CRP v LPD [2012] NZHC 1029 (15 May 2012)

Last Updated: 21 May 2012

NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO

11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION PLEASE SEE WWW2.JUSTICE.GOVT.NZ/FAMILY/LEGISLATION/RESTRICTIONS.

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CIV-2012-443-165 [2012] NZHC 1029

BETWEEN CRP Appellant

AND LPD

First Respondent

AND JBB

Second Respondent

Hearing: 1 May 2012 (by telephone) Counsel: J Logie for Appellant

R Wilson for Respondents

HLC Raumati lawyer for children

Judgment: 15 May 2012

_{JUDGMENT OF HEATH J}

This judgment was delivered by me on 15 May 2012 at 3.30pm pursuant to Rule 11.5 of the High

Court Rules

Registrar/Deputy Registrar

Solicitors:

Crown Law Office, Wellington

Copy to:

J G Logie, Palmerston North

R Wilson, New Plymouth

_{HLC Raumati, New Plymouth}

CRP V LPD HC NWP CIV-2012-443-165 [15 May 2012]

Introduction

[1] CRP appeals against judgments given in the Family Court at New Plymouth on 23 January and 7 March 2012. She challenges Judge Courtney’s decision not to require the return to Australia of her two children, presently in New Zealand.

[2] CRP’s application to the Family Court was made under s 105 of the Care of Children Act 2004 (the Act). It engaged those provisions of the Act that give effect to the Hague Convention on the Civil Aspects of International Child Abduction (the Convention). The appeal has been set down for hearing on 25 May 2012.

[3] A case management conference was held on 1 May 2012. Directions designed to ready the appeal for prompt hearing were made, in accordance with Schedule 6 of the High Court Rules. However, I reserved one aspect of the directions ordinarily required. That related to the need for any order for security for costs on the appeal. I reserved the point because an argument was advanced that, in Convention cases, it was inappropriate for any such order to be made.

Analysis

[4] I am informed that the New Zealand Central Authority customarily requests that no security for costs be ordered, on the basis that the appellant is State funded. Part 20 of the High Court Rules governs appeals to the High Court. Rule 20.13 deals with the topic of security on an appeal:

20.13 Security for appeal

(1) This rule applies to an appeal other than an appeal for which the appellant has been granted legal aid under the Legal Services Act 2000.

(2) The Judge must fix security for costs at the case management conference relating to the appeal, unless the Judge considers that in the interests of justice no security is required.

(3) The amount of security must be fixed in accordance with the following formula, unless the Judge otherwise directs:

where—

a is the daily recovery rate for the proceeding as classified by the

Judge under rule 14.4; and

2. is the number of half days estimated by the Judge as the time required for the hearing.
   

(4) Security must be paid to the Registrar at the registry of the court no later than 10 working days after the case management conference, unless the Judge otherwise directs.

(5) Except in the case of an appeal under the District Courts Act 1947 (where non-compliance with the security order results in a deemed abandonment of the appeal under section 74), if the security is not paid within the time specified under subclause (4), the respondent may apply for an order dismissing the appeal.

(6) The Judge must defer the fixing of security until the application for legal aid has been determined if—

(a) an appellant has applied for legal aid under the Legal Services

Act 2000; and

(b) at the time of the case management conference, the application has not been determined. (Emphasis added)

[5] Rule 20.13(2) requires the Judge dealing with case management issues to fix security for costs unless he or she considers that “in the interests of justice” security is not required. The “interests of justice” test, while broad in nature, operates on the premise that security is the norm and some exceptional circumstance is required to justify a waiver. Such circumstances might arise, for example, from the importance of the issues raised and the public interest in determining them.[1]

[6] In Convention cases, the New Zealand Central Authority is under an obligation to cooperate with Central Authorities in other jurisdictions “to secure the prompt return of children and to achieve the other objects of [the] Convention.”[2]

The Central Authority cannot be made subject to any order to pay costs in relation to

_{its exercise or performance of duties, powers or functions conferred on it.}[3] _{In this}

case, the Central Authority has nominated Mr Logie, who acted for CRP in the

Family Court, to act for her on the appeal.[4]

[7] Relevantly, for present purposes, ss 100, 116(1), (2) and (3), 120 and 131(4)

of the Act and arts 22 and 26 of the Convention state:

100 Central Authority for New Zealand

(1) The Secretary is the Central Authority for New Zealand, and for that purpose the Secretary has all the duties, may exercise all the powers, and must perform all the functions, that a Central Authority has under the Convention.

(2) The Secretary must not be made subject to any order to pay costs in relation to the exercise or performance, by the Secretary, of any of the Secretary's duties, powers, or functions as the Authority.

116 Lawyer to act for applicant

(1) This section applies to an applicant who—

(a) makes an application under section 102 or section 103 or section 105 or section 112 or section 113; but

(b) has not appointed a lawyer to act for the applicant for the purposes of the application.

