IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE	
CIV-2022-404-245
[2023] NZHC 848	

UNDER	Care of Children Act 2004 and Judicial Review Procedure Act 2016	
IN THE MATTER OF	A judicial review of the decision of the Family Court Judge at Auckland on
25 January 2022	
BETWEEN	MARK PILLAY
Plaintiff	
AND	FAMILY COURT
First Defendant

RAVASHINEE MANDY PERUMAL
Second Defendant	

Hearing:	On the Papers at Auckland	
Date of Minute:	20 April 2023	

JUDGMENT OF POWELL J
[Costs]

MARK PILLAY v FAMILY COURT [2023] NZHC 848 [20 April 2023]

[1]	These judicial review proceedings, brought by Mark Pillay, are currently stayed to enable a related appeal brought by Mr Pillay to be heard first.

[2]	Prior to the stay being ordered, Mr Pillay had expanded the scope of his judicial review proceedings to include multiple respondents including, in particular, Patrick Kannemeyer, the former Lawyer for the Child in Mr Pillay’s Family Court proceedings, and the Ministry of Business, Innovation and Enterprise (“MBIE”). Both Mr Kannemeyer and MBIE objected to being joined into the proceedings. What happened next is set out in my Minute (no.2) of 8 November 2022:

From the first call of the proceedings in April 2022 a range of issues were identified with regard to the judicial review proceedings, which Mr Pillay has not addressed. Following a further hearing on 5 September 2022 Harvey J issued a minute of the same date which attempted to explain the issues for Mr Pillay’s benefit and in particular identified the issues concerning the amended statement of claim he had filed on 5 May 2022. Mr Pillay was directed to file an amended statement of claim within one month of the minute, that is by 5 October 2022, with his amended pleading required to remove any reference to the Chief Executive of the Ministry of Business, Innovation and Employment/Immigration New Zealand, McVeagh Fleming or Mr Kannemeyer and was also directed to change the name of the first respondent from the District Court to the Family Court.

No amended pleading was filed in the intervening period. At the hearing this morning Mr Pillay indicated that he has an amended statement of claim ready to be filed but sought guidance from the Court at this conference. As I discussed with Mr Pillay at the conference there is no need for further assistance given the clear directions made by Harvey J. In the circumstances and in particular given the length of time since Harvey J issued his minute I concluded it was necessary to formally strike-out Mr Pillay’s claims against Mr Kannemeyer, the Chief Executive of the Ministry of Business, Innovation and Employment/Immigration New Zealand and McVeagh Fleming for the reasons set out by Harvey J. I likewise direct that henceforth the first defendant is to be recorded as the Family Court, as per the intituling of this minute.

[3]	Following the striking out of the claims against them both, Mr Kannemeyer and MBIE sought costs against Mr Pillay on a 2B basis:

(a)	Mr Kannemeyer in the total sum of $6,931; and

(b)	MBIE in the total sum of $3,585.

[4]	Mr Pillay opposes any award of costs on the basis he is impecunious, had removed both parties from the judicial review proceedings, and suggested that any costs order was “aimed at discouraging [him] from pursuing the matters in question”.

Discussion

[5]	It is well established that costs ordinarily follow the event so that the loser will pay the winners costs.1 In this case, as Mr Pillay’s claims in judicial review against Mr Kannemeyer and MBIE were not withdrawn by Mr Pillay but were struck out, there can be no dispute that both Mr Kannemeyer and MBIE were the successful parties.

[6]	It is likewise well established that a Court may decline to award costs where the party liable to pay is impecunious.2 Where impecuniosity is claimed there is a preference that evidence of limited financial means be provided in the form of a sworn affidavit.3

[7]	Typically, financial hardship will not however be an answer to a claim for costs.4 Only in exceptional circumstances will a party’s financial position animate the Court’s discretion to reduce costs.5 This position is driven by the fact that it is “[un] desirable for this Court to make (what will always be essentially arbitrary) adjustments to costs awards to reflect financial circumstances”.6 This position was emphasised by Muir J in Foni v Foliaki, where his Honour declined to reduce an award of costs on account of impecuniosity, and relevantly stated:7

…I consider that abatement of costs awards because of personal circumstances will not typically be justified, having regard to the other more

1	High Court Rules 2016, r 14.2.
2	Under r 14.7(g) this Court may reduce costs or decline to award costs for “some other” reason beyond those listed in r 14.7(f)(i)–(v) where that reason is capable of justifying refusal. This catch all ground has been interpreted to include financial hardship or impecuniosity. See Craig v Keith [2017] NZHC 2664, [2017] NZFLR 899 at [23]; Chesterfields Preschools Ltd v Commissioner of Inland Revenue [2011] NZCA 640 at [7]; Simister v Tauranga Cruise Tourism Operators Association Inc [2015] NZHC 2133 at [15]; and Howard v Accident Compensation Corporation [2014] NZHC 3141.
3	Foni v Foliaki [2018] NZHC 3126 at [5].
4	At [5].
5	HA v Refugee and Protection Offer [2018] NZHC 1011 at [14]–[15].
6	At [16].
7	Foni v Foliaki, above n 3, at [11]–[14].

specific provision of the relevant rules. I consider the discretion should be reserved for exceptional cases…

…although I have considerable sympathy for the circumstances Mr Foni now finds himself in, I do not consider this an appropriate case to reduce costs by some arbitrary amount to reflect his health and finances.

I take into account also the fact that significant breaches by the plaintiff in compliance with court orders are, as the first defendants submit, likely to have justified an application for increased costs. That these have not been sought by the defendants is itself implicit recognition of the plaintiff’s circumstances.

[8]	Applying these principles, I notice Mr Pillay has provided no evidence to this Court by way of affidavit or otherwise to show he is currently experiencing or will experience financial hardship. Like Mr Foni, he simply states he is impecunious. As was noted by Muir J, costs against impecunious plaintiffs must nevertheless be set at a meaningful level,8 and an order declining to award costs would be inconsistent with this principle. It would also be inappropriate to reduce costs by some arbitrary amount to reflect financial hardship in circumstances where Mr Kannemeyer and MBIE could have sought increased costs on account of Mr Pillay’s failure to comply with the High Court Rules and the directions given by different Judges. In this case there can be no doubt the way in which Mr Pillay proceeded significantly increased the costs incurred by Mr Kannemeyer and MBIE defending Mr Pillay’s claims against them. As was the case in Foni, the application for scale costs, as opposed to increased costs, may be seen as sufficient recognition of Mr Pillay’s financial hardship, if any hardship in fact exists.

[9]	Taking  these  various  matters   into   consideration   I   am   satisfied   that Mr Kannemeyer and MBIE are entitled to costs, and having checked their respective calculations of the scale cost claimed and noting that Mr Pillay has not taken any issue with those calculations, I am satisfied that orders for the costs as claimed should be made in favour of both Mr Kannemeyer and MBIE against Mr Pillay.

Decision

[10]	Mr Pillay is to pay costs on the strike-out of his claims against Mr Kannemeyer and MBIE as follows:

8	At [12].

(a)	In the sum of $6,931 in favour of Mr Kannemeyer; and

(b)	In the sum of $3,585 in favour of MBIE.

Powell J