G v Cox

NOTE: ANY PUBLICATION OF A REPORT OF THESE PROCEEDINGS MUST COMPLY WITH S 139 OF THE CARE OF CHILDREN ACT 2004
IN THE SUPREME COURT OF NEW ZEALAND
SC 35/2008
[2008] NZSC 68
BETWEENG

Applicant

ANDROSEMARY COX

First Respondent
ANDP

Second Respondent

Court:Blanchard, McGrath and Wilson JJ
Counsel:R J Hooker for Applicant

E B Parsons for First Respondent

Judgment:27 August 2008

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed, with costs of
$2,500 to the first respondent.

REASONS
[1]       The applicant seeks leave to appeal against a judgment of the Court of Appeal[1] holding that leave was required to appeal against a refusal of costs by the High Court, and refusing leave. The applicant had sought to appeal against that part of a judgment of Heath J, on appeal from the Family Court,[2] in which he refused

costs to the applicant although the applicant had succeeded in an appeal against an order for guardianship. The Court of Appeal rejected the submission for the applicant that s 145(1)(b) of the Care of Children Act 2004, which requires the leave of the Court of Appeal to appeal against any order “made on appeal” from a lower court decision, did not apply to an order as to costs.[3]
[1] [2008] NZCA 146.
[2]      Reported as Hawthorne v Cox [2008] 1 NZLR 409.
[3] At para [14].
[2]       The Court of Appeal was plainly correct in coming to this conclusion. An order as to costs is made on appeal in the same way as the determination of the appeal itself is made on appeal. As the Court of Appeal pointed out,[4] it would be surprising and anomalous if there were a right of appeal against a discretionary costs order but leave were required to appeal against the substantive decision.
[4] At para [15].
[3]       Because leave to appeal to the Court of Appeal was required, s 7(b) of the Supreme Court Act 2003 applies. The effect of that paragraph is that this Court does not have jurisdiction to hear an appeal against a decision of the Court of Appeal refusing leave to appeal to that Court. It follows that the present application must be dismissed. The applicant is ordered to pay to the first respondent costs of $2,500.
Solicitors:
Vallant Hooker and Partners, Auckland for Applicant
Chambers Craig Jarvis, Auckland for First Respondent

CaseChat Overview and Summary

In the case of G v Cox, the applicant sought leave to appeal against a decision of the Court of Appeal, which held that leave was necessary to appeal against the High Court's refusal of costs. The applicant had previously succeeded in an appeal against an order for guardianship, but the High Court had denied them costs. The Court of Appeal ruled that section 145(1)(b) of the Care of Children Act 2004, which requires leave for appeals against orders made on appeal from a lower court, applied to costs orders as well. The Court of Appeal rejected the applicant's argument that this section did not apply to costs orders, correctly concluding that such orders are made on appeal in the same manner as the substantive appeal decisions.

The legal issue before the Court of Appeal was whether section 145(1)(b) of the Care of Children Act 2004, which mandates leave for appeals against orders made on appeal from a lower court, applied to costs orders. The Court of Appeal held that this section did indeed apply to costs orders, as they are made on appeal in the same manner as the substantive appeal decisions. The Court of Appeal found it surprising and anomalous if there were a right of appeal against a discretionary costs order without needing leave to appeal against the substantive decision. Therefore, the Court of Appeal correctly concluded that the applicant needed leave to appeal against the High Court's refusal of costs.

The Supreme Court upheld the Court of Appeal's decision, finding that it was correct in holding that section 145(1)(b) of the Care of Children Act 2004 applied to costs orders. The Supreme Court dismissed the applicant's appeal for leave to appeal against the Court of Appeal's refusal of leave, as section 7(b) of the Supreme Court Act 2003 does not grant the Supreme Court jurisdiction to hear an appeal against a Court of Appeal decision refusing leave to appeal. Consequently, the Supreme Court ordered the applicant to pay $2,500 in costs to the first respondent.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established