A v A

[2016] NZHC 1690

NOTE: PURSUANT TO S 80 OF THE PROTECTION OF PERSONAL AND PROPERTY RIGHTS ACT 1988, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT

1980.  FOR FURTHER INFORMATION, PLEASE SEE THE-FAMILY-COURT/LEGISLATION/RESTRICTION-ON-PUBLISHING- JUDGMENTS.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2016-485-409 [2016] NZHC 1690

IN THE MATTER

of the Judicature Act 1908 and the High

Court Rules

IN THE MATTER

of the Protection of Personal and Property
Rights Act 1988

BETWEEN

A Applicant

AND

A

Subject person

Hearing:	On the papers
Counsel:	D W Hunt for Plaintiff
Judgment:	25 July 2016

JUDGMENT OF ELLIS J

I direct that the delivery time of this judgment is

2.30 pm on the 25th day of July 2016

A v A [2016] NZHC 1690 [25 July 2016]

[1]      Mr A has applied to the High Court for an order under the Protection of Personal and Property Rights Act 1988 (the PPPRA) appointing him as the manager of the property belonging to his father, Mr A senior.  His father has dementia and is in high dependency level residential care.  Mr A already has such an order from the Family Court,  and  he  also  has  an  order  appointing him  as  his  father’s  welfare guardian.

[2]      A difficulty has arisen because Mr A’s father owns property in Fiji as well as in New Zealand.  In order for him to be able to manage his father’s property in Fiji, Mr A needs to register a New Zealand property manager order in the Fijian High Court.  He has applied to register the Family Court order there, but was informed that the Fijian High Court requires an order issued by a superior Court.  It will not recognise an order from the Family Court.

[3]      Mr A therefore filed an originating application in this Court.   He has also filed  an  affidavit  in  support,  which  includes  a  medical  report  on  his  father’s condition, and affidavits from his mother and brother supporting and consenting to the application.

[4]      On 22 June 2016, Simon France J made directions that:

(a)       service on, and appearance by, Mr A’s father were excused; and

(b)counsel should file submissions on the jurisdiction of the High Court to make the orders sought, at which point a decision would be made as to the nature of any hearing required.

[5]      Those submissions have since been received and were referred to me as Duty Judge.  I largely agree with them.  I consider that the matter can be determined on the papers, which I do below.

Analysis

[6]      Notwithstanding  my  general  agreement  with  the  submissions  received,  I

begin by recording that I am unable to concur with Mr Hunt that the PPPRA itself

confers originating jurisdiction on this Court.  The definition of “court” in s 2 of the PPPRA makes it clear that it is the Family Court alone which has that jurisdiction.  I do not consider that r 19.2 of the High Court Rules (which provides that applications under  the  PPPRA may  be  made  by  way  of  originating  application)  alters  that position.

[7]      Rather, the only way the High Court can have originating PPPRA jurisdiction is  if  proceedings  under  the  Act  are  issued  in  the  Family  Court  and  are  then transferred by the Family Court to this Court under s 14 of the Family Courts Act

1980.1  That has not happened here.

[8]      But  I do  agree with  Mr Hunt’s  alternative submission  that  s 114  of the PPPRA is relevant and helpful.  That section states:  “Nothing in this Act shall limit the general jurisdiction of the High Court under section 17 of the Judicature Act

1908 or otherwise.”

[9]      And s 17 of the Judicature Act 1908 provides:

17       Jurisdiction as to mentally disordered persons, etc

The  Court  shall  also  have  within  New  Zealand  all  the  jurisdiction  and control over the persons and estates of  mentally disordered persons and persons of unsound mind, and over the managers of such persons and estates respectively, as the Lord Chancellor of England, or any Judge or Judges of Her Majesty's High Court of Justice or of Her Majesty's Court of Appeal, so far as the same may be applicable to the circumstances of New Zealand, has or have in England under the Sign-manual of Her Majesty or otherwise.

[10]     As  noted by Heath  J  in  Keesing  v Family  Court  at  Manakau,  the s  17 jurisdiction is wider than the PPPRA jurisdiction.2    Its operation was considered in

more detail the following day by the same Judge.3   Heath J said:

1      Section 14 provides:

Subject to the Act under which any proceedings are brought, a Family Court may, on the application of any party to the proceedings, or of its own motion, order that the proceedings be transferred to the High Court if it is satisfied that, because of the complexity of the proceedings or of any question in issue in the proceedings, it is expedient that the proceedings be dealt with by the High Court; and in any such case the High Court shall have the same power to adjudicate on the proceedings as the Family Court had.

2      Keesing v Family Court at Manakau HC Auckland CIV 2004-404-2442, CIV 2004-404-2445, CIV 2004-404-2443, PPR 2003-092-2669, 24 May 2004.

