DN v Family Court at Auckland
[2021] NZHC 1116
•19 May 2021
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,
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2019-404-1087
[2021] NZHC 1116
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 ApplicantAND
FAMILY COURT AT AUCKLAND
First Respondent
SL
Second RespondentKQ
Third Respondent
Hearing: 7 May 2021 Appearances:
D A T Chambers QC for Applicants
A Cooke lawyer for the children in the Family Court proceeding S P Jerebine Court appointed Contradictor
Judgment:
19 May 2021
JUDGMENT OF DUFFY J
This judgment is delivered by me on 19 May 2021 at 2:00 pm pursuant to r 11.5 of the High Court Rules.
DN v FAMILY COURT AT AUCKLAND [2021] NZHC 1116 [19 May 2021]
[1] The applicants in this proceeding sought judicial review of orders made in the Family Court. On 19 February 2020 I delivered an interim judgment in which I granted the applicants the relief sought in their first cause of action (the February 2020 judgment).1 Later on 1 December 2020 I dismissed the claims they made in their second and third causes of action (the December 2020 judgment).2 On 20 January 2021 the applicants commenced an appeal in the Court of Appeal against the dismissal of their second and third causes of action. In this Court they seek a stay of the effect of the judgment I delivered on the second and third causes of action and for the position to continue to be as it was on delivery of the February 2020 judgment (the stay application).
[2] Following the stay application, on 31 March 2021 Mr Cooke, who is currently appointed lawyer for the children in the Family Court, applied to be heard on this application. The applicants opposed this step. The first, second and third respondents filed notices abiding the Court’s decision both in relation to Mr Cooke’s application and the stay application.
[3] Mr Cooke’s application was set down for hearing on 7 May 2021. The first, second and third respondents filed memoranda in which each sought to be excused from the hearing. This was granted on 6 May 2021.
[4] The hearing was attended by Mr Cooke, Ms Chambers, for the applicants, and Ms Jerebine, who has appeared in this proceeding in the role of Court appointed contradictor.
[5] The hearing commenced with Mr Cooke’s application. During the hearing, however, all counsel considered it would be appropriate to deal with the stay application as well. They were the only parties taking an active role in this application. The arguments regarding whether Mr Cooke should be entitled to appear on the stay application ventured into legal issues relevant to the latter application. Further, the stance taken by the respondents meant their interests would not be affected by counsel
1 DN v Family Court at Auckland [2020] NZHC 210, [2020] NZFLR 15.
2 DN v Family Court at Auckland [2020] NZHC 3165.
at the hearing addressing the stay application at the same time as Mr Cooke’s application for audience.
[6] Because there was no disadvantage to hearing both applications at the same time, I considered it was appropriate to do so. In addition, this means all parties would know whether or not the Family Court matter that underlies this judicial review proceeding could go ahead before the Court of Appeal determined the applicants’ appeal against the December 2020 judgment. I shall deal first with Mr Cooke’s application and second with the application for a stay of execution.
Application for lawyer for the child to be heard on stay application
[7] The application by Mr Cooke raises two issues: whether this Court has jurisdiction to permit a lawyer for the child in the Family Court to appear on an application in this Court to stay the execution of this Court’s orders in the proceeding; and, if it does, whether Mr Cooke’s application should be granted.
Jurisdiction
[8] Mr Cooke submits that I can give him audience by exercising this Court’s inherent jurisdiction. Ms Jerebine agrees the inherent jurisdiction is available and she also argues that r 4.27 of the High Court Rules applies.
[9] Several judgments in judicial review proceedings in which Family Court appointed lawyers for the child were granted audience in this Court were brought to my attention. None of these identify the jurisdictional basis for granting audience.
[10] I am satisfied this Court has jurisdiction to grant Mr Cooke audience on the stay of execution application. There are three available powers for making this grant.
[11] First, there is s 14 of the Judicial Review Procedure Act 2016. The use of this provision is not immediately obvious because there is nothing in the language of s 14 that directly addresses this circumstance. However, s 14(2)(k) provides that pursuant to s 14 the Court may exercise any powers or direction or appointment vested in the Court or a Judge by the High Court Rules in respect of originating applications.
