DN v Family Court at Auckland

[2023] NZHC 517

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 https://www.justice.govt.nz/family/about/restriction-on-publishing- judgments/

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-1087

[2023] NZHC 517

UNDER

the Judicature Review Procedure Act 2016

IN THE MATTER

of a decision under the Care of Children Act 2004

BETWEEN

DN

First Applicant

LN
Second Applicant

AND

FAMILY COURT AT AUCKLAND

First Respondent

SL
Second Respondent

KQ

Third Respondent

Hearing:	On the papers
Judgment:	15 March 2023

COSTS JUDGMENT OF DUFFY J

This judgment was delivered by me on 15 March 2023 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

DN v FAMILY COURT AT AUCKLAND [2023] NZHC 517 [15 March 2023]

Introduction

[1]  The second respondent, Ms von Keisenberg, seeks costs against the applicants. Because her actual costs are less than what is claimed by way of scale costs, she claims actual costs of $27, 961.1

[2]                 The first and second applicants’ (“the applicants”) position is that costs should lie where they fall.

Background

[3]                 The background to this proceeding is set out in the Court of Appeal’s judgment at [40]–[149].2

[4]                 The proceeding before me was heard in two stages. On 19 February 2020 I issued an interim judgment finding that Judge Burns was bound by Courtney J’s previous judgment and this required him to take into account the wishes of the children.3 Accordingly part of the applicants’ first cause of action was established, and the remainder of that cause of action became superfluous. There was insufficient time to hear from the parties on the second and third causes of action. The decision of Judge Burns was remitted to the Family Court with directions.

[5]                 On 1 December 2020 I issued a judgment dismissing the second and third causes of action.4 The second cause of action related to whether Judge Burn’s decision was made in error of law because it relied on the report of the lawyer for the child which was ultra vires. The applicants had also argued that the report was an irrelevant consideration. The third cause of action related to whether a minute issued by Judge de Jong should be removed from the Family Court file due to apparent bias.

[6]                 DN and LN unsuccessfully appealed the second judgment to the Court of Appeal and Ms von Keisenberg was awarded costs in that Court on 24 May 2022.

1      See High Court Rules 2016, r 14.2(1)(f).

2      Newton v Family Court at Auckland [2022] NZCA 207, [2022] 3 NZLR 846.

3      DN v Family Court at Auckland [2020] NZHC 210.

4      DN v Family Court at Auckland [2020] NZHC 3165.

[7]On 27 September 2022 the Supreme Court declined leave for a further appeal.5

Submissions for the second respondent

[8]                 Ms Crawshaw KC for the second respondent submits that the judicial review proceedings were wholly unsuccessful and that the action against the second respondent failed at every level. She notes the appeal was described in the Court of Appeal as “wholly misconceived”, “conceptually incoherent” and an abuse of process. In the Supreme Court the Court held “none of the arguments raised by the applicants have sufficient prospects of success to warrant grating leave to appeal”. Ms Crawshaw accordingly contests the applicants’ contention that the principles of mixed success are relevant.

[9]                 Ms Crawshaw submits that the fact the first tranche of the proceeding related to matters not directly relevant to Ms von Keisenberg is immaterial to costs. She was required to be represented by counsel throughout the period leading up to the original hearing on 4 December 2019, and at the resumed hearing on 7 and 8 May 2020. She was named as a respondent in the original statement of claim filed on 13 June 2019 and incurred costs from this point on.

[10]              Ms Crawshaw submits that the parts of the judgment the first and second applicants rely upon are obiter comments which do not have bearing on the assessment of the successful party nor on costs generally.

[11]              Ms Crawshaw contests Ms Chambers’ contention that there was public interest in the proceeding, citing the Supreme Court’s findings.

[12]              Further Ms Crawshaw submits that there is no basis to the applicants’ suggestion that the High Court would have exercised its discretion not to award costs had the costs application immediately followed judgment. She contends that approach would be inconsistent with the approach to costs taken by the Court of Appeal, and costs should follow the event here too.

5      Newton v Family Court at Auckland [2022] NZSC 112.

[13]              Ms Crawshaw rejects any insinuation that there has been strategic delay in seeking costs. She submits the second respondent appropriately waited for the final resolution of appeals.

[14]              Finally Ms Crawshaw contends that there is no “lack of clarity” as to the second respondent’s actual costs as raised by the applicants. The correspondence referred to relates to costs in the Court of Appeal, which did exceed actual costs. Ms Crawshaw confirmed that actual costs in the High Court were less than scale costs identified. She further notes that the applicants do not appear to take issue with the calculation of scale costs, and their suggestion that a 50 per cent discount be applied to scale costs is not principally justified.

Submissions for the applicants

[15]              Ms Chambers KC submits that costs should lie where they fall. She accepts the ordinary costs principles set out in Part 14 of the High Court Rules 2016 should apply. However she contends that each party has had a measure of success.6

[16]              Ms Chambers refers to the two-stage hearing of the proceeding. She submits that in relation to the first stage the applicants successfully judicially reviewed Judge de Jong’s decision. She contends that the second respondent should not be awarded costs for that hearing because the second respondent accepted the matters dealt with in the first judgment were not relevant to her position.

