Dockerty v Amun
[2018] NZHC 141
•14 February 2018
NOTE: PURSUANT TO S 125 OF THE DOMESTIC VIOLENCE ACT 1995, 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 DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CIV-2016-412-000053
[2018] NZHC 141
BETWEEN JOHN DAVID DOCKERTY
Appellant
AND
QA-T-A-SERQET TEHUTI-MAAT NEFER-NET HETEP BA AMUN
Respondent
Hearing: (Determined on the papers) Counsel:
Appellant – Self Represented
S Rose and R Cardoza for Respondent
Judgment:
14 February 2018
JUDGMENT OF GENDALL J
(As to Costs)
[1] In a judgment dated 21 February 2017 I gave in this proceeding I dismissed an appeal by the appellant against a decision of Judge Flatley in the Dunedin Family Court. That Family Court decision declined an application by the appellant for a final protection order against the respondent, his former partner. In giving his decision in the Family Court Judge Flatley also discharged an earlier temporary protection order that had been made against the respondent almost a year earlier.
[2]In dismissing the appeal in this Court, I addressed the question of costs at paras
[77] and [78] of my 21 February 2017 judgment:
DOCKERTY v AMUN [2018] NZHC 141 [14 February 2018]
[77] Ms Amun [the respondent] has been entirely successful in opposing Dr Dockerty’s [the appellant’s] appeal here. She is legally aided but nevertheless, as I see it, is entitled to an award of costs and disbursements.
[78] Dr Dockerty is to pay to Ms Amun costs on this appeal and on his unsuccessful application to this Court seeking leave for further evidence to be provided for the appeal, both calculated on a category 2B basis together with disbursements as fixed by the Registrar.
[3] On 25 January 2018 counsel for the respondent filed a memorandum in this Court seeking an order for costs and disbursements against the appellant totalling
$18,749.34.
[4] On 29 January 2018, the appellant responded briefly by email, indicating that he wished to file a memorandum in response.
[5] On 30 January 2018, I issued a minute in this proceeding indicating that the appellant had until 5 p.m. on 9 February 2018 to file and serve this costs memorandum in response. In that minute I said also that the memoranda then filed were to be referred to me and a decision on costs would be given on the basis of all the material filed.
[6] On 9 February 2018, the appellant filed in this Court a detailed memorandum as to costs.
[7] Ms Rose, counsel for the respondent, then forwarded an email to this Court on 12 February 2018 which she says was to correct certain matters referred to in the memorandum from the appellant.
[8] Later that same day, 12 February 2018, the appellant Dr Dockerty forwarded an email to the Court and to Ms Rose in response raising a number of further points.
[9] I have now had an opportunity to consider the memoranda as to costs filed on behalf of the respondent and the appellant, the emails I have referred to above and all other material which is before the High Court. I give my decision on costs based upon all this material.
[10] As I have noted at para [2] above, at paras [77] and [78] of my 21 February 2017 judgment dismissing this appeal, the respondent had been entirely successful in opposing that appeal and, notwithstanding that she was legally aided, was entitled to costs calculated on a category 2B basis together with disbursements. The amount for costs and disbursements was to be in respect of both the appeal and also the appellant’s unsuccessful application to the High Court seeking leave for further evidence to be provided for the appeal.
[11] Ms Rose, counsel for the respondent, in her costs memorandum dated 25 January 2018 has set out a detailed calculation of the category 2B costs on these matters which totals $21,185.
[12] Ms Rose goes on to note, however, that the respondent was legally aided in this proceeding and, as a result of the relevant rates of legal aid remuneration to which she was entitled, her actual costs in these proceedings totalled only $18,749.34.
[13]In this regard, r 14.2(1)(f) of the High Court Rules states:
14.2 Principles applying to determination of costs
(1) The following general principles apply to the determination of costs:
…
(f)an award of costs should not exceed the costs incurred by the party claiming costs:
…
[14] The full amount by way of costs and disbursements now sought by the respondent on these matters has been confirmed by Ms Rose therefore at this sum of
$18,749.34. She confirms in her 25 January 2018 memorandum, first, that this is the full amount for costs incurred by the respondent and, secondly, that it is the total amount sought by way of recovery by both the respondent and the Ministry of Justice in terms of the legal aid award made to the respondent.
[15]Ms Rose notes also that security for costs on the appeal is held, this totalling
$2230. This amount is held in the trust account of Staley Cardoza, Lawyers, Dunedin. The respondent accordingly seeks orders releasing this security of $2230 together with
a further order for the balance costs and disbursements to be paid by the appellant amounting to $16,519.34.
[16] In his submissions in response, the applicant, Dr Dockerty, to a significant extent, endeavours to relitigate arguments over whether he should have been the subject of an award of costs in favour of the respondent in the first place. That, however, is not appropriate. It is a matter which has already been determined. Costs in this case followed the event in the usual way. This was in accordance with the general principle applying with respect to the determination of costs as set out in r 14.2(1)(a) of the High Court Rules that the appellant here as the party who failed with respect to his appeal should pay costs to the respondent as the party who succeeded.
[17] I confirm the comments in my earlier 21 February 2017 judgment that the respondent Ms Amun had been entirely successful in opposing the appellant Dr Dockerty’s appeal and therefore she was clearly entitled to an award of category 2B costs.
[18] Turning now to issues of quantum, the appellant in his memorandum of 9 February 2018 and subsequent email, appears to contest the amount claimed by way of actual legal aid costs incurred and to suggest that this is excessive here. He has endeavoured to suggest by way of reference to legal aid published schedules that the respondent should be entitled, if at all, to an award of costs against him totalling no more than $4210. He suggests that taking a fair and objective view of this matter that is the most the respondent should be entitled to receive in this case.
[19]In my judgment, the appellant is mistaken as to these matters.
[20] Ms Rose, as a lawyer and officer of the court and as counsel for the respondent, has confirmed that:
(a)the legally aided respondent had costs in these proceedings calculated on the basis of the relevant legal aid rates of $18,749.34; and
(b)this amount, which is sought by way of costs against the appellant by both the respondent and by the Ministry of Justice, simply sought to enable recovery of the actual legal aid costs incurred.
[21] I am satisfied first, that the respondent is obliged here to seek reimbursement of this $18,749.34 being the legal aid costs incurred, and, secondly, that therefore this is the appropriate reduced amount by way of costs which is payable by the appellant as the unsuccessful proponent of the two matters which were before this Court.
[22] For all these reasons, and given the successful respondent is entitled to costs against the appellant here, orders are now made for:
(a)the release of the $2230 security for costs to the respondent forthwith; and
(b)the appellant to be required to pay to the respondent the balance of costs and disbursements on this appeal totalling $16,519.34.
...................................................
Gendall J
Solicitors:
Staley Cardoza Lawyers, Dunedin Copy to Mr Dockerty, the Appellant
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