Lowe v Auckland Family Court

[2017] NZHC 1303

NOTE: PURSUANT TO S 125 OF THE DOMESTIC VIOLENCE ACT 1995

AND S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980.  FOR FURTHER INFORMATION, PLEASE SEE US/ABOUT-THE-FAMILY-COURT/LEGISLATION/RESTRICTION-ON- PUBLISHING-JUDGMENTS.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-2593 [2017] NZHC 1303

IN THE MATTER OF

An application under the Judicature

Amendment Act 1972 and section 27 of the New Zealand Bill of Rights Act 1990, and Part 30 of the High Court Rules

BETWEEN

LOWE Applicant

AND

AUCKLAND FAMILY COURT First Respondent

WAY

Second Respondent

Hearing:	On the papers
Appearances:	S Abdale for the Applicant J McLennan and S Dunn for The Second Defendant/Respondent M Headifen as lawyer for the child
Judgment:	14 June 2017

JUDGMENT OF GORDON J

[Application to reverse costs on an interlocutory application]

This judgment was delivered by me

on 14 June 2017 at 3.30 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

LOWE v AUCKLAND FAMILY COURT [2017] NZHC 1303 [14 June 2017]

Introduction

[1]      Ms Lowe has filed an application seeking the reversal, dismissal or variation of a costs order made by me on 6 April 2017 in which I ordered Ms Lowe to pay 2B costs to Mr Way and to make a one-third contribution towards to costs of lawyer for the child, Mr Headifen.

[2]      The grounds for the application are as follows:

(a)       Ms  Lowe  was  opposed  to  the  appointment  of  a  lawyer  for  child

[Mr Headifen] in the proceeding.

(b)Information regarding Ms Lowe’s financial means was disregarded because it was not filed in affidavit form.  Ms Lowe has subsequently provided an affidavit deposing to relevant matters, dated 7 April 2017.

(c)      Ms Lowe was successful in her application for judicial review, in that Lang J found that the Family Court Judge had breached her right to natural justice.

(d)Lang J had indicated that costs should lie where they fell on the application for judicial review.

(e)      It would be in the interests of justice that the costs awarded against Ms Lowe on the interlocutory application be reversed, discharged or varied.

(f)       Satisfying  the  order  for  costs  will  or  might  adversely  impact  the

welfare of Ms Lowe’s son, J.

[3]      The application is opposed by the second respondent, Mr Way.

Costs on interlocutory applications: legal principles

[4]      Ms Lowe brings the present application under r 14.8 of the High Court Rules

2016, which provides:

14.8     Costs on interlocutory applications

(1)       Costs  on  an  opposed  interlocutory  application,  unless  there  are special reasons to the contrary,—

(a)      must  be  fixed  in  accordance  with  these  rules  when  the application is determined; and

(b)      become payable when they are fixed.

(2)       Despite subclause (1), the court may reverse, discharge, or vary an order for costs on an interlocutory application if satisfied subsequently that the original order should not have been made.

(3)      This rule does not apply to an application for summary judgment.

[5]      There is very little guidance available regarding the application of r 14.8(2). Neither of the parties was able to refer me to any authorities on this point.  However, there are parallels between the terms of r 14.8(2) and the provisions of r 7.49, which relevantly provides:

7.49     Order may be varied or rescinded if shown to be wrong

(1)       A party  affected  by  an  interlocutory  order  (whether  made  on  a Judge’s own initiative or on an interlocutory application) or by a decision given on an interlocutory application may, instead of appealing against the order or decision, apply to the court to vary or rescind the order or decision, if that party considers that the order or decision is wrong.

…

(6)      The Judge may,—

(a)      if  satisfied  that  the  order  or  decision  is  wrong,  vary  or rescind the order or decision; or

(b)      on the Judge’s own initiative or on the application of a party,

transfer the application to the Court of Appeal.

[6]      There is a significant volume of authority regarding the interpretation and application of r 7.49, much of which is relevant to Ms Lowe’s application in the present case.  A review of an order pursuant to r 7.49 will generally be appropriate

only:1

1      Chequer v Chief Executive of the Ministry of Social Development [2012] NZHC 2575 at [3], affirmed on appeal Chequer v Chief Executive of the Ministry of Social Development [2014] NZCA 284; see also Carter v Coroner’s Court at Wellington [2015] NZHC 2998 at [11].

(a)       When there was not full argument on the first hearing; or

(b)If some relevant point of evidence was overlooked at the original hearing; or

(c)       There has been a material change of circumstances; or

(d)      Some other special circumstance has arisen.

[7]      Factors that may be relevant to the exercise of the Court’s discretion include the amount of the award and the nature of the hearing that preceded the award, in particular whether the issues were fully argued or whether there are other matters before the Court that would justify a reconsideration of the order.2

Discussion

[8]      The grounds listed by Ms Lowe in her notice of application do not disclose any reason to reverse, discharge or vary the costs order against her.

[9]      It is true that in the time since I delivered my decision regarding costs on the application for interim relief, Ms Lowe’s application for judicial review has been determined3   and  a  costs  judgment  issued.4      Lang  J  declined  to  make  an  order requiring the parties to pay a contribution to Mr Headifen’s costs as, following the hearing of the application, he concluded that Mr Headifen’s appointment had been unnecessary.  However, Ms Lowe’s application for interim relief raised other issues,

which Lang J was not required to consider.   In particular, the welfare and best interests of J were a primary consideration in determining whether to grant the interim relief sought, which would have halted the Family Court proceedings regarding J’s care arrangements.   Mr Headifen’s involvement in the interim relief

proceedings was entirely appropriate.

2      See Wrightson NMA Ltd v McConnell [1989] 2 NZLR 77 (HC) at 82-83, citing Profcom Systems

Ltd v Madison Advertising Ltd [1989] 2 NZLR 63 (HC) at 68.

3      Lowe v Auckland Family Court [2017] NZHC 758.

4      Lowe v Auckland Family Court [2017] NZHC 1173

[10]     Nor does the updating affidavit of 7 April 2017 disclose any grounds for reversing, discharging or varying the order regarding costs.  There is some material relating to a previous legal aid application, which was declined; but that application is  not  concerned  with  Ms  Lowe’s  application  for judicial  review.    Further,  any evidence that Ms Lowe wished to file regarding her financial means could and should have been filed by way of an affidavit when her submissions regarding costs were received.  There is no excuse for failing to do so.  Ms Lowe was represented by counsel, Ms Abdale, who must be familiar with the rules regarding the filing of evidence.  This is not a case where some relevant point of evidence was overlooked at the original hearing.

[11]     Finally, I do not consider that the decision of Lang J in relation to Ms Lowe’s application  for  judicial  review  discloses  any  reason  to  revisit  the  costs  order. Ms Lowe was only partially successful in her application and in any event, the Judge declined to grant relief.  Further, the fact that Ms Lowe achieved partial success in her application for judicial review does not reflect in any way upon the merits of her application for interim relief, which was dismissed on other grounds.

Result

[12]     I decline to exercise my discretion to reverse, discharge or vary the order as to costs.

Gordon J

Solicitors:           Crown Law, Wellington

Vicki Pomeroy Law, Auckland

Holmden Horrocks, Auckland

Counsel:            S Abdale, Auckland

J McLennan, Auckland
M Headifen, Auckland