Moana's Mother v Smith
[2025] NZHC 954
•17 April 2025
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 https://www.justice.govt.nz/family/family-court/after-the-family- court/restrictions-on-publishing-information/
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CIV-2021-441-75 CIV-2021-441-76
[2025] NZHC 954
IN THE MATTER OF The Oranga Tamariki Act 1989 BETWEEN
MOANA’s MOTHER
Appellant
AND
MR and MRS SMITH
First Respondents
AND
CHIEF EXECUTIVE OF ORANGA TAMARIKI MINISTRY FOR CHILDREN
Second Respondent
AND
MRS and MS TAIPA
Third Respondents
Hearing: 19 August 2024 Appearances:
R S P Lyttelton and R Stannard for First Respondents via VMR S Conway and K Eom for Second Respondent
Judgment:
17 April 2025
JUDGMENT OF CULL J
[On Costs]
Moana’s Mother [Costs] v Chief Executive of Oranga Tamariki Ministry for Children [2025] NZHC 954 [17 April 2025]
[1] “Mr and Mrs Smith” seek indemnity costs against the Chief Executive of Oranga Tamariki (OT) (the Chief Executive), following the unsuccessful appeal1 by the mother of seven-year-old Māori child, “Moana”, against the Family Court’s decision2 to place Moana in the custody of a non-Māori couple, the Smiths.3 The Chief Executive submits that scale costs are appropriate.
Background
[2] Moana had been uplifted from her mother’s care on several occasions throughout 2017. In January 2018, the Chief Executive sought and was granted an interim custody order of Moana. A s 101 custody order was made under the Oranga Tamariki Act 1989 (the OT Act) on 30 July 2018 in the Chief Executive’s favour. Moana was returned to the care of her mother on 15 May 2018, but the return was short-lived.
[3] On 17 September 2018, Mr and Mrs Smith, who lived in Napier, were approved by OT as the caregivers of Moana. By November 2018, it was reported that it was no longer a goal that Moana be returned to her mother’s care, and that she was doing “very well” and reported to be “extremely happy” with her caregivers. The plan at the time indicated that her placement would “go to permanency.”
[4] On 1 January 2019, Moana’s younger brother was born. He was placed in the care of a Māori family and the third respondents, “the Taipas”, on 18 October 2019. The Taipas have iwi connections with Moana and her brother in Ngāti Kahungunu and live in Lower Hutt, Wellington.
[5] On 17 October 2019, the Smiths applied to discharge the s 101 custody order in favour of the Chief Executive and sought parenting orders for the day-to-day care of Moana, prompted by OT’s “sudden decision to transition Moana to new caregivers in Wellington,” namely, the Taipas. The Smiths’ applications were opposed by the
1 Moana’s Mother v Mr and Mrs Smith and Ors [2022] NZHC 2934 [Appeal decision].
2 Chief Executive of Oranga Tamariki v [Moana’s mother and Moana] [2021] NZFC 630 [Family Court decision].
3 In my judgment, I referred to Moana, her mother, her caregivers and the extended whanau by assumed names that were used by the media in the publication of the case. The names were adopted to protect the privacy and confidentiality of the persons involved. I continue to use the assumed names for this costs judgment.
Chief Executive and, following a hearing, the Family Court placed a condition on the existing custody order that Moana’s placement with Mr and Mrs Smith would not be changed, pending the determination of their applications. On 17 July 2020, the Taipas also applied to discharge the s 101 custody order and sought parenting orders for the day-to-day care of Moana.
[6] On 12 January 2021, the Chief Executive urgently applied on a without notice basis to discharge the placement condition on the custody order on the basis of an alleged disclosure made by Moana about the Smiths. The urgent application was declined and a Pickwick hearing was ordered. The application was again declined at the hearing, and it was directed the application be set down to proceed on notice together with the Smiths’ and the Taipas’ applications.
