MD v LP [2023] NZSC 140

MD v LP [2023] NZSC 140 [26 October 2023]NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANYREPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION,PLEASE SEE https://www.justice.govt.nz/family/about/restriction-on-publishing-judgments/IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUI O AOTEAROASC 78/2023[2023] NZSC 140BETWEEN MDApplicantAND LPRespondentCourt: Ellen France and Kós JJCounsel: Applicant in personC E Finn for RespondentJudgment: 26 October 2023JUDGMENT OF THE COURTThe application for leave to appeal is dismissed.____________________________________________________________________REASONS[1] The applicant, MD, and the respondent, LP, have been engaged in litigationover the care arrangements for their two children for some time.1 In a decisiondelivered on 9 December 2022,2 Eaton J upheld a final parenting order made in the1 The names of the parties have been anonymised to protect their children's privacy and complywith the publication restriction in s 139 of the Care of Children Act 2004.2 [MD] v [LP] [2022] NZHC 3318.Family Court on 11 August 2021.3 The Family Court granted full day-to-day care ofthe children to LP with unsupervised contact granted to MD for specified periods.[2] MD sought leave to appeal from the High Court decision to theCourt of Appeal. Leave was required because the proposed appeal would be a secondappeal.4 The Court of Appeal dismissed the application for leave to appeal on thepapers and declined a number of other applications filed by MD.5 Leave was declinedon the basis there was no question of fact or law capable of bona fide and seriousargument in a case involving sufficient public or private interest. The Court of Appealsaid the proposed grounds, bar one, were all case specific. The Court determined thatthe one ground that potentially raised a question of law of general or public importancewas not capable of serious argument.[3] The Court also awarded costs to LP calculated for a standard applicationtogether with usual disbursements.[4] MD has filed an application for leave to appeal from the Court of Appealdecision to award costs. MD says the costs decision gives rise to a miscarriage ofjustice and that an overall matter of general or public importance is present.6 A numberof matters are relied on to support that submission. They include the fact that the costsorder was made although costs are not automatic and the respondent did not seek costs.This meant that the order came "out of the blue". MD accepts that there is no abilityto seek leave to appeal the decision to decline leave but submits that no costs ordershould have been made where the decision of the Court of Appeal was wrong.7[5] We see no appearance of a miscarriage of justice, as that term is used in thecivil context, in relation to the decision to award costs.8 In making the costs award,3 [LP] v [MD] [2021] NZFC 8062.4 Care of Children Act, s 145(1)(b).5 MD v LP [2023] NZCA 215 (French and Collins JJ) [CA judgment]. For example, there was anapplication for access to the High Court court file and for a transcript of proceedings in that Court.6 Senior Courts Act 2016, s 74(2)(a) and (b).7 Section 68(b). We assume for present purposes that s 68(b) does not prevent the Court fromconsidering the decision as to costs.8 Junior Farms Ltd v Hampton Securities Ltd (in liq) [2006] NZSC 60, (2006) 18 PRNZ 369 at [5].the Court of Appeal applied the principle that costs follow the event.9 Nothing raisedby MD suggests there was any good reason to depart from that orthodox approachwhere the respondent had been put to the cost of defending the application and haddone so successfully. Nor is there anything to suggest a question of public or generalimportance arises.[6] The application for leave to appeal is dismissed. The notice of application forleave also included an application for a stay. That application was not referred to inthe submissions for MD. But, in any event, it falls away with the decision to declineleave, and is formally dismissed.Solicitors:Layburn Hodgins, Christchurch for Respondent9 Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109, [2013] 1 NZLR 305 at [8]; andCourt of Appeal (Civil) Rules 2005, rr 53(b), 53A(1)(a) (costs follow the event) and 53G(1)(where leave to appeal is declined, the applicant will normally be liable for costs in accordancewith the principle in r 53A(1)(a)).