P v Oranga Tamariki Ministry for Children

[2018] NZHC 2562

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2018-485-250

[2018] NZHC 2562

IN THE MATTER OF

the Oranga Tamariki Act 1989

BETWEEN

P and B Appellants

AND

ORANGA TAMARIKI – MINISTRY FOR CHILDREN

Respondent

On papers
Judgment:	1 October 2018

JUDGMENT OF GRICE J

[Costs on appeal]

[1]                 In the substantive decision related to this proceeding I allowed an appeal against a costs decision of the Family Court.1 I found that it had erred in determining the amount of the costs to be awarded to P and B by overlooking their obligation to repay the legal services Commissioner the amount incurred in legal fees and disbursements. The matter was remitted back to the Family Court for reconsideration.

[2]P and B are now seeking costs and counsel have filed submissions.

Submissions

[3]                 P and B seek costs arising from the appeal in the amount of just over $3,000. Ms Levy, for P and B, notes that scale costs on a 2B basis will exceed $10,000. P and B say:

1      P and B v Oranga Tamariki – Ministry for Children [2018] NZHC 2165.

P and B v ORANGA TAMARIKI – MINISTRY FOR CHILDREN [2018] NZHC 2562 [1 October 2018]

(a)they have succeeded on the appeal and costs should follow the event in the usual course;

(b)counsel for P and B had contacted counsel for Oranga Tamariki just after the Family Court decision was issued suggesting that there was an obvious legal error in the judgment and they should seek to have it recalled. This offer was rebuffed;

(c)P and B were legally aided for this appeal, but they will not face another minimum repayment to the Commissioner of Legal Services.2 This means only the interests of Legal Services will be affected by this Court’s decision on costs; and

(d)the issue concerning the specialist jurisdiction of the Family Court is irrelevant to the costs on appeal in the circumstances.

[4]                 In response, Oranga Tamariki acknowledges the well-established principle that costs follow the event and that they are payable according to scale.3 However, it argues the Court should exercise its discretion to refuse or reduce the amount of costs payable on the basis that:4

(a)Oranga Tamariki proposed, when the nature of P and B’s case on appeal was clarified at a late stage, that the High Court should discharge the existing orders by consent and direct a re-hearing of the costs issue in the Family Court (which was the ultimate result);

(b)public interest considerations apply as the appeal concerned a matter of public interest and Oranga Tamariki acted reasonably in the conduct of the appeal;

(c)the public interest aspect is that a significant costs award would impact on Oranga Tamariki’s ability to deliver care and protection services to

2      Legal Services Act 2011, ss 18(2), 21 and 36; Legal Services Regulations 2011.

3      High Court Rules 2016, rr 14.2(1)(a) and 14.2(1)(c).

4      Rule 14.7.

other tamariki and it was accordingly in the public interest to defend the appeal; and

(d)in the alternative, the respondent submits that the decision on costs should be reserved until the Family Court has re-issued its decision.

Analysis

[5]                 I have considered the submissions and am of the view that in this case costs should follow the event.

[6]                 While both parties allege there were points in time at which they each proffered a suggestion to expedite the appeal before the hearing, they do not agree on the effect of the respective proposals. I do not have the full context nor the evidence before me to assess their likely effect. In any event, I do not consider that these proposals are relevant to the issue of costs before this Court.

[7]                 I do not consider that the public interest considerations in this case stand in the way of an award of costs. While Oranga Tamariki’s obligations are to deliver care and protection services to tamariki, against this is the public interest in costs being awarded to legally aid persons. The Ministry’s special position may be of greater significance in the Family Court where the judge has had the benefit of hearing the evidence in relation to the substantive issues in dispute.

[8]                 Nor am I of the view that the issue of costs on appeal before this Court should be delayed until after the Family Court costs decision is reconsidered. I note that a significant amount of time and energy has been invested in these proceedings to date. It is not appropriate to further delay a decision on the appeal costs and incur yet further costs in the matter.

[9]                 No issue has been taken with the amount of costs sought by P and B of $3,000. It appears reasonable in the circumstances. It is well under the amount which would be available on a 2 B basis.

[10]              Accordingly, costs of $3,000 are awarded to P and B, together with disbursements as fixed by the Registrar.

Grice J

Solicitors:

Belvedere Law, Auckland for appellants Crown Law, Wellington for respondent