RMJ v BJG
[2017] NZHC 2470
•9 October 2017
NOTE: ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS
11B TO 11D OF THE FAMILY COURTS ACT 1980, FOR FURTHER INFORMATION, PLEASE SEE
THE-FAMILY-COURT/LEGISLATION/RESTRICTION-ON-PUBLISHING- JUDGMENTS.
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV-2015-409-000795 [2017] NZHC 2470
BETWEEN RMJ
Appellant
AND
BJG Respondent
Submissions filed: 31 July 2017 (Respondent twice); 28 and 29 August 2017
(Appellant)
Counsel:
A M Corry for the Appellant
P A Cowey for the RespondentJudgment:
9 October 2017
JUDGMENT OF ASSOCIATE JUDGE OSBORNE [COSTS]
The appeal and its outcome
[1] In November 2015, Judge J A McMeeken made a parenting order under the Children, Young Persons and their Families Act 1989 (“2015 judgment”).1 The Court ordered unsupervised contact between the parties’ daughter and the respondent on carefully crafted terms. There had been a similar outcome in earlier proceedings
between the parties in 2011 (“2011 judgment”).2
1 [Anonymised] v [Anonymised] [2015] NZFC 9517 (“2015 judgment”).
2 RMJ v BJG FC Ashburton FAM-2010-003-000151, 29 September 2011 (“2011 judgment”).
RMJ v BJG [Costs] [2017] NZHC 2470 [9 October 2017]
[2] The appellant’s appeal to this Court under the Care of Children Act 2004 (“COCA”) from the 2015 judgment was dismissed (“appeal judgment”).3 Each of the five grounds of appeal failed. Costs were reserved.
The interlocutory applications and their outcome
[3] Before the appeal itself was heard, this Court heard and determined two sets of interlocutory applications of the appellant. First, the appellant applied for leave to bring out of time an appeal against the 2011 judgment. Secondly, the appellant applied for leave to adduce on her appeal from the 2015 judgment two sets of opinion evidence and one set of documentary evidence.
[4] The Court delivered two parallel judgments both on 2 September 2016 (“the interlocutory judgments”). In the first, the Court dismissed the appellant’s application for leave to appeal the 2011 judgment.4 In the second, the Court granted one aspect of the interlocutory applications in relation to one set of expert evidence and dismissed the aspect that related to documentary evidence.5
Costs
The legal aid position
[5] The appellant was in receipt of legal aid for the appeal. The provisions of s 45 Legal Services Act 2011 (“LSA”) therefore apply. I return below at [90] – [103] to the application of the LSA’s provisions.
Party/party costs
[6] The respondent seeks an order that the appellant pay his costs and disbursements of the appeal on a 2B basis.6 For the respondent, Mr Cowey submits that although s 45(2) LSA applies, there are exceptional circumstances justifying an
order of costs. In the event the Court declines to make such an order, Mr Cowey
3 RMJ v BJG [2017] NZHC 1159 (“appeal judgment”).
4 RMJ v BJG [2016] NZHC 2077 (“first interlocutory judgment”).
5 RMJ v BJG [2016] NZHC 2078 (“second interlocutory judgment”).
6 High Court Rules, Category 2 under r 14.3(1) and band B under r 14.5(2).
seeks an order under s 45(5) LSA specifying what the costs order would have been but for the provisions of s 45(2) of the Act.
[7] Mr Cowey has presented a calculation of 2B costs at $46,830. This includes items relating to the interlocutory issues on that appeal including an allowance for a half-day hearing. The respondent seeks also a disbursement (filing fee) of $160.
[8] In relation to the interlocutory applications, the respondent seeks costs on the leave application on a 2B basis, calculated by reference to 2.5 days of hearing (interlocutory matters in relation to the 2015 judgment appeal having occupied the remaining half-day of hearing). Mr Cowey’s calculation of 2B costs is $22,746.00. Alternatively, he seeks an order under s 45(5) LSA.
[9] The appellant opposes the making of costs orders in relation to both the 2015 judgment appeal and the interlocutory application on the 2011 appeal.
The costs of an appeal under the Care of Children Act 2004
Statutory provisions
[10] The appeal was brought as a proceeding under COCA.7
[11] COCA provides in relation to costs:8
142 Costs
(1) In any proceedings under this Act, the court may make any order as to costs it thinks fit.
…
(3) This section is subject to sections 131 and 135.
[12] The exercise of a statutory discretion (such as exists under s 142 COCA)
must be informed by the objects of the Act which apply to the substantive proceeding.9
7 In particular, pursuant to s 143 Care of Children Act 2004.
8 The predecessor provision, s 27B Guardianship Act 1968, was identically worded.
9 L v W [2003] NZFLR 961 at [27](c); Hawthorne v Cox [2008] NZCA 146 at [26].
[13] In the preliminary view expressed by the Court of Appeal in Hawthorne v Cox, s 4 COCA requires that the welfare of the child be “the overriding and paramount consideration” (as the Court paraphrased s 4(1)) in relation to costs as well as other issues arising in proceedings under the Act.10 Section 4(1) COCA states:
4 Child’s welfare and best interests to be paramount
(1) The welfare and best interests of a child in his or her particular circumstances must be the first and paramount consideration—
(a) in the administration and application of this Act, for example, in proceedings under this Act; and
(b) in any other proceedings involving the guardianship of, or the role of providing day-to-day care for, or contact with, a child.
The High Court Rules
[14] Appeals to the High Court under COCA are dealt with in s 143 of the Act. Section 143(4) of the Act makes the High Court Rules applicable:
(4) The High Court Rules 2016 and sections 125 to 130 of the District Court Act 2016, with all necessary modifications, apply to an appeal under this section as if it were an appeal under section 124 of that Act.
[15] Part 20 of the High Court Rules contains the procedures for all civil appeals to the High Court. Rule 20.19 sets out the High Court’s powers on appeal, including in relation to costs. In particular r 20.19(1) provides:
20.19 Powers of court on appeal
(1) After hearing an appeal, the court may do any 1 or more of the following:
…
(c) make any order the court thinks just, including any order as to costs.
