TB v JPB HC Auckland CIV-2011-404-679

[2011] NZHC 1135

ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE PARTIES AND THE CHILDREN OR ANY IDENTIFIED PARTS OF THE EVIDENCE.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-679

UNDER  the Hague Convention on the Civil Aspects of International Child Abduction and Care of Children Act 2004

IN THE MATTER OF     an appeal of a decision of the New Zealand

Family Court at Manukau

BETWEEN  TB Appellant

ANDJPB Respondent

Hearing:         (on papers)

Counsel:         F C Deliu for the Appellant

G M Cameron for the Respondent

Judgment:      15 September 2011

JUDGMENT OF PETERS J [AS TO COSTS]

Counsel:            Mr F C Deliu, Barrister, Auckland (email:  [email protected])

Mr G M Cameron, Barrister, Auckland (email:  [email protected])

TB V JPB HC AK CIV-2011-404-679 15 September 2011

[1]      On 29 June 2011 I dismissed an appeal brought by the appellant against a decision of the Family Court at Manukau.

[2]      At paragraph [68] of my judgment of 29 June 2011 I said that the respondent, having succeeded, would usually be entitled to an award of costs.  The parties have not been able to resolve costs by agreement and have now filed memoranda.

[3]      The first issue to be determined is whether any award of costs may be made against the appellant and, if so, whether this is an appropriate case to make such an award.  This issue arises because, pursuant to the Care of Children Act 2004 (“the Act”), the Central Authority (“the Authority”) appointed counsel to appear for the respondent and counsel’s fees were, or will be, paid from the public purse.  Counsel for the appellant submits that the respondent did not himself incur the expense of legal costs and, consequently, to award costs would offend against the principle in High Court Rules, r 14.2(f), namely that a party should not profit from an award of costs.

[4]      Subject to that first issue, the second issue arises, namely the quantum of any award.    The  proceeding  was  classified  as  meriting  costs  on  a  “2B”  basis  in March 2011.

Jurisdiction/discretion

[5]      Section 116(2) of the Act provides for the Authority to appoint a lawyer to act for an applicant (being the respondent on this appeal) in particular circumstances. Such an appointment was made in this case.

[6]      Section 131 of the Act provides for matters regarding the costs of counsel so appointed.   Although on its face s 131(1) applies only in respect of fees for professional services provided by lawyers appointed under ss 7(1) or 130(1) of the Act, the effect of s 116(3) is to render s 131 applicable in respect of such fees in the case of a lawyer appointed pursuant to s 116(2) of the Act.

131     Costs of Court-appointed counsel

(1)       Fees for professional services provided by lawyers appointed under section 7(1) or section 130(1), and reasonable expenses incurred,—

(a)      may  be  determined  in  accordance  with  regulations  made under section 147(2)(c); and

(b)      are payable out of public money appropriated by Parliament for the purpose.

...

(4)       Despite subsection (1), the Court may, if it thinks proper, order a party to the proceedings to refund to the Crown an amount the Court specifies in respect of any fees and expenses paid under subsection (1), and the amount ordered to be refunded is a debt due to the Crown by that party and, in default of payment of the amount, payment of it may be enforced, by order of a District Court or the High Court as the case may require, in the same manner as a judgment of that Court.

[8]      From these provisions it is clear that, in an appropriate case, the Court may order a party to pay to the Crown a sum in respect of fees and expenses which the Crown has paid pursuant to s 131(1) of the Act.

[9]      The discretion to make such an order is unfettered.  The discretion is to be exercised having regard to the circumstances of the case.  Matters which previously have been considered relevant to the exercise of the discretion are the interests of the child or children, the parties’ conduct and their financial means.[1]

[1] C v C HC Napier AP52/94; E v C [1995] 3 NZLR 310 and Josling v Josling HC Hamilton AP94/95,

28 May 1997.

[10]     I have not been provided with information as to the appellant’s financial circumstances but from the evidence before me when I heard the appeal I know that the parties’ resources are modest.  Also, the effect of my decision was to require the parties’ children to return to Australia.  That relocation would be likely to impose an additional strain on the parties’ already limited financial resources.   The appellant

was not legally aided in the proceeding.  Despite that, in my view it is appropriate

for the following reasons that the appellant should make some contribution to the costs which have been incurred by the Crown.

[11]     First, the parties had the benefit of a careful decision at first instance, made by an experienced Judge of the Family Court.   The Judge made it clear in her decision how the relevant provisions of the Act applied to the facts of this case.  The appellant had a right to appeal that decision, as she did.   The appellant was not, however, able to make out any ground of appeal.

[12]   Secondly, the manner in which the appeal was conducted unnecessarily increased the Crown’s costs.  A substantial number of affidavits were filed on behalf of the appellant, the content of which was largely irrelevant to the issues.

[13]     For these reasons, I consider it appropriate to require the appellant to make a

contribution to the costs the Crown has incurred in respect of the appellant’s appeal.

Quantum

[14]     The appellant submits that the quantum of any order should be limited to

$1,880.00, being the amount the appellant paid into Court by way of security for costs.    Counsel  for  the  appellant  also  submits  that  the  appellant  enjoyed  some success on the appeal.

[15]     I reject both of these submissions. The appellant did not achieve any measure of success on her appeal.

[16]    Counsel for the respondent states in his memorandum that the fees and disbursements which will be claimed of the Crown in respect of senior and junior counsel for the respondent are $32,126.43.

[17]     Costs on a 2B basis would be determined in accordance with items 14 to 16 of Schedule 3 to the High Court Rules.  On that basis, costs would total $4,136.00, with any additional award for junior counsel being in my discretion.

[18]     Counsel for the respondent submits that such an award would not constitute a reasonable contribution to the costs which have been actually and reasonably incurred.  For reasons set out in his memorandum, counsel for the respondent seeks costs of $16,637.77.

[19]     Given  the  sum  which  would  be  due  under  Schedules  2  and  3  to  the High Court  Rules,  and  the matters  to  which  I have referred  above,  pursuant  to s 131(4) of the Act I make an order requiring the appellant to refund to the Crown the sum of $4,000.00.   The sum which the appellant paid to the Court by way of security for costs is to be applied in reduction of the amount ordered.

..................................................................

PETERS J