3      Dawson v Keesing HC Auckland PPR 2003-092-2669, 25 May 2004.

[16]      The jurisdiction conferred on this Court by s17 of the Judicature Act 1908 can be viewed, in general terms as one to be exercised to protect the vulnerable: see, generally, Pallin v Department of Social Welfare [1983] NZLR 266 (CA) at 272 per Cooke J, M v M [1983] NZLR 502 (CA) at 506 and re an Unborn Child [2003] 1 NZLR 115 at 128.

[17]     Although, in Re Morahan (1993) 6 PRNZ 637, Williams J took the view that this Court "now has a purely appellate role except in exceptional cases where it might exercise its inherent jurisdiction" (at 639) His Honour's attention does not appear to have been drawn to s114 of the Act, nor to what might occur if an entire proceeding under the Act were transferred to this Court by a Family Court.

[18]      In  those  circumstances  I  prefer,  and  adopt,  the  observations  of Neazor J in Re W [1994] 3 NZLR 600 at 603-604. In that case, Neazor J dealt with a submission that, in mental health cases, this Court's jurisdiction under s17 of the Judicature Act 1908 no longer existed as follows:

The challenge to that jurisdiction is based primarily on doubts expressed by His Honour Judge Inglis QC in the Family Court in Re H [1993] NZFLR 225 at pp 228 and 229. The decision was made on an application for appointment of a welfare guardian for an intellectually disabled person under the Protection of Personal and Property Rights Act 1988 and for directions to consent to a termination of her pregnancy and for sterilisation. …

With  respect,  I  do  not  believe  there  is  any  doubt  about  the jurisdiction of this Court. It was held in Re P in 1961 to exist notwithstanding that the jurisdiction was conferred in New Zealand by reference to a jurisdiction which had once existed in the United Kingdom but had been withdrawn from the High Court there. The source of jurisdiction in New Zealand was s 17 of the Judicature Act, not the continued existence of the English jurisdiction, and the extent of the jurisdiction must be taken in my view to have been what existed in the United Kingdom when the jurisdiction was conferred. It was so held by the Court of Appeal in Re R where McCarthy P said at p 401 ". . . New Zealand Judges continue to have the inherent powers which the appointed English Judges had prior to 1959." The New Zealand jurisdiction would of course be subject to any changes effected by statute in New Zealand, but not to changes made by statute or other action in the United Kingdom.

[11]     And although there has subsequently been a little controversy as to whether s 117 permits the High Court merely to fill jurisdictional “gaps” or to act more widely, that controversy is of no moment here.4   That is because I agree that in the unusual circumstances of this case it is necessary for the High Court to exercise its inherent jurisdiction to  protect the property interests of  Mr A’s  father,  who is a vulnerable person.  An order under the PPPRA made by the Family Court is unable

to do that or, at least, is unable to do that completely.

4      Carrington v Carrington [2014] NZHC 869, [2014] NZFLR 571.

[12]     Two ancillary matters then arise.

[13]     First, had the Court’s jurisdiction existed as a result of a transfer under s 14, the requirement in s 31(8) of the PPPRA that property management orders are to include a specified date, within three years of the date of the order, by which the manager is required to apply to the Court for a review would apply.5    Where the inherent jurisdiction preserved by s 17 is engaged the requirement for such a review would  appear  to  be  a  matter  of  discretion.    But  such  a  mechanism  does  seem desirable.

[14]     Secondly,  the  making by this  Court  of  an order appointing  Mr A as  the manager of all property belonging to his father raises the issue of potential confusion while a seemingly identical parallel order made by the Family Court remains extant.

[15]     I am unwilling to make an order discharging the Family Court order.  That appears to me to be a matter that is properly for the Family Court, in light of this judgment.  Accordingly it seems to me that the appropriate course is for me to make a property management order on terms that it will not come into force unless and until the Family Court discharges the property management order dated 1 February

2013.  A memorandum will need to be filed confirming that that has occurred before this order can be sealed.

[16]     The following additional points are to be noted:

(a)       the order is made in the exercise of the Court’s inherent jurisdiction, not under the PPPRA;

(b)notwithstanding the jurisdictional basis for the order, the manager is to have powers identical to those specified in the Family Court order

dated 1 February 2013;

5      This can be extended to five years if there is no dispute that an order will continue: CRG v RJM

FC Tauranga FAM-2005-070-965, 28 May 2009.

(c)      the manager is to apply to this Court for a review of this order no later than three years from the date on which this order comes into force.  If he does not do so the order will lapse.

[17]     Leave is reserved to apply further if any difficulties arise.

Solicitors:           Rainey Collins, Wellington, for Plaintiff

“Rebecca Ellis J”