[16] In turn, specific provisions as to the determination of costs are set out in Part
14 of the Rules. The application of Part 14 to the determination of the costs of
10 Hawthorne v Cox, above n 9, at [27].
appeals is reinforced by the special provision made for appeals in items 52 to 58 of the Third Schedule to the Rules.11
The first instance position distinguished
[17] The Family Court is generally the court of first instance for proceedings under COCA and was also under the Guardianship Act 1968.12 It has been recognised that the Family Court, when hearing proceedings relating to costs in COCA proceedings, has the same unfettered discretion which the District Court and Family Court generally have pursuant to the statutes and rules under which they operate, including the District Court Rules and the Family Court Rules.13
[18] In A v A, Judge Mather addressed the range of matters which the Court will consider when determining costs, including the child’s welfare.14 His Honour was dealing with proceedings under the Guardianship Act 1968 but his observations are equally applicable to, and have been applied in, cases under the Care of Children Act.15
[19] Any paramount consideration of the welfare of the child is likely to cut across what is sometimes referred to in civil litigation as the “primary principle” that “costs follow the event”.16 In Zervudachi v Tattersfield, Judge Boshier explained that at first instance there remains scope for awards of costs particularly where litigation under the Act is conducted irresponsibly and inefficiently.17
[20] The above summarises the now-settled position in relation to costs at first instance. There is one decision of this Court – in Wishart v McEwan (1998) – in
which Giles J expressed the view that there should be no difference in the approach
11 See Air New Zealand Ltd v Commerce Commission (2005) 17 PRNZ 786 at [7].
12 See s 125 Care of Children Act 2004.
13 B v G (1994) 12 FRNZ 515 (HC); A v A [1999] NZFLR 447 FC at 452; Meikle v Meikle [2015] NZFC 314 (FC) at [18].
14 A v A [1999] NZFLR 447 at 452.
15 H v A [Costs] (2002) 22 FRNZ 447 (HC) at [16]. See also B D Inglis, New Zealand Family Law in the 21st Century, (Thomson Reuters, Wellington, 2007) at [8.7.2(3)].
16 See r 14.2(a) High Court Rules, r 14.2(a) District Court Rules. See also, Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109, [2013], 1 NZLR 305 at [8].
17 Zervudachi v Tattersfield [1999] NZFLR 433 at 436. See also Inglis, above n 15, at [8.7.2(3)].
to costs to be applied in the District Court, Family Court or High Court.18 That view was rejected by a Full Court of this Court in Reeve v Sampogna.19
[21] In Reeve v Sampogna, the Court allowed an appeal from the decision of the Family Court Judge to award costs to the respondent. Heath J, recording reasons with which Priestley J concurred, stated:
[63] In my view, it is wrong in principle to make an adverse order for costs against a parent who advances a genuine and responsible argument in what he or she regards as the best interests of the child. If costs orders are made in those circumstances they may operate as a disincentive for such arguments to be put to the Court. As the Family Court, in guardianship proceedings, exercises an inquisitorial jurisdiction it is important that all relevant arguments be put before the Court. As to the nature of the inquisitorial jurisdiction, I refer to P v K at 815-818 per Priestley J. In particular, I draw attention to the authorities collected in paras [148] and [149].
[64] Further, I am of the view that, particularly in a case where the Judge does not appear to have made any determinations of credibility as between the parents and where the case might properly be said to be finely balanced, it is wrong, as a matter of principle, for costs automatically to follow the event in such proceedings. In this particular case, I note that the Judge did not refer expressly to the concession made by Mr R before the hearing which removed the need to spend much energy and resources on issues involving the child’s involvement in Mr R’s religion. That is a factor which ought to have been taken into account on the question of costs in this case, but was not.
[65] In making those observations I do not intend to inhibit the Family Court in the exercise of its undoubted discretion (under s 27B of the Act) to award costs against an unsuccessful party in guardianship proceedings where the party has unreasonably prolonged litigation or otherwise conducted himself or herself in a manner which has brought greater costs on another party or has caused detriment to the welfare of the child. In each case a balance must be struck.
[22] The Full Court’s reasoning has been consistently followed in subsequent decisions of the Family Court.20
18 Wishart v McEwan [1998] NZFLR 473 (HC) at 476.
19 Reeve v Sampogna [Guardianship] (2003) 22 FRNZ 1016, [2004] NZFLR 207 (HC), per Heath
J at [59]-[65] per Priestley J at [72].
20 Reeve v Sampogna was distinguished by Baragwanath J in Albert v Beatrice HC Auckland CIV-
2006-404-3930, 21 February 2007 (costs following the event) but upon the basis that Reeve v Sampogna involved costs at first instance and not the costs of the appeal (see paragraphs [2], [3]).
The costs of an appeal
[23] There is conflicting authority in this Court as to the correct approach to the costs of an appeal from a judgment of the Family Court under COCA. The conflicting authority was identified by the Court of Appeal in Hawthorne v Cox.21
There, Glazebrook J giving the reasons of the Court compared the reasoning in the judgments of Panckhurst J in H v A [Costs]22 and of Cooper J in DLB v DLS.23
[24] The Court of Appeal concluded:
[26] We did not hear full argument on these decisions and so the following remarks are preliminary only. In our view, the starting point must be section 4(1) of the CCA. This provides that the welfare and best interests of the child must be the first and paramount consideration both in the administration of the CCA, including any proceedings under the Act, and in any other proceedings involving the guardianship of, day-to-day care of or contact with the child. The High Court Rules, as subordinate legislation, have to be interpreted in accordance with that principle.
[27] Our preliminary view is that this favours the approach to costs outlined in H v A where the welfare of the child is the overriding and paramount consideration (as required by s 4 of the CCA). However, it seems to us that the conflict between the two decisions may be more apparent than real. Although Cooper J would start with the High Court Rules, he did acknowledge that the welfare and best interests of the child may well legitimately override the normal rules as to costs.
[28] We would also accept, as pointed out by Cooper J, that different considerations might arise on appeal than in the lower court. While parents should not be discouraged from raising all genuine and responsible arguments they believe to be in the best interests of the child in the lower court, the same might not apply on appeal given that litigation and uncertainty will be prolonged — see E v C [1995]
3 NZLR 310 at 314(CA).
[25] The case of E v C – referred to in the last-quoted paragraph – concerned the contribution to the costs of counsel for the child in a case under the Guardianship Act
1968.24 (It was a decision of a Full Court of the High Court, rather than a decision of
the Court of Appeal as recorded in Hawthorne v Cox).
21 Hawthorne v Cox, above n 9.
22 H v A [Costs], above n 15.
23 DLB v DLS [Costs] [2007] NZFLR 422 (HC), sub.nom B v S (No 2) (2006) 25 FRNZ 876 (HC).
24 E v C [1995] 3 NZLR 310 (HC).
[26] In E v C, the Court identified the welfare of the child as being the first and paramount consideration. The Court then continued:25
… The question whether parties to guardianship litigation ought to meet or contribute to the costs involved must be examined with that first and paramount consideration in mind. Accordingly, there should be an inquiry whether and to what extent the welfare of the children in question might be affected by requiring a party to make a contribution. It must also be a pertinent consideration, in terms of the welfare of the child, to deter litigation which is not really in the interests of the children but is being whipped along by one or more parties operating under some personal agenda.
Although the welfare of the child is the first and paramount consideration, it is not the only consideration in guardianship matters. Nor can the grant of a power to the Court to direct the incidence of costs be regarded, in the context of this legislation, as a purely fiscal provision. It must be taken as a recognition of parental obligations in respect of children.