[7] Following an eight-day hearing, the Judge discharged the Chief Executive’s custody order in favour of the Smiths. Mr Smith and Mrs Taipa were appointed as additional guardians of Moana in addition to her mother, and access orders were made in favour of Moana’s mother and the Taipas on specific terms and conditions. The Judge also ordered the Chief Executive to prepare and file a s 128 plan providing full and specific details of all the services or resources that would ensure the appropriate care, protection and control provided to, or exercised over, Moana, in support of the custody, access and support orders made.
[8] Moana’s mother appealed the decision, seeking to have the Family Court decision overturned and the s 101 custody order be made again in favour of the Chief Executive with conditions. She sought conditions for Moana to be placed in the day-to-day care of the Taipas with appropriate access to Moana’s mother, Moana’s siblings and the Smiths. The Chief Executive and the Taipas supported the appeal. The parties filed updating evidence on the plan ordered by the Family Court. The updating evidence included an affidavit from the OT social work supervisor, expressing his views about the Smiths’ conduct since the Family Court hearing.
[9] I dismissed the appeal. I found there had been no error or misdirection in the Judge’s application of the statutory principles of the OT Act to the facts of the case.4
4 Appeal decision, above n 1.
I held that the Judge had properly considered and applied the available psychological evidence. I rejected the appellant’s submissions that the Judge failed to consider the allegations of OT social workers, that the Smiths were controlling, manipulating, and had forced Moana to lie, and that the Judge discounted a large part of the evidence of the social workers. The Judge’s findings were open to him on the evidence. I also rejected the submissions that the Judge conducted the hearing with apparent bias against the Napier OT office.
[10] Having dismissed all the grounds of appeal, I considered whether the orders made by the Judge should remain extant. I found that they were appropriate and needed no amendment. Moana was well-settled with the Smiths with a wider support system in Napier, including her older siblings. I therefore dismissed the appeal on 9 November 2022.
[11] On 13 December 2022, the Smiths sought an award of indemnity costs against the Chief Executive for the costs reasonably incurred from the commencement of the High Court appeal, totalling $108,022.90. A year and a half later, the Chief Executive filed his submissions in opposition on 5 June 2024 and the Smiths replied on 18 June 2024.
[12]The matter was set down for hearing on 19 August 2024.
Parties’ submissions
The Smiths
[13] Mr Lyttelton, for the Smiths, submits that the Chief Executive is liable for the costs of the Smiths. He says that while the Chief Executive did not file the appeal, he supported it and was doing so in an attempt to remove Moana from the Smiths’ care.
[14] Mr Lyttelton relies on previous cost decisions,5 to argue that it is a principle that the Chief Executive should indemnify caregivers who are caring for a child in the custody of the Chief Executive and have not done anything wrong. He says this
5 Re H [Access] FC Christchurch CYPF-2009-025-92, 4 March 1998; F v D-GFW [1999] NZFLR 351 (FC); and Re H (1992) 8 FRNZ 659 (HC).
principle is not limited to circumstances where the Chief Executive supports the caregivers’ position. The Chief Executive should have supported the Smiths’ position here. Mr Lyttelton contends that this principle warrants this Court departing from the prescribed costs regime and the two-thirds recovery rate. If costs are not awarded in such circumstances, he submits, potential caregivers will be reluctant to undertake the responsibility of caring for children on behalf of the Chief Executive in fear of needing to pay their own legal costs, resulting in less caregivers to care for vulnerable children.
[15] In the alternative, Mr Lyttelton says the Court should award indemnity or increased scale costs as the Chief Executive’s submissions continued the narrative he adopted in the Family Court that the Smiths were inappropriate caregivers, despite this having no basis in fact. Mr Lyttelton submits that the Smiths would not have had to defend themselves in the Family Court or the High Court had the Chief Executive not taken that unsupportable position. The Chief Executive should have instead defended the Smiths as caregivers of Moana.
Chief Executive of Oranga Tamariki
[16] Mr Conway, for the Chief Executive, says there is no general principle that the Chief Executive should indemnify caregivers. He says the authorities relied on are flawed as the Family Court authorities do not mention or consider the High Court Rules, which apply to the determination of costs, and the High Court authority declined to award costs due to uncertainty over jurisdiction. He also notes that this principle is not embedded in statute, unlike the process by which the Court can require an undertaking by the Crown to be liable for damages and loss occasioned by restraining orders under the Criminal Proceeds (Recovery) Act 2009, if the subsequent forfeiture claim fails. The Court rarely orders undertakings in that context.
