Brown v Sinclair
[2016] NZHC 3196
•22 December 2016
ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF PARTIES. ORDER PROHIBITING SEARCH, COPYING OR INSPECTION OF THE COURT FILES IN RESPECT OF WHICH THIS JUDGMENT HAS BEEN GIVEN WITHOUT LEAVE OF A JUDGE ON AN APPLICATION MADE ON NOTICE TO ALL PARTIES. THIS IS AN ANONYMISED VERSION OF A JUDGMENT AND MAY BE
PUBLISHED IN THIS FORM: SEE PARA [202] AND FOOTNOTE 1 BELOW.
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
CIV 2013-470-419
CIV 2013-470-424
CIV 2013-470-425
CIV 2013-470-485
CIV 2013-470-495
CIV 2015-470-050
CIV 2015-470-069 [2016] NZHC 3196
BETWEEN BARBARA BROWN
Applicant
AND
AARON SINCLAIR AND ORS Respondents
CIV 2015-470-104
BETWEEN BARBARA BROWN Plaintiff
ANDTAURANGA DISTRICT COURT AND ANOR
Defendants
CIV 2015-470-105
BETWEEN BARBARA BROWN Plaintiff
ANDTHE TENANCY TRIBUNAL AND ORS Defendants
BROWN v SINCLAIR AND ORS [2016] NZHC 3196 [22 December 2016]
Hearing: 31 October 2016 Counsel:
G C McArthur for Ms Brown
E M Eggleston for Mr Sinclair
No appearance on behalf of tenants
M J McKillop for District Court, Family Court, Tenancy
Tribunal
S T Scott, amicus curiaeJudgment:
22 December 2016
JUDGMENT OF HEATH J
This judgment was delivered by me on 22 December 2016 at 3.00pm pursuant to
Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar
CONTENTS
The system fails [1] The applications [13] The proceedings in outline [20] The Brown v Sinclair proceedings
(a) The relationship property and initial Domestic Violence Act
proceedings [26] (b) The Tenancy Tribunal decision [56] (c) Mr Sinclair’s application for “unless” orders [58] (d) The dissolution of marriage application [62] (e) Ms Brown’s applications for maintenance [64] (f) Mr Sinclair’s security for costs applications in the High Court [68] (g) The attachment order [70] (h) Review of Associate Judge Doogue’s orders [73] (i) Tenancy related proceedings in the High Court [74] Analysis
(a) Preliminary comments [75]
(b) Judicial review: legal principles [84]
(c) The individual claims
(i) CIV 2013-470-425: Decisions of 10 October 2011, [91]
22 December 2011, 21 February 2012 and 30 May 2012 (ii) CIV 2013-470-424 and CIV 2013-470-485: Decisions
of 30 March 2012 and 21 May 2012 [127]
21 May 2012
(iii) CIV 2013-470-419: Decision of 14 May 2013 [134] (iv) CIV 2013-470-495: Decision of 12 June 2013 [143] (v) CIV 2015-470-050: Decisions of 11 July 2014, [153]
6 August 2014, 22 August 2014, 19 September 2014,
20 November 2014 and 6 March 2015
(vi) CIV 2015-470-105: Decision of Tenancy Tribunal [166]
of 10 April 2012
(vii) CIV 2015-470-104: Attachment order of 19 June 2014 [179]
(viii) CIV-2015-470-69: Decision of 18 March 2014, [189]
25 June 2014, 11 July 2014, 6 August 2014,
22 August 2014, 19 September 2014,
20 November 2014 and 6 March 2015
(d) Subsequent transfer order of 15 July 2016 [190] Result
(a) The applications for judicial review [194]
(b) Costs [198] (c) Public distribution of judgment [201] Where to from here? [204]
The system fails1
[1] Two people have been married for less than three years. They separate. One files an application in the Family Court to determine their respective shares in relationship property. The other files an application for a protection order. Within six months the person against whom the relationship property application was brought is debarred from participating in that proceeding. Cross applications for protection orders are made. Almost six years later, the parties remain embroiled in litigation in the Family Court and in this Court.