[12] Part 19 of the High Court Rules covers originating applications. Rule 19.11 provides for the Court to make directions as to parties and conduct of applications. The rule states that r 7.43A applies with all necessary modifications to an originating application. Rule 7.43A provides for directions as to the conduct of proceedings. Rule 7.43A(1)(d) authorises a Judge by interlocutory order to make directions on how the hearing is to be conducted. Further, r 7.43A(1)(e) provides the Court may make any other direction or order that the Court may make under these rules. The commentary to r. 7.43A(1)(d) and (e) records that both provisions and the inherent jurisdiction enable the Court to grant leave to a non-party to intervene: Seales v Attorney-General.3 I consider a Family Court appointed lawyer for the child can be treated as analogous to a third party intervener and by this route be granted a right of audience in this proceeding.
[13] The second way in which the Court can grant audience to Mr Cooke is through the exercise of r 4.27 of the High Court Rules. This rule relates to representation by other persons in proceedings. It provides that in respect of a proceeding the Court may, on an application by a party or on its own initiative, appoint a counsel who agrees to represented minors, unborn persons, absentees or unrepresented persons. I consider that Mr Cooke can be granted an audience pursuant to r 4.27.
[14] The commentary in McGechan on Procedure, Judicial Review Procedure Act 2016 describes s 4 as providing a self-contained set of powers for the Court to make a wide range of interlocutory orders. Such powers are said to fit together with the powers in the High Court Rules, which are an alternative source of jurisdiction for the Court to make orders of this type. The co-existence of the two sets of rules are said to enable parties to a judicial review proceeding to use the best of both worlds. I agree with that description. While s 14 presents as providing a self-contained set of powers the authority to use them is expressed permissively. Section 14 is not exclusive. I am, therefore, satisfied that in a judicial review proceeding a Judge can apply the High Court Rules together with s 14. Further, this is an application for a stay of execution following delivery of judgment in a judicial review proceeding. It would seem to me therefore that the application is one that falls under the general civil
3 Seales v Attorney-General [2015] NZHC 828 at [41].
jurisdiction rather than this Court’s judicial review jurisdiction because all that is in issue now is whether the execution of the judgment should be stayed or not.
[15] Finally, there is this Court’s inherent jurisdiction which inter alia empowers this Court to control its processes. This necessarily includes determining who may have a right of audience in a case.
[16] In Mafart v Television New Zealand, the majority of the Supreme Court in a judgment delivered by Elias CJ stated:4
[16] The adjectival jurisdiction and powers of the High Court, which enable it to give effect to its substantive jurisdiction, are part of the general jurisdiction recognised by s 16 of the Judicature Act. They were derived from the practice of the superior Courts in England as at 1860, based on the inherent jurisdiction. Except to the extent modified by statute and rules, the Court continues to have inherent jurisdiction and powers to determine its own procedure. The inherent jurisdiction is not ousted by the adoption of rules, but is regulated by the rules, so far as they extend. To the extent that the rules do not cover a situation the inherent jurisdiction supplies the deficiency. The inherent jurisdiction is:
“ … the authority of the judiciary to uphold, to protect, and to fulfil the judicial function of administering justice according to law in a regular, orderly and effective manner.”
[17] This view of the purpose of the inherent jurisdiction was restated by Elias CJ and McGrath J in the Supreme Court’s decision Siemer v Solicitor-General.5
[18] In Re Lee Heath J acknowledged that the Senior Courts Act 2016 has not impacted on the inherent jurisdiction.6 Heath J referred to s 12(a) of the Senior Courts Act 2016, which provides that this Court has “the jurisdiction that it had on the commencement of this Act”. Heath J went on to refer to the previous legislation, being s 16 of the Judicature Act 1908, which provided that the High Court continued “to have all the jurisdiction which it had on the coming into operation of this Act and all judicial jurisdiction which may be necessary to administer the laws of New Zealand.” Heath J went on to say:7
