Ross v Family Court at Auckland

[2022] NZHC 185

NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, 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/about/restriction-on-publishing- judgments/

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-000092

[2022] NZHC 185

UNDER

New Zealand Bill of Rights Act 1990, the Judicial Review Procedure Act 2016 and r 30 High Court Rules 2016

IN THE MATTER

of Judicial Review of decisions under the Care of Children Act 2004

BETWEEN

ROSS

Applicant

AND

THE FAMILY COURT AT AUCKLAND

First Respondent

STANLEY

Second Respondent

Hearing:	On the papers
Judgment:	15 February 2022

JUDGMENT OF WYLIE J

[Costs]

This judgment was delivered by Justice Wylie On 15 February 2022 at 3.00 pm

Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

ROSS v THE FAMILY COURT AT AUCKLAND [2022] NZHC 185 [15 February 2022]

Introduction

[1]    I refer to my substantive judgment dated 9 December 2021.1 I held against  Mr Ross in his application to review a number of decisions and directions given by Family Court Judges over a period of some two years. I noted that Ms Jerebine, as counsel assisting, had sought costs on a 2B basis together with usual disbursements, and an order under s 178(2)(a) of the Senior Courts Act 2016. I invited Ms Jerebine and Mr Ross to agree on costs, but made default directions in the event that they were unable to do so.

[2]    Subsequently, Mr Ross sought recall of my judgment. I dealt with that application in a judgment issued on 17 December 2021.2 I declined the application and ordered that costs were to follow the event. I made directions for the exchange of memoranda.

[3]    I have now received memoranda in relation to costs from both Ms Jerebine and Mr Ross.

[4]    Ms Jerebine is seeking costs on a 2B basis in relation to the substantive judgment. The total sum sought is $11,113.50. She is seeking costs on the application to recall of $3,585, also calculated on a 2B basis.

[5]    Mr Ross accepted that costs should be calculated on a 2B basis and did not take issue with the costs calculations made by Ms Jerebine. Rather, he took issue with  Ms Jerebine’s alleged conduct and sought a reduction in costs as a result. He argued that she was obliged to consider the welfare and best interests of his and the second respondent’s child, C, and that she failed to do so. He said that her failure added unnecessarily to the burden of the litigation, increased the time taken and led to my refusal to grant relief to him. He also disagreed with arguments made by Ms Jerebine as to the public interest and went on to refer to his personal circumstances. He asserted that, at his age, to impose a costs order on him would not be in the welfare and best interests of C. He said that he has only ever advanced the welfare and best interests

1      Ross v The Family Court at Auckland [2021] NZHC 3204.

2      Ross v The Family Court at Auckland [2021] NZHC 3518.

of C, and that since my substantive decision was issued, he and the second respondent have reached agreement in relation to various outstanding issues but this cannot compensate C, or him, for what he described as “years of negative consequence as a result of the Family Court’s failings”. He said that adding financial penalty to the burden he  has  already  suffered  will  achieve  no  good  effect.  He  argued  that  Ms Jerebine’s costs should be borne out of public funds allocated by the Government.

Analysis

[6]    Costs are at the discretion of the Court.3 Nevertheless, the discretion is not unfettered.  It is qualified by the applicable costs rules  – rr 14.2 to 14.10 of the   High Court Rules 2016 – and falls to be exercised by reference to well-established principles. The costs regime is of a regulatory character and it is important that its integrity be maintained. There is a strong implication that the Court should apply the costs regime in the absence of some reason to the contrary. Any departure from that regime must be a considered and particularised exercise of the discretion.4

[7]    The primary principle applying to the determination of costs is that the party who fails with respect to a proceeding should pay costs to the party who succeeds.5

[8]    Here, Mr Ross was unsuccessful both in the substantive proceedings and in his application for recall.