Summary of applicable principles
[27] I respectfully adopt as the correct approach to determining the costs of an appeal under the COCA what was expressed as the preliminary view of the Court of Appeal in Hawthorne v Cox.26 That involves adopting the approach of Panckhurst J in H v A [Costs] and not following the approach of Cooper J in DLB v DLS to the extent that those two decisions conflict. As observed by Glazebrook J in Hawthorne v Cox, however, the conflict between the two decisions might be regarded as more apparent than real.
[28] I summarise what I find to be the correct approach to be:
(a) Costs in proceedings under COCA are to be considered having regard to the statutory requirement that the welfare and best interests of the child be the first and paramount consideration.
(b)Where (as on an appeal) the costs are those of the High Court proceeding, the Court must consider the general principles under Part
14 of the High Court Rules, including the general principle (under
25 E v C, above n 24, at 314.
26 Hawthorne v Cox, above n 9, at [27]. See also, IA v RRN [2017] NZHC 1997 at [17].
r 14.2(a)) that the party who fails with respect to a proceeding or an interlocutory application should pay costs to the party who succeeds.
(c) Notwithstanding that the “costs follow the event” principle is in general civil proceedings to be regarded as the primary principle, it will be displaced in COCA proceedings if its application would adversely impact upon the welfare and best interests of the child.
(d)The High Court, having considered the merits of the substantive arguments on appeal, will have regard to the matters which relevantly inform the determination of costs, both in terms of general principles under r 14.2, factors relevant to the refusal or reduction of costs under r 14.7 and factors relevant to the award of increased costs and indemnity costs under r 14.6.
(e) The relevant considerations (beyond the welfare of the child) were the subject of a useful checklist in Judge Mather’s decision in A v A:27
(i) The outcome of the proceedings; (ii) The matters in issue;
(iii)The way the parties (and their legal advisors) have conducted the proceedings;
(iv) The means of the parties;
(v) The actual costs incurred by the parties; and
(vi) The overall interests of justice.
(f) The Courts’ consideration of the third item in Judge Mathers’ list –
how the parties conducted the proceedings – has extended to a consideration involving not only the steps taken in the proceeding but
27 A v A, above n 13, at 452 – approved in H v A [Costs], above n 15, at [16].
also the reasons and motives of the parties in relation to the proceeding.28 This broader approach reflects the fact that the reasonableness of a party’s conduct is relevant to the quantum under rr 14.6(3) – (4) and r 14.7 of costs awards, High Court Rules and District Court Rules, whether as an increase above or a reduction below scale.
[29] I now turn to consider costs first in relation to the appeal itself and secondly in relation to the interlocutory proceedings.
Costs on the appeal itself
Outcome of the appeal
[30] In the appeal judgment, Davidson J recorded the formal disposition of the appeal as follows:29
The appeal is dismissed. The fundamental finding of Judge McMeeken is upheld, that [A] should have unsupervised contact with her father.
Matters in issue
[31] The appellant raised issues which were considered under five headings on appeal:
A. Judge McMeeken’s application of the principle of res judicata to parts of the
2011 judgment constrained the risk assessment required under COCA
[32] While Ms Corry for the appellant submitted there was an inconsistency between the 2015 judgment (regarding abuse, OCD and the conditions imposed in relation to contact), Davidson J found there was no such inconsistency, his Honour stating:30
The risk to [A] lay in the mother’s steadfast belief of the father’s abuse and the pervasive influence that would have on [A]. There was an inevitable and residual concern about the father’s OCD response. That too had to be
28 See B v B HC Auckland CIV-2007-404-506, 26 August 2008 at [9].
29 The appeal judgment, above n 3, at [306].
30 At [141].
measured by the risk it posed to [A]. Protective conditions were warranted, and available under the legislation.
[33] On the next leg of the first ground of appeal, Ms Corry submitted that Judge McMeeken’s application of the doctrine of res judicata of the 2011 judgment inappropriately constrained and adversely affected Judge McMeeken’s deliberations. Davidson J found that Judge McMeeken had assiduously addressed all the evidence, focussing squarely on evaluation of the risk of physical and sexual abuse of [A] by
her father.31 His Honour concluded that this second leg of the first ground of appeal
had no merit.32
B.There as an error in the assessment of the father’s conduct in the marriage which meant the Court erred as to the merit, weight and consideration of the evidence of the parties, attaching too little weight and giving too little consideration to serious issues and inconsistencies arising in the father’s evidence.
[34] Ms Corry’s submission was in essence a submission that relevant evidence
was excluded or ignored which led, or may have led, to a wrong conclusion.33
[35] Davidson J found that there was no failure to consider relevant evidence, rather the judgment reflecting “assiduous attention to the facts and the relevant principles”.34
C. The disclosure evidence was viewed by [Judge McMeeken] as derived from the mother’s opinion because she was found to have inculcated the notion of sexual and physical abuse in the child, leading her to believe that the father had raped and assaulted the mother. In particular, this refers to the reasons whereby the Court found the father did not assault the mother, and that the father did not rape the mother, such that it was abusive to tell [A] these things happened, or to convey them to her.
[36] Fundamentally, Ms Corry for the appellant submitted that there had been no proper assessment of the child and that errors of fact led to an incorrect assessment of the appellant’s credibility. Ms Corry submitted that Judge McMeeken had a view
about the appellant which was wrong, as to the accuracy of her evidence, and her
31 At [182].
32 At [183].
33 At [190].
34 At [202], [204].
influence on [A]. In Ms Corry’s submission, that led the Court to close its eyes to evidence which was available meaning that important disclosures of abuse were not properly considered by the Court.
[37] Davidson J concluded that this third ground of appeal was not established. His Honour explained:35
This is exactly the sort of factual conundrum to which experienced Family Court Judges are so well suited. The Judge was fully on guard with regard to the risk of physical or sexual abuse of [A] by the father. The Judge reached a clear conclusion that [A] is not at risk from her father, but rather at risk of the destruction of a proper relationship with her father through the maternal family’s genuinely-held but ill founded belief that there is both fact, and continuing risk, of abuse. She was also alert to the risk of the father’s OCD in his response mechanism, as it might affect [A].
D. Judge McMeeken erred when she concluded that the child would not want to
be in her father’s care if she was being sexually or physically abused by him.
[38] Ms Corry developed the fourth ground of appeal by identifying what
Davidson J listed as 24 (as Ms Corry’s described them) “critical factual errors”.36
[39] Davidson J recorded that he had not identified (in the 2015 judgment) any error of fact which would render unsafe the Judge’s findings with regard to the appellant’s credibility. His Honour further noted that the Judge had, in any event, clearly moved beyond that to consider all evidence objectively, not just based on credibility findings against the appellant.37
E.The lack of a psychological evaluation of the child has created an evidential vacuum, which was not assisted by a flawed CYFS approach.