4 Mafart v Television New Zealand Ltd [2006] NZSC 33, [2006] 3 NZLR 18 at [16] (footnotes omitted).
5 Siemer v Solicitor-General [2010] NZSC 54, [2010] 3 NZLR 767 at [29].
6 Re Lee [2017] NZHC 3263, [2018] 2 NZLR 731 at [29].
7 At [30] (footnotes omitted).
[19] The High Court’s inherent jurisdiction may be exercised as long as any order does not conflict with any statutory or regulatory provision. In some cases, its use may also be constrained by well-established principles of common law or equity. Further, in Re Lee Heath J observed that it was the “unlimited” nature of a superior court’s jurisdiction that provides the justification for its ability to use the inherent jurisdiction to “fill a void when what the Court is being asked to do does not conflict with any statutory or regulatory requirements”.8 In this regard Heath J relied on comment expressed by Lord Donaldson of Lymington MR in Re F (Mental Patient: Sterilisation) on a superior court’s ability to fill legislative gaps by reference to the common law:9
... the common law is the great safety net which lies behind all statute law and is capable of filling gaps left by that law, if and in so far as those gaps have to be filled in the interests of society as a whole. This process of using the common law to fill gaps is one of the most important duties of the judges. It is not a legislative function or process – that is an alternative solution the initiation of which is the sole prerogative of Parliament. It is an essentially judicial process and, as such, it has to be undertaken in accordance with principle.
[20] There is nothing in either the Judicial Review Procedure Act or the High Court Rules that would exclude the application of the inherent jurisdiction to grant Mr Cooke audience. Accordingly, insofar as his request for audience might fall outside the circuitous route provided by s 14(2)(k) of the Judicial review Procedure Act or r 4.27 of the High Court Rules I am satisfied I can grant him audience under the inherent jurisdiction.
Should Mr Cooke be granted audience?
[21] The resolution of this question benefitted from the oral exchange between counsel and the Court at the hearing. Initially, the applicants were opposed to Mr Cooke being given an audience. However, their stance changed during the hearing in response to clarification provided by Mr Cooke.
[22] Mr Cooke describes his role of lawyer for the child as having two parts: one is to ascertain the views of the children; the other is to present submissions to the Court
8 At [31].
9 At [31], citing Re F (Mental Patient: Sterilisation) [1990] 2 AC 1 (CA) at [13].
on the interests of the children. In his view the latter role encompasses making submissions on legal issues that may affect the children, but its exercise does not require him to ascertain children’s views on those issues. I agree with Mr Cooke. At the hearing Mr Cooke took the position that he did not need to ascertain the children’s views on the stay application because this was a legal question that fell within the second aspect of his role.
[23] The applicants initially opposed Mr Cooke’s involvement because they did not want the children to be interviewed again. Now that Mr Cooke has indicated he only seeks to address the Court on the legal issues relating to the stay application the applicants no longer oppose his participation in the hearing of that application. The resolution of this question benefitted from the responsible and carefully considered approaches that were taken by all counsel before me.
[24] Both Mr Cooke and Ms Jerebine submit there are real benefits to Mr Cooke’s participation. He has extensive experience as lawyer for the child in the Family Court. He has expertise on matters affecting children in the Family Court, including how delay of matters in that Court can adversely impact on children. He is best able to speak for the interests of the children on the question of the impact of delay. I agree with this summation of how he might contribute to the stay application.
[25] I consider that helpful guidance on whether to grant Mr Cooke audience can be drawn from the principles the Court applies when determining whether to grant leave to an intervener pursuant to r 7.43A. These principles were summarised in Ngati Whatua Orakei Trust v Attorney-General10 and Borrowdale v Director General of Health11 and they are relevant here in the following ways.
[26] First, if I grant Mr Cooke audience there is no risk of issues being expanded, the hearing being elongated or costs increasing.12 Indeed, Mr Cooke’s comments relevant to the stay application indicated that his submissions would, if anything, allow the stay application to be dealt with more efficiently and effectively. Those comments
10 Ngāti Whātua Ōrākei Trust v Attorney-General [2017] NZCA 183, [2017] NZAR 627 at [11].
11 Borrowdale v Director-General of Health [2020] NZHC 1379 at [20].
12 Hawke v Accident Compensation Corporation [2014] NZCA 552, [2015] NZAR 31 at [9(a)].
were confirmed by submissions from Ms Jerebine. Accordingly, I am satisfied I would be assisted by hearing from Mr Cooke.13 Any delay of the resolution of the matter in the Family Court necessarily engages the interests of the children. If the stay application is granted, resolution of the Family Court matter will be delayed. The lawyer for the children is the person best suited to inform the Court on how to weigh the various considerations in a way that will best recognise their interests. I consider, therefore, that it is most important that I hear from him.
