made on 6 December 2019. The issue is whether, when a correction is made under a slip rule, the time for appeal runs from the date of the original order. If so, the appeal would be out of time.11 If the time runs from the date of the amended order, the appeal is not out of time.
[35] The correction to the costs order was made by Judge Burns under r 204 of the Family Court Rules 2002 which provides:
204 Clerical mistakes and slips
(1)This rule applies to a judgment—
(a)that contains a clerical mistake or an error arising from an accidental slip or omission, whether or not the mistake, error, slip, or omission was made by an officer of the court; or
(b)that is drawn up in a way that does not express what was actually decided and intended.
(2)The judgment may be corrected by the court or, if the judgment was made by a Registrar, by the Registrar.
(3)The correction may be made by the court or a Registrar, as the case requires, on his or her or its own initiative or on an interlocutory application for the purpose.
11 High Court Rules 2016, r 20.4(2)(b).
[36]‘Judgment’ in the above rule includes an order of the Court.12
[37] Although the term “Amended Order for Costs” appears on the cover sheet of the order of 6 December 2019 (and I have used the words amended order in this judgment) that term was provided by counsel submitting the document containing the correction. I do not consider the use of the term “Amended Order” is determinative. In my view the date for the purposes of calculating the time for the bringing an appeal is the date of the original order. In other words, a later correction to an order under the slip rule does not change the date of the order. I say that for the following reasons.
[38] First, there is the language of r 204(2). It speaks of a correction to a judgment (order). It does not speak of an amended order. That is understandable. The purpose of the rule is to provide for accidental slips or omissions. It may not be invoked to vary an order in a fundamental way.13
[39] Second, there is the judgment of the Court of Appeal in Nash v Nash.14 In that case the Court of Appeal corrected a costs order which had included some disbursements but omitted court fees and costs of preparing the case. The appellant applied for an order correcting the judgment as sealed on the ground of accidental error or slip. The Court said:15
The appellant inevitably incurs Court fees and ordinarily incurs the costs of preparing the case as was recognised here in the order contained in the judgment delivered on 26 September 1994. Subject to rectification of the judgment in that regard, the Registrar has approved Court fees of $660 (filing fees $140 and setting down fee $520) and costs of preparing the case
$1,195.70. It is a well settled exception to the general rule that a sealed judgment stands in its entirety, that an accidental slip or omission may be rectified: Farquhar v Property Restorations Ltd unreported, 27 May 1991, CA186/89. We are satisfied that this is such a case and there will be an order rectifying the judgment as sealed accordingly.
(emphasis added).
12 Family Court Rules 2002, rr 8 and 196.
13See R v Cripps, ex parte Muldoon [1983] 3 All ER 72 (QB) and the discussion in McGechan on the similar r 11.10 of the High Court Rules 2016.
14 Nash v Nash (1995) 8 PRNZ 575 (CA).
15 At 576.
[40] As can be seen, the original judgment was corrected. There was no order that a new judgment, with a new date, should issue.
[41] Thirdly, there is the matter of interest. The date from which interest was ordered to be calculated, as stated in the amended order, is the same as the date in the costs order. (I note as an aside that the year has been omitted in both but the date of 17 September remains the same).
[42]For all the above reasons the appeal has been brought out of time.
[43] Mr Boyd says in his reply submissions that “Appealing under the new cost order was not the only avenue for an appeal. It was just the quickest. If it had not been available, other available avenues would have been pursued”.
[44] Mr Boyd does not state what those other avenues are and although he has not applied to extend the time to bring the appeal (as a fall-back position) I will nevertheless consider whether I should extend time.
[45] Mr Boyd says that the first time he looked at the costs order was after he received the 19 June 2019 judgment of Powell J on costs following strike out of the first appeal. Powell J disallowed some of the items claimed by Ms Townsend. Mr Boyd says this caused him to look at Judge Burns’ costs order. He says he “immediately noticed” the calculation error he says was made in relation to the number of half days and tried to resolve it informally with Ms Townsend. She did not agree, so he applied to the Family Court.
[46] I do not consider this is an adequate explanation sufficient to extend the time for bringing an appeal. One of the principles in settling costs is that the determination of costs should be “expeditious”.16 Delay is undesirable unless for good reason.
[47] Mr Boyd had the opportunity to respond to Ms Townsend’s proposed costs claim after Judge Burns’ substantive decision and decision awarding costs on a 2B basis was given. He did not do so. He took no steps to appeal the quantum or method
16 District Court Rules 2014, r 14.2(g).
of calculation after receiving the 1 October 2018 costs order (said to have been received on 18 October 2018).