[40] As identified by Davidson J, the heart of the fifth ground of appeal was that
[A] had not been “properly” interviewed.38 His Honour noted that the fundamental question for the Court on appeal (as it had been for Judge McMeeken) was whether
35 At [232].
36 At [234].
37 At [251].
38 At [267].
there was something missing in terms of information available from [A] which could only be rectified by further interview.39 Davidson J concluded:40
I have reached the firm view that enough is enough and the quality of what was reported to the Court was entirely adequate for the Judge to evaluate [A]’s disclosures … the Judge was alert to infelicities in the discussions with [A] but overall Ms Evans reached a very clear view … It is my view that there is no merit in a re-interview process, to dredge up the past which has been examined so carefully by both Judges [in the 2011 and 2015 judgments].
Broader conclusion
[41] Davidson J finally moved to a broader assessment of the appeal grounds:41
[297] Overall, nothing is raised on appeal and on this Court’s consideration of the evidence which would warrant the intervention of this Court, either by allowing the appeal and sending this matter back to the Family Court for further consideration of the fundamental issue, or by reversing the Judge’s conclusion that [A] should have supervised contact with her father. In the event of a verifiable incident, which would require the Court to think again, then of course the position is not static. If the mother is to respond as she has done on previous occasions, immediately challenging the judgment of this Court, in denial of the findings made by the Court, then the prospect of what would be a highly stressful change in the day to day care arrangements lies before this family. The belief held by the mother and the maternal family cannot operate to override the judgment of the Court on such a fundamental issue as contact between a child and in this case, her father, based on the safety of [A] assessed by the Court.
[298] Each ground of appeal has been dismissed. No ground discloses an error of a kind to vitiate the judgment of Her Honour Judge McMeeken. The approach on appeal goes further, not just to consider error but the evidence before the Court. Beyond that I find the merits of the mother’s application, for orders for supervised contact only, to fall far short of the proof required. I say that while acutely aware of the risk should that fundamental finding prove wrong.
The way the parties (and their legal advisers) have conducted the proceedings
[42] For the respondent, Mr Cowey identified in particular two matters relating to the appeal which he submitted had caused the respondent to incur unnecessary legal costs. First, he submitted that in this appeal the appellant failed to articulate what was wrong with the decision of the Family Court. Mr Cowey characterised the
appeal as “an attempt to reopen factual findings dressed up as an appeal”. Secondly,
39 At [275].
40 At [275] – [276].
41 At [297] and [298].
Mr Cowey submitted that the appellant had sought to revisit “previous false allegations against the respondent” when there was not a perceptible error of fact or law.
[43] For the appellant, Ms Corry submits that the appeal was properly conducted in accordance with the High Court Rules and that, as a re-hearing, this Court on appeal was entitled to reconsider key factual findings.42 Ms Corry further submits that the appellant’s argument was careful and addressed perceived errors of fact and law. I do not find any matter relating to the way in which the appeal was conducted to be a matter which should inform issues of costs. That is reinforced by the observation of Davidson J that:43
The grounds raised by Ms Corry are all properly raised and addressed with purpose and thoroughness.
[44] In this case, however, Ms Corry submits that the Court’s consideration of the conduct of the proceedings ought not to focus narrowly on the appeal proceeding itself but on the proceedings under the Care of Children Act and other legislation of which the appeal has formed part.
[45] A history of litigation involving the parties appears as Schedule A to Davidson J’s judgment. As the Schedule records, the Family Court first made contact orders in July 2010. The 2011 judgment contained parenting orders by consent, allowing unsupervised contact between [A] and the respondent.44 The appellant did not at the time appeal the 2011 judgment although she subsequently, unsuccessfully, applied for leave to appeal out of time.
[46] There later followed the further proceedings pursued by the appellant which led to Judge McMeeken’s 2015 judgment. The hearing took 14 days. Davidson J summarised the 2015 judgment at [56] – [111] of the appeal judgment.
42 Austin Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
43 At [299].
44 The 2011 judgment, above n 2, is summarised in the appeal judgment, above n 3, at [15] – [54].
[47] A fundamental conclusion reached by Judge McMeeken (in November 2015)
was:45
If the mother is to continue to have the primary care, or even unsupervised contact with [A], she must be able to make some changes. She must accept that the Court has made findings. She must make some changes in her attitude and approach as a parent.
At this time, noting [A]’s age, her relationship with her mother, her living arrangements with her mother and [X] and her schooling situation, I consider she should remain living in the primary care of her mother BUT ONLY if the mother can accept and support [A] having unsupervised contact with her father.
[48] As Schedule A to the appeal judgment records, the previous substantive judgments (of 2011 and 2015) are but two of the proceedings initiated by the appellant. There have been numerous interlocutory applications including for leave to appeal and for judicial review.
[49] Mr Cowey summarised the respondent’s case in relation to the appellant’s conduct of the proceedings by stating that the appellant has refused to accept the judgment of more than 11 Judges. Mr Cowey admits that there has been “a strategy of litigating wherever possible”.
[50] For the appellant, Ms Corry submitted there had been neither a strategy of litigating wherever possible nor a refusal to accept the judgments of numerous of 11
Judges.
[51] In relation to the 12 items of litigation appearing in Schedule A to the appeal judgment, Ms Corry notes in particular:
(a) The applications for protection orders in 2010, although filed, were subsequently withdrawn;
(b) A proceeding dismissed by Judge Callaghan in 2010 was in fact a
Police prosecution and not a proceeding brought by the appellant;
45 2011 judgment, above n 2, at [464] – [465].
(c) The appellant did not at the time of the 2011 judgment seek to appeal it “despite her serious and genuinely held concerns” (although she accepts that she later unsuccessfully sought leave to appeal);
(d)There was a period of no litigation from 2011 through to April 2014, with the appellant only resuming litigation when the child made a statement to her which led her to believe that there was evidence of sexual and physical abuse by the respondent which should result in different parenting orders;
(e) While the appellant (unsuccessfully) sought judicial review of Judge Moran’s decision not to admit evidence out of time, the appellant subsequently paid the costs to the respondent which were fixed on that application;
(f) The respondent did not obtain in the Family Court the orders for day- to-day care which he sought and his mental health has become the subject of new protective orders; and
(g)At the conclusion of the 2016 appeal hearing, Davidson J thanked counsel for the way in which their arguments had been presented.
[52] The Court’s first focus in assessing this costs application must be on the current set of proceedings which began with the appellant’s April 2014 without notice application for an order varying the parenting arrangements. The 2011 judgment remains relevant background. In the 2011 judgment, Judge Walsh had concluded that there was no proven behaviour of the respondent which would present a risk or an unacceptable risk justifying supervised contact.46 That was accompanied by a finding that the respondent’s OCD condition did not present any safety issues.47
[53] At the heart of the hearing before Judge McMeeken in 2015 were allegations that the respondent had abused the child on dates ranging from December 2011 to
46 2011 judgment, above n 2, at [264].
47 Above n 2, at [253].
some point in mid-2015. Judge McMeeken concluded that the appellant had not established that there had been abuse.48 Her Honour explained how the allegations (including statements which the child had undoubtedly made) had come about:49
I find the mother (supported by [X]) to be a very protective parent who has
misconceived A’s statements and who inadvertently influences her.
