Wilson v Carter - [2023] NZHC 3220

NOTE: PURSUANT TO S 182 OF THE FAMILY VIOLENCE ACT 2018, 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 HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2022-419-338

[2023] NZHC 3220

UNDER The Family Violence Act 2018

BETWEEN

MS WILSON

Appellant

AND

MR CARTER

Respondent

Hearing: On the papers

Appearances:

R Sutton for Appellant D Eades for Respondent

Judgment:

15 November 2023

JUDGMENT OF LANG J

[costs]

This judgment was delivered by Justice Lang On 15 November 2023 at 3.00 pm
Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors/counsel:
R Sutton, Barrister, Hamilton
Lance Lawson Ltd, Mount Maunganui

WILSON v CARTER [2023] NZHC 3220 [15 November 2023]

[1] On 16 October 2023, I dismissed an appeal by Ms Wilson against a decision by Judge N Grimes in the Family Court refusing to make a permanent protection order against Ms Wilson’s former partner, Mr Carter.1 Mr Carter and Ms Wilson have been unable to reach agreement regarding the issue of costs. I am therefore required to determine costs on the basis of the memoranda counsel have filed regarding that issue.

The submissions

[2] Ms Wilson is legally aided. This means that costs are governed by s 45 of the Legal Services Act 2011 (the Act). Section 45 relevantly provides as follows:

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.

1 Wilson v Carter [2023] NZHC 2885.

(5)If, because of this section, no order for costs is made against the aided person, an order may be made specifying what order…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wilson v Carter

Details

AGLC: Wilson v Carter [2023] NZHC 3220
Case: [2023] NZHC 3220
Decision Date: 15 November 2023

CaseChat Overview and Summary

In the High Court of New Zealand, Justice Lang presided over a case between Ms Wilson and Mr Carter, involving an appeal by Ms Wilson against a Family Court decision that refused to make a permanent protection order against Mr Carter. The primary focus of the proceedings was the determination of costs, as the parties could not reach an agreement. Ms Wilson was legally aided, and thus the costs were governed by s 45 of the Legal Services Act 2011, which mandates that an aided person's liability for costs must not exceed a reasonable amount, considering all circumstances, including the parties' means and conduct. The court needed to decide if exceptional circumstances existed to justify an order for costs against Ms Wilson.

Mr Eades, representing Mr Carter, argued that exceptional circumstances existed due to several factors. These included Ms Wilson’s counsel failing to highlight relevant factors in her without notice application for a protection order in the Family Court, counsel's failure to file submissions within the time directed by the Court, and Ms Wilson’s pursuit of unsuccessful challenges to factual findings made in the Family Court. Mr Eades contended that these factors justified a finding of exceptional circumstances. In response, Mr Sutton argued that even if the factors were relevant, they did not justify an order under s 45(2) of the Act.

Justice Lang concluded that while some of the factors identified by Mr Eades did engage s 45(3), they did not collectively render the circumstances of the appeal "quite out of the ordinary". The failure to file submissions as directed, although a common occurrence, did not, in itself, warrant an order for costs against Ms Wilson. Similarly, the arguments challenging the factual findings were not so weak as to make the appeal exceptional. Therefore, the court found no jurisdiction to make an order for costs against Ms Wilson under s 45(2). However, the court made an order under s 45(5), specifying that if Ms Wilson had not been legally aided, an order for costs in the sum of $13,145 would have been made in Mr Carter’s favour.

Orders