[48] He claims he “immediately noticed” the error in the length of the hearing in Judge Burns’ costs order after being prompted to read it following receipt of Powell J’s costs decision of 19 June 2019. But he did not take the issue up with Ms Townsend until over three months later when he emailed her on 30 September 2019. She responded three days later on 3 October 2019, disagreeing with him.
[49] Mr Boyd then took almost two months to raise the issue of the length of the hearing with the District Court in his 22 November 2019 memorandum.
[50] The arguments he now seeks to make on this appeal, including the argument as to the length of the hearing, were then raised in his 25 November 2019 memorandum filed in this Court. Even if I were to take the charitable view that his grounds of appeal were notified on that date (as opposed to 12 December 2019 when the appeal was filed) the progress in bringing the appeal can at best be described as leisurely.
[51] Mr Boyd was well aware of the time limits for appeals. That was underlined to him when Powell J struck out his first appeal on 17 April 2019.
[52] It took from 18 October 2018, when Mr Boyd says he received the costs decision, until (charitably) 25 November 2019 to raise the grounds of appeal with this Court. His explanation for the delay is inadequate when issues as to costs should be determined expeditiously.
[53] In conclusion, had Mr Boyd applied to extend the time for bringing the appeal I would have refused his application. The appeal has been brought out of time and must be struck out.
[54] In case I am wrong on this issue, I will go on to consider the other issues I have identified.
Is the appeal an abuse of process?
[55] In this part of the judgment I proceed on the basis that I am wrong in my decision that the appeal is out of time: in other words that Mr Boyd is correct when he says time began running on 6 December 2019 when Judge Burns made a correction to the costs order.
[56] In support of her abuse of process argument, Ms Townsend submits that Mr Boyd could have raised the arguments he now makes in this Court in his “slip rule” application. She submits the amendment of the costs order “appears to have been used cynically as a mechanism for mounting this appeal”.
[57] I do not accept Ms Townsend’s submission that Mr Boyd’s arguments that there is “double counting” in the costs order and that the wrong items in sch 4 of the District Court Rules were applied (discussed in the next two parts of this judgment) could have been raised on an application under the slip rule. They go beyond matters of correction.
[58] However, before 22 November 2019 Mr Boyd must already have had in mind the different and wider challenges he now makes. I say that because, in his submissions on this appeal, he says that the amount Ms Kendrick is entitled to, namely
$3,026, was paid to her on 30 September 2019.
[59] Further, at around the same time as Mr Boyd’s 22 November 2019 submission to the Family Court, he had advanced in his 25 November 2019 memorandum to this Court the same arguments he now makes. One of those arguments is that item 15 (which was ‘corrected’ to reduce the number of half days) is the wrong item. The item he claims should have been used (item 18.1) would, if substituted, have the effect of further reducing the time for the hearing.
[60] On the one hand there is Ms Townsend’s position that the act of bringing the application under r 204 in the Family Court was a device designed to manipulate the Court process to enable Mr Boyd to bring this appeal, when he would otherwise be out of time. And Mr Boyd is well aware of time limits for appeals.
[61] On the other hand it might be said that while the process could be characterised as irregular, it does not go so far as to be a deliberate and improper manipulation of the Court process. Abuse of process is a serious allegation and in the absence of full argument from the parties I do not determine the issue. It is not necessary to do so having regard to the conclusions I reach in the next three parts of this judgment.
Is there a double counting in the allowance for preparing written submissions and preparation for the hearing?
[62] Mr Boyd submits that Ms Townsend only became involved as counsel for Ms Kendrick 10 working days before the hearing. He says he received her written submissions on the day of the hearing. He submits the preparation of submissions was in effect preparation for the hearing. There was therefore a double counting. He says this was an issue identified by Powell J in his judgment of 19 June 2019 on costs,17 after the decision striking out the first appeal. Powell J said:
[5] In particular, looking at Ms Townsend’s calculations, Items 10 and 11 clearly double up; the preparation of the memorandum setting out the jurisdictional issue was, in effect, the preparation for the first case management conference.
[63] However the important distinction between the first appeal before Powell J and the hearing before Judge Burns is that the hearing in the Family Court was a witness action. I do not find Mr Boyd’s reference to the costs judgment of Powell J helpful. The issue is whether Judge Burns erred in any of the ways set out in [28] above.
[64] Rule 207(2) of the Family Court Rules provides that when exercising the discretion to determine costs the Family Court “may apply” certain provisions of the District Court Rules, “so far as applicable and with all necessary modifications” including:
(a)14.2 principles applying to determination of costs;
(b)14.3 categorisation of proceedings;
(c)14.4 appropriate daily recovery rules;
17 Boyd v Kendrick [2019] NZHC 1149.
(d)14.5 determination of reasonable time.