[2] How did this happen? Courts exercising civil jurisdiction are designed to resolve specific disputes between people who cannot agree on the solution. The underlying assumption is that each party will be represented by competent counsel who will define the issues and put them before the Judge for resolution in a detached and well prepared way. Regrettably, in Family Court proceedings, that does not often occur.
[3] Why not? Primarily, disputes requiring resolution in the Family Court, whether involving children or property, have an emotional component that is not present in other civil cases. Two people are hurting from the breakup of a relationship, and all too often one is intent on causing financial or psychological harm to the other. Frequently, this is compounded by the inability of the parties to engage lawyers to present their cases in a dispassionate manner. Counsel’s detachment is the antidote for unpredictable or irrational behaviour from parties who are guided by emotional responses to an intense personal experience. In the absence of such assistance, it is difficult for Family Court Judges to perform their demanding functions, in resolving the domestic problems that they encounter.
[4] At the risk of over-simplification, there are, in general, three categories of people who represent themselves in Court. The first are those who cannot afford a
1 While strictly speaking the Family Courts Act 1980 permits publication of relationship property aspects of this judgment, issues involving domestic violence are arguably subject to prohibitions. Although the systemic problems that have arisen require public dissemination of this decision, I am not persuaded that the privacy interests of the parties should be compromised by its publication. That is the reason why the decision has been anonymised and references to information and citations that could otherwise identify the parties have been redacted.
lawyer because they do not qualify for legal aid. The second are those who think they can do a better job than a lawyer. The third comprises people who have become obsessed with a particular dispute, for whatever reason. Into whichever of those categories a particular litigant falls, it is likely that he or she will struggle to comply with detailed rules of Court. In particular, there will often be problems with the preparation and content of documents that he or she is required to file in accordance with those rules. Rules of evidence tend to be observed in the breach.
[5] Those problems are compounded in a case in which there are multiple applications involving different topics. In such cases, a plethora of documents will result, many of which may be unintelligible to the Court, or at least unhelpful to its adjudicative function. The most common reason for that is the inclusion of argumentative material as evidence that is irrelevant to the legal issues that the Judge has to determine. Those are not intended to be criticisms of the people involved, many of whom do their best to comply in difficult circumstances. But that is the reality for those who work in the Family Court on a daily basis.
[6] The way in which the litigants respond to those challenges has an impact on the ability of those involved in the Family Court registries to process the documents and ensure that they are presented to Judges in a complete state. Sometimes, circumstances will be such that documents do not comply with the relevant rules of Court, and are rejected as a result. While there are good reasons why rules of Court require documents to be prepared and filed in a particular way (and it is important for Registrars to enforce the rules) if, inadvertently, important information does not reach a Judge there is a risk that the quality of decision-making may be compromised.
[7] This case was a perfect storm. Because it involved a marriage of short duration, the property available for distribution was modest. Tensions existed between the spouses which resulted in multiple cross applications under the Domestic Violence Act. The need for such applications to be considered in tandem with relationship property proceedings meant that issues relevant to the latter became infected by factors relevant only to the protection order applications. On some applications, that led to views being formed about credibility without hearing a party
giving evidence and being cross-examined. Further, as one of the parties was overseas through much of the first year that the proceedings were on foot, a number of documents sent by the litigant in person to the Registry were not accepted for filing. That meant that some information relevant to particular applications was unavailable to the Judge.
[8] A series of judicial decisions led to the litigant who had been overseas being debarred from participating in the relationship property proceedings. The sense of injustice which that litigant held in consequence led to a proliferation of proceedings in the Family Court and the High Court. They became a side-show. The initial issues were straight forward and should have been capable of resolution in a timely fashion, once both parties were able to marshal relevant evidence and advocate their cause. Less haste, more speed.
[9] It is sad that this case has reached the point where I am required to determine nine applications for judicial review of decisions made in the Family Court as a result of difficulties of the type I have identified. Some blame for what happened must rest with the litigants, one of whom took an aggressive stance to early resolution and the other who, while attempting to engage in the Court process, ended up frustrating it. Some blame attaches to the processing of documents in the Registry. Some blame attaches to the way in which some of the decisions in issue
before me were reached.2 But, in the end, the problem was systemic in nature. All
of the problems coalesced. Had that not happened, the present situation would not have arisen. Everyone involved did the best they could in difficult circumstances. All (litigants, Registry staff and Judges) endeavoured to act in a manner that they considered best promoted the interests of justice. While nobody should be criticised for doing that, the combination of events had disastrous consequences.
