Ley and Ley v Chief Executive of the Ministry of Social Development

[2009] NZCA 110

IN THE COURT OF APPEAL OF NEW ZEALAND

CA752/2008
[2009] NZCA 110

BETWEENRAEANNE LEY

First Applicant

ANDWARRICK LEY

Second Applicant

ANDTHE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT

First Respondent

ANDTHE FAMILY COURT

Second Respondent

ANDTHE ATTORNEY-GENERAL

Third Respondent

Hearing:17 March 2009

Court:O'Regan, Arnold and Ellen France JJ

Counsel:F C Deliu for Applicants

U R Jagose and B P D Leslie for First Respondent

Judgment:2 April 2009 at 2.30 pm

JUDGMENT OF THE COURT

AWe grant an extension of time in which to appeal subject to the conditions set out at [7] of the Reasons of the Court.

B        We reserve costs.

REASONS OF THE COURT

(Given by O’Regan J)

[1]       On 24 July 2008, Harrison J struck out judicial review proceedings commenced by the applicants in respect of a decision of the Family Court relating to the care of the applicants’ children: RL v Chief Executive of the Ministry of Social Development HC AK CIV 2007-404-7031 24 July 2008.  An appeal against this judgment has been filed with this Court and has been allocated the number CA503/2008 (the substantive appeal).  In a judgment issued on 13 October 2008, Harrison J dealt with the issue of costs in the High Court proceeding, specifically the costs of counsel for the child.  He held that counsel for the applicants, Messrs Orlov and Deliu, were personally liable to pay indemnity costs in the sum of $11,125 to the counsel for the child.  In the same judgment, Harrison J declined an application for him to recuse himself.

[2]       Within a few days of the delivery of the 13 October 2008 judgment, the applicants sought leave to appeal directly to the Supreme Court against that judgment. They argued that there were exceptional circumstances justifying a leapfrog appeal. On 24 November 2008, the Supreme Court dismissed the application, holding that there were no exceptional circumstances justifying the granting of leave: [2008] NZSC 99. The Supreme Court said that the matters raised in the application for leave to appeal to that Court “should follow the normal appeal pathway and be brought in the Court of Appeal”.

[3]       By memorandum dated the following day, the applicants signalled their intention to file an appeal with this Court.  In this memorandum the applicants also sought: (1) an order that the costs appeal be heard at the same time as the substantive appeal; and (2) a stay of the enforcement of the costs judgment.  They said that the substantive appeal and the costs appeal should be heard together because they were “inextricably linked”.

[4]       On 3 December 2008, the applicants filed an application for leave to appeal to this Court in relation to the costs judgment (the costs appeal).  The last day for filing this notice was 11 November 2008: r 29 of the Court of Appeal (Civil) Rules 2005 (the Civil Rules).  The applicants sought leave to appeal, but it is clear that the intent of the application was to seek an extension of the time in which to appeal under r 29A of the Civil Rules.  This application is opposed by the respondent on the grounds that the proposed appeal lacks merit and will likely delay the hearing of the substantive appeal (which, in turn, will further delay the Family Court proceedings).  The respondent also opposes the costs appeal being heard together with the substantive appeal if the extension of time is given, on the grounds that this will further delay the substantive appeal.

[5]       As noted earlier, the award of costs made in the High Court was in favour of the counsel for the child.  The respondent did not seek, and was not awarded, costs in the High Court.  Counsel for the respondent, Ms Jagose, said that the respondent’s opposition to the present appeal was not because it had a particular stake in the outcome, but because of its concern that the granting of an extension of time would lead to the costs appeal and the substantive appeal being heard together, which would further delay the substantive appeal.  She said that the respondent was very concerned at the impact of the present litigation on the children, particularly as any delay in the conduct of the substantive appeal would cause delay in the timely determination of outstanding matters in relation to the children in the Family Court.  She also indicated that, as counsel representing an agency of the Crown, she also saw her role as having some responsibility in defending the costs award in favour of counsel for the child, which would ultimately be paid to the Crown. 

[6]       We suggested to counsel at the hearing that the substantive appeal should be brought to a hearing as soon as possible, and that, if an extension of time were granted the costs appeal could be dealt with separately.  Ms Jagose accepted that this proposal would avoid the concern of the respondent as to the impact of any further delays on the children.  Mr Deliu said that the applicants and their lawyers had no objection to that course and agreed to abandon the application for an order that the substantive appeal and the cross appeal be heard together. 

[7]       We are satisfied that an extension of time should be granted in the present circumstances.  The separation of the substantive appeal from the proposed costs appeal removes the prejudice to the respondent, and means that the Family Court proceedings will not be further delayed if we give an extension of time in relation to the costs appeal.  The delay in filing the appeal in this Court is relatively minor, though we have to say that the course of action taken by the applicants (filing an application for leave to appeal directly to the Supreme Court, rather than appealing to this Court) was misguided, as the Supreme Court itself noted in its judgment refusing leave.  In the circumstances we grant an extension of time to appeal subject to the following conditions:

(a)A notice of appeal with full particularised grounds of appeal must be filed and served on or before 24 April 2009. 

(b)The applicants must apply for a fixture for the hearing of the appeal no later than 11 May 2009 (being the date which is six months after the notice of appeal ought to have been filed).  They must also file the case on appeal for the costs appeal by that date, unless it is proposed to use the same case on appeal as for the substantive appeal, in which case they must notify the Court by 11 May 2009 of that intention.

(c)The applicants must not seek to have the appeal heard at the same time as the substantive appeal unless the respondent agrees to that course.

[8]       The application for stay was not pursued at the hearing before us and no supporting affidavits or submissions have been filed in respect of it.  If a stay is still sought, Messrs Orlov and Deliu must file any affidavits in support of it and their submissions by 24 April 2009.

[9]       We reserve the issue of costs in respect of the present application until the conclusion of the costs appeal.

[10]     We have intituled this judgment consistently with the documents filed in relation to the application for extension of time to appeal.  However, the parties contesting the High Court costs award are those against whom it was made, Messrs Orlov and Deliu, and they should be shown as the appellants in CA752/2008.  We direct the Registrar to alter the Court’s records accordingly and direct the parties to intitule documents relating to that appeal accordingly from now on.

[11]     Mr Deliu filed a memorandum to the Court in early February raising a question about a possible conflict between his role as counsel and as a potential deponent in support of the stay application.  The separation of the costs appeal from the substantive appeal and the directions set out at [10] resolve that question.

Solicitors:

Alastair McClymont, Auckland for Applicants
Crown Law Office, Wellington for First Respondent