[27] Second, the Court will take into account the relevant expertise or the unique position of an intended intervener as well as the impact on the intervention of the hearing.14 I consider that Mr Cooke has the relevant expertise and plays a unique role by focusing entirely on the children’s interests. Therefore, Mr Cooke should be granted audience.
[28] This view is confirmed by McClintock v Attorney-General,15 where this Court referred to the underlying issue of whether it would be unjust to adjudicate on the matter in dispute without the intervener being heard. In circumstances where I am being asked to consider making an order that will delay the progress of the Family Court matter, I consider the underlying interests of justice warrant lawyer for the children being heard.
[29] Accordingly, I am satisfied that Mr Cooke should be granted audience on the stay application.
Should a stay be granted?
[30] The question of whether the stay application should be granted was touched upon during the hearing for Mr Cooke’s audience application. Put shortly, all counsel considered a stay in the Family Court should be granted. I agree. Before setting out the reasons why, it is helpful for me to make clear the purpose and effect of the stay. To do this it is necessary to consider the relief granted in the judgments I delivered in this proceeding and the background history to those judgments.
13 Hawke v Accident Compensation Corporation, above n 13, at [(9)(b)].
14 Copyright Licensing Ltd v University of Auckland [2015] NZCA 123, [2016] 2 NZLR 1 at [46].
15 McClintock v Attorney-General [2015] NZHC 1280 at [44(f)].
Historical overview
[31] There is a long and somewhat protracted history behind the stay application. It starts in the Family Court in June 2017 with the children’s grandmother (the third respondent in this application) seeking contact with the children. The applicants opposed this. The Family Court needed to consider whether to order a psychological report pursuant to s 133 of the Care of Children Act 2004. The matter was addressed at a directions conference on 27 November 2017 before Judge de Jong. The applicants then commenced a judicial review proceeding in which they alleged predetermination and failure to consider a relevant consideration before exercising the discretionary power available to Judge de Jong under s 133.
[32] The judicial review was successful. Courtney J found a fair minded lay observer would conclude Judge de Jong had acted with predetermination and failed to consider a mandatory relevant consideration when dealing with the exercise of the s 133 power.16 The Judge’s order was set aside and the matter referred back to the Family Court to be determined in accordance with the law as set out by Courtney J.
[33] Judge de Jong subsequently issued a minute dated 9 October 2018 which remains on the Family Court file. The minute contains comments which the applicants contend reveal apparent bias and pre-determination against them. This led the applicants to file an application in the Family Court for recall of Judge de Jong’s minute dated 9 October 2018.
[34] The question of whether to order a s 133 report and the application for recall of the minute of Judge de Jong dated 9 October 2018 came before Judge Burns for determination. Judge Burns declined to recall the minute of Judge de Jong on the ground it was more appropriate for Judge de Jong to deal with that application. He also ordered a s 133 report. The way in which he dealt with this matter led to the applicants commencing this judicial review proceeding. The decision of Judge Burns to order a s 133 report was set aside by the February 2020 judgment for the reasons expressed therein. Put shortly, I found Judge Burns had failed to apply the law as directed by Courtney J and that he was obliged to do so. Because there had been
16 AA v Family Court at Auckland [2018] NZHC 1638, [2018] NZAR 1101: as to predetermination see [30] and as to failure to take account of relevant considerations see [31] – [33].
insufficient hearing time to hear all causes of action the February 2020 judgment determined the first cause of action and left the second and third causes of action to be determined later.17
[35] In the meantime, the application for recall of Judge de Jong’s minute remained outstanding until 19 and 29 December 2019 when Judge de Jong recalled the original minute and issued an amended minute. Those actions led to the applicants amending their statement of claim before the hearing of the second and third causes of action to include the subsequent actions of Judge de Jong as further evidence of apparent bias/predetermination. In their third cause of action they sought removal of both minutes on the ground their continued presence on the Family Court file posed a risk of influencing successive Judges who dealt with the proceeding in the Family Court.
