Hampton v Rennie

[2022] NZHC 1681

NOTE: ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2020-443-00018

[2022] NZHC 1681

UNDER

the Care of Children Act 2004

IN THE MATTER

of an appeal against a decision under s 47(1) of the Act

BETWEEN

W J HAMPTON

Appellant

AND

T J RENNIE

First Respondent

C W HAMPTON
Second Respondent

L RENNIE

Third Respondent

Hearing:	On the papers
Appearances:	W J Hampton self-represented Appellant R A Standring for the Third Respondent M Cochrane for the Child
Judgment:	14 July 2022

JUDGMENT OF COOKE J

(Costs)

[1]    By judgment dated 1 June 2021 I dismissed Mr Hampton’s appeal against decisions of the Family Court dated 3 April 2020. I indicated that if there was any

HAMPTON v RENNIE [2022] NZHC 1681 [14 July 2022]

issue about costs the party seeking costs could file and serve a memorandum which could be responded to by memorandum filed and served within five working days.1

[2]    By memorandum dated 9 June 2021 the third respondent filed a memorandum seeking costs. There was then no response from the appellant in accordance with the directions in the judgment. Unfortunately the memorandum seeking costs was not then drawn to my attention. A number of months later, however, and by affidavit dated 11 February 2022 the appellant set out grounds for opposing costs. This led to counsel for the child filing a memorandum dated 15 February 2022 effectively supporting the award of costs against the appellant.

[3]    Unfortunately these documents were not brought to my attention by the Registry until yesterday. I apologise to the parties on the Court’s behalf for these delays.

Should costs be awarded?

[4]    Costs awards in this Court are regulated by Part 14 of the High Court Rules 2016. There is an issue concerning the award of costs in care of children matters, however. In H v A Pankhurst J indicated that a primary consideration in such matters was the best interests of the child or children, and the pursuit of legitimate questions concerning the care of children should not be inhibited by costs awards.2 In Hawthorne v Cox the Court of Appeal referred to this view, and to a potentially different approach in other authority, and endorsed the view of the importance of the interests of the child in costs decisions.3 I recently applied an approach recognising this point in relation to costs in the Family Court, and in the High Court, in Adams v Watcher.4

[5]    As the Court of Appeal indicated in Hawthorne, different considerations potentially arise on appeal to the High Court. Whilst parties “… should not be discouraged from raising all genuine and responsible arguments they believe to be in

1      Hampton v Rennie [2021] NZHC 1267 at [52].

2      H v A (2002) 22 FRNZ 447 at [17]. See also R v S [2004] NZFLR 207.

3      Hawthorne v Cox [2008] NZCA 146 at [26]–[28].

4      Adams v Watcher [2021] NZHC 432.

the best interests of the child in the lower Court, the same might not apply on appeal given that litigation and uncertainty will be prolonged …”.5 In the end this will involve the application of the discretion in relation to costs under r 14.1, and the potential refusal or reduction of awards under r 14.7(g).

[6]    In my view this is a case where such considerations apply. Whilst I accepted in the judgment that there might be elements of the appellant’s arguments that could be considered with a degree of latitude given his perception of the best interests of the child, his pursuit of the appeal, and the costs to which he has put the parties to as a consequence, should result in a costs award. There has been significant litigation about these issues already in the Family Court, and on appeal, and the present appeal involved a significant degree of relitigating matters. In my view an award of costs is appropriate in those circumstances. There is no warrant to depart from a normal award for discretionary reasons.

[7]    I have considered the other matters raised in the appellant’s affidavit, but do not consider they involve reasons under r 14.7 for reducing costs. To the extent that it included an argument that the appellant did not have the means to pay I accept the view expressed by counsel for the child that there is no evidence before the Court to allow such a finding to be made. I also note an amount was lodged by way of security for costs. I accordingly conclude that costs should be awarded notwithstanding what is said in the affidavit.

What amount should be awarded?

[8]    In terms of the amount of the award I follow the approach applied in Tanoa v Attorney-General and start with the amounts that are awarded in accordance with the scale set by the schedules to the High Court Rules, but limit the award to the amount that has been paid to the third respondent’s lawyers by way of legal aid.6

[9]    The amount paid in legal aid is not an amount that the third respondent has actually incurred herself, but she has a duty to pursue the costs application as part of

5      Hawthorne v Cox, above n 3, at [28].

6      Tanoa v Attorney-General (2004) 8 HRNZ 53 at [41]–[43]. See also Baker v Harding [2020] NZHC 1859 at [9].

her grant, and as I understand the position any costs recovered by her under the award are payable to the Legal Services Commissioner as the recovery under the proceedings. If that understanding is not correct, counsel for the third respondent should bring that to my attention.

[10]   The award under the scale would exceed the amount of paid under the legal aid grant, which totals $8,360.11. This will be the amount of the costs award.

[11]   The third respondent is accordingly awarded $8,360.11 against the appellant by way of costs.

Cooke J

Solicitors:

Holbrook Law, Auckland for the Respondent

Connect Legal Taranaki for the Third Respondent