[17] Otherwise, Mr Conway submits that in the cases relied on by the Smiths, the existing care arrangement was supported by the relevant Department. This had a significant bearing on the courts’ determination of costs in those cases, he says. In contrast, he says the present proceedings arose in part because OT and the Smiths had different views of Moana’s welfare and best interests. It can therefore not be said that the Smiths’ legal costs were incurred to defend arrangements supported by the State.
[18] Further, Mr Conway says the Smiths’ claim to indemnity costs is based on the actions of OT in exercising its social work functions prior to litigation and it would be inappropriate for indemnity costs to be used to sanction decisions made by the State in the exercise of its duties and responsibilities.
[19] Mr Conway contends that scale costs are appropriate here to recognise that the Chief Executive advanced positions that were not accepted on appeal, namely that Moana ought to be placed with the Taipas rather than the Smiths, and that the Family Court erred in its assessment of the principles of the OT Act. He says indemnity costs are not appropriate as Moana’s mother took positions on appeal that were not supported by the Chief Executive, such as her challenge to the Family Court’s characterisation of the psychological evidence and evaluation of the social worker evidence, and her claims of the Judge’s apparent bias.
Legal principles
Costs, increased costs and indemnity costs
[20] The overarching principle of costs determinations is that they are at the discretion of the Court.6 A party who fails in respect of a proceeding is to pay costs to the party who succeeds7 and an award of costs should reflect the complexity and significance of the proceeding.8
[21] Under r 14.6(3)(b)(ii) and (iii) of the High Court Rules, the Court may award increased costs against a party that “has contributed unnecessarily to the time or expense of the proceeding or a step in the proceeding” by “taking or pursuing an unnecessary step or an argument that lacks merit” or “failing, without reasonable justification, to admit facts, evidence, documents, or accept a legal argument”.
6 High Court Rules 2016, r 14.1.
7 High Court Rules 2016, r 14.2(1)(a).
8 High Court Rules 2016, r 14.2(1)(b).
[22] Under r 14.6(4)(a), the Court may award indemnity costs against a party that “has acted vexatiously, frivolously, improperly, or unnecessarily in commencing, continuing, or defending a proceeding or a step in a proceeding.” The Court of Appeal in Bradbury v Westpac Banking Corporation held increased costs may be awarded where a party has failed to “act reasonably”.9 The Court reinforced that indemnity costs “are exceptional and require exceptionally bad behaviour” which is “flagrant”.10
Caregivers’ costs
[23] In support of their application for indemnity costs, the Smiths rely on three decisions, which they say endorse the principle that caregivers should not have to fund the defence of a position that they have been placed in by the Chief Executive.
[24] In Re H [Access],11 Judge Inglis QC ordered solicitor-client costs to be paid by the Child Youth and Family Service to the foster parents in their defence of a mother’s application for access. The statements he made with regard to the funding of litigation in relation to a foster child’s welfare were repeated in F v D-GFW.12
[25] In F, a foster child had been placed with caregivers for two years, when the Director-General of Social Welfare encouraged the caregivers to apply for permanent custody to vest in them and have them as the child’s additional guardians. The caregivers’ applications were defended by the child’s father. The caregivers’ application was successful and the father’s application was dismissed. The issue arising from that result was whether the caregivers should be indemnified by the Children, Young Persons and Their Families Service for their costs incurred by their necessary participation in the hearing.
9 Bradbury v Westpac Banking Corporation [2009] NZCA 234, [2009] 3 NZLR 400 at [27].
10 Bradbury v Westpac Banking Corporation, above n 9, at [28].
11 Re H [Access], above n 5.
12 F v D-GFW, above n 5, at 356.
[26]Judge Inglis enunciated “the issue of principle” as follows:13
If the Service is going to encourage caregivers, with whom children for whom the Service is responsible are placed, to undertake full responsibility for caring for the children, there needs to be very clear guidelines about exactly what kind of support the caregivers are to have if the kind of difficulties encountered in this case arise.