[9]    Ms Jerebine was appointed as counsel to assist the Court. She was not a party to the proceedings as such. Nevertheless, s 178 of the Senior Courts Act provides that where a person appears as counsel to assist the Court in any civil proceedings, the Court may make any order it thinks just for the payment, by any party to the proceedings or out of public funds, of the costs incurred by the person assisting.

3      High Court Rules 2016, r 14.1(1).

4      Glaister v Amalgamated Dairies Ltd [2004] 2 NZLR 606 (CA) at [28]; and see Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109, [2013] 1 NZLR 305 at [7] and [16]; Mansfield Drycleaners Ltd v Quinny’s Drycleaning (Dentice Drycleaning Upper Hutt) Ltd (2002) 16 PRNZ 662 (CA) at [27]; and Kinney v Pardington [2021] NZCA 174 at [1].

5      High Court Rules, r 14.2(1)(a).

[10]   Here, Mr Ross challenged four directions made by four different Family Court Judges. He sought to impugn the impartiality of another Judge and he sought review of three judgments issued by yet another Judge in the Family Court.

[11]   Both van Bohemen and Walker JJ had invited Mr Ross to clarify his proceedings. Walker J encouraged him to narrow his claims. Ms Jerebine, in a memorandum filed on 14 May 2021, went to some lengths to explain the difficulties that Mr Ross faced at law in pursuing a number of his claims. Mr Ross nevertheless resisted the invitations from the Court and Ms Jerebine’s explanations. He proceeded with his claims and filed excessively lengthy submissions.

[12]   The proceedings did not concern matters of public interest. Rather, they dealt with the application of settled principles to the facts and the conduct of the case by the Family Court. Many of the directions/decisions with which Mr Ross took issue were historic and had become academic. There had been delay by him in bringing proceedings challenging some of the directions/decisions. There were alternative remedies open to him.

[13]   It is hard to escape the conclusion that Mr Ross was engaged in something of a crusade. He considers that there are problems with the Family Court and he refused throughout to entertain the possibilities either that he might be wrong or that even if he was right, it made no difference to his case. In my judgment, it is appropriate to order that Mr Ross pays costs as the unsuccessful party and notwithstanding that   Ms Jerebine appeared as counsel assisting rather than a party. The public purse should not be used to accommodate Mr Ross’ intransigence or to fund his crusade.

[14]   Mr Ross directed strident criticism against Ms Jerebine in his submissions filed in relation to costs. There is neither merit nor logic in those submissions. It was patently clear to me that Ms Jerebine was alive throughout to the welfare and best interests of C albeit that her submissions did not focus expressly on that issue. It cannot responsibly be suggested otherwise. Further, it was Ms Jerebine who put before me the judgment of Katz J in Irving v Irving,6 which led me to conclude that one of the Family Court Judges whose decisions were challenged had made a

6      Irving v Irving [2021] NZHC 2269.

reviewable error in one of his decisions. Ms Jerebine’s submissions were responsible, appropriately focused and balanced. I reject Mr Ross’ criticisms of Ms Jerebine.

[15]   I now turn to quantum. Mr Ross and Ms Jerebine are agreed that costs should be fixed on a 2B basis. Ms Jerebine’s calculation of costs appears to be accurate insofar as I can glean and Mr Ross does not take issue with it.

[16]   The only issue is whether or not the costs otherwise payable should be reduced pursuant to r 14.7. None of the grounds set out in that rule apply. As I have already noted, the proceedings did not concern a matter of public interest. They concerned specific matters particular to Mr Ross’ situation. There are no other reasons which justify the Court reducing the costs otherwise payable.

[17]   Accordingly, I order costs against Mr Ross and in favour of Ms Jerebine as counsel assisting in the sum of $11,113.50 in respect of the substantive proceedings and $3,585 in respect of the application for recall. If Ms Jerebine has already been paid out of the public purse, the costs awarded are to be paid to the account of the Attorney-General/Solicitor-General as the case may require.

Wylie J

Solicitors/counsel:

S P Jerebine, Auckland M J Flanagan, Auckland

Copy to:
Applicant, Mr Ross