[10] While this is the worst example I have seen of problems of this type, others exist on a smaller scale. From my experience, the time may have come for those responsible for providing adequate resources for the Family Court to undertake the
many and difficult functions cast upon it to take stock of the present position and to
2 But, see also paras [76]–[83] below.
reflect on whether it is practicable for that Court to do everything that Parliament has entrusted to it with its present resources – both judicial and administrative.
[11] As a Judge, I am conscious that it is not my place to offer views on how Parliament should appropriate funding to meet important social objectives. Striking that balance is a political decision. My concern is to highlight some systemic problems that have come to light, so that those responsible for allocation of resources can consider whether (and, if so, how) improvements can be made. A civil justice system that facilitates the prompt resolution of disputes, with each side having (as near as practicable) equality of arms, should be an important part of New Zealand’s social fabric.
[12] I say no more about this topic. I will be sending a copy of this judgment to the Chief District Court Judge and the Principal Family Court Judge so that they can consider the issues I have raised.
The applications
[13] Ms Barbara Brown seeks judicial review of a number of orders made in the Family Court at Tauranga in the course of proceedings involving her former husband, Mr Aaron Sinclair. Her applications extend to orders made by the District Court and the Tenancy Tribunal. All applications have the same factual origins.
They stem from Ms Brown’s separation from Mr Sinclair in early 2011.3 There are
nine separate applications, all of which I heard together on 31 October 2016.
[14] Ms Brown and Mr Sinclair met in 2008. There is a dispute about when they started to live together. One says it was at the end of 2008, while the other contends it was at the beginning of 2009. They were engaged on 7 January 2009, and married on 29 March 2009. Ms Brown and Mr Sinclair also disagree about the date of their separation. Ms Brown says it was between 8 and 13 March 2011, while Mr Sinclair says it was on or about 25 February 2011. The Family Court made an order
dissolving the marriage on 12 June 2013.4 The judicial review applications represent
3 See para [14] below.
4 [citation redacted].
the aftermath of a bitter dispute between Ms Brown and Mr Sinclair that has consumed their attention and energy for longer than their relationship subsisted.
[15] It is fair to say that both Ms Brown and Mr Sinclair are emotionally and financially exhausted. Undoubtedly, these proceedings have had a significant impact on their health. By the time the present applications were heard, Ms Brown had been able to secure legal representation and Mr Sinclair, no doubt on advice, took a pragmatic stance to the way in which the applications should be resolved. He has lost any desire to incur unnecessary costs.
[16] Mr Eggleston, for Mr Sinclair, offered no opposition to the bulk of the applications. Mr McArthur, for Ms Brown, said everything that could be said responsibly to explain Ms Brown’s complaints and to support her applications. Mr Scott, who had been appointed as amicus provided helpful background material that put the issues into a proper perspective. Mr McKillop represented the Family Court, District Court and the Tenancy Tribunal. On almost all issues, those judicial
bodies, as is customary, abide the decision of this Court.5 The one exception relates
to a claim for damages against the District Court for breaches of the New Zealand
Bill of Rights Act 1990 (the Bill of Rights).6
[17] I express my appreciation to all counsel for their assistance, as well as to Ms Brown for affidavits and memoranda that she prepared. While she is a qualified lawyer and has done her best to comply with the rules when drafting documents, her emotional involvement has led to much material being provided that is argumentative in nature and irrelevant to issues in the proceedings. In fact, Ms Brown may have done herself a disservice on a number of occasions as some very good points are buried in information that is unhelpful to determination of the application in issue.
[18] In particular, I thank Mr McArthur for taking a difficult brief in order to assist the Court and all parties to reach a degree of finality, at least in respect of
proceedings in this Court. Notwithstanding that there was a significant measure of
5 Generally, see Attorney-General v Maori Land Court [1999] 1 NZLR 689 (CA) at 695.
6 See paras [181]–[188] below.
agreement as to outcome, I told counsel that I was not prepared to act on the basis of unopposed applications without first reviewing the circumstances giving rise to the individual claims for relief. To do so would be unfair to the judicial officers involved.
