Black v Turner

[2021] NZHC 2963

NOTE: THE NAMES OF THE APPLICANT AND THE RESPONDENT IN THE INTITULEMENT HAVE BEEN ANONYMISED.

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2021-409-000419

[2021] NZHC 2963

UNDER

the Status of Children Act 1969 and the Declaratory Judgments Act 1908

IN THE MATTER

of a declaration of non-paternity

BETWEEN

MR BLACK

Applicant

AND

MS TURNER

Respondent

Hearing:	On the papers
Counsel:	L R Malin for Applicant
Judgment:	3 November 2021

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 3 November 2021 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

MR BLACK v MS TURNER [2021] NZHC 2963 [3 November 2021]

[1]                 The applicant intends to commence a proceeding under s 10 of the Status of Children Act 1969 (the Act) for a declaration of non-paternity in respect of two teenagers. The applicant was recorded as the father of the teenagers on their birth certificates and they were raised as children of the marriage of the applicant and the respondent. The applicant and respondent have now separated. The applicant contends he has always firmly believed that he is not the biological father and that the teenagers are the children of a man with whom the applicant and the respondent had a consensual sexual relationship spanning many years.

[2]                 If an application under s 10 of the Act is made to the High Court the provisions of the Declaratory Judgments Act 1908 apply to the application.1 An application for  a declaratory order is ordinarily brought under pt 18 of the High Court Rules 2016.2 However, in this case the applicant applies for an order permitting him to bring his proceeding by originating application under pt 19.

Part 19

[3]Rule 19.5(1) of the High Court Rules provides:

The court may, in the interests of justice, permit any proceeding not mentioned in rules 19.2 to 19.4 to be commenced by originating application.

[4]                 Resort to r 19.5 is to be “exceptional rather than so commonplace that it becomes the rule that leave is granted.”3 The overarching test is whether a proceeding ought to be allowed to be brought under pt 19 in the interests of justice. The interests of justice mean the Court must secure the just, speedy, and inexpensive determination of the proceeding. Generally it will not be appropriate to grant leave to bring a proceeding under pt 19 when there is an appropriate and efficient alternative available.4

[5]In Hong Kong and Shanghai Banking Corp Ltd v Erceg, Asher J said:5

1      Status of Children Act 1969, s 10(5)(b).

2      High Court Rules 2016, r 18.1(b)(v).

3      Solar Bright Ltd v Martin [2019] NZHC 300 at [18].

4      Hong Kong and Shanghai Banking Corp Ltd v Erceg (2010) 20 PRNZ 652 (HC) at [20] and

Catherwood v Asteron Life Ltd [2021] NZHC 2612 at [27].

5      Hong Kong and Shanghai Banking Corp Ltd v Erceg, above n 4 at [25].

These cases show that the type of proceeding suited to the originating application procedure is a straightforward application, not requiring detailed pleadings or interlocutory orders for its fair resolution. Such a type of proceeding tends to be an application under a specific statutory provision, where the issue that arises can be clearly defined, and the issues confined. The procedure is not well suited to the determination of substantive rights involving the application of common law doctrines as distinct from statutory tests. It is not well suited to cases involving multiple parties, and cases where there is the possibility of cross claims or counterclaims.

[6]                 Importantly, one usual advantage under pt 18 is the requirement for the proceeding to be commenced with an application for directions. The authors of McGechan on Procedure note that r 18.7, which deals with the requirement that a plaintiff in a proceeding under pt 18 apply for directions as to service and representation, lies at the heart of the pt 18 procedure. Relevantly they state:6

… Proceedings defined in r 18.1 in some cases certainly, and in others potentially, are of a character where more people may be interested than those named as defendants in the statement of claim filed, and accordingly should be joined in the proceedings.

The applicant’s submissions

[7]                 The applicant contends that the issue in this case is confined to the question of whether he is the biological father of the teenagers which does not require detailed pleadings by way of statements of claim and defence. In addition it is argued that it is appropriate that the proceeding be commenced under pt 19 as discovery is not “contemplated”, the evidence should be given by affidavit, and the application does not involve multiple parties or the likelihood of cross-claims. In addition, it is said there is precedent for such applications to be made under the equivalent of pt 19.7

Discussion

[8]                 The issue is whether the applicant has satisfied the Court that while the High Court Rules anticipate the proposed proceeding will be brought under pt 18, the interests of justice will be best served by permitting it to proceed using the originating application procedure under pt 19. I am firmly of the view they would not for several reasons.

6      Andrew Beck and others McGechan on Procedure (online ed, Brookers) at [HR18.7.01]

7      Re an Application by Tamasese [1999] NZFLR 43 (HC).

[9]                 First, the pt 18 procedure is an appropriate and efficient procedure for the disposal of this proceeding. There have been no submissions made that lead me to think otherwise.

