Boyd v Kendick

[2019] NZHC 873

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-1949

[2019] NZHC 873

IN THE MATTER

Of an appeal against an order dissolving marriage (Family Proceedings Act 1980)

BETWEEN

ROGER GRAEME BOYD

Appellant

AND

SUZANNE JOAN KENDRICK

Respondent

Hearing:

16 April 2019

Appearances:

Appellant in person

C E A Townsend for the Respondent

Judgment:

17 April 2019

JUDGMENT OF POWELL J

This judgment was delivered by me on 17 April 2019 at 3.30 pm pursuant to R 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

BOYD v KENDRICK [2019] NZHC 873 [17 April 2019]

[1]                 The appellant, Roger Boyd, has appealed a decision of the Family Court dissolving his marriage to the respondent, Suzanne Kendrick.1

[2]                 There is no dispute that Mr Boyd’s appeal was filed in time. It was filed on 12 September 2018, the last day for filing being 14 September 2018.2 An appeal is not brought however simply by filing an appeal. Instead, pursuant to r 20.9 of the High Court Rules, a copy of a Notice of Appeal is also required to be filed in the office of the court appealed from and a copy of the Notice of Appeal is also required to be served on every party directly affected by the appeal within the 20 working day time limit for bringing the appeal.

[3]                 At the first case management conference for this appeal Ms Townsend, for Ms Kendrick, advised the Court that Ms Kendrick was not served with a Notice of Appeal until the parties’ daughter provided a copy given to her by Mr Boyd on either

31 December 2018 or 1 January 2019, well outside the prescribed time limit. Normally the Court would have jurisdiction to enlarge this time but in this case        s 174(4) of the Family Proceedings Act 1980 applies and states:

(4)The High Court shall not extend the time for appeal against an order dissolving a marriage or civil union.

[4]                 Upon being made aware of the issue, Mr Boyd sought and was granted by Hinton J six weeks to prepare submissions, that is until 19 March 2019, prior to the appeal being recalled in the appeals list on 16 April 2019.

[5]                 In the event Mr Boyd filed no submissions on the issue, although he has filed two memoranda seeking an extension of the time required to file submissions.

Mr Boyd’s position

[6]                 At the hearing before me, Mr Boyd reiterated his submission that he should be given more time to make submissions. On the substantive issue, he also submitted that the decision of MacKenzie J in W v W3 stood for the proposition that all that was

1      Kendrick v Boyd [2018] NZFC 6158.

2      High Court Rules 2016, r 20.4(2)(b): specifies a 20 working day limit for the filing of appeals, the Family Court decision being issued on 17 August 2018.

3      W v W HC WN CIV-2008-485-1526 30 July 2008.

required to bring a valid appeal in this situation was to file it, no service being required. In the alternative, Mr Boyd also suggested that he had been told by the High Court Registry that it would arrange filing in the Family Court and service on Ms Kendrick and, therefore, he could not rule out that the appeal had in fact been brought in time.

[7]                 After hearing Mr Boyd, I declined to allow any further extension of time for the filing of submissions on the issue. In particular I noted that it was a very discrete issue and that it was not appropriate to put Ms Kendrick to further costs in the event of another adjournment.

Discussion

[8]                 As Ms Townsend submitted, there is no doubt that for an appeal to be validly brought it not only needs to be filed in the High Court, but also filed in the Family Court and served on the respondent.4 Against this there is no dispute by Mr Boyd that he did not arrange for service of the Notice of Appeal on Ms Kendrick, and indeed, having heard his submissions, it also appears likely that he did not arrange for the filing of the appeal in the Family Court at Auckland. Any suggestion that the High Court would affect service and/or filing on behalf of Mr Boyd is fundamentally wrong and there is no suggestion whatsoever that such service and/or filing was indeed effected apparent from the Court file.

[9]                 Finally, there is no merit in Mr Boyd’s suggestion that W v W in some way stands for the proposition that only filing of an appeal in the High Court is necessary. In that case it appears that no part of the appeal had been filed in time but nothing in the judgment suggests or implies that an appeal against the grant of a dissolution would not have to be brought in the normal way. On the contrary, MacKenzie J stated:5

An order dissolving a marriage is made under s 42 of the Family Proceedings Act 1980. Section 42(2) allows for the possibility of an appeal to the High Court under s 174 of the Act. Section 174 clearly does confer a right of appeal against  the  order  dissolving  the  marriage.   The  order  is  one  to  which   s 174(1AA) applies and the right of appeal in s 174(1) is accordingly conferred. Section 174(1A) applies the High Court Rules and the relevant provisions of the District Courts Act 1947. That application of the High Court Rules necessarily involves Part 10 of the High Court Rules, and the time for

4      High Court Rules 2016, r 20.9(1)(c).

5      W v W HC WN CIV-2008-485-1526 30 July 2008 at [3].

appeal is fixed by r 704. Under r 704(2), there being no specific period specified in the Family Proceedings Act, the time for appealing is within 20 working days after the decision appealed against is given. Ordinarily r 704(3) enables the Court to extend the time for appealing. However, that provision is clearly excluded by s 174(4)) of the Family Proceedings Act which provides that the High Court shall not extend the time for appeal against an order dissolving a marriage or civil union. The present appeal was filed more than 20 working days after the making of the order and accordingly there is no valid appeal before this Court and this Court cannot extend time to give the appeal validity.

[10]His Honour went on to state:6

An order dissolving a marriage is an order which affects status. It is accordingly important that there be certainty. Certainty of status is an important aspect and the legislative provisions as to appeals have clearly been drafted with the need for certainty in mind. Section 42(1)(b) provides that an order dissolving a marriage takes effect as a final order at the expiration of one month from the date on which it is made. Subsection 2 defers the effect as a final order, where an appeal is lodged, until the appeal is disposed of. But if no appeal is lodged within the time provided then the order becomes final, the change in status is effected and it cannot be undone. That is the reason why the apparently harsh provision in s 174(4) is necessary. It is necessary to provide certainty as to status.

[11]              That is exactly the position in this case.7 At the latest Mr Boyd’s appeal was required to be brought, filed and served, by 14 September 2018. At the earliest it was brought on 31 December 2018 when Ms Kendrick was served by her daughter. The appeal is therefore out of time and by virtue of s 174(4) of the Family Proceedings Act, this Court has no jurisdiction to extend time for appeals against dissolutions of marriage. It follows the appeal must be struck out as this Court has no jurisdiction to entertain it.

Decision

[12]The appeal is struck out.

6 At [7].

7      As noted the relevant High Court Rules have now changed but continue to have the same effect.

[13]              Ms Kendrick is entitled to costs on a 2B basis. In the event that there is any dispute over the amount to be paid I will determine the issue following the filing of memoranda.

Powell J