[19] This judgment deals with all nine extant applications, five from 2013 and four from 2015. Given the procedural quagmire into which these proceedings have fallen and the need to address all applications in this Court on a final basis, I intend to set out the relevant background in some detail. In saying that, I acknowledge that any attempt at a summary will necessarily be both incomplete and selective. As far as is practicable, I try to explain the background in chronological sequence.
The proceedings in outline
[20] Mr Sinclair filed relationship property proceedings on 27 June 2011. Ms Brown was served with them on 19 July 2011. On 22 December 2011, just over five months after those proceedings were served, the Family Court made an order debarring Ms Brown from participating in them.7 On 30 May 2012, without hearing from Ms Brown, the Family Court gave a final judgment on the relationship property application after a formal proof hearing on 6 March 2012.8
[21] On 21 July 2011, Ms Brown commenced Domestic Violence Act proceedings against Mr Sinclair. She sought a protection order. That application was discontinued on 10 November 2011.9 Just over two months later, on 27 January
2012, Mr Sinclair applied for a protection order against Ms Brown. That was determined in his favour at a formal proof hearing on 30 March 2012, just over a year after the couple separated.10 Ms Brown made a further application for a protection order on 29 February 2012. That too was discontinued, on 26 April
2012.11
7 See paras [37]–[104] below.
8 See para [43] below.
9 See para [33] below.
10 See paras [51]–[53] below.
11 See para [54] below.
[22] Ms Brown filed two further protection order applications, one dated 18
February 2013 and the other 3 January 2014. They remain pending in the Family Court, as does a separate application, dated 4 February 2013, by which Ms Brown seeks to discharge the protection order made in favour of Mr Sinclair on 30 March
2012. On 14 May 2013, the Family Court made an order staying all proceedings that
Ms Brown had commenced in the Family Court.12
[23] Following separation, Ms Brown took steps to lease the family home in Tauranga to three tenants.13 While that property was registered in the names of Mr Sinclair and Ms Brown, they held legal title in their capacity as trustees of the Aaron and Barbara Sinclair Family Trust (the Trust). The tenancy that Ms Brown negotiated began on 30 April 2011, and was to run until 30 April 2012. A dispute arose between the tenants and Ms Brown. The tenants alleged that, on 3 June 2011, they had been unlawfully evicted. That dispute was resolved by a decision of the
Tenancy Tribunal made on 10 April 2012. Ms Brown was ordered to pay a sum of
$860.44 to the tenants. In addition, the tenancy bond was to be re-paid to them.14
[24] In 2013, Ms Brown initiated judicial review proceedings in this Court to challenge a number of decisions made in the course of the various Family Court proceedings. Mr Sinclair applied for security for costs. A series of orders were made by Associate Judge Doogue.15 Ms Brown applied to a High Court Judge to review those orders.16 Her applications came before Duffy J, in 2014. Of the six
applications that were made, one was discontinued by Ms Brown, on 5 September
2014.17 Four of the remaining five orders were set aside as a result of a judgment given by Duffy J on 30 June 2015.18
[25] One order for security for costs was upheld. That concerned Ms Brown’s substantive application for judicial review of the Family Court’s judgment of 12 June
12 [citation redacted].
13 See also para [74] below.
14 See paras [56]–[57] below.
15 [citation redacted].
16 The orders in issue were made in CIV 2013-470-419, 424, 425, 485, 489 and 495.
17 [citations redacted].
18 [citations redacted].
