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…

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.

Continue reading Black v Turner

Details

AGLC: Black v Turner [2021] NZHC 2963
Case: [2021] NZHC 2963
Decision Date: 3 November 2021

CaseChat Overview and Summary

In the case of Black v Turner, the applicant sought leave to commence a non-paternity proceeding under the Status of Children Act 1969, arguing that he had always believed himself not to be the biological father of two teenagers. The applicant and the respondent had separated, and the applicant believed the teenagers were the children of a man with whom he and the respondent had a consensual relationship. The court had to decide whether it was appropriate to permit the proceeding to be brought by originating application under part 19 of the High Court Rules, rather than the usual part 18 procedure.

The court considered whether the proceeding was suited to the originating application procedure, which is generally reserved for straightforward applications that do not require detailed pleadings or interlocutory orders. The applicant argued that the issue was confined to whether he was the biological father and that the proceeding did not require extensive pleadings or discovery of documents. However, the court found that the proceeding was likely to be complex, with the need for discovery, possible interlocutory applications, and the potential involvement of the putative father and the teenagers. The court also noted the potential emotional impact on the teenagers and the importance of considering their interests in the proceeding.

The court concluded that the part 18 procedure was the appropriate and efficient method for disposing of this proceeding. While the part 19 procedure might reduce the time between filing and determination, it was not suited to the complexities of this case. The application to commence the proceeding under part 19 of the High Court Rules was dismissed.

There shall be no order as to costs.

Orders