[54] Judge McMeeken identified the importance for the child of there being an end to allegations through litigation:50
If the mother is to continue to have the primary care, or even unsupervised contact with [A], she must be able to make some changes. She must accept that the Court has made findings. She must make some changes in her attitude and approach as a parent.
[55] Judge McMeeken then concluded the judgment with a final parenting order with conditions.51 The first condition required the appellant to obtain the assistance of a health professional to enable the appellant to respond appropriately when the child talks to her about the respondent.
[56] By the appeal judgment, Davidson J upheld each of Judge McMeeken’s
challenged findings. That included the finding that:52
… [A] is not at risk from her father, but rather at risk of the destruction of a proper relationship with her father through the maternal family’s genuinely- held but ill-founded belief that there is both fact, and continuing risk, of abuse.
[57] Davidson J directly addressed the particular problem posed for the child’s relationship with both her parents by the appellant’s persisting beliefs in the face of repeated Court findings:53
[302] There is one blight on [her] forming the relationship which a child should have with both parents and that is the steadfast belief of her mother and her family that [A] is at risk from her father. As the mother perceives it, nothing will alleviate the risk to [A] if unsupervised contact with her father is ordered and goes ahead. Her belief is that the Court got it wrong and has done so twice, and this interim judgment will likely be viewed in a similar
48 2015 judgment, above n 1, at [422].
49 At [421].
50 At [464].
51 At [476].
52 Appeal judgment, above n 3, at [232].
53 At [302].
light. The mother’s stance so far means that no judgment is likely to have persuasive effect to allow contact to be undertaken on an unsupervised basis, albeit developed in a cautious way as per Her Honour Judge McMeeken’s orders.
[58] In summary, in the course of the proceeding on which the appeal has been determined, both the Family Court and the High Court have found that the appellant’s inability to accept previous Court findings will, if it continues, affect the proper relationship of the child with both parents. As seen in the first condition imposed by Judge McMeeken, the Courts have found the appellant’s beliefs to be beliefs for which she needs qualified health professional help (to overcome her beliefs in the child’s best interests). In the 2015 judgment there are, however, also findings that impugn the integrity of the appellant’s evidence including:
The mother and her family are desperate to ensure A’s safety and I am
concerned that they are embellishing their evidence to support their claims;54
I find the maternal family may have exaggerated this aspect [of A’s
conduct].55
… it is of concern that the descriptions given by the mother were not
observed by anyone outside the maternal family.56
[59] These more recent views of the appellant’s approach may be compared with the conclusion of Judge Walsh in the 2011 judgment. In that proceeding, the appellant had stated clearly in evidence that she would appeal any decision that provided for the respondent to have unsupervised contact (although she in fact did not do so).57 Judge Walsh expressed concern in his judgment as to the appellant’s:58
… pernicious attitude towards the father and her woeful inability to promote the father in [A]’s life.
Judge Walsh ordered the appellant (as applicant in that proceeding) to pay to the respondent $9,000 on account of costs.
[60] Against this background, the basis upon which the appellant has pursued her
2015 hearing and the appeal count significantly against her in a costs context. The
54 At [246].
55 At [234].
56 At [236].
57 2015 judgment, above n 1, at [12].
58 2011 judgment, above n 2, at [284]; see also, 2015 judgment, above n 1, at [10].
most important considerations here may be the appellant’s inability, against a background of considered judicial findings, to accept what the factual situation is and to allow previous issues in that regard to be treated as finally resolved. When the appellant again had that opportunity in the light of the 2015 judgment, combined with the Family Court’s requirement that she take qualified health professional assistance, the appellant chose instead to appeal the 2015 judgment. At the same time, she sought an extension of time to appeal the 2011 judgment and leave to adduce further evidence. Both the Family Court and this Court have found that the appellant’s continued pursuit of different outcomes based on her beliefs is contrary to the child’s best interests.
[61] An order of appeal costs in such circumstances is not to be seen as a disincentive to the bringing of genuine and responsible arguments which were in a child’s best interests. That opportunity was available at earlier points. The litigation which has taken place since the 2011 judgment has on each occasion involved unreasonable conduct and motivation on the appellant’s part.
[62] These findings are not affected by observations the Court has made as to the assistance of counsel in presentation of the appeal and in submissions – it was counsels’ responsibility to develop the appellant’s case as best it could be.
The means of the parties
[63] Mr Cowey records that the respondent, as a university lecturer, earns approximately $85,000 per annum. He owns one property with “a substantial mortgage” (neither the value of nor the equity in the property is stated).
[64] Ms Corry has attached to her submissions a schedule of appellant’s financial means. The appellant discloses monthly income of $5,118.30 ($4,440 salary as a secondary school teacher and child support of $678.30) and total outgoings of $5,116 (including $40 repayment of legal aid and $1,000 repayment of personal loans). The appellant discloses assets of $32,800 (KiwiSaver of $22,800; car $10,000). She discloses that although she co-owns her house (valued at $340,000) with her mother, her interest is negative, because of the following debts charged against the property:
Bank mortgage $265,000.00
Charging order of costs to the respondent $18,000.00
Legal Services Agency charging order for legal fees $24,319.99
Mother’s initial disproportionate contribution $100,000.00
[65] Ms Corry notes that the appellant must (pursuant to the 2015 Family Court orders) also bear counselling costs for herself and half the costs of a clinical psychologist’s fees for the child. Ms Corry does not mention the appellant’s share of the costs of counsel for the child.
[66] In the circumstances, the comparative means of the parties are a strong factor against ordering the appellant to pay costs. Significantly, even the costs previously ordered remain unpaid, it appearing that the appellant has no equity from which the charging order in that regard might be satisfied. The respective levels of new income and outgoings indicate that there is little prospect on the appellant’s present circumstances that savings will see her equity increase.
The actual costs incurred by the parties
[67] Mr Cowey states that the respondent has incurred costs exceeding $52,000 in relation to the appeal.
[68] Ms Corry states that the appellant (who was legally aided) had costs
(including GST) of a little over $15,000 together with disbursements.
[69] Given the scope of the 2015 judgment under appeal, the compass of appeal grounds and the three-day appeal hearing, the respondent was destined to incur large solicitor/client costs. The issues involved for the respondent were of great importance. The amount of costs incurred by the respondent cannot be taken as a measure of what would normally be a reasonable fee as between solicitor and client given that the appellant was legally aided.
[70] When set against the background of the extent of issues raised by the appellant on appeal, the amount of costs incurred by the respondent is a factor
substantially in favour of the costs award. That is reinforced by the fact that a significant sum of costs previously awarded to the respondent remain unpaid.