2013, by which an order dissolving the parties’ marriage was made.19 While that proceeding remained stayed as a result of the Associate Judge’s order, at the hearing on 31 October 2016 (at my invitation) Mr Sinclair waived the benefit of the stay so that I could determine all applications at the same time.20
The Brown v Sinclair proceedings
(a) The relationship property and initial Domestic Violence Act proceedings
[26] On 27 June 2011, following separation in February or March 2011, Mr Sinclair applied for orders under the Property (Relationships) Act 1976. At the same time he applied, without notice, for an abridgement of time for Ms Brown to file a notice of defence. To support his application for an abridgement of time, Mr Sinclair deposed:
61. My concerns are as follows:
(a) [Ms Brown] is receiving money for the rental of the [location redacted] property. The moneys from the rent have not been paid/or accounted to me or the Trust;
(b) [Ms Brown] has placed tenants in the [location redacted]
property without my authority;
(c) [Ms Brown] has dumped my personal belongings outside at my brother’s house and has caused damage to my property – when I specifically asked her not to and at a time when I was overseas;
(d) [Ms Brown] has failed to provide me with access to the [location redacted] property to inspect and determine the status of my separate and our joint property and
(e) [Ms Brown] has started to sell chattels from the [location redacted] property in circumstances where my solicitors foreshadowed proceedings (my solicitor’s letter of 24 May
2011). The circumstances of this concern arose from a
conversation that I had with … the mother of one of the tenants. [She] said to me on or about 2 June 2011: “[Ms Brown] is trying to sell your property at the home. The TV has already gone. She has offered the fridge to my children cheaply with the option to buy back”.
19 CIV 2013-470-495. [citation redacted].
20 See para [144] below.
[27] On 4 July 2011, a Deputy Registrar made an order abridging time. Although this order is not challenged in the present proceedings, I have to say that I have doubts that it ought to have been made based on the evidence of Mr Sinclair. In my view, nothing substantial was advanced to displace the presumptive rules about the time at which notices of defence are to be filed.
[28] In his affidavit of 27 June 2011, in support of both applications, Mr Sinclair deposed that he and Ms Brown had separated “on a final basis” on 26 February 2011. As a result, the relationship was one of “short duration”, for the purposes of that Act.21
[29] On 21 July 2011, Ms Brown filed a without notice application for protection and occupation orders under the Domestic Violence Act 1995, with an affidavit in support sworn on the same day. In her affidavit, Ms Brown deposed that she and Mr Sinclair had separated “on or about late February 2011”. Ms Brown alleged that Mr Sinclair had perpetrated domestic violence on her on 16 March 2011, 13 June
2011 and 13 July 2011. All of those alleged incidents occurred after the date on which Ms Brown deposed they separated.
[30] Ms Brown also exhibited to her affidavit a copy of a statement she had given to a police officer about an incident that occurred between 1.05pm and 1.10pm on 19
July 2011. In that statement, Ms Brown said that she had been “jogging along the grass verge of The Mall towards the Mount”. She added that Mr Sinclair “must have been hiding behind one of the palm trees and as [she] went by it he lunged out and tried to strike [her] and it looked like he had something in his hand”. Ms Brown reported that Mr Sinclair had not said anything to her.
[31] Temporary protection and occupation orders were made. The substantive application came before Judge Wills on 10 October 2011. By that time, Ms Brown was facing criminal charges in relation to the alleged provision of false evidence about the incident in Mt Maunganui that she had described.22 Ms Brown had also
published information on the Internet to identify Mr Sinclair. As to the latter, the
21 Property (Relationships) Act 1976, s 2E. On any view of the facts, the relationship fell within that category.
22 [citation redacted]. The criminal charges did not proceed to trial.
Family Court made an order by consent requiring Ms Brown to remove immediately information about Mr Sinclair posted on “the Google email forum”.23 Ms Brown withdrew her application at the next hearing, on 10 November 2011.24
[32] The relationship property proceeding came before Judge Annis Somerville on
18 October 2011. Ms Brown was [occupation redacted]. At that time, she was [nature of employment redacted]. Although no narrative affidavit had been filed by Ms Brown, she was represented by counsel. The Court was told that she intended to return to New Zealand in early November. Judge Somerville said:25
[6] There is a temporary protection order in place. That is to be defended and there is a hearing on 28 and 29 November for two days. The respondent has until 2 November to file documentation. The submission from counsel for the respondent is that if she is given the same amount of time to do that then that is going to be more practical for her to deal with it. I am concerned that the documentation has not been filed. I have suggested that the draft affidavit could be shown to counsel for the applicant so at least he knows what the narrative affidavit is all about, but I am told that this draft affidavit has only just been prepared, which means that in spite of the fact there have been very clear directions for some time now, there has only been a recent opportunity for the draft affidavit to be filed.
