Christine Jill Bourneville v Michael Victor Bourneville Recall

NO PUBLICATION OF THIS PROCEEDING IS PERMITTED UNDER S35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, EXCEPT WITH THE LEAVE OF THE COURT THAT HEARD THE PROCEEDINGS, AND WITH THE EXCEPTION OF PUBLICATIONS OF BONA FIDE PROFESSIONAL OR TECHNICAL NATURE.
IN THE SUPREME COURT OF NEW ZEALAND
SC 1/2009
[2009] NZSC 23

BETWEENCHRISTINE JILL BOURNEVILLE

Applicant

ANDMICHAEL VICTOR BOURNEVILLE

Respondent

Court:Elias CJ, Blanchard and Tipping JJ
Counsel:A Hart for Applicant

B P C Carter for Respondent

Judgment:26 March 2009

JUDGMENT OF THE COURT (RECALL APPLICATION)

A The judgment delivered on 17 March 2009 is recalled.

B The orders of the Court are amended and will now read:

The application for leave to appeal is dismissed. No order for costs is made against the applicant who is legally aided. Under s 40(5) of the Legal Services Act 2000 it is specified that an order for costs of $2,500 would have been made against the applicant with respect to the application for leave if s 40 had not affected the applicant’s liability.

REASONS
[1] After the Court’s judgment dismissing the leave application was delivered, the Registrar was advised that the applicant had been granted legal aid in respect of her application. Section 40(2) of the Legal Services Act 2000 prohibits an order for costs against an aided person unless there are exceptional circumstances. Not without some hesitation, we have concluded that exceptional circumstances do not exist. We are substituting an order under s 40(5).
Solicitors:
Parnell Law, Auckland for Applicant
McWha Law, Auckland for Respondent

CaseChat Overview and Summary

Christine Jill Bourneville sought leave to appeal against a decision of the Court of Appeal, which had dismissed her appeal from a decision of the High Court. The appeal pertained to a property settlement following the dissolution of her marriage to Michael Victor Bourneville. The Supreme Court of New Zealand reviewed the application for leave to appeal, which had been dismissed by the Court of Appeal. The legal issues before the Supreme Court involved whether exceptional circumstances existed to justify an order for costs against Bourneville, given that she had been granted legal aid for her application. Bourneville had applied for legal aid after the Court of Appeal dismissed her leave application, and this application was granted after the Supreme Court's initial judgment was delivered.

The Supreme Court considered the provisions of the Legal Services Act 2000, specifically section 40, which prohibits an order for costs against an aided person unless there are exceptional circumstances. The Court concluded that exceptional circumstances did not exist in this case, despite some hesitation. Therefore, the Supreme Court dismissed the application for leave to appeal and substituted an order under section 40(5), which would have resulted in an order for costs of $2,500 against Bourneville if she had not been granted legal aid. The Court did not make an order for costs against Bourneville because she was legally aided.

The Supreme Court’s final orders were that the application for leave to appeal was dismissed, and no order for costs was made against the applicant. The Court specified that if Bourneville had not been granted legal aid, an order for costs of $2,500 would have been made against her regarding the application for leave. This decision underscores the importance of timing in relation to legal aid applications and the stringent criteria for exceptional circumstances under section 40 of the Legal Services Act 2000.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established