[27] The Judge then referred to his previous decision in Re H (Access) and repeated his views about the funding of litigation into which the foster parents are drawn. The Judge said there:14
Their liability for costs itself threatens the security of [the foster child] home with them. …. it is outrageous that foster parents who have successfully dedicated themselves to the care of a seriously disturbed child who has status with the Children, Young Persons and Their Families Service should be expected to fund litigation in relation to the child’s welfare. In my clear view the same applies when foster-parents, with the encouragement of the Service, have agreed to accept custody and guardianship under the 1968 Act.
[28] In Re H,15 Holland J similarly held that it was appropriate that foster parents should have their reasonable legal expenses fully indemnified by the Director-General, if he has power to do so. This followed the application by the child’s foster parents to be appointed guardians and to have custody of the child awarded, which was opposed by the child’s natural mother. She sought an order removing the child from the guardianship of the High Court. The mother was legally aided and it appeared that the Director-General had indicated a willingness to pay a portion of the foster parents’ costs.
[29] Although Holland J made no costs order, because the jurisdiction to do so was in some doubt to him, he stated: 16
… it appears to me to be quite wrong that people carrying out the role of foster parents in a situation like this and where they have achieved a wonderful result for this boy and have been shown not to have done anything wrong, should be put to legal expense because of this litigation. It accordingly seems to me to be appropriate that the foster-parents should have the legal expenses reasonably incurred by them fully indemnified by the Director-General if he has power so to do.
13 At 356.
14 Re H [Access], above n 5, at 7; cited in F v D-GFW, above n 5, at 356.
15 Re H, above n 5.
16 At 668–669.
[30] The application of this asserted “general principle” is opposed by the Chief Executive on the basis that in the authorities relied on, the relevant Department supported the existing custodial or guardianship position of the caregivers. The issue there, he says, was whether the Department should be responsible for the caregivers’ costs in litigation against third parties, either to make those existing arrangements permanent, or resist access arrangements not considered by the caregivers to be in the child’s welfare and best interests. He submits that such circumstances plainly had a significant bearing on the determination of costs in those authorities. Because OT and the Smiths had a different view of Moana’s best interests, Mr Conway submits it cannot be said the Smiths were standing in the shoes of the State or that their legal costs were incurred to defend arrangements supported by the State.
Discussion
[31] The Smiths, throughout the Family Court hearing and the appeal hearing, had the care of Moana, who had been placed with them by the Chief Executive as a matter of urgency in September 2018. By November 2018, the plan indicated that her placement would become permanent. Although this costs application concerns litigation funding of foster parents, costs arise in this Court as a result of an unsuccessful appeal. The High Court’s costs regime under the High Court Rules applies. The authorities of “general principle” above are illustrative of the exercise of the court’s discretion to award costs to foster parents. Ultimately, this Court must determine whether it is appropriate to award indemnity costs under the current High Court Rules.
[32] The starting point in respect of applications for indemnity costs under the High Court Rules is that the party seeking a departure from the costs regime must satisfy the Court that there is a proper basis for doing so.
[33] In Bradbury v Westpac Banking Corporation, the Court of Appeal summarised the three types of costs and when increased or indemnity costs might generally be awarded, saying:17
17 Bradbury v Westpac Banking Corporation, above n 9.
[27] The distinction among our three broad approaches – standard scale costs, increased costs and indemnity costs – may be summarised broadly:
(a)standard scale applies by default where cause is not shown to depart from it;
(b)increased costs may be ordered where there is failure by the paying party to act reasonably; and
(c)indemnity costs may be ordered where that party has behaved either badly or very unreasonably.
[34] The Court reinforced that indemnity costs are exceptional and require exceptionally bad behaviour or misconduct that is flagrant, but acknowledged that the categories in which the discretion may be exercised are not closed.18 Further, the unreasonable conduct must be in relation to the proceedings and importantly, after it was commenced. It does not encompass earlier conduct.19
[35] It was accepted that the pre-litigation conduct by OT was severed by an agreement over costs in respect of the Family Court hearing and litigation. The focus of this costs application is the role of the Chief Executive in the conduct of the appeal hearing.