[65]In B v N,18 Judge Callinicos, sitting in the Family Court, said:
[6] No statutory guidance is given as to the factors to which the Judge should have reference in exercising that discretion [under s 171 Family Proceedings Act]. Some guidance is received by reference to the Family Courts Rules (FCR), which operate in tandem with the [then] District Courts Rules 1992 (DCR), and to factors derived from case law.
[66] It is said in Westlaw (with reference to the scale set out in the District Court Rules):19
The introduction of the District Court procedure widened the gulf between the scale and procedure in the Family Court. It now bears almost no relevance to the steps taken in the Family Court or the reasonable time one might expect for them. …
… the time allocations for procedural steps as set out in sch 4 do not easily correspond with Family Court practice.
[67] Whether the application in this case is classified, by analogy, as a “short trial”, a “simplified trial” or a “full trial” in sch 4, there is no separate item for preparation of submissions in addition to preparation for hearing for any of those classes of trials. As Mr Boyd correctly points out, item 9.12 (preparing written submissions) falls under the “Interlocutory Proceedings’ heading. Even allowing for differences in procedure in the Family Court, I do not consider it could be said that borrowing item 9.12 to enable a claim for preparing written submissions in addition to preparation for the hearing could be said to be a “necessary modification”.
[68] In the circumstances where, under sch 4, none of the forms of trial permits a separate claim for preparing written submissions, I consider Judge Burns did make an error in allowing one day for the preparation of written submissions under item 9.12 in addition to the claim under item 14: preparation for hearing.
[69]I would therefore reduce the amount of the costs order by the sum of $1,780.00.
18 B v N (2008) 26 FRNZ 864 (FC) at [6].
19 Family Procedure: Costs and the Family Court (online ed, Thomson Reuters) at CD 2.2.02.
Were the wrong items in sch 4 of the District Court Rules applied?
[70] There are two items that Mr Boyd submits are not correctly allocated. First, there is item 14: preparation for hearing, which Mr Boyd says should be item 17.1. Item 14 is preparation for a “simplified trial” and 1.25 days is allowed. Item 17.1 is preparation for a “full trial” and “Twice the time occupied by the hearing measured in half days” is allowed. Mr Boyd submits that because there is no reference to either “short trials” or “simplified trials” in the Family Court Rules then the hearing should be defined as “full trial”. That submission overlooks the “necessary modifications” provision. In my view, on the information available to this Court, the indications are that this proceeding in the Family Court was more analogous to a “short trial” or a “simplified trial” as opposed to a “full trial”.20
[71] I do not consider Mr Boyd has established that Judge Burns erred in exercising his discretion to use item 14 as the item for preparation for hearing. In any event, even if I were to uphold Mr Boyd’s submission that 17.1 is the correct item, it would have the effect of increasing the quantum of costs. That is because of my determination, in the next part of this judgment, that the hearing occupied two half days, not one, and it is the time occupied by the hearing that forms the basis for the preparation allowance under 17.1.
[72] The second item that Mr Boyd claims is incorrectly allocated is item 15: appearance at the hearing. This item relates to a simplified trial. Mr Boyd says it should be item 18.1, which is for a full trial. As I have already said, I do not consider that this proceeding can be seen to be analogous to a full trial. I do not consider it could be said the Judge incorrectly exercised his discretion to adopt item 15. The time to be allocated under item 15 is “Twice the time occupied by the hearing measured in half days”. For the reasons set out in the next part of this judgment, I consider the hearing occupied two half days. The District Court Rules therefore permit a claim of four half days, i.e., two days.21 The extra day which I would add to item 15 effectively cancels out the one day that should not have been allowed for preparing written submissions.
20 See pt 10 of the District Court Rules.
21 In other words the slip ‘correction’ was wrongly made.
Should the calculations be based on a hearing of one half day or two half days?
[73] Both Mr Boyd and Ms Kendrick have filed affidavits regarding the length of the hearing. The notes of evidence run to 57 pages. The first time reference in the notes of evidence is at 12.36.49 at p 4. The last time reference is 3.35 pm on p 53 of the notes of evidence.
[74] An email from the Registrar annexed to Ms Kendrick’s affidavit states: “… as per the court records hearing on 02 August 2018 commenced at 12.31 pm and concluded at 03.44 pm”. Mr Boyd’s position is that the hearing itself (as opposed to the evidence) commenced at 12.31 pm and concluded at 3.44 pm. With a lunch adjournment taken into account, the total time occupied by the hearing he calculates as one hour and 58 minutes. Mr Boyd therefore submits it was a half day hearing.
