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 for costs would have been made against that person with respect to the proceedings if this section had not affected that person’s liability.

…

[3]                 As will be evident from the wording used in s 45(2), no order for costs may be made against a legally aided person unless the Court is satisfied there are exceptional circumstances. Examples of factors that may lead to a finding of exceptional circumstances are given in s 45(3). At the conclusion of my substantive judgment I indicated a tentative view that the present case did not give rise to any exceptional circumstances.2 In his written submissions Mr Eades sought to persuade me to change my mind on that issue.

[4]                 Mr Eades submitted that several factors justify a finding of exceptional circumstances. First, he relied on the circumstances that surrounded Ms Wilson’s without notice application for a protection order in the Family Court. He said that counsel for Ms Wilson failed to draw the attention of the Family Court to several relevant factors that may have affected the outcome of that application.

[5]                 Mr Eades also pointed out that counsel for Ms Wilson failed to file her submissions in support of the appeal within the time directed by this Court. This prompted Mr Carter to apply for an order that the appeal be struck out.

[6]                 In addition, Mr Eades submitted that Ms Wilson unreasonably advanced several challenges to factual findings made in the Family Court that had no prospect of success. Mr Eades contended that no responsible litigant who was required to meet the cost of pursuing an appeal personally would have taken that step. Taken together, Mr Eades submitted that these factors amount to exceptional circumstances that would justify an order for costs being made against Ms Wilson personally under s 45(2) of the Act.

[7]                 In his reply submissions Mr Eades modified his approach so as to primarily seek an order under s 45(5) of the Act. This permits the Court to make an order

2 At [42].

specifying what order for costs would have been made against the opposing party if  s 45 had not affected that person’s liability. This apparent concession prompted me to hold a telephone conference with counsel on 14 November 2023. During the conference Mr Eades confirmed that Mr Carter accepts Ms Wilson would be unable to pay any award of costs. He therefore abandoned reliance on s 45(2).

[8]                 Mr Sutton submitted on Ms Wilson’s behalf that, to the extent they are relevant, the factors set out in s 45(3) would not justify an order being made under s 45(2) in any event. However, his submissions proceeded on the basis that the test under s 45(2) is that of “extraordinary circumstances”. This is plainly not correct.

Analysis

[9]                 For the reasons that follow, and notwithstanding Mr Eades’ belated concession, I do not consider jurisdiction existed to make an order under s 45(2).

[10]             The term “exceptional circumstances” as it is used in s 45(2) has been interpreted as meaning circumstances that are “quite out of the ordinary”.3 The factors set out in s 45(3) provide examples of situations where exceptional circumstances may exist. However, they are not exhaustive.4

[11]             The issues that Mr Carter relies upon in relation to the without notice application Ms Wilson originally made to the Family Court may have been relevant to costs in that Court. However, I do not consider they are relevant in the present context.

[12]             Mr Carter obviously incurred extra costs when Mr Sutton failed to file submissions in support of the appeal within the time directed by the Court. Mr Eades reacted to the default by filing the application to strike the appeal out for want of prosecution. This resulted in Mr Sutton filing his submissions. In a minute issued when he dismissed Mr Carter’s application Venning J noted that costs on the application would be determined when the costs of the appeal were ultimately fixed. I accept that Mr Sutton’s failure to file his submissions in support of the appeal within the time directed by the Court engages s 45(3)(a) and (b).

3      Laverty v Para Franchising Ltd [2006] 1 NZLR 650 (CA) at [31].

4      McCollum v Thompson [2017] NZCA 269, [2018] NZCCLR 25 at [79].

[13]             I also consider that s 45(3)(d) is engaged because of the arguments Ms Wilson advanced on appeal in relation to factual issues that the Judge in the Family Court had rejected. Ms Wilson argued in the Family Court that Mr Carter had breached the conditions imposed by the interim protection order by loitering outside her home for several hours on the afternoon of 8 July 2022. The Judge rejected this argument on the basis that the parenting orders that were in force on that date expressly permitted Mr Carter to pick the children up from the driveway of Ms Wilson’s address. There was little prospect of this argument succeeding on appeal.

[14]             Ms Wilson also renewed her argument that Mr Carter had been psychologically abusive towards her while he waited outside her home on 8 July 2022. The Judge rejected this argument after having seen and heard the contemporaneous recordings Ms Wilson had made on her cellphone. Those recordings also formed the basis of my conclusions on the same argument on the appeal.5 This argument clearly did not have much chance of success on appeal given the fact that the contemporaneous recordings did not support it. Nor did an argument that Mr Carter had psychologically abused Ms Wilson in emails he had sent to her.

[15]             The ultimate issue is whether these factors mean the circumstances relating to the appeal are quite out of the ordinary. A failure to file submissions as directed is, unfortunately, a relatively common occurrence. It is also almost invariably caused by default on the part of counsel rather than the party whom counsel represents. That is the position in the present case.   I also consider Mr Eades could have dealt with    Mr Sutton’s default in a more cost-effective way. Rather than applying to strike the appeal out Mr Eades could, for example, have filed a memorandum requesting that the appeal be placed in a Chambers List so that the default could be addressed.

[16]             The arguments challenging the Judge’s factual findings were not strong for the reasons I have already given. However, challenges to factual findings made at first instance are often difficult to establish for a variety of reasons. Viewed in hindsight such arguments may often appear to have been weak from the outset. However, I do

5      At [28]–[29].

not consider the arguments advanced on Ms Wilson’s behalf in this context were so demonstrably weak that they rendered the appeal quite out of the ordinary.

[17]             For these reasons I do not consider Mr Carter could establish that jurisdiction existed to make an order for costs against Ms Wilson under s 45(2) of the Act. However, I have no hesitation making an order under s 45(5).

Order

[18]             I make an order under s 45(5) of the Act that, had Ms Wilson not been legally aided, I would have made an order for costs in Mr Carter’s favour in the sum of

$13,145 as calculated in paragraph 16 of Mr Eades’ memorandum dated 30 October 2023.

Lang J