The impact of a costs order on the child’s welfare
[71] Ms Corry submits that a costs order would have an adverse impact on the
child’s welfare. She observes:
(a) As seen from the appellant’s schedule of financial position, the appellant has significant existing financial obligations and limited means;
(b) The appellant is the child’s primary caregiver;
(c) The child has in January 2017 been diagnosed with a serious stress- related illness; and
(d) A costs order could bring about serious consequences for the
appellant’s financial independence which may impact on the child.
[72] Mr Cowey did not submit that a costs order might not adversely impact on the child. Rather, Mr Cowey emphasised that, in terms of the approach adopted by Panckhurst J in H v A [Costs], the impact which the costs order may genuinely have on the child (whether economically or emotionally) is a valid consideration, alongside others.59
[73] Mr Cowey invited the Court to weigh the possible impact of a costs order against the consequences of allowing the appellant to come through this litigation and possibly undertake further litigation without costs consequences. Mr Cowey points in particular to the number of invasive medical examinations which the child has undergone as a result of the concerns raised and pursued by the appellant; the period of diminished contact between the child and her father (by reason of interim orders arising from the appellant’s litigation for the period of the litigation); aspects
of the appellant’s conduct involving the child which Judge McMeeken found to have
59 H v A [Costs], above n 15, at [17].
been psychologically abusive;60 and the risks posed to the child’s welfare through the appellant’s continued behaviours.61
[74] I respectfully adopt the observation of Panckhurst J in H v A [Costs], where his Honour observed that it may not be helpful to say that costs awards will be rare under what is now COCA.62 The first instance cases indicate, rather, that a costs award will be very unusual and often inappropriate in the situation cited by Panckhurst J as an example namely where, upon the breakup of a marriage, parties genuinely seek the assistance of the Court in resolving issues affecting their children and do so in the interests of such children.
[75] The present proceeding is far removed from Panckhurst J’s example. The Family Court has more than once emphasised that the interests of this child will be best served by an end to litigation. The appellant has nevertheless exercised her right to pursue further litigation. That has involved, on repeated judicial assessments, an inability or refusal on her part to move from her (unjustified) perceptions that the child is at risk through contact with her father. Clear admonitions of the Court have failed to bring home to the applicant the risks posed to the child should she continue to pursue the matters she has previously unsuccessfully pursued. This is a situation in which an award of costs to a mother who can ill afford to make even time payments might enhance rather than damage the prospects that the child might enjoy the rest of her childhood if living in a risk- free environment.
[76] In the unusual circumstances of this case, the risk of an impact from a costs award on a child’s welfare is not so significant as to make a costs award inappropriate. The potential for other outcomes, such as the appellant’s acceptance
of finality of litigation, assume more significance in this case.
60 2015 judgment, above n 1, at [453].
61 2015 judgment, above n 1, at [455].
62 H v A [Costs], above n 15, at [18].
The overall interests of justice
[77] I am satisfied, upon the above considerations, that an award of costs would be justified having regard to the overall interests of justice. The Court recognises that a liability for costs (if resulting in the appellant making payment) is likely to affect the appellant’s financial ability to provide both for herself and the child. But the fact that the Court signals disapproval of the pursuit of unjustified allegations in litigation by identifying an appropriate award of costs is arguably the one means by which this Court may reinforce the need for an end to litigation in the child’s best interests. It also reflects the fact that once the parties are exercising appeal rights, they are more exposed to costs following the event.
The quantum of costs and disbursements
[78] Counsel made competing submissions as to the calculation of costs of the appeal itself on a 2B basis in this case. My calculation ($31,511.50) is set out in Schedule A to this judgment. It has regard to some identified items which are more appropriately based on a 2A award.
[79] The respondent seeks a disbursement of $160 being the filing fee on a notice of protest to the jurisdiction (filed when the appellant filed her appeal out of time).
[80] For the respondent, Mr Cowey submitted that an award of costs on a 2B basis, together with the disbursements, would be appropriate. Ms Corry submitted that there should be no award but, except to the extent of challenging some items, did not suggest what amount should appropriately be awarded in the event the Court found an award of some costs to be appropriate.
[81] I am satisfied that but for the appellant’s being legally aided, it would have been just to order the appellant to pay costs of $31,511.50 and a disbursement of
$160 on account of the costs of the appeal itself.
Costs of the first interlocutory proceeding
Outcome of the first interlocutory proceeding
[82] The appellant’s application for leave to appeal the 2011 judgment out of time
was dismissed.63
[83] Davidson J’s reasons for dismissing the application were summarised in two
paragraphs:
[65] I conclude that only if Judge Walsh’s judgment could be shown to be wrong in the sense that it likely could not stand, would there be any real prospect of leave to appeal out of time. But even then, I have distinct reservations about that. The delay is too long, and there is no good explanation for it. The mother has never accepted the decision. She waited until there was another alleged incident to seek orders for supervised custody.
[66] The issue of her credibility is not dependent on the findings made by Judge Walsh, but rather the extensive evidence otherwise before Judge McMeeken.
[84] In short, the Court found that the appellant had not established grounds for leave.
Discussion
[85] Judge Walsh had found that it was appropriate to award the respondent costs of $9,000 in relation to the 2011 proceeding. In other words, costs followed the event notwithstanding the provisions of COCA.
[86] I have already found (at [71] – [76]) that, in relation to the costs of the appeal from the 2015 judgment, the consideration of the interests of the child do not support the withholding of a costs award. A costs award may reinforce the need for an end to litigation in the child’s best interests. The same observation applies to the costs of the first interlocutory application.
[87] In opposing an award of costs on the leave application, Ms Corry identified three grounds. First, she submitted that an award of costs would breach the
63 First interlocutory judgment, above n 4.
provisions of COCA because it would have a serious impact upon the child, a ground which I reject for the reasons already stated. Secondly, Ms Corry submitted that there should be no award of costs in relation to the leave application because the appellant succeeded on one aspect of the interlocutory applications (heard at the same time) in relation to the appeal from the 2015 judgment. It is in fact appropriate to separate out the costs which relate to each of the separate appeal or intended appeal proceedings as they proceeded on distinct grounds and took significantly different (but calculable) time. I have therefore dealt with the interlocutory costs of the appeal of the 2015 judgment in my above findings concerning that proceeding. Finally, Ms Corry submitted that costs should not be awarded by reason of the appellant’s legal aid grant, a matter to which I return below at [90].
The quantum of costs and disbursements
[88] Mr Cowey provided a schedule calculating costs by reference to 10 items on a 2B basis. My calculation ($17,351.00) is set out in Schedule B to this judgment. It has regard to some items which are more appropriately based on a 2A award. In relation to the three days of interlocutory hearings (8, 9 and 15 June 2016) two-and- a-half days are allocated to this application and half a day to the interlocutory applications in relation to the 2015 judgment appeal.
[89] I am satisfied that but for the appellant’s being legally aided, it would have been just to order the appellant to pay costs of $17,351.00 on account of the unsuccessful leave application.