The Chief Executive’s involvement in the appeal hearing
[36] Although the Chief Executive did not file a notice of appeal, or cross-appeal, he supported the appeal along with the Taipas, as confirmed in the hearing before me. Counsel for the Chief Executive acknowledged that the Chief Executive was effectively pursuing an appeal and made the principal submissions, challenging Judge Callinicos’ application of ss 4A, 5 and 13 of the OT Act. The Chief Executive submitted that the Judge erred in his application of the statutory requirements in relation to matters of tikanga and the Treaty of Waitangi | Te Tiriti o Waitangi.
[37] Effectively, the Chief Executive not only was challenging the Judge’s interpretation of the statutory provisions of the OT Act but was challenging the orders made by the Family Court in favour of the Smiths, on the basis that “the current orders
18 At [28]–[29], adopting Hedley v Kiwi Co-Operative Dairies Ltd (2002) 16 PRNZ 694. See also High Court Rules, 14.6(4)(f).
19 At [82]; citing Paper Reclaim Ltd v Aotearoa International Ltd [2006] 3 NZLR 188 (CA) at [41].
fail to meet the best interests and well-being of [Moana].” In other words, the Smiths were put in the position of having to defend themselves and their care of Moana, having willingly assumed care of her when she was in need of care and protection at the request of OT.
[38] The Chief Executive’s further challenge to the Smiths’ care of Moana on appeal was on the basis of the further updating affidavit of the OT social work supervisor, who repeated the criticisms of the Smiths and stated:
… I hold concerns that … [Moana] will lose her cultural identity over time if the status quo remains.
[39] I accept the Smiths’ submission that this fresh affidavit continued the narrative of the Chief Executive in the Family Court, that the Smiths were inappropriate caregivers, despite the findings of fact in the Family Court. The focus of the OT social work supervisor was to illustrate that the Smiths could not fulfil Moana’s cultural needs and that Moana’s connections to her mother, siblings and the Taipas was not being maintained. This was the predominant position of the Chief Executive on appeal. It was submitted on behalf of the Chief Executive that care and protection issues remain for Moana, because:
[t]here is a real risk that the current orders fail to meet the best interests and well-being of [Moana]: the critical Te Ao Māori concepts of mana tamaiti, whakapapa and whanaungatanga reflected in the OT Act are not being given effect, nor are [Moana]’s connection to her kinship group being maintained and strengthened.
[40] Further, the Chief Executive submitted that there was a real risk that the appointment of additional guardians for Moana will exacerbate the conflict between the adults in Moana’s life. On that basis, the Chief Executive sought a reinstatement of the s 101 order in his favour and the placement of Moana with the Taipas. I record Counsel’s acceptance on behalf of the Chief Executive on this appeal, that the inappropriate conduct of the social workers, as described by Judge Callinicos, was not being defended on appeal.20
20 Appeal decision, above n 1, at [141]–[147].
[41] The Smiths defended their position as caregivers in the Family Court and were successful. The Smiths were placed in the same position on appeal, of having to defend themselves against allegations which they disputed factually. Those allegations are contained in my appeal decision under the heading “Updating evidence” at [194]–[196].
[42] I record that the Smiths refuted the allegation made by the OT social work supervisor on appeal that there was a lack of priority on their part being accorded to Moana’s kinship contact. The Smiths filed evidence detailing that they had arranged and facilitated three access visits following the Family Court hearing with Moana’s brothers’ caregivers and the inevitable tensions that had arisen as a result of the Family Court orders. The tensions among the parties following that hearing are also recorded in my judgment, including the Smiths’ reluctance to engage further, because of the way in which they had been, and were continuing to be, criticised and challenged.
