HENDERSON v ORANGA TAMARIKI (COSTS) [2023] NZHC 3408

HENDERSON v ORANGA TAMARIKI (COSTS) [2023] NZHC 3408 [28 November 2023]NOTE: PURSUANT TO S 437A OF THE ORANGA TAMARIKI ACT 1989,ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11CAND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHERINFORMATION, PLEASE SEEhttps://www.justice.govt.nz/family/about/restriction-on-publishing-judgments/IN THE HIGH COURT OF NEW ZEALANDPALMERSTON NORTH REGISTRYI TE KŌTI MATUA O AOTEAROATE PAPAIOEA ROHECIV-2023-454-41[2023] NZHC 3408UNDER THE Oranga Tamariki Act 1989IN THE MATTER OF an appeal against a decision of the FamilyCourtBETWEEN MS HENDERSONAppellantAND ORANGA TAMARIKI—MINISTRY OFCHILDRENRespondentHearing: On the papersAppearances: Appellant in personMcKenzie friendV A Howell and I M G Clarke for RespondentH J McKenna as Counsel for ChildJudgment: 28 November 2023JUDGMENT OF GRICE J (costs)Introduction[1] Ms Henderson1 unsuccessfully appealed Family Court orders granting custodyand additional guardianship of her son to Oranga Tamariki.21 The names of the appellant, the child and related parties have been anonymised in this judgment.2 Henderson v Oranga Tamariki [2023] NZHC 3018.[2] The appeal grounds included allegations of predetermination and bias againstthe Family Court Judge hearing the matter, and allegations of ineffective assistance ofcounsel who acted for her in the matters giving rise to the appeal before Ms Hendersoncommenced acting for herself. Ms Henderson also contested matters that she hadagreed to and had been the subject of consent orders. In addition, a substantial portionof Ms Henderson's arguments on appeal related to matters arising after the decisionand in connection with arrangements for the day-to-day care of her son and her accessto him.[3] Ms Henderson acted for herself on the appeal and had the assistance of asupport person.[4] Oranga Tamariki now seeks costs on a 2B basis and provided a schedule ofcosts. Ms Henderson opposes an award of costs largely on financial grounds.Principles in relation to costs[5] Subject to the provisions of the Senior Courts Act 2016, all matters relating tocosts are at the discretion of the Court.3 However, that discretion is generally to beexercised in accordance with rr 14.2–14.10 of the High Court Rules 2016.[6] The general principles applying to the determination of costs contained inr 14.2(1) include that the party who fails with respect to a proceeding or aninterlocutory application should pay costs to the successful party. Costs should beassessed by applying the appropriate daily recovery rate to the time consideredreasonable for each step reasonably required in relation to the proceeding orinterlocutory application.Submissions of the parties[7] Oranga Tamariki submits that impecuniosity does not allow an unsuccessfulparty to escape an award of costs. It also submits that if financial circumstances wereto be taken into account in every application for costs, the cost principle that costs3 High Court Rules 2016, r 14.1.should be predictable and expeditious4 would be undermined. It also notes that in theaffidavit as to financial circumstances provided by Ms Henderson, her assets are notmentioned and these should be taken into account if an assessment of financialcircumstances is to be undertaken.[8] Ms Henderson opposes the application for costs on the basis that she isfinancially not able to pay it. I allowed her further time to file an affidavit relating toher finances, which she has done.5 Ms Henderson said that given no security for costswas ordered and that the hearing fee was waived due to her financial circumstances,similarly no costs should be awarded. She also said Oranga Tamariki had access toextensive resources, whereas she did not.Discussion[9] In this case, there is no reason why costs should not follow the event on a2B basis, which is the appropriate category and band for the award in this case.