Q v Chief Executive of the Ministry of Social Development

[2014] NZHC 311

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV-2012-412-000052 [2014] NZHC 311

UNDER  The Children, Young Persons and Their

Families Act 1989

IN THE MATTER             of an appeal against a decision of the

Family Court at Dunedin

BETWEEN  Q AND L Appellants

ANDCHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT

Respondent

Hearing:                   4 December 2013 (On the papers) Counsel:       N Levy for Appellants

R P Bates for Respondent

Judgment:                27 February 2014

JUDGMENT OF PANCKHURST J (RE COSTS)

Introduction

[1]      This care and protection case occupied eight days in the Family Court and three days on appeal.  There was also a half day interlocutory hearing in this Court concerning leave to adduce new evidence on appeal.   Ultimately, the parents succeeded. A care and protection order relating to their daughter was discharged.

[2]      Costs awards are sought in relation to the hearings in both Courts.  Issue is raised  as  to the appropriateness  of my dealing  with  costs  in the Family Court, including  whether  jurisdiction  exists.     Otherwise,  there  is  a  fair  measure  of

agreement concerning quantum in particular.

Q AND L v CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT [2014] NZHC 311 [27 February 2014]

Costs in the High Court

[3]      The  appellants  seek  costs  totalling  $40,520  and  disbursements  totalling

$21,448.96.   The costs memorandum filed on behalf of the Ministry of Social Development (MSD) stated, “It is likely that costs in respect of the High Court will be resolved by agreement.”  In a reply memorandum the appellants sought an order since quantum has not been formally resolved, nor of course a payment made.

[4]      I am satisfied that the costs claimed are fair and reasonable.  Subject to three exceptions, all steps in relation to the appeal have been costed on a 2B basis.  This was a complex case, making the 2B scale appropriate.  However, 2C costs are sought in relation to preparation of the application to adduce new evidence and the preparation of the submissions in support, and preparation of submissions for the substantive hearing.  This is to say that “a comparatively large amount of time” was considered reasonable in assessing costs in relation to these aspects.  I accept this.

[5]      The application to adduce new evidence was complex.  Counsel was required to search the record relating to two inter-related hearings in the United Kingdom and to brief the evidence of an expert witness from those hearings, in order to advance the new evidence application.    The subsequent preparation of substantive submissions on appeal was also a substantial task, particularly given the extensive expert evidence adduced in the Family Court and the need to evaluate that evidence (in part by reference to the new evidence) on appeal.

[6]      I am also satisfied that the claim for disbursements is fair and reasonable. The amount sought, $21,448.96, is largely comprised of costs incurred in securing a report from a United Kingdom expert and his attendance to provide evidence at the appeal hearing. This occasioned almost $19,000 of the amount claimed.

Costs in the Family Court

[7]      An award is opposed by MSD, both on the basis that it is more appropriate for Judge Coyle to consider this aspect and on the merits.

[8]      In  relation  to  the  merits,  counsel  submitted  that  evidential  findings  and insights gained from an examination of the inter-related cases in the United Kingdom were influential in the decision to allow the appeal.  This material, being new, was not available at the time of the Family Court hearing. Although not expressly stated, the implication of the submission was that the unexpected emergence of this new material militated against a costs award, or at least against a full award.   I shall return to the merits shortly.

[9]      As to jurisdiction, the powers of this Court on appeal are set out in r 20.19 of the High Court Rules.  In particular, r 20.19(1)(c) provides that the Court may “make any order the Court thinks just, including any order as to costs.”  In my view this must mean that costs in the lower Court may be the subject of an order made on appeal.  The breadth of the rule indicates as much.  This is not to say that this Court will always fix costs in both Courts.  Determining the better course will depend on the circumstances.  Particularly where a lower Court hearing has involved unusual features of which the lower Court judge is more aware, it may be appropriate for that judge to fix or review costs in light of the outcome on appeal.

[10]     In this instance, I am satisfied I am well placed to assess costs in both Courts. While there is some merit in MSD’s submission that the new evidence influenced the decision to allow the appeal, that only represents part of the story.   The ultimate result also reflected a number of concerns arising from the approach adopted in the Family Court judgment.  It would not, I think, be appropriate to deny, or decrease, costs in the Family Court on the basis that the accident of evidence which only became available after the lower Court hearing gave rise to the reversal on appeal. That was not the case. The new evidence was but one significant factor.

[11]     To the extent that the appeal outcome did reflect the introduction of new evidence,  r  14.7  provides  some  limited  guidance  concerning  the  appropriate response.   The rule recognises that a successful party may be refused, or receive reduced, costs in some circumstances.  These include where an aspect of the claim

failed and occasioned significant expense1, the party, “contributed unnecessarily to

1 r 14.7(d).

the time or  expense” of the hearing2,  or the  existence of  some other  reason  3. Bearing the spirit of this rule in mind, I am further influenced against reducing the parents’ costs  in  the  Family  Court.    The  emergence  of  new  evidence  was  not foreseeable and reliance upon it cannot be criticised in any way.  In short, to treat the fresh evidence as justifying a reduction in the Family Court costs awarded to the appellants is not appropriate in the circumstances of this case.

[12]     I  am  also  influenced  by  the  level  of  costs  sought  in  relation  to  the

Family Court hearing.  Costs for an eight day hearing assessed on a 2B basis total

$36,900, whereas the actual costs charged were $31,625.   I am satisfied that an award of the latter figure is justified given the complexity of the Family Court hearing.

[13]     Disbursements of $31,410 are also sought.  These comprise the costs incurred in securing evidence from expert witnesses based in Australia and the United States, who gave evidence in person and by AVL, respectively.  I consider these costs were properly incurred and that the disbursements amount is therefore appropriate.

Solicitors:

Nicolette Levy Barrister, Wellington

Wilkinson Adams, Dunedin

2 r 14.7(f).

3 r 14.7(g).