Costs as affected by the Legal Services Act 2011
Statutory provisions
[90] As the appellant had been granted legal aid under the LSA, s 45 of the LSA is applicable:
45 Liability of aided person for costs
(1) If an aided person receives legal aid for civil proceedings, that person’s liability under an order for costs made against him or her with respect to the proceedings must not exceed an amount (if any) that is reasonable for the aided person to pay having regard to all the
circumstances, including the means of all the parties and their conduct in connection with the dispute.
(2) No order for costs may be made against an aided person in a civil proceeding unless the court is satisfied that there are exceptional circumstances.
(3) In determining whether there are exceptional circumstances under subsection (2), the court may take account of, but is not limited to, the following conduct by the aided person:
(a) any conduct that causes the other party to incur unnecessary cost:
(b) any failure to comply with the procedural rules and orders of the court:
(c) any misleading or deceitful conduct:
(d) any unreasonable pursuit of 1 or more issues on which the aided person fails:
(e) any unreasonable refusal to negotiate a settlement or participate in alternative dispute resolution:
(f) any other conduct that abuses the processes of the court.
(4) Any order for costs made against the aided person must specify the amount that the person would have been ordered to pay if this section had not affected that person’s liability.
(5) If, because of this section, no order for costs is made against the aided person, an order may be made specifying what order for costs would have been made against that person with respect to the proceedings if this section had not affected that person’s liability.
…
[91] In the event that the Court specifies an order under s 45(5) of the Act, there is then provision under s 46 for the non-legally-aided party to apply to the Legal Services Commission for a payment to be made.
Two- or Three-step approach
[92] As Mr Cowey submitted, the application of s 45 of the LSA is appropriately performed by the two-step approach adopted by the Human Rights Tribunal (HRT)
in Heydock v Sheppard which involves:64
64 Heydock v Sheppard [2008] NZHRT 2. Costs award upheld on appeal in Heydock v Gilligan
Sheppard HC Auckland 2007-404-2929, 11 September 2008.
(a) first considering what would be awarded in the absence of the legal aid legislation, taking account of relevant aspects of the conduct of the parties; and
(b)then turning to the issue of the parties’ means, whether and to what extent they ought to affect the outcome.
[93] Having regard to the express provisions of s 45(2) of the Act, I would add a third, final, step in relation to civil proceedings, at which the Court must be satisfied that there are exceptional circumstances (taking into account the matters identified in s 45(3) and any other relevant circumstances).
Step 1 – the but-for award
[94] I have found that the appropriate awards of costs and disbursements in the absence of the legal aid legislation would have been $48,862.50 ($31,511.50 for the appeal itself and $17,351.00 for the interlocutory leave application).
Step 2 – parties’ means
[95] In ordinary civil litigation in the High Court, the operation of the primary principle whereby costs follow the event generally precludes consideration of the financial ability of the means of the unsuccessful party to pay an otherwise appropriate costs award. Where an appeal under COCA is involved, the means of the unsuccessful party is relevant in any consideration of costs, in the assessment of the welfare of the child. I have undertaken that assessment in the preceding but-for analysis. Under the legal aid legislation, s 45(1) of the LSA expressly requires the Court to have regard to all the circumstances including the means of all the parties.
[96] In Dowd v Gubay, the Court of Appeal upheld the High Court’s awards of
costs against a legally aided party, observing:65
[The Judge] concentrated primarily, and in our view rightly, on the means of the parties, in which the value of the house was … an important factor.
65 Dowd v Gubay (1992) 6 PRNZ 158 at 161.
[97] In that case the unsuccessful plaintiff’s equity of more than $650,000 in his house was found to make it reasonable that he pay costs, and constituted an “exceptional circumstance” justifying a costs order.
[98] The facts of Dowd v Gubay may be contrasted with those in Laverty v Para Franchising Ltd, in which the Court of Appeal allowed an appeal against costs ordered to be paid by legally aided defendants.66 The trial Judge had awarded costs notwithstanding a finding that the defendants’ meeting a substantial award of costs was problematic. They had total assets of $144,000 from which they were required to meet the substantive judgment of $125,500. The Judge awarded costs and
disbursements totalling $96,750. The Court of Appeal concluded, having regard to all relevant matters, that there were no exceptional circumstances to justify the making of an award of costs beyond the nominal contribution which the defendants had been required to make to the Legal Aid Agency. The Court of Appeal instead specified a sum of costs ($81,900) which would have been ordered as costs but for the legal aid position.
[99] In this case, the appellant has no equity. There is no apparent prospect of her receiving such income as would regularly produce a surplus sufficient to create equity.
[100] I am satisfied, having regard to the legal aid regime and the Court of Appeal authority to which I have referred, that on the facts of this case the appellant’s limited financial resources preclude an award of costs. Quite simply, the appellant does not have the means and is not likely in the mid-term to have the means to satisfy any costs order.
Step 3 – exceptional circumstances
[101] It is accordingly unnecessary that I determine the application for costs by reference to whether there exist exceptional circumstances in terms of s 45(2) of the
Act.
66 Laverty v Para Franchising Ltd [2006] 1 NZLR 650.
Order specifying costs under s 45(5) of the Act
[102] Mr Cowey seeks orders under s 45(5) of the Act specifying what order for costs would have been made if s 45 had not affected the appellant’s liability for costs.
[103] On my reading of the statutory provisions, a specification order may be made under s 45(5) precisely when exceptional circumstances have been found not to exist under s 45(2). It was in those circumstances that the Court of Appeal in Laverty v Para Franchising Ltd made a specification under the predecessor provision.67 In this
regard, I respectfully decline to follow conclusions reached in S v I.68
Outcome
[104] It is appropriate that the Court make an order under s 45(5) of the LSA specifying what the costs orders would have been but for the appellant’s being legally aided.
Contributions to costs of lawyer for the child
The appointment of counsel for the child
[105] Ms Gibson was appointed under s 7 COCA to act for the child in both proceedings. Her invoices have been paid pursuant to decisions of the Registrar.
67 At [47] – [48].
68 S v I (2009) 28 FRNZ 13 (HC) at [57]. The commentary in Beck et al (eds) McGechan on
Procedure (online loose-leaf ed, Thomson Reuters) at [HRPt14.11(2)(e)] identifies how the conclusion in S v I does not align with the statutory provisions: “Where no costs order is made, an order may nevertheless be made specifying what costs would have been ordered but for s 45: s 45(5). S v I HC Hamilton CIV-2009-419-139, 21 August 2009 held that, when read together, the predecessors to ss 45(2) and 45(5) require “exceptional circumstances” to exist before s
45(5) engages. The authors respectfully suggest that the correct position is that the Court may specify the costs it would have ordered in every case where an aided person is unsuccessful, irrespective of whether exceptional circumstances exist. Section 45(5) applies only where no order is made under s 45(2), ie where exceptional circumstances do not exist. Supporting this interpretation are:
(i) The fact that the operation of s 46 would be frustrated if orders under s 45(5) were restricted to proceedings where there were exceptional circumstances. Section 46 aims to ensure that successful opponents of legally aided parties are not unfairly prejudiced by the operation of s 45: Laverty v Para Franchising Ltd [2006] 1 NZLR 650 (CA) at [21]–[22]. The decision on a s 46 application is for the Agency based on the s 46(3) matters, not for the Court by declining to make an order under s 45(5).
