Stewart v Family Court at Auckland

[2021] NZHC 2671

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-2533

[2021] NZHC 2671

BETWEEN

MELISSA NOELINE STEWART

Plaintiff

AND

THE FAMILY COURT AT AUCKLAND

First Defendant

BRYAN GEOFFREY BLACK
Second Defendant

RYAN EDWARD BLACK

Third Defendant

Hearing:

On the papers

Appearances:

S L Abdale for the Plaintiff

CEA Townsend for the Second and Third Defendants

Judgment:

6 October 2021

Reissued:

7 October 2021

COSTS JUDGMENT OF MUIR J

This judgment was delivered by me on Wednesday 6 October 2021 at 3.45 pm

pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Counsel/Solicitors:

Date:…………………………

This Judgment was recalled and reissued on 7 October 2021

S L Abdale, Barrister, Auckland                  [e-mail] C E A Townsend, Barrister, Auckland  [e-mail] Woodward Chrisp, Gisborne  [e-mail] Crown Law Office, Wellington  [e-mail]

[e-mail] Urlich Milne Lawyers, Auckland  [e-mail]

STEWART v THE FAMILY COURT AT AUCKLAND (COSTS) [2021] NZHC 2671 [6 October 2021]

Introduction

[1]    The second and third defendants seek costs following abandonment by the plaintiff of an application for leave to appeal to this Court.

[2]I am satisfied that costs are properly payable.

Background

[3]    On 10 December 2020 the Auckland Family Court heard, on a submissions only basis, an application for interim relief by the plaintiff which was declined.

[4]    On 17 June 2021,1 it heard an application for leave to appeal that decision. It declined that application also.

[5]    In parallel proceedings the plaintiff sought leave to appeal in this Court. Several mentions of that application were adjourned by consent with the matter ultimately adjourned to 27 July 2021.

[6]    On 23 July 2021 the second and third defendants filed a memorandum identifying that under s 143(3) of the Care of Children Act 2004 no appeal could be brought from any interlocutory decision in proceedings under that Act other than by leave of the Family Court or District Court.

[7]    On 10 August 2021 counsel for the plaintiff acknowledged this procedural impediment and withdrew the application for leave to appeal to this Court.

[8]    The plaintiff has never received a grant of legal aid in relation to her applications for leave to appeal, either in the Family Court or in this Court. In February 2021 she made an application or legal aid in respect of judicial review proceedings directed (primarily) to the decision of 10 December 2020. This was declined in June 2021. She made a subsequent application on 20 July 2021, directed to both the judicial review and leave to appeal applications, which was declined on

1      The Family Court decision states that the hearing was on 17 May 2021. This is said by the plaintiff to be in error.

16 September  2021.    Ms  Stewart  has  now  sought  a  reconsideration  of  the     16 September 2021 decision. In relation to the application for leave to appeal she seeks a grant down to 13 August 2021 when the application was withdrawn.

Discussion

[9]    Ms Stewart is not an “aided person” within the terms of s 4 of the Legal Services Act 2011 (LSA) in respect of any appeal (or application for leave to appeal) to this Court. Her application in that respect has been declined. Even if she was subsequently granted legal aid for her judicial review proceedings she would, in my view, not be entitled to the immunity provided by s 43 of the LSA in respect of the conceptually discrete application for leave to appeal.2 Nevertheless she does have an extant application for reconsideration of the decision made on 16 September 2021 declining legal aid for both sets of proceedings. It is possible, albeit it seems to me unlikely, that she might receive a retrospective grant of legal aid for the appeal proceedings through to the date on which they were discontinued.

[10]   In that context I consider the appropriate course is to fix costs now but on a basis conditional on declinature of the application for reconsideration (appeal proceedings).3 I do so by reference to Category 2B.

Item	Days	Total
10 Preparation for first case management conference.	0.4	956.00
11 Filing memorandum for first case management conference.	0.4	956.00
13 Appearance at first case management conference.	0.4	717.00
Total	$ 2,629.00

2      In coming to that conclusion I note an analogy with the position discussed in Carter v Western Viaduct Marine Ltd (2003) 16 PRNZ 1034 (HC) at [23]. This case establishes that a litigant is not immune to costs for the whole proceeding simply because at one point he/she was granted legal aid. Likewise if legal aid is granted in respect of one application I do not consider it to grant immunity in respect of all matters involving the same or similar parties (particularly when the specific application for which costs are sought was the subject of a legal aid application which was declined).

3      Noting the agreement of counsel in this respect.

[11]   The second and third defendants also seek costs of $956.00 in relation to their costs memorandum. They do so under item 11 in sch 3 of the High Court Rules 2016. At best an analogy might be invoked as item 11 does not allude specifically to costs on costs claims. There is no invariable rule that costs be awarded for costs memoranda.4

[12]   In the circumstances of this family dispute and given the comparative brevity of the relevant memorandum I decline to award costs in that respect.

Result

[13]   I award costs against the plaintiff and in favour of the second and third defendants in the amount of $2,629.00. Such award is expressed to be conditional on Legal Aid declining reconsideration of Ms Stewart’s application for aid (terminating 13 August 2021) in respect of her intended appeal to this Court.

[14]   I direct counsel for Ms Stewart to inform the Court and counsel for the second and third defendants of the outcome of the reconsideration application within 72 hours of receipt of advice of result from Legal Aid. I am satisfied that Ms Abdale is progressing the application with diligence.

Muir J

4      See David Bullock and Julian Long “Costs of costs applications” [2014] NZLJ 348; and Hojsgaard v Chief Executive of Land Information New Zealand [2019] NZCA 84, [2019] 2 NZLR 864 at [130].