[75] Ms Townsend submits that the hearing in fact occupied the better part of a day.22 She refers to the affidavit of Ms Kendrick who says the application was called at 10 am. Initially there were submissions from counsel and Mr Boyd as to her concerns about the parties’ son being required for cross-examination, and a request from Ms Townsend that a Lawyer to Assist should be appointed to meet with the son. Ms Kendrick says that a lawyer who happened to be present at court on another matter was immediately appointed and the matter was stood down while the newly appointed lawyer met with the son.
[76] Mr Boyd appears to accept that there were discussions in relation to his son. However he says a court official invited Ms Townsend and the lawyers involved in the other case set down for the same day to enter the courtroom to discuss scheduling with the presiding judge. He said he was not invited as he was informed it was lawyers only. He said when the lawyers emerged he was told a court lawyer would meet with his son to gauge whether it was appropriate he act as a witness. He says that the Court appointed lawyer concluded that their son could give evidence and the parties were informed of that before 10 am and the other case commenced at 10 am.
22 Reverting to the position she had advanced prior to the “correction”.
[77] Returning to Ms Kendrick’s evidence, her recollection is that the newly appointed lawyer, after meeting with their son, reported to the Court with counsel and the parties present before the evidence commenced at 12.30 pm. Mr Boyd says he was not present when the “court-lawyer” gave her view to the presiding judge. He says Ms Townsend may have been. He thinks it was a lawyer-only conference. He said he was told by a court official outside the courtroom that their son could appear.
[78] Ms Kendrick recalls that following the conclusion of the evidence, there was also some discussion between counsel, Mr Boyd and the Judge prior to the matter being concluded just before 4 pm. Ms Townsend says that the legal submissions which had been filed in advance were supplemented orally following the conclusion of the evidence. It is also apparent from the notes of evidence that Ms Townsend opened before calling Ms Kendrick, although the length of the opening is not apparent.
[79] Mr Boyd says that at the conclusion of the evidence there was no discussion with the Judge.
[80] This Court is obviously not in a position to determine contested factual matters. However, what can be taken from the above is that the case was called either before or at 10 am. At that time the issue of the parties’ son being called as a witness was addressed and a lawyer was appointed to meet with their son.
[81] At some time after that, the lawyer appointed reported to the Court. I accept that Ms Townsend made opening submissions. That is recorded in the Court transcript.
[82] I do not consider the approach Mr Boyd has adopted of adding up parcels of time is the correct approach. The case came before the Judge at the beginning of the Court day and a Lawyer to Assist was appointed. The evidence commenced at
12.31 pm. Prior to that time, the Lawyer to Assist had communicated her views to the Court about the parties’ son giving evidence. I have also accepted that Ms Townsend opened the case for the applicant before evidence was called. The hearing therefore occupied part of the first half of the Court day.
[83] The hearing continued after the lunch adjournment. The evidence concluded at 3.44 pm. Even accepting Mr Boyd’s position that no closing submissions were made, the hearing continued for part of the second half of the Court day. The hearing therefore occupied two half days.
[84] I consider that Judge Burns’ “correction” based on a hearing of one half day was plainly wrong.
Result
[85] The appeal is struck out as it was brought out of time. Even if Mr Boyd had applied to extend the time for bringing the appeal, I would not have granted the application.
[86] If I had not struck out the appeal, I would have dismissed it for the reasons set out in [70] to [84] above.
Costs
[87] Costs are reserved. In the event that the parties are able to agree costs, a joint memorandum should be filed within 20 working days of the date of this judgment. If the parties cannot agree, then Ms Townsend is to file and serve her submissions within five working days of the date for the joint memorandum. Mr Boyd is to then file and serve his submissions within a further five working days. There will be no reply submissions. Submissions should not exceed three pages (excluding any attachments). I will then determine costs on the papers.
Gordon J
ANNEXURE
.IUDGMLNT OF DCJ BURNS
17 August 2018
The application for dissolution of marriage was heard on 2 August 2018 at Auckland before DGJ Burns who, having heard frorri C Townsend, Counsel for the applicant, and Roger Boyd, in person, gave judgment on 17 August 2018 for the applicant and ordered that the unsuccessful respondent pay costs to the respondent on a 2B basis of
$6,141.00 together with interest from the date of the fixing of costs until payment at $.84 daily, see schedule attached.
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2B Costs:
b. Item 9.12 preparing written
submissions
1.0 $1,780.00 c. Item 14 preparation for hearing 1.25 $2,225 e. Item 15 Appearance at hearing (at
twice the time occupied by the hearing measured in half days)
1.0 $1,780.00 f. Item 9.16 Sealing Order or
Judgement
0.2 $356
3.45 days at $1,780 per day
TOTAl:
$6,141 00
$6,141.00
Interest li om 17 September at 5% = 5307.05 per annum or $.84 daily
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