(ii) Section 46(6) would be redundant if s 45(5) engaged only when “exceptional circumstances” exist.”
The statutory regime
[106] Section 131(4) of COCA requires:
(4) Where in any proceedings a lawyer has been appointed under section
7 or 130 and the fees and expenses relating to that appointment have been paid under subsection (1), the court must make an order under section 135A, unless the court declines to do so in accordance with that section.
[107] In turn, s 135A of COCA requires the parties, in equal shares, to refund the Crown a fixed proportion of the costs and expenses paid to the Lawyer for the Child (and to specialist report writers). The required proportion is fixed by regulation at two-thirds in total, which means that each party must pay one-third of the costs.69
[108] Under s 135A(2) the Court may decline to make such an order against the party if satisfied that the order would cause serious hardship to the party or to a dependent child of the party.
[109] Under s 135A(4), the Court may vary the prescribed proportion if satisfied, in the circumstance of the case, that it would be appropriate to require a party to pay the prescribed amount.
Counsels’ submissions
[110] The focus of counsels’ written submissions has been in relation to costs and disbursements as between the parties. Mr Cowey briefly addressed an aspect of s
135A of COCA by submitting that it would be inappropriate for the respondent to be ordered to contribute to the costs of counsel for the child having regard to the actions of the appellant in pursuing the appeal.
[111] The distinct statutory regime in relation to the costs of counsel for the child makes it appropriate that the Court, before it deals with the orders required in this
regard, receives focused submissions.
69 Family Courts (Prescribed Proportion of Professionals’ Costs) Regulations 2014, reg 4.
[112] The Family Court has established procedures for inviting submissions in relation to the costs of counsel for the child and in obtaining information relevant to financial position and any serious hardship. That approach is equally appropriate for this Court. In the circumstances, I direct the Registrar to forward an appropriate request to counsel for submissions and detail, following which the Court will determine the orders appropriate here be made under ss 131(4) and 135A of COCA.
Orders
[113] I order:
(a) $48,862.50 is the sum which the appellant would have been ordered to pay to the respondent on account of costs if s 45 Legal Services Act
2011 had not affected the appellant’s liability.
(b)The decision on the parties’ liability for the costs and disbursements of counsel for the child is reserved.
Associate Judge Osborne
Solicitors/counsel:
Craig Paddon Law, Christchurch
Parry Field Lawyers, Christchurch
Cunningham Taylor, Christchurch.
Counsel: A M Corry, Barrister, Christchurch
“A”
| CIV-2016-409-795 | ||||
| Item | 2B ($2,230 per day) unless otherwise stated | Comments | ||
| Days | Amount | |||
| 8 | Appearance under protest to jurisdiction (10/12/15) | 0.6 | 1,338.00 | |
| 11 | Memorandum of counsel for the respondent (10/12/15) in advance of 14/12/15 | 0.4 | 892.00 | |
| 11 | Memorandum of counsel for the respondent (11/12/15) | 0.4 | 892.00 | |
| 10 | Preparation for first case management conference (14/12/15) | 0.4 | 892.00 | |
| 11 | Filing memorandum for first or subsequent case management conference or mentions hearing | 0.4 | 892.00 | |
| 12 | Appearance at mentions hearing or callover (14/12/15) | 0.2 | 446.00 | |
| 10 | Preparation for case management conference on 29/2/16 | 0.2 | 446.00 | 50% with the balance allocated to interlocutories |
| 13 | Appearance at case management conference (29/2/16) | 0.2 | 446.00 | 50% with the balance allocated to interlocutories |
| 11 | Memorandum of counsel seeking additional direction (29/4/16) | 0.4 | 892.00 | |
| 11 | Memo of counsel in response to appellant’s memo dated 29/4/216 (4/5/16) | 0.4 | 892.00 | |
| 13 | 17/5/16 Teleconference | 0.3 | 669.00 | |
| 11 | Memorandum of security for costs dated 2/6/16 | 0.4 | 892.00 | |
| 24 | Respondent’s submissions in rebuttal (9/6/16) | 1.5 | 3,345.00 | |
| 32 | Preparation of list of issues, authorities and common bundle | 1.0 (2A x 1) | 740.00 | 50% with the balance allocated to interlocutories |
| 21 | Inspection of documents | 0.75 (2A x 0.75) | 555.00 | 50% with the balance allocated to interlocutories |
| 11 | Memorandum of counsel for the respondent (20/6/16) | 0.4 | 892.00 | |
| 11 | Memorandum of counsel for the respondent regarding Court of Appeal decision (15/7/16) | 0.4 | 892.00 | |
| 13 | 30 August 2016 teleconference | 0.15 | 334.50 | 50% with the balance allocated to interlocutories |
| 33 | Preparation for hearing 26/28/9/16 | 3.0 | 6,690.00 | |
| 34 | Appearance at hearing 26-28/9/16 | 3.0 | 6,690.00 | |
| 11 | Memorandum of counsel listing judicial attendances (3/10/16) | 0.4 | 892.00 | |
| 11 | Memorandum of counsel for respondent dated 14/6/17 | 0.4 | 892.00 | |
| Total | 15.3 | $31,511.50 | ||
“B”
| CIV-2016-409-80 | ||||
| Item | 2B ($2,230 per day unless otherwise stated) | Comments | ||
| Days | Amount | |||
| 11 | Filing memorandum for first case management conference 29/2/16 | 0.4 | 892.00 | |
| 23 | Notice of opposition to interlocutory application dated 15/2/16 seeking extension of time to commence appeal against decision of the family court of 29/9/11 (dated 22/2/16) | 0.6 | 1,338.00 | |
| 13 | Appearance at case management conference (29/2/16) | 0.15 | 334.50 | 50% with the balance allocated to 2015 judgment appeal |
| 11 | Memorandum of counsel for the respondent dated 14/6/17 | 0.4 | 892.00 | |
| 33 | Preparation for hearing (June) | 3.0 | 6,690.00 | |
| 32 | Preparation of list of issues, authorities and common bundle | (2A x 1) 1.0 | 740.00 | 50% with the balance allocated to 2015 judgment appeal |
| 21 | Inspection of documents | (2A x .75) 0.75 | 555.00 | 50% with the balance allocated to interlocutories |
| 34 | Appearance on 8, 9, 15/6/16 | 2.5 | 5,575.00 | Calculated for 2.5 days as CIV-2015- 409-795 required 0.5 days |
| 13 | Appearance at case management conference 30/8/16 | 0.15 | 334.50 | |
| Total | 8.95 days | $17,351.00 | ||
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