[36] On 1 December 2020 I delivered a judgment on the second and third causes of action in which I dismissed the applicants’ claim for relief.18 However, the judgment contains findings that Judge de Jong acted with apparent bias/predetermination when he issued the minute of 9 October 2018 and amended minutes of 19 and 29 December 2019.19 The December judgment also contains findings relevant to Judge Burns’ conduct.20
The orders made in the February 2020 judgment
[37] In the February 2020 judgment, which determined the first cause of action, I found that the third cause of action posed an obstacle to the implementation of relief relevant to the first cause of action.21 I also found that, if orders and directions relevant to the first cause of action were made and acted on the outcome was likely to be that a new decision on whether to order a s 133 report would be made by a Family Court Judge before I had determined the third cause of action.22 I further found that if this occurred, that event would deprive the applicants of any effective relief on the third cause of action, should they succeed thereon. I then found that fair process requires
17 DN v Family Court at Auckland (the February judgment), above n 1.
18 DN v Family Court at Auckland (the December judgment), above n 2.
19 At [46].
20 At [47] and [48].
21 At [38].
22 At [39].
that the applicants receive a decision on the third cause of action before any further steps are taken to obtain a s 133 report. This led me to order that the orders and directions I had made relevant to the first cause of action were not to be implemented until the third cause of action was resolved.23
[38] In the December 2020 judgment I dismissed the second and third causes of action and refused to grant the relief sought thereon. The effect of the December 2020 judgment is that the Family Court is now free to consider the question of whether to order a s 133 report in all the circumstances.
[39] However, since delivery of the December 2020 judgment the applicants have filed their appeal against the dismissal of the second and third causes of action. The applicants want the effect of the December 2020 judgment stayed so that the orders I made in the February 2020 judgment (that those orders should in part lie in the body of the Court until the third cause of action was determined) remain in effect until their appeal is determined. In essence, the applicants are asking me to stop the effect of the December 2020 judgment and to extend the orders made in the February 2020 judgment until their appeal is determined. That is the effect and purpose of the stay that they seek.
Jurisdiction
[40] Rule 20.10 of the High Court Rules governs stay of proceedings. Rule 20.10(2) provides:
20.10Stay of proceedings
(1)An appeal does not operate as a stay—
(a)of the proceedings appealed against; or
(b) of enforcement of any judgment or order appealed against.
23 At [38], [39] and [42].
(2)Despite subclause (1), the decision-maker or the court may, on application, do any 1 or more of the following pending determination of an appeal:
(a)order a stay of proceedings in relation to the decision appealed against:
(b)order a stay of enforcement of any judgment or order appealed against:
(c)grant any interim relief.
(3)An order made or relief granted under subclause (2) may—
(a)relate to enforcement of the whole of a judgment or order or to a particular form of enforcement:
(b)be subject to any conditions for the giving of security the decision-maker or the court thinks just.
[41] Rule 20.10(2) operates both negatively and positively. Generally, a stay operates in a negative way by restraining a party from implementing a judgment in its favour. However, the expansion of r 20.10(2) allows the Court to make orders that it considers are appropriate to preserve the status quo pending an appeal against judgment.
[42] I am satisfied that r 20.10(2) authorises the making of orders that restrain the effect of the December 2020 judgment insofar as that judgment would otherwise undo the orders I made in the February 2020 judgment.24 Second, that r 20.10(2) authorises me to direct that these orders are to remain in effect until the applicants’ appeal to the Court of Appeal against the December 2020 judgment is determined.
Should a stay of execution be granted?
[43] As to whether a stay should be granted, the reasons I give in the February 2020 judgment remain equally valid and relevant now the judgment on the third cause of action is under appeal. If the Family Court were to consider afresh whether to order a s 133 report this would deprive the applicants of any effective relief on the third cause of action should they succeed thereon. Therefore, fair process requires they receive a decision on the third cause of action before any further steps are taken to obtain a s 133
24 At [39].
report. Without a stay the Family Court will be free to implement the orders I made on the first cause of action regarding a s 133 report. If the minute and amended minutes of Judge de Jong remain on the Family Court file, there is arguably potential for those minutes to influence future Judges who deal with the s 133 question. Further, as Ms Chambers pointed out at the hearing, those minutes may potentially influence others who have access to the Court file, for example a s 133 report writer.