[43] The Smiths’ challenge to the OT social work supervisor’s updating affidavit was supported by Counsel for the Child, Mrs Hayward, who had been in regular contact with Moana and had witnessed the care she received from the Smiths. She supported the continuation of the Smiths’ care and custody of Moana. Mrs Hayward appeared and made submissions on appeal on the further challenges faced by the Smiths and the events subsequent to the Family Court hearing. Mrs Hayward took issue with the accuracy of the OT social work supervisor’s updating affidavit and its resulting unfairness in the following terms:
138. [The affidavit] first demonstrates the continuing bias against [Mr and Mrs Smith], something which disadvantages [Moana] and should not continue.
139. I refer to paragraph 37 where [the OT social work supervisor] talks about the reasons [Moana] missed out on “valuable time with significant people in her life”. He confirms the hesitancy of [Mrs and Ms Taipa], but does not really attribute any blame to them. Instead it is placed firmly with [Mr and Mrs Smith].
140. I note he fails to include their proposals for weekend contact leading up to the proposed summer contact. He also fails to specify how they were supposed to make this “valuable time” happen when the [Taipas] would not engage or share their position, either directly or through their lawyer.
141. This is simply not providing a fair and accurate picture of the situation, which is a continuation of the bias from the Napier office against the caregivers.
…
143. There is one correction that needs to be made and that is in relation to his paragraph 34, in which he refers to [Mr and Mrs Smith] failing to facilitate contact between [Moana] and [Moana’s brother]. It is my understanding that this happened, minimally every month, where there is only scheduled contact between [Moana] and her mother.
[44] As was the case in Bradbury, the significance of conduct preceding the issue of proceedings does not of itself justify increased or indemnity costs. Rather, it formed the basis for the subsequent litigation in the Family Court and on appeal, the same criticisms of the Smiths continued.21
[45] I cannot accept the Chief Executive’s submission therefore, that this appeal arose simply because OT and the Smiths had “different views of Moana’s welfare and best interests.” On appeal, the Chief Executive’s position was that the Smiths were inappropriate caregivers, who were not acting in the best interests and welfare of Moana. I disagreed. The appeal was unsuccessful and the Family Court orders were upheld.
[46] I cannot overlook that the OT social work supervisor’s affidavit was filed to support the Chief Executive’s attempt to remove Moana from the care of the Smiths and to place her in the care of the Taipas. The affidavit was challenged for the omission and misrepresentation of material facts, which cast the Smiths in a bad light.
[47] I consider Mrs Hayward’s submissions as to her involvement with Moana and this litigation provided the Court with a valuable insight, which reflects the reason the Smiths had to engage in this litigation and this appeal:
148. I agree that it would have been in [Moana]’s best interests to be placed with Māori caregivers following the breakdown of her final placement back with her mother. Oranga Tamariki simply failed to follow their own Kaupapa and to consider [Moana]’s cultural needs.
149. When her third attempt at living with her mother, [Moana’s mother], failed, they simply took the easiest way to place her by only considering what
21 Bradbury v Westpac Banking Corporation, above n 9, at [85].
approved caregivers were available to take a child, a young girl with significant problems.
150. So in September 2018 [Moana] went to live with [Mr and Mrs Smith], and there she has remained.
151. This placement meant that Oranga Tamariki was tasked with fulfilling [Moana]’s cultural needs. They failed. There are no other words to describe this. But not only did they fail, they blame [Mr and Mrs Smith], whose only status was as caregivers. This gave them no authority to actually address this issue. Yet social worker after social worker continued to blame them for this defect in their own practice.
[48] I consider Mrs Hayward’s submissions encapsulate the position the Smiths were placed in. I consider it was clear that there had been a policy change within OT following Moana’s placement with the Smiths, which was being driven by the senior management of OT. This led the frontline social workers to prioritise kinship placement over other considerations, such as the psychological attachment of Moana to the caregivers. The kinship imperative led to removal of children from caregivers and became known as “reverse uplifts” as a result. Judge Callinicos decision is sub- titled “Reverse uplift”.
[49] I accept the Smiths’ submission that there was a campaign by OT against them to discredit them and this was pursued on appeal. The egregious aspect of this approach is that the Chief Executive continued to discredit and undermine the Smiths on appeal.
