Henderson v Oranga Tamariki Ministry of Children

[2023] NZHC 3408

NOTE: PURSUANT TO S 437A OF THE ORANGA TAMARIKI ACT 1989, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE

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IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CIV-2023-454-41

[2023] NZHC 3408

UNDER THE

Oranga Tamariki Act 1989

IN THE MATTER OF

an appeal against a decision of the Family Court

BETWEEN

MS HENDERSON

Appellant

AND

ORANGA TAMARIKI—MINISTRY OF CHILDREN

Respondent

Hearing:

On the papers

Appearances:

Appellant in person McKenzie friend

V A Howell and I M G Clarke for Respondent H J McKenna as Counsel for Child

Judgment:

28 November 2023

JUDGMENT OF GRICE J (costs)

Introduction

[1]                 Ms Henderson1 unsuccessfully appealed Family Court orders granting custody and additional guardianship of her son to Oranga Tamariki.2

1      The names of the appellant, the child and related parties have been anonymised in this judgment.

2      Henderson v Oranga Tamariki [2023] NZHC 3018.

HENDERSON v ORANGA TAMARIKI (COSTS) [2023] NZHC 3408 [28 November 2023]

[2]                 The appeal grounds included allegations of predetermination and bias against the Family Court Judge hearing the matter, and allegations of ineffective assistance of counsel who acted for her in the matters giving rise to the appeal before Ms Henderson commenced acting for herself. Ms Henderson also contested matters that she had agreed to and had been the subject of consent orders. In addition, a substantial portion of Ms Henderson’s arguments on appeal related to matters arising after the decision and in connection with arrangements for the day-to-day care of her son and her access to him.

[3]                 Ms Henderson acted for herself on the appeal and had the assistance of a support person.

[4]                 Oranga Tamariki now seeks costs on a 2B basis and provided a schedule of costs. Ms Henderson opposes an award of costs largely on financial grounds.

Principles in relation to costs

[5]                 Subject to the provisions of the Senior Courts Act 2016, all matters relating to costs are at the discretion of the Court.3 However, that discretion is generally to be exercised in accordance with rr 14.2–14.10 of the High Court Rules 2016.

[6]                 The general principles  applying to  the determination of costs  contained  in  r 14.2(1) include that the party who fails with respect to a proceeding or an interlocutory application should pay costs to the successful party. Costs should be assessed by applying the appropriate daily recovery rate to the time considered reasonable for each step reasonably required in relation to the proceeding or interlocutory application.

Submissions of the parties

[7]                 Oranga Tamariki submits that impecuniosity does not allow an unsuccessful party to escape an award of costs. It also submits that if financial circumstances were to be taken into account in every application for costs, the cost principle that costs

3      High Court Rules 2016, r 14.1.

should be predictable and expeditious4 would be undermined. It also notes that in the affidavit as to financial circumstances provided by Ms Henderson, her assets are not mentioned and these should be taken into account if an assessment of financial circumstances is to be undertaken.

[8]                 Ms Henderson opposes the application for costs on the basis that she is financially not able to pay it. I allowed her further time to file an affidavit relating to her finances, which she has done.5 Ms Henderson said that given no security for costs was ordered and that the hearing fee was waived due to her financial circumstances, similarly no costs should be awarded. She also said Oranga Tamariki had access to extensive resources, whereas she did not.

Discussion

[9]                 In this case, there is no reason why costs should not follow the event on a   2B basis, which is the appropriate category and band for the award in this case.

[10]              Financial impecuniosity is not a barrier to a costs award, particularly where the appeal was substantially without merit.6 As the High Court commented in Te Whare O Te Kaitiaki Ngahere Inc v West Coast Regional Council, a costs award “should be made at a meaningful level, even against an impecunious party, when that party has advanced a case which is poorly pleaded or lacking in merit”.7 And as the Court stated in Craig v Keith, “[f]inancial hardship is a relevant factor which may be taken into account under r 14.7(g) in exercising the discretion to award costs, but it is not an answer to a claim for a costs award.”8

4      Rule 14.2(1)(g).

5      Where a party’s limited financial means is not already established in the substantive proceedings, evidence of such should be provided in the form of a sworn affidavit: Lowe v Auckland Family Court [2017] NZHC 656 at [5]; and Craig v Keith [2017] NZHC 2664, [2017] NZFLR 899 at [22], cited in Foni v Foliaki [2018] NZHC 3126 at [5(c)].

6      Foni v Faliaki, above n 5, at [5(b)], citing Te Whare O Te Kaitiaki Ngahere Inc v West Coast Regional Council [2014] NZHC 2969 at [16] and Tuck v Keedwall [2016] NZHC 794 at [11]; and see Poutama Kaitiaki trust v Taranaki Regional Council [2021] NZHC 872 at [12].

7      Te Whare O Te Kaitiaki Ngahere Inc v West Coast Regional Council, above n 6, at [16]. See also Chesterfields Preschools Ltd v Commissioner of Inland Revenue [2011] NZCA 640, in which the Court of Appeal commented, “[h]ardship is not usually regarded as a ground to resist an award of costs in circumstances where the opposite party has been put to unnecessary expense in responding to an application or appeal”: at [7], cited in Foni v Faliaki, above n 5, at [5(a)].

8      Craig v Keith, above n 5, at [23], citing Te Whare O Te Kaitiaki Ngahere Inc v West Coast Regional Council, above n 6, at [16].

[11]              I also note that, as Oranga Tamariki pointed out, no assets are listed in the financial material produced by Ms Henderson. It is apparent that she owns a house and in addition the information includes income from investments. However, the nature of the investments is not disclosed.

[12]              I consider in the situation that costs on a category 2B basis are reasonable. In the minute of Palmer J dated 13 July 2023 in which he refused to grant security for costs, he indicated costs on appeal were to be on a category 2 basis.9

[13]              The fact that security for costs was not ordered is no answer to an award for costs being made against Ms Henderson. Security for costs performs a different function. It is to give some security to the respondent on appeal, and consideration will also be given at that stage to whether security would be effectively a barrier to pursuing the appeal. Therefore, I do not consider the lack of any order requiring security for costs or the filing fee waiver are considerations that weigh heavily in the assessment of costs at this stage.

[14]              The appeal was largely without merit and contained a lot of irrelevant material in relation to matters which should have been properly pursued in the Family Court, where the proceedings remain extant and the care plan arrangements are being reviewed by the Family Court. In that situation, I can see no reason why costs should not be awarded on 2B basis. No criticism of the detail of the costs and disbursements sought has been made by Ms Henderson. No certificate is sought for second counsel in the matter, despite the appearance of second counsel. However, I note there was a charge of $180 for accommodation in Palmerston North due to Wellington counsel appearing in the matter. I have given consideration as to whether that is an appropriate disbursement given the matter might have been conducted by local counsel. I consider the claim for accommodation is appropriate, and in the circumstances the briefing of a suitably qualified counsel from Wellington in an appeal of this nature, particularly given the extensive appeal grounds, was justified.

9      [Henderson] v Oranga Tamariki HC Te Papaioea | Palmerston North CIV-2023-454-41, 13 Hūrae

| July 2023 (Minute of Palmer J).

Result

[15]              Oranga Tamariki claimed costs of $18,454 according to the schedule set out in its memorandum. Costs are accordingly awarded in favour of Oranga Tamariki in that amount.

Grice J

Solicitors:

Kate Sheppard Chambers, Wellington. Crown Law Office, Wellington.

McKenna Law Limited, Palmerston North.