An v Bupa Care Services NZ Limited - [2018] NZSC 20

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 COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE

IN THE SUPREME COURT OF NEW ZEALAND

SC 12/2018
[2018] NZSC 20

BETWEEN	AN (SC 12/2018) Applicant
AND	BUPA CARE SERVICES NZ LIMITED Respondent

BETWEEN	AN (SC 12/2018) Applicant
AND	DISTRICT COURT AT MANUKAU Respondent

Court:	Glazebrook, O’Regan and Ellen France JJ
Counsel:	Applicant in person K Laurenson for the District Court at Manukau
Judgment:	19 March 2018

JUDGMENT OF THE COURT

A The applications for leave to appeal are dismissed.

B No order as to costs.
____________________________________________________________________

REASONS

Introduction

Mr N has filed two applications for leave to appeal to this Court. The first application relates to a direction of Hinton J in a minute dated 22 December 2017 that an application filed by Mr N should not have been accepted by the Registrar for filing as an application for habeas corpus. The second application for leave relates to a judgment of the Court of Appeal.[1] The Court of Appeal declined to grant Mr N an extension of time to meet the requirements of the Court of Appeal (Civil) Rules 2005[2] with the result that Mr N’s appeal from a judgment of van Bohemen J[3] was deemed abandoned. Justice van Bohemen dismissed an application by Mr N for habeas corpus.
[1][AN] v District Court at Manukau [2018] NZCA 4 (Miller and Brown JJ). Mr N is also critical of a minute of Cooper J dated 5 October 2017 declining under s 17(1) of the Habeas Corpus Act 2001 to give priority to the hearing of the appeal.
[2]Rule 43(1).
[3]AN v Manukau District Court [2017] NZHC 2190.
The background to these applications is canvassed in the judgment of van Bohemen J.[4] In essence, both of the applications for leave arise out of orders made by the Family Court under the Protection of Personal and Property Rights Act 1988 in 2016.[5] Mr N’s wife, who suffers from dementia, resides in a rest home pursuant to the orders in issue.

The proposed appeals

[4]At [20]–[41].

[5]We understand the orders were varied by the Family Court: Anaru v N FC Manukau FAM 2016‑092-7, 7 June 2017.

Mr N seeks to challenge the direction of Hinton J on the basis it is unlawful and violates the applicant’s rights. The Court of Appeal judgment is challenged, amongst other matters, on the basis of what Mr N says are procedural irregularities and reliance on earlier High Court decisions which Mr N describes as unlawful.
Neither application for leave meets the criteria for leave to appeal.[6] Underlying both applications for leave is Mr N’s wish to challenge the lawfulness of the Family Court orders by means of habeas corpus. Those orders have been the subject of three previous unsuccessful applications for habeas corpus.[7] Section 15(1) of the Habeas Corpus Act 2001 provides that, subject to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NZSC 20
Decision Date: 19 March 2018

CaseChat Overview and Summary

Mr N filed two applications for leave to appeal to the Supreme Court of New Zealand, concerning orders made by the Family Court under the Protection of Personal and Property Rights Act 1988, which required Mr N's wife to reside in a rest home due to her dementia. The first application sought to challenge a direction by Hinton J that an application filed by Mr N should not have been accepted as an application for habeas corpus. The second application contested a Court of Appeal judgment that dismissed Mr N's appeal from a habeas corpus judgment of van Bohemen J. Mr N argued that the habeas corpus applications were unlawfully dismissed and that there were procedural irregularities and reliance on earlier High Court decisions that he deemed unlawful. The Supreme Court found that neither application for leave to appeal met the criteria for appeal, as they were attempts to challenge the lawfulness of the Family Court orders by means of habeas corpus, which had already been the subject of three unsuccessful applications. The court concluded that there were no exceptional circumstances justifying a direct appeal from the High Court to the Supreme Court and that the proposed appeals did not raise questions of general or public importance. The applications for leave to appeal were therefore dismissed, and no order for costs was made.

Orders