[17]              Additionally, Ms Chambers submits that while the applicants were not successful in their action against the second respondent, the Court rejected the second respondent’s primary argument that no aspect of the role of lawyer for the child is amenable to review.7 She submits that in accordance with the High Court’s earlier orders in the litigation, it was not open to the second respondent to submit to the Family Court Judge that he had jurisdiction to order a s 133 report without consulting the child, and the second respondent’s error “caused or contributed to” Judge Burns

6      Citing Packing In Ltd (in liq) v Chilcott (2003) 16 PRNZ 869 (CA).

7      Referring to DN v Family Court at Auckland [2020] NZHC 3165 at [13].

erring in law.8 Counsel also refers to [9] of the judgment where the Court states the contents of the second respondent’s report were of poor quality.

[18]              Second, Ms Chambers submits that the proceeding was of public interest because it concerned children’s views under the Care of Children Act and significant judicial review principles.

[19]              Ms Chambers submits that if the second respondent had applied to the Court for her costs directly after the hearing in the usual way, the Court would have exercised its discretion not to award costs to any of the parties. She refers to the Court’s decision in relation to costs for the appearance of lawyer for the child and stay of the proceeding where the Court indicated its initial view that this was the type of case where costs ought to lie where they fall. Ms Chambers wrote to all parties seeking confirmation that costs would lie where they fall but counsel for the second respondent did not reply. The second respondent also did not indicate that her actual position was that costs ought to await the outcome of any appeal or that she would seek costs in the High Court. The applicants are concerned that the second respondent has deliberately delayed bringing her costs application (by more than 2 years) for strategic purposes and to avoid the probable outcome of a costs application immediately following this Court’s costs judgment.

[20]              Third, counsel submits there has been “a real lack of clarity from the second respondent regarding her actual costs in this proceeding”. She refers to an article which mentions the second respondent is represented pro bono. She then refers to email correspondence where Ms Crawshaw states invoices rendered to her client “well exceed scale costs”. She notes that however Ms Crawshaw now submits actual costs are less than scale costs. Ms Chambers submits that if the Court were to order the costs order of $27,961 as sought, this would result in an indemnity costs order when there is no suggestion that the situation justifies such. In the alternative Ms Chambers submits that the second respondent should provide invoices rendered and confirm costs actually paid.

8 At [10].

[21]              Ms Chambers submits that a discount of 50 per cent ought to be applied the second respondent’s actual costs to reflect the second respondent’s (i) belated costs application and (ii) the factors referred to above and the nature of this proceeding.

Discussion

[22]              The applicants were successful in the first hearing in relation to the first cause of action. Contrary to the contention of parties that the first hearing was not relevant to the second respondent, she defended that cause of action in her statement of defence (and amended statement of defence) and was accordingly the unsuccessful party. She could have chosen to abide the decision of the Court, given that no relief was sought against her in any of the causes of action.

[23]              More importantly, at the first hearing counsel for the second respondent actively and vigorously participated in opposing the applicants’ first cause of action. She strenuously invited the Court to embark on a consideration of the merits of the arguments regarding the proper interpretation of the relevant provisions of the Care of Children Act 2004. At [27] of the judgment on the first cause of action I stated: 9

Counsel for the lawyer for the children was largely responsible for advancing the opposing arguments relevant to the first cause of action, with the support of the grandmother.

[24]              At the first hearing counsel for the second respondent also argued that the provision in the Act which makes the interests of the child paramount was capable of trumping established law on res judicata and issue estoppel.10 Whilst she was free to actively oppose the first cause of action it necessarily follows that parties who actively oppose a case should bear responsibility for costs when their opposition fails.

[25]              There was no appeal against the judgment on the first cause of action. I do not understand the comments of the Court of Appeal on which the second respondent relies to relate to the first cause of action.

9      DN & LN v Family Court Auckland & Ors [2019] NZHC 210 at [27].

10     Above at [27]-[28].

[26]              Conversely the second respondent was successful in relation to actively opposing the second cause of action in the second hearing, (despite facing no risk of relief against her) and the third cause of action did not concern her.

[27]              Given the outcomes in both hearings I consider this is an appropriate case for costs to lie where they fall as each party has achieved a measure of success. In this regard I accept the applicants’ arguments that had the judicial review hearing been dealt with in one hearing the partial success the applicants and the respondents enjoyed would necessarily have led to costs lying where they fell.

[28]Given the above finding the other issues raised by counsel are immaterial.

Result

[29]Costs are to lie where they fall.

Duffy J

Counsel/Solicitors:

D A T Chambers QC, Auckland Allan Cooke, Manukau, Auckland S P Jerebine, Barrister, Auckland

Copies to:

Crown Law, Wellington (D Harris) V A Crawshaw QC, Auckland

Armstrong Barton, Auckland (K Crooks) Antonia Fisher QC, Auckland

S P Jerebine, Barrister, Auckland