[50] I acknowledge that the Chief Executive challenged the statutory interpretation of the Family Court Judge on appeal. It is appropriate that the Chief Executive may wish to challenge the statutory interpretation of the OT Act. However, at [62] of my appeal judgment, I noted that in making the submissions on the provisions of the OT Act, the Chief Executive’s submission omitted from the legislative overview the key legislative references to the timing of placement of Māori children. The requirement under the OT Act was that Moana should be placed in a safe, stable and loving home from the earliest opportunity where she could develop a sense of belonging and attachment. This was not mentioned in the Chief Executive’s submissions.
OT costs contributions
[51] Mr Conway submits that OT has developed an approach of considering contributions towards foster parents or caregivers’ legal costs incurred in respect of steps in a proceeding that the Chief Executive considers are in the well-being and best interests of the children. These costs are agreed upfront on a case-by-case basis and are usually paid at Legal Aid or Counsel for the Child rates.
[52] If the Chief Executive wished to pursue the appeal solely on the basis of statutory interpretation for future guidance, it was open to OT to engage with the Smiths and their legal advisors to make an arrangement to contribute towards the costs before the appeal hearing and its preparation.
[53] However, this was not the case here. This was a high-profile case, where the Chief Executive actively took a stance and supported the appellant in attempting to discredit the Smiths, whom they had placed in charge of Moana. In saying that, I accept that the Chief Executive did not support all of the appellant’s grounds on appeal. But at the time of the appeal, Moana was still in the Smiths’ care. The Smiths had no other option than to defend themselves in order to continue to care for Moana, to whom they were committed. They were placed in a position of having to continue to engage Counsel to rebut the challenge to their care of Moana and defend themselves personally.
[54] I reject the Chief Executive’s submission that costs against the Chief Executive in these circumstances should depend on whether the Chief Executive supports the foster parents. Here, the Chief Executive did support the Smiths as caregivers. Because of a policy change, the Chief Executive’s support of the Smiths was reversed.
Conclusion
[55] This is an exceptional case and should be considered on its own facts. Not only was it a high-profile case in the media, but it was also the principal case on which the amended provisions of the OT Act were considered and interpreted. It drew significant public attention because a Pākehā couple, who had cared for a Māori child, were under scrutiny for their lack of cultural background and connection.
[56] I consider the circumstances in which the Smiths were placed on appeal amount to exceptional circumstances, and they should not be in a position of financial loss because of the State’s continued personal attack on them. In the exercise of the Court’s discretion to award costs, I therefore grant the application for indemnity costs. In doing so, I emphasise that I am not applying a blanket principle for all foster parents or caregivers. This is an exceptional case and the indemnity costs award is made on the basis of these particular exceptional circumstances.
Reasonable costs
[57] The Court must be satisfied that the costs incurred were “reasonably incurred.”22
[58] Counsel for the Smiths have set out in their submissions the basis upon which the costs on appeal were reached. Lower hourly rates were adopted by Counsel and the junior Counsel who were assisting. The fees rendered are based on time accorded attendances and the hourly rates have been provided. In the hearing before me, the argument focused on whether indemnity costs should be awarded. I did not hear submissions on the reasonableness of the fees claimed.
[59] In making the award for indemnity costs, I grant leave to Counsel to address any issues regarding the reasonableness of the costs, but not on the basis that OT would normally pay only Legal Aid or Counsel for the Child rates. This was not done before the appeal and I consider it is too late now. Nevertheless, I give Counsel an opportunity to raise any issues with regard to the actual costs and their reasonableness within three weeks of this judgment.
Result
(a)An order for indemnity costs is made in favour of the Smiths.
(b)Leave is reserved to the Chief Executive to file a memorandum of no more than five pages in respect of the reasonableness of the costs sought within three weeks of the date of this judgment.
22 Edel Metals Group Ltd v Geier Ltd [2018] NZCA 494 at [62]; Mills v Dalzell [2025] NZCA 91.
(c)The appellants may file a reply memorandum of no more than five pages, within a further two weeks.
(d)Final orders will be made on the papers.
Cull J
Solicitors:
Govett, Quilliam, New Plymouth for First Respondents Crown Law Office, Wellington for Second Respondent
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