Allen v Allen HC Hamilton CIV 2007-419-577

[2007] NZHC 2062

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV 2007-419-577

IN THE MATTER OF     an appeal against a decision of the Family

Court

BETWEEN  JUDITH ALLEN Appellant

ANDSTEVEN NOEL ALLEN Respondent

Hearing:         27 August 2007

Appearances: A Fisher for appellant

E J Hudson for respondent

Judgment:      29 August 2007

JUDGMENT OF ALLAN J

Solicitors/counsel :

E J Hudson, PO Box 19252, Hamilton

J Webb, PO Box 132, Hamilton

A Fisher PO Box 1752, Shortland St, Auckland

Rennie Cox, PO Box 6647, Auckland

In accordance with r 540(4) I direct that the Registrar endorse this judgment with the delivery time of 10 am on Wednesday 29 August 2007

ALLEN V  ALLEN HC HAM CIV 2007-419-577  29 August 2007

[1]      This  appeal  from  the  Family Court  is  set  down  for  hearing  on  Monday

3 September.   It raises a number of issues under the Property/Relationships Act

1976, including, importantly for present purposes, the issue of whether the learned Family  Court  Judge  was  correct  to  dismiss  the  appellant’s  application  for  an economic disparity award under s 15 of the Act.

[2]      The appellant has filed an application for leave to adduce further evidence on the appeal.   The respondent opposes the application.   The admission of further evidence on appeal is governed by r 716 of the High Court Rules;  by sub-paragraph (2) a party to an appeal may adduce further evidence only with the leave of the court. Sub-paragraph (3) provides:

(3)       The Court may grant leave only if there are  special reasons for hearing the evidence, for example, if the evidence relates to matters that have arisen after the date of the decision appealed against and that are or may be relevant to the determination of the appeal.

[3]      There is no dispute between counsel as to the manner in which the Court ought to exercise the discretion which r 716 confers.   A concise and accurate summary is to be found in New Zealand Co-operative Dairy Co Ltd v Commerce Commission (1991) 3 PRNZ 262 at 266, decided under a predecessor to r 716. Wylie J said in that case:

The limitations commonly placed on the introduction of new evidence in ordinary Court proceedings by way of appeal from a lower Court decision are clear enough – further evidence will not be allowed if by the exercise of reasonable diligence the party seeking to introduce it could have done so at the lower Court hearing, and in any event the new evidence should be of sufficient materiality and cogency to be likely to have an important influence on the result: Dragicevich v Martinovich [1969] NZLR 306 (CA).

[4]      That test has been applied in a number of subsequent cases, including Power New Zealand Ltd v Mercury Energy Ltd [1996] 1 NZLR 106 and Comalco New Zealand Ltd v TVNZ [1997] NZAR 97.

[5]      The mere fact that the evidence could not have been adduced at the hearing and relates to developments since the date of the hearing, will not in itself justify admission on appeal.  The key question is whether the additional evidence ought to

be before the court for a proper consideration of the appeal.  Moreover, the language of r 716(3) including the requirement for “special” reasons  echoes the  cautious approach adopted in earlier cases. The Court will not grant leave lightly.

[6]      The affidavit sought to be admitted is of an updating character, but while paragraphs 2-6 deal with some relatively minor developments in the appellant’s life, paragraph 1 commences: “In the last few days I have been informed that Steve has secured a Principal’s job in Rotorua.  I do not know any other details …”

[7]      Ms Fisher says that this evidence is relevant to an assessment on appeal of the correctness of Judge Riddell’s findings as to economic disparity.   Initially the Judge found there was a significant disparity at separation between the parties, but that post-separation the disparity was markedly less and unlikely to be permanent, and that there was little difference between the parties’ future earning potential.

[8]      Ms Fisher  argues  that  the  fresh  evidence  tends  to  establish  a  widening disparity and accordingly ought to be admitted.  As to that:

a)       As is apparent from the passage from the respondent’s evidence set out at [68] of the judgment, he accepted that his ERO position might well serve simply as a stepping stone to better and more senior positions, so that possibility needed to be taken into account in the relevant assessment.

b)The quality of the evidence now sought  to  be  adduced  is  strictly limited.  The evidence is hearsay (although of course not inadmissible on that account) and lacks sufficient detail to justify the making of the order now sought. To admit the evidence and then to rely upon it would be simply to engage in an exercise in speculation.  Neither do I think it proper, as Ms Fisher suggested, to require the respondent to disclose the detail of any recent position secured by him.  The matter must be judged in the light of the material before the learned Family Court Judge.

[9]      The balance of the appellant’s updating affidavit contains material which is by and large consistent with material already on the court record.  There is nothing in it which satisfies the requirements of r 716.

[10]     Accordingly, the application for leave to adduce further evidence is declined.

C J Allan J