Ross v Family Court at Auckland

In the High Court of New Zealand, Justice Wylie heard the case of Ross v Family Court at Auckland, where Mr Ross sought a judicial review of various decisions made by the Family Court over a two-year period. The Family Court had already dismissed Mr Ross's application for review in a previous judgment. Ms Jerebine, who appeared as counsel assisting the Court, sought costs on a 2B basis for both the substantive proceedings and the subsequent application to recall the judgment. The legal issues the court was required to decide included whether Mr Ross should pay costs as the unsuccessful party, the appropriateness of the costs calculation, and whether there were any grounds for reducing the costs pursuant to rule 14.7 of the High Court Rules 2016.

Justice Wylie determined that costs are at the discretion of the Court but must be exercised in accordance with the applicable costs rules and well-established principles. The primary principle is that the unsuccessful party should pay the costs of the successful party. In this case, Mr Ross was unsuccessful in both the substantive proceedings and his application for recall. Ms Jerebine, who appeared as counsel assisting the Court, was not a party to the proceedings, but section 178 of the Senior Courts Act 2016 allows the Court to order the payment of costs incurred by the assisting counsel. The court rejected Mr Ross's arguments that Ms Jerebine failed to consider the welfare and best interests of the child and that her conduct added unnecessarily to the burden of the litigation. Justice Wylie concluded that Ms Jerebine's submissions were responsible, appropriately focused, and balanced. The court found no grounds for reducing the costs pursuant to rule 14.7, and therefore ordered that Mr Ross pay costs in the sum of $11,113.50 for the substantive proceedings and $3,585 for the application to recall.

In summary, the High Court upheld the principle that the unsuccessful party should pay the costs of the successful party, and ordered Mr Ross to pay the full costs sought by Ms Jerebine. The court rejected Mr Ross's criticisms of Ms Jerebine's conduct and found no grounds for reducing the costs. If Ms Jerebine had already been paid out of the public purse, the costs awarded were to be paid to the account of the Attorney-General/Solicitor-General as the case may require.