[10]              Second, I do not consider it a factor of importance the applicant can refer to another case where the Court has allowed an application under s 10 of the Status of Children Act to be brought by originating application. Re an Application by Tamasese was on very different facts from this case, it appears it was an unopposed application and dealt with in a Chambers List.8 Here, there appears to be little prospect that the proposed proceeding will advance in such a straightforward manner.

[11]              Third, in terms of the factors advanced by the applicant in support of the application I consider they are, in the main, either neutral matters or misapprehended.

[12]              I accept that the legal issue before the Court is confined and that the exchange of formal pleadings is not essential. That said, there are benefits to be derived in requiring the discipline of formal pleadings. This, to me, is a neutral factor.

[13]              I do not accept the applicant’s view that there will be no need for discovery of documents in this case. The facts are likely to be strongly contested. In circumstances where it is alleged the applicant and the respondent had an ongoing relationship with the putative father spanning two decades, discovery will almost certainly be required and may have a decisive influence on the outcome of the proceeding.

[14]              I consider that interlocutory applications are also very likely in relation to discovery, whether parentage tests are conducted,9 who should be parties, how they are to be represented, and in relation to the manner in which evidence is to be given at the hearing.

[15]              In relation to this last matter, the applicant submits that evidence should be by affidavit appropriate to a proceeding under pt 19, but this too is a neutral factor. The default position is that evidence in proceedings under pt 18 will be given by means of

8      At 1 – 2.

9      Family Proceedings Act 1980, ss 54 and 59.

agreed statement of facts or affidavit.10 Perhaps more relevantly, however, as noted in McGechan on Procedure, proceedings involving credibility will frequently require direction for oral evidence to be given (if only in part) and where affidavits are used a right of cross-examination exists.11 On what I know of this case it is very likely that oral evidence will be required.

[16]              The applicant then says that the only parties to the application are the applicant and the respondent and while a putative father is named he is not a party to the proceeding. The application as presented gives no apparent consideration to the interests of the teenagers. While the proposed proceeding is intended to be between the applicant and the respondent it is principally the teenagers who will live with the consequences of any decision the Court may make. Some of those consequences may be presently unforeseeable.

[17]              The applicant seeks to sever his legal relationship with the teenagers. It could be expected that the making of such an application will have profound emotional effects on the teenagers. It will affect their understanding of their identity as children of the applicant (or not) and their existing and future relationships within and outside the family. It may also, of course, affect their rights of inheritance and to property.12 It could possibly affect their ability to access information about genetic conditions which form part of their natural inheritance.

[18]              Further, the teenagers are of an age where they are likely to hold independent and informed views on the application and may have important information which may help the Court determine the correct outcome.

[19]              This is a case where consideration needs to be given to whether the teenagers are made parties to the proceeding, how their interests will be represented and by whom.13 The pt 18 procedure provides the mechanism for consideration of such matters by application under r 18.7.

10     High Court Rules, r 18.15.

11     Andrew Beck and others, above n 6, at [HR18.15.01].

12     M v D (1988) NZFLR 61.

13 Such an approach is consistent with the  United Nations Convention on the Rights of the Child  1577 UNTS 3 (opened for signature 20 November 1989, entered into force 2 September 1990), art 12.

[20]              It follows I do not accept the applicant’s contention that it is in the interests of justice that the applicant be granted leave to proceed under pt 19. In my view, the only benefit that adopting the pt 19 procedure might possibly offer is to reduce the period between filing and the ultimate determination of the proceeding by the Court but this, too, may prove illusory. As I noted in Bool v Hammond:14

However, adopting a pared procedure in the hope it will lead to a prompt resolution may ultimately prove counter-productive. There are other options to achieve a speedy resolution in appropriate cases. Importantly In Hong Kong and Shanghai Banking Corp Ltd v Erceg, Asher J said:

While the types of proceedings where the originating application procedure can be used as of right under r 19.2 have been expanded, and can include the determination of substantive personal and property rights, this expansion does not create a carte blanche to commence any urgent matter by way of originating application. If a party wishes to obtain an urgent hearing and a truncated procedure in such a circumstance, it should file a standard proceeding in the usual way and seek priority, or allocation to the Fast Track, or some other step within the ambit of the standard procedure that will reduce time limits. A party should not treat the originating application procedure as a shortcut for urgent cases.

Result

[21]                The application to commence this proceeding under pt 19 of the High Court Rules is dismissed.

[22]There shall be no order as to costs.

O G Paulsen Associate Judge

Solicitors:

Helmore Stewart, Rangiora

14     Bool v Hammond [2021] NZHC 2749 (footnotes omitted).