[7] I have asked counsel about the costs issue. I consider that this is an issue for costs. I am going to make an order for costs today. Costs are to be
$500. That is a token towards the difficulties that the applicant has had to
deal with by the respondent not engaging in this process as per directions. That is to be paid by the respondent within seven days after her return, date to be advised to the Court.
(Emphasis added)
[33] On 10 November 2011, both the relationship property and domestic violence proceedings came before the then Principal Family Court Judge, for a case management conference. Both parties were represented. In her memorandum for the conference, Ms Brown’s counsel explained the steps that Ms Brown was taking in the United States to have an affidavit prepared. The memorandum stated:
4.[Ms Brown] [redacted] … is not of means and could not afford to travel or to pay a notary public to swear her affidavit. [Ms Brown] has recently [acquired funds from work in the United States] … She is now able to have her affidavit witnessed.
23 Ibid, at paras [7] and [8].
24 [citation redacted].
25 [citation redacted].
5.[Ms Brown] has made an appointment to attend at the UK Consulate in Las Vegas on 25 November 2011 to have her affidavit witnessed, this being the only opportunity she has having regarding to her dependency on third parties for travel.
6.[Ms Brown] is seeking leave for an extension of time in which to file her affidavit within 2 weeks of 25 November 2011 to accommodate the time required to post the original affidavit to New Zealand.
[34] Notwithstanding that explanation, Judge Boshier asked counsel to obtain specific instructions as to the precise date by which Ms Brown would return to New Zealand, so that the November 2011 date could be used for the purpose of relationship property, rather than domestic violence proceedings.
[35] Having taken instructions, counsel advised the Court that Ms Brown would be returning on 6 March 2012. Judge Boshier was unimpressed. He said:26
[10] [Counsel for Ms Brown] knows that her client’s conduct and her credibility is now sufficiently worrying that she, as counsel, must herself be concerned. At the beginning of the conference I am told one date and at the end of it a quite different date. The Court’s conduct of proceedings cannot be compromised in this way.
[11] For [Mr Sinclair], he brought his proceedings in June of this year and the law requires that they be determined “economically and expeditiously”. I am not willing to permit [Ms Brown] to, it appears, intentionally delay the resolution of this case.
[12] Mr Eggleston seeks an order wherein [Ms Brown] is now debarred from participating in the proceedings. The Rules permit that but I would want to be careful and considered before I make such an order. If I am of the view that the law permits it, and it is fair and just, having regard to all of the circumstances, I will make such an order.
[36] Having recorded that counsel for Mr Sinclair had claimed indemnity costs of
$15,000 in relation to discontinuance of the application under the Domestic Violence
Act, Judge Boshier made a number of orders:27
[15] …
(a) In relation to the domestic violence proceedings, on [Ms Brown’s] application to discontinue, the temporary orders are discharged and the substantive applications are struck out.
26 [citation redacted].
27 Ibid, at para [15].
(b) [Mr Sinclair] is entitled to costs and I direct counsel for the father to file a submission within 10 days, setting out the basis upon which costs is sought, having regard to the District Court Rules 1992 and scale and that [Ms Brown] file any response she wishes to within 10 days. The registrar shall immediately refer the file to me in chambers and I will make a decision on the documents then before me.
(c) On the property relationship proceedings, I find that [Ms Brown] is in continuing breach of an order to file documents. [Mr Sinclair] wishes to have an order made debarring her from further participating in the proceedings. In the submission that Mr Eggleston is to file within 10 days as to costs, he shall also include a second part to his submission and that relates to jurisdiction and basis upon which the order should be sought.
(d) In the response within 10 days of that, that I have already invited [counsel for Ms Brown] to file in relation to the domestic violence proceedings, she may reply to the issue of costs. I shall then decide that issue in Chambers on the basis of the papers then available to me.
(e) Any other interlocutory direction which is sought as to, for instance access to property or chattels, or any other matter relevant to preparation for trial and resolution in these proceedings, may be made to me by counsel by memorandum through the registrar. I will consider what each counsel has to say and make a direction on the papers.