(2) The Authority must, if the circumstances so require, appoint a lawyer to act for the applicant for the purposes of the application, including (in the case of an application under section 103 or section 105) any proceedings under section 105.

(3) Sections 7(4), 131, 137(1)(c), and 147(2)(c) apply, so far as applicable and with all necessary modifications, to a lawyer appointed under subsection (2) as if the lawyer were appointed under section 7(1).

120 Security for costs, etc

(1) A person who makes an application under ... section 105 ... must not be required to provide any security, bond, or deposit for the purpose of guaranteeing the payment of, or to make any payment towards, the costs or expenses of (or incidental to) any proceedings relating to that application.

(2) Subsection (1) is subject to section 131(4) (as applied by section

116(3)).

131 Costs of Court-appointed counsel

...

(4) Despite subsection (1), the Court may, if it thinks proper, order a party to the proceedings to refund to the Crown an amount the Court specifies in respect of any fees and expenses paid under subsection (1), and the amount ordered to be refunded is a debt due to the Crown by that party and, in default of payment of the amount, payment of it may be enforced, by order of a District Court or the High Court as the case may require, in the same manner as a judgment of that Court.

...

Article 22

No security, bond or deposit, however described, shall be required to guarantee the payment of costs and expenses in the judicial or administrative proceedings falling within the scope of this Convention.

Article 26

Each Central Authority shall bear its own costs in applying this Convention. Central Authorities and other public services of Contracting States shall not

impose any charges in relation to applications submitted under this

Convention. In particular, they may not require any payment from the applicant towards the costs and expenses of the proceedings or, where

applicable, those arising from the participation of legal counsel or advisers.

However, they may require the payment of the expenses incurred or to be incurred in implementing the return of the child.

However, a Contracting State may, by making a reservation in accordance with Article 42, declare that it shall not be bound to assume any costs referred to in the preceding paragraph resulting from the participation of legal counsel or advisers or from court proceedings, except insofar as those costs may be covered by its system of legal aid and advice.

Upon ordering the return of a child or issuing an order concerning rights of access under this Convention, the judicial or administrative authorities may, where appropriate, direct the person who removed or retained the child, or who prevented the exercise of rights of access, to pay necessary expenses incurred by or on behalf of the applicant, including travel expenses, any costs incurred or payments made for locating the child, the costs of legal representation of the applicant, and those of returning the child.

[8] While s 120 and art 22 do not deal explicitly with the question of security for costs on an appeal, the spirit of the provisions seems clear. Both are directed to the Central Authority’s functions; art 22 referring specifically to “judicial proceedings” generally.

[9] In determining whether security for costs should be ordered, I consider that I must take into account the international obligations that New Zealand has under the Convention, the role of the Central Authority in ensuring that those obligations are carried out and the policy evident from ss 100 and 120 of the Act. It seems to me that, once the Central Authority has decided to become involved in an original application or an appeal, a decision has been made that the circumstances of the case could reasonably require an order for return of the child.

[10] To support an order for security, Mr Wilson, for the respondents, relied on Abraham v Abraham.[5] That, too, was a case in which the Convention was invoked. The issue for Greig J, on appeal, was whether the Family Court had jurisdiction to award costs to a party who had successfully opposed a Convention application. The Judge held that s 27 of the Guardianship Amendment Act 1991 (the equivalent of what is now s 120) did not affect the Family Court’s jurisdiction to make an order for costs in favour of a successful respondent.[6]

[11] Abraham is distinguishable because it relates to the jurisdiction to award costs after the event, as opposed to a prior order that security for a respondent’s costs be ordered. In any event, as the counterpart of s 100(2) (s 7 of the Guardianship Amendment Act 1991) was not considered by Greig J, it is possible that the actual holding in Abraham may need to be revisited at some time.[7]

[12] I consider that the terms of s 120 and art 22 identify a public policy reason for waiving the requirement for an appellant to provide security for costs,

_{notwithstanding the presumptive terms of r 20.13(2) of the High Court Rules.}

Result

_{[13] Under r 20.13(2) of the High Court Rules, security for costs is waived.}

_{P R Heath J}

Delivered at 3.30pm on 15 May 2012

---

[1] RIG v Chief Executive of the Ministry of Social Development [2010] NZCA 370 at paras [3] and [4] (Glazebrook J, sitting alone); leave to appeal to the Supreme Court refused: G v Chief Executive of the Ministry of Social Development [2010] NZSC 141.

[2] Care of Children Act 2000, s 100(1) and Article 7 of the Convention, set out in Schedule 1 to the

_{Care of Children Act.}

[3] Ibid, s 100(2).

[4] Ibid, s 116.
[5] _{Abraham v Abraham [1997] 3 NZLR 368 (HC).}
[6] Ibid, at 371-372.
[7] Section 100 is set out in para [7] above.