BURNS v DEPARTMENT OF CHILD, YOUTH & FAMILY SERVICES & OTHERS ( POLICE & FAMILY COURT ) [2005] NZHRRT 10 (26 May 2005)
Last Updated: 1 June 2005
Decision No. 10/2005
Reference No. HRRT 28/04
BETWEEN PETER JOSEPH BURNS
Plaintiff
AND DEPARTMENT OF CHILD, YOUTH & FAMILY SERVICES & OTHERS
Defendants
BEFORE THE HUMAN RIGHTS REVIEW TRIBUNAL
R D C Hindle - Chairperson
I Vodanovich - Member
P J Davies - Member
DATE OF DECISION 26 May 2005
DECISION REGARDING COSTS
[1] On 4 April 2005 we determined that the plaintiff’s claim in this proceeding should be struck out: HRRT Decision 7/05. Our decision invited the Department of Child, Youth & Family Services to apply for costs if it wished to do so.
[2] Subsequently memoranda have been filed which make it clear that neither the Department of Child, Youth & Family Services nor the Police Complaints Authority (another of the subjects of the plaintiff’s proposed claims) wish to ask for costs.
[3] A memorandum filed on behalf of ‘the Family Court’, however, sought costs in favour of that party. Evidently ‘the Family Court’ has incurred costs of $600.75 in respect of its defence of the claim. In support of the application it was submitted that (as the Tribunal found in its decision) there was never any jurisdiction for a claim against the Court, with a result that ‘the Family Court’ has been put to unnecessary expense in preparing and filing a statement of reply, and otherwise in dealing with the claim.
[4] The claim for costs by ‘the Family Court’ was a little unexpected. Although the claim as initially filed by the plaintiff named the Department of Courts (and expressly included ‘the Family Court’), as our decision of 4 April 2005 explains an amended claim was filed later which named a large number of suggested defendants. Of all of those, it still seemed that the Department of Child, Youth and Family Services was the primary target. That is why the Tribunal’s decision named that particular defendant in its intituling. In addition, it was and is not immediatley obvious that ‘the Family Court’ is a legal entity that can or should be named in an order of the kind sought.
[5] These matters were raised with the parties by way of a minute from the Chairperson of the Tribunal dated 16 May 2005. A memorandum has since been received from counsel for the defendant in question. She has confirmed that the Department for Courts has been abolished, and its successor is the Ministry of Justice. Pursuant to ss. 6 and 14 of the State Sector Amendment Act 2003, the reference to the Department for Courts should now be read as a reference to the Ministry of Justice. On that basis we are satisfied that the party entitled to costs as a result of the claim put forward by the plaintiff as against ‘the Family Court’ is the Ministry of Justice.
[6] The Chairperson’s minute of 16 May 2005 also offered the plaintiff a further opportunity to respond to the application for costs (he had not done so at that time). In response, the plaintiff has now filed a letter that was received by the Secretary of the Tribunal on 23 May 2005. The letter indicates that the plaintiff wishes to appeal from our decision dated 4 April 2005 to the High Court. Whether or not he has complied with the procedural requirements in s.123 of the Act and under Part 10 of the High Court Rules we do not know (although we do note that if the letter of 23 May 2005 is the only step that has been taken, then at least on the face of things any appeal may be out of time: see s.123(4) of the Act). But beyond that there is nothing in the plaintiff’s letter to displace the usual presumption that a defendant which has applied for costs against an unsuccessful plaintiff should be given an appropriate award.
[7] We do not regard this as being one of those rare cases in which a full indemnity award of costs should be made, nor did the defendant suggest as much. In our view an award of $300 is appropriate to meet the circumstances. For these reasons and pursuant to s.92L of the Human Rights Act 1993 we award costs in a sum of $300.00 to be paid by the plaintiff to the Ministry of Justice.
R D C Hindle I Vodanovich P J Davies
Chairperson Member Member
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