(f) The form of hearing shall be determined by me after I have considered counsel’s submissions and on taking a view of what the Rules permit. A hearing, and depending on its format, will however occur before 6 March 2012.
(g) Costs generally on today are reserved but I shall fix costs as they relate to the domestic violence proceedings when I deal with that issue and property costs can be dealt with separately.
(h) The costs made by Judge Somerville on 18 October, wherein the wife pay $500 upon her return to New Zealand, is varied to provide for an order that the sum of $500 is paid forthwith, that is, within seven days.
(i) Pursuant to the placement of material onto the Internet by [Ms Brown] and referred to in paragraph 7 of Judge Wills’ judgment of 10 October, [Ms Brown] is required to advise the Court, by memorandum filed through her counsel, within seven days, of the current position and in particular whether the material has been removed.
[37] On 22 December 2011, Judge Wills considered an application by Mr Sinclair to debar Ms Brown from participating in the proceeding and another to enable him to
access the former family home to take an inventory of chattels, and to assess any damage. [As at 10 November 2011], Ms Brown had not paid the costs of $500 previously ordered.
[38] It is customary for a formal application to be made to a Court when a party seeks an extreme remedy, such as debarring another party from bringing or defending a proceeding. No such application was filed. Instead, the question whether Ms Brown should be debarred from participating evolved from a series of events that had occurred before the decision to debar that was made on 22 December
2011. In summary:
(a) In a memorandum dated 17 October 2011, Mr Eggleston advised the Court that despite “nearly 3 months passing since service … [Ms Brown] still has not filed any narrative affidavit material”. He observed that in her notice of defence orders were sought under ss 15A and 32 of the Property (Relationships) Act. Mr Eggleston added that it was “likely that an application will be made to summarily dismiss [Ms Brown’s application] given on face it appears without merit”. He added that a decision on that could not be made without her narrative affidavit. Having made those observations, Mr Eggleston set out a series of directions that he sought. One of them sought that Ms Brown’s “application be struck out for want of prosecution”.
(b)On 18 October 2011, Judge Somerville indicated that unless a narrative affidavit was filed, “there will be a consideration of not allowing [Ms Brown] to attend any Court hearing and prosecuting her case”.28
(c) On 9 November 2011, in advance of the conference over which Judge Boshier presided on 10 November 2011, Mr Eggleston filed a memorandum in which he addressed this issue. Mr Eggleston pointed
out that a hearing was scheduled for 28 and 29 November 2011, but
28 [citation redacted].
[redacted] that [Ms Brown] had [later given information that] she was travelling directly from the United States to [another country] to [nature of work redacted] in the first week of December 2011. In relation to Ms Brown’s Domestic Violence Act application, he said that unless Ms Brown “agrees to withdraw the proceedings” an order was sought that they be dismissed under r 195 of the Family Courts
Rules.29 Separately, he added in respect of the relationship property
proceeding that because Ms Brown had not paid the costs ordered by Judge Somerville, that proceeding should be set down for hearing by way of formal proof.
(d)Judge Boshier put the issue more emphatically. In the context of a conference dealing with both the relationship property and Domestic Violence Act proceedings he observed that “Mr Eggleston seeks an order wherein [Ms Brown] is now debarred from participating in the proceedings”.30 I can only assume that Mr Eggleston had developed this point orally at the conference before the Judge.
[39] By the time the relationship property proceeding came before Judge Wills on
22 December 2011, those comments or observations had metamorphosed into an application to debar with which she then dealt. The Judge made an order debarring Ms Brown from participating in the proceeding.31 She also made an order enabling Mr Sinclair to access the former family home to take an inventory of chattels and to assess any damage to it. By this time, Ms Brown had not paid the costs of $500 previously ordered by Judge Somerville.
[40] On 21 February 2012, Judge Wills issued a Minute in response to an application from Ms Brown to file evidence in opposition out of time. She declined to grant leave on the grounds that Ms Brown had already been debarred from defending. The Judge confirmed that a formal proof hearing would take place on 6
March 2012 to deal with relationship property issues.
29 The relevant part of which is set out at para [99] below.
30 [citation redacted].