[44] I have found that in issuing the minute and amended minute Judge de Jong acted with apparent bias. However, I considered this would not influence Judges in the future. The applicants think differently, hence their appeal. If the Family Court remains free to consider ordering a s 133 report while Judge de Jong’s minutes remain on the Court file, the applicants’ appeal will be rendered nugatory. Once the Family Court has determined the s 133 report issue afresh it is difficult to see how the appeal against the December 2020 judgment could be pursued. The appeal would effectively be rendered moot. There would be no relief the Court of Appeal could grant because by the time the appeal is determined (not expected to be until 2022) the Family Court may have already reconsidered whether to order a s 133 report. Any success the applicants might achieve regarding the third cause of action would be academic only. Even if they secured favourable findings it is difficult to see how they could obtain relief given it would be futile.25 Nor do I see how the appeal could be amended to take account of that change of circumstances. If the Family Court Judge re-considering whether to order a s 133 report should be wrongly influenced by Judge de Jong’s minutes, all that the applicants could then do would be to judicially review the new Family Court decision. This would necessarily bring them to this Court rather than to the Court of Appeal.
[45] The most pressing concern against granting a stay is the fact it will delay the resolution of the Family Court matter. Delay is to be avoided whenever possible in care of children matters. However, here all counsel agree that a stay should be granted. The applicants through their counsel seek a stay. Mr Cooke submits that in terms of the welfare and best interests of the children a stay is inevitable and should be made. He acknowledges that if the question of a s 133 report arises in the future it should be
25 In judicial review a court will not grant a remedy where it would be futile to do so.
Te Whakakitenga o Waikato Inc v Martin [2016] NZCA 548, [2017] NZAR 173 at [39].
reconsidered without the risk of apparent bias arising from the issues currently under appeal having first been determined. He says if the question of a s 133 report is considered while the appeal against the third cause of action is outstanding it would be difficult to turn the clock back, should the Court of Appeal allow the appeal. I agree. I have found the submissions of counsel helpful and they confirm my view. Accordingly, I am satisfied a stay should be granted.
Additional matters
[46] Shortly after the hearing of the stay application the Court of Appeal delivered its decision on the Family Court’s application for leave to appeal out of time against the decision of Courtney J in AA v Family Court at Auckland.26 Leave to appeal was granted27. Leave was also granted to the Attorney-General to intervene in that appeal and in the appeal against the December 2020 decision on the ground it was more appropriate for the Attorney-General to be actively engaged in the appeal than it was for the Family Court. The two appeals are to be heard at the same time.
[47] In such circumstances I consider the parties deserve to have the benefit of the Court of Appeal’s consideration of the issue. Should the Family Court proceeding go ahead before the Court of Appeal makes its determination, the very persons who will be most directly affected by that Court’s judgment on the effect of s 133 may not enjoy the benefit of it. This factor strengthens the need for a stay. Indeed, I note that at [20] of the judgment of the Court of Appeal, states:28
… The continuing delay in determining the Family Court proceedings, which would normally be a factor in considering whether to grant an extension of time to appeal, is not a material factor in this case in circumstances where CA19/2021 is already before this Court, and any further consideration by the Family Court of whether a s 133 report should be obtained will need to await the determination of that appeal.
Result
[48] Mr Cooke, the lawyer for the children in the Family Court proceeding, is entitled to be heard in the stay application.
26 AA v Family Court at Auckland at n 16.
27 Family Court v AA [2021] NZCA 189.
28 Above at [20].
[49] The stay application is granted. The order made in the February 2020 judgment at [42] (which directs that the orders made in [41] of that judgment are not to be implemented until the outcome of the third cause of action is finally resolved), is to remain in effect until the applicants’ appeal against the judgment delivered on 1 December 2020 and the Family Court’s appeal against the judgment delivered in AA v Family Court at Auckland29 are determined by the Court of Appeal.
[50] The stay of proceedings is conditional on the applicants pursuing their appeal to the Court of Appeal in a timely fashion that adheres to the timetable directions and other directions imposed by that Court.
[51] Leave is reserved to the parties to return to this Court should the need to do so arise.
[52] The efficacious disposition of the outstanding matters in this Court was reached by the parties’ responsible conduct at the hearing. This can reflect on costs and may suggest this is a case where costs should lie where they fall. Should any party/Mr Cooke want to pursue a different approach, leave is reserved to file memoranda to that effect.
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
29 Above, n 16.
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