ALBERT V BEATRICE AND ORS HC AK CIV-2006-404-3930

ALBERT V BEATRICE AND ORS HC AK CIV-2006-404-3930 21 February 2007SEARCH OF THE COURT FILE AND DISCLOSURE OF THE NAMES WHICH HAVE BEEN ANONYMISED IN THIS JUDGMENT ARE PROHIBITED IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV-2006-404-3930BETWEEN ALBERT Appellant AND BEATRICE First Respondent AND CATHERINE Second Respondent AND DAVID Third Respondent AND EMILY Fourth Respondent Counsel: S R Jefferson and S E Bush for Appellant S Bailey for First and Second Respondents No appearance for Third Respondent K Lindberg for Fourth Respondent Judgment: 21 February 2007 at 3.30 pmCOSTS JUDGMENT OF BARAGWANATH JThis judgment was delivered by Justice Baragwanath on 21 February 2007 at 3.30 pm pursuant to Rule 540(4) of the High Court Rules Registrar/Deputy Registrar Date:Solicitors: Inder Lynch, Auckland Otene & Ellis, Auckland Karen Lindberg, Auckland Counsel: S R Jefferson, Auckland S Bailey, Auckland[1] Counsel for the child's grandmother, Beatrice, seeks an order for costs against the child's step-father, Albert, who appealed unsuccessfully against a decision of the Family Court that Beatrice should have the day to day care of the child and that Albert's care of her should be limited substantially to weekends. Two questions arise. The first is whether the principle that costs follow the event should be applied in relation to the costs of Beatrice and secondly what, if any, order should be made in relation to the costs of counsel appointed to represent the child. [2] As to the former, in resisting a costs order counsel for Albert relies on the judgment of Heath J in R v S (Guardianship) (2003) 22 FRNZ 1017 in an appeal to a Full Court from a costs decision of the Family Court. Heath J decided that there should be no costs order; the litigation was an important element in establishing the future regime for the family. Priestley J, the other member of the Full Court, agreed with the views expressed. [3] The decision is however distinguishable as relating to costs in the Family Court as the court of first instance. Here, Beatrice has succeeded both before the Family Court and on Albert's appeal and it is the costs of the appeal that require determination. [4] While r 46(1) provides that costs are at the discretion of the Court the Rules Committee has provided guidance as to the application of that power by succeeding rules including r 47:47 Principles applying to determination of costsThe following general principles apply to the determination of costs: (a) The party who fails with respect to a proceeding or an interlocutory application should pay costs to the party who succeeds: (b) An award of costs should reflect the complexity and significance of the proceeding: (c) Costs should be assessed by applying the appropriate daily recovery rate to the time considered reasonable for each step reasonably required in relation to the proceeding or interlocutory application:(d) An appropriate daily recovery rate should normally be two-thirds of the daily rate considered reasonable in relation to the proceeding or interlocutory application: (g) So far as possible the determination of costs should be predictable and expeditious.The Rules Committee revisits the scheduled rates annually. [5] The starting point is therefore the scale. The case has been characterised as a category 2B and I accept the submission for Albert that its application yields a figure of $2,240. [6] A further relevant factor is whether and if so to what extent the welfare of the child might be affected by the costs order. That principle was identified by another Full Court in E v C [1995] 3 NZLR 310, albeit in the context of an appeal against a Family Court costs order. Relevant in this regard is the need to minimise any sense of injustice that might add difficulty to the relationship between, in this case, Albert and Beatrice which, as the judgment emphasises, is of the utmost importance. Considerations of significance include the fact that Albert's appeal has been unsuccessful and that Beatrice has had to take her own legal advice for the defence of the appeal. [7] If these factors stood alone I would simply have made an order that Albert pay scale costs. But in this case the court appointed psychologist relied upon by Beatrice failed to make sensible concessions as to Albert's parenting ability and the fact that the child had apparently done quite well in his care in the past. In the judgment I recorded that I could understand a real sense of grievance on Albert's part that the expert had overstepped the line. While it was no personal fault of Beatrice that the expert should have done so, that is a factor that leads me to make a moderate reduction in the costs payable to Beatrice. They will be fixed at $1,800 plus disbursements. [8] Turning to the costs of counsel for the child, there has been no application made by the experienced counsel appointed by the Court. While that does notrelieve the Court of its responsibility to consider whether the parties rather than the consolidated fund should bear her fees I have decided to make no order, so the costs will be carried by the taxpayer. That is because of the difficulty of the case which at para [57] of the judgment I described as of Solomonesque difficulty. It raised issues of importance transcending the present case as to the role of counsel for the child and the Judge's conduct of an interview of the child in the absence of the other parties. ___________________________ W D Baragwanath J