Fox v Fox

[2023] NZHC 355

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CIV-2022-443-40

[2023] NZHC 355

BETWEEN

FOX

Applicant

AND

FOX

Respondent

Hearing:

On the papers

Counsel:

S J Fraser for Applicant

R M Webb for Respondent

Judgment:

28 February 2023

JUDGMENT OF ISAC J

[Costs]

[1]                 In a judgment of 31 October 2022, I struck out Ms Fox’s application for judicial review of an interim parenting order issued in the Family Court on the basis that it was an abuse of process.1

[2]                 The respondent, Mr Fox, now seeks costs of $1,943.50. Mr Fox is legally aided and the sum sought represents the amount of his legal aid grant in the proceeding.

[3]                 Ms Fox opposes the application for costs. Although she has now retained counsel, Ms Fox was a self-represented litigant at the time. Mr Fraser submits on her behalf that the Court, in exercising its discretion as to costs, should treat Ms Fox as legally aided on the basis that she was eligible for legal aid and took significant steps to obtain representation but through no fault of her own was unable to do so. Mr Fraser

1      Fox v Fox [2022] NZHC 2834.

FOX v FOX [2023] NZHC 355 [28 February 2023]

provided screenshots of a large number of emails sent by the applicant to various legal services providers requesting assistance in the matter.

Consideration

[4]                 Section 45(2) of the the Legal Services Act 2011 provides that no costs order may be made against an “aided person” in a civil proceeding unless there are exceptional circumstances.2 Ms Fox is not an aided person for the purposes of the Act,3 and I do not consider I am able to treat her as such.

[5]                 Costs therefore fall to be determined under the normal principles. All matters relating to costs are discretionary,4 although that discretion must be exercised on a principled basis. So far as possible the determination of costs should be predictable and expeditious.5

[6]                 The ordinary position is that the unsuccessful party in a civil proceeding must pay the successful party’s costs.6 However, given:

(a)Ms Fox was a self-represented litigant who despite her considerable efforts was unable to obtain counsel (apparently due to legal aid service providers being too busy to accommodate her);

(b)the respondent is not directly out of pocket given he is legally aided; and

(c)the maximum amount of costs that could be recovered for the benefit of the Legal Services Commissioner is very modest, being $1,943.50—

2      Legal Services Act 2011, s 45(2).

3      Section 4(1), definition of “aided person”.

4      High Court Rules 2016, r 14.1.

5      Rule 14.2(1)(g).

6      Rule 14.2(1)(a).

I do not consider it is appropriate to make an order for costs in this case. Costs are to lie where they fall.

Isac J

Solicitors
Mooney & Webb, New Plymouth