[10] Financial impecuniosity is not a barrier to a costs award, particularly where theappeal was substantially without merit.6 As the High Court commented in Te WhareO Te Kaitiaki Ngahere Inc v West Coast Regional Council, a costs award "should bemade at a meaningful level, even against an impecunious party, when that party hasadvanced a case which is poorly pleaded or lacking in merit".7 And as the Court statedin Craig v Keith, "[f]inancial hardship is a relevant factor which may be taken intoaccount under r 14.7(g) in exercising the discretion to award costs, but it is not ananswer to a claim for a costs award."84 Rule 14.2(1)(g).5 Where a party's limited financial means is not already established in the substantive proceedings,evidence of such should be provided in the form of a sworn affidavit: Lowe v Auckland FamilyCourt [2017] NZHC 656 at [5]; and Craig v Keith [2017] NZHC 2664, [2017] NZFLR 899 at[22], cited in Foni v Foliaki [2018] NZHC 3126 at [5(c)].6 Foni v Faliaki, above n 5, at [5(b)], citing Te Whare O Te Kaitiaki Ngahere Inc v West CoastRegional Council [2014] NZHC 2969 at [16] and Tuck v Keedwall [2016] NZHC 794 at [11]; andsee Poutama Kaitiaki trust v Taranaki Regional Council [2021] NZHC 872 at [12].7 Te Whare O Te Kaitiaki Ngahere Inc v West Coast Regional Council, above n 6, at [16]. See alsoChesterfields Preschools Ltd v Commissioner of Inland Revenue [2011] NZCA 640, in which theCourt of Appeal commented, "[h]ardship is not usually regarded as a ground to resist an award ofcosts in circumstances where the opposite party has been put to unnecessary expense in respondingto an application or appeal": at [7], cited in Foni v Faliaki, above n 5, at [5(a)].8 Craig v Keith, above n 5, at [23], citing Te Whare O Te Kaitiaki Ngahere Inc v West Coast RegionalCouncil, above n 6, at [16].[11] I also note that, as Oranga Tamariki pointed out, no assets are listed in thefinancial material produced by Ms Henderson. It is apparent that she owns a houseand in addition the information includes income from investments. However, thenature of the investments is not disclosed.[12] I consider in the situation that costs on a category 2B basis are reasonable. Inthe minute of Palmer J dated 13 July 2023 in which he refused to grant security forcosts, he indicated costs on appeal were to be on a category 2 basis.9[13] The fact that security for costs was not ordered is no answer to an award forcosts being made against Ms Henderson. Security for costs performs a differentfunction. It is to give some security to the respondent on appeal, and considerationwill also be given at that stage to whether security would be effectively a barrier topursuing the appeal. Therefore, I do not consider the lack of any order requiringsecurity for costs or the filing fee waiver are considerations that weigh heavily in theassessment of costs at this stage.[14] The appeal was largely without merit and contained a lot of irrelevant materialin relation to matters which should have been properly pursued in the Family Court,where the proceedings remain extant and the care plan arrangements are beingreviewed by the Family Court. In that situation, I can see no reason why costs shouldnot be awarded on 2B basis. No criticism of the detail of the costs and disbursementssought has been made by Ms Henderson. No certificate is sought for second counselin the matter, despite the appearance of second counsel. However, I note there was acharge of $180 for accommodation in Palmerston North due to Wellington counselappearing in the matter. I have given consideration as to whether that is an appropriatedisbursement given the matter might have been conducted by local counsel. I considerthe claim for accommodation is appropriate, and in the circumstances the briefing ofa suitably qualified counsel from Wellington in an appeal of this nature, particularlygiven the extensive appeal grounds, was justified.9 [Henderson] v Oranga Tamariki HC Te Papaioea | Palmerston North CIV-2023-454-41, 13 Hūrae| July 2023 (Minute of Palmer J).Result[15] Oranga Tamariki claimed costs of $18,454 according to the schedule set out inits memorandum. Costs are accordingly awarded in favour of Oranga Tamariki in thatamount.____________________Grice JSolicitors:Kate Sheppard Chambers, Wellington.Crown Law Office, Wellington.McKenna Law Limited, Palmerston North.