31 [citation redacted]. The reasons given by Judge Wills are summarised at paras [103]–[104]
below.
[41] On 21 February 2012, Judge Wills also dealt with an application by Mr Sinclair for costs on Ms Brown’s unsuccessful first Domestic Violence Act application.32 Indemnity costs were sought. This application followed Judge Boshier’s decision to discharge temporary protection orders granted in Ms Brown’s favour, and to strike out her substantive application.
[42] Mr Sinclair claimed costs totalling $15,721. Judge Wills awarded costs in the sum of $9,600, together with reasonable disbursements. The Judge described the factual background against which the order was made as follows:33
[6] [Mr Sinclair] seeks costs on an indemnity basis in the sum of
$15,721 and in the alternative uplift costs in the amount of $13,783. As a further alternative costs are sought pursuant to Schedule 2C, District Courts
Rules, in the amount of $11,845 calculated according to the schedule
attached to the submissions or on a 2B basis in the amount of $7,195 also quantified in the schedule.
[7] The brief history of the matter is that [Ms Brown] raised serious allegations against [Mr Sinclair] in her affidavit of 21 July 2011 including assault, stalking, kidnapping, death threats and threats with a knife. [Ms Brown] asserted that she had made a Police complaint in relation to events on 19 July 2011. [Mr Sinclair] opposed the making of an order and filed affidavit evidence from six deponents including a Police officer who confirmed that [Ms Brown] had been charged with making a false statement in relation to the events of 19 July 2011.
[8] The evidence considered by [Mr Sinclair’s] counsel included video footage from the local café where [Mr Sinclair] dined on 10 July 2011 and the 111 call of [Ms Brown]. An interlocutory application had to be made to obtain Police records. Counsel for [Mr Sinclair] submits that this was a case where a much greater amount of time was spent preparing the case for trial than might normally be the case.
[43] Following a formal proof hearing on the relationship property application on
6 March 2012, Judge Wills delivered a reserved judgment on 30 May 2012. After analysing the legal position and setting out the nature and value of relationship property assets, the Judge concluded:34
[35] The parties’ respective contributions to the relationship are clearly disproportionate. The relationship property assets should be divided on the basis of 70% to [Mr Sinclair] and 30% to [Ms Brown] as determined earlier in this decision.
32 [citation redacted].
33 [citation redacted].
34 [citation redacted].
[36] That has the entitlement of [Ms Brown] fixed at $32,402. Given that she has in her possession $15,565.00 worth of property, the sum of
$16,837.00 is required to meet [Ms Brown’s] relationship property
entitlement.
[37] Orders are made to give effect to these determinations as follows:
(a) The chattels in the possession of [Mr Sinclair] shall be his sole and separate property.
(b) The chattels in [Ms Brown’s] possession shall be her sole
and separate property.
(c) [Ms Brown] shall take as her separate property the proceeds of chattels sold by her.
(d) [Mr Sinclair] will take as his separate property the one share of [Ms Brown] in [Mr Sinclair’s company]. To give effect to that order [Ms Brown] shall within 21 days from the date of these orders sign any documents necessary to transfer her one share to [Mr Sinclair].
(e) In the event that [Ms Brown] fails to sign the share transfer and provide it to [Mr Sinclair], the registrar of the Family Court is authorised to sign the transfer on [Ms Brown’s] behalf.
(f) [Ms Brown] shall take as her separate property all bikes in her possession.
(g) [Mr Sinclair] shall take as his separate property all assets in his name, possession or control.
(h) [Ms Brown] shall take as her separate property all assets in her name, possession and control.
(i) Each party shall be solely responsible for any liability in their name.
(j) [Mr Sinclair] is to pay to [Ms Brown] the sum of
$16,837.00. From that sum may be deducted any costs awarded in this or any other proceeding in which these parties have been involved.
[38] This is a case where costs should be awarded in favour of [Mr Sinclair]. [Ms Brown] failed to comply with timetabling directions and has been debarred from defending. [Mr Sinclair] has been put to significant effort and cost as a result of [Ms Brown’s] failure to properly engage in these proceedings and costs should be awarded. Leave is reserved to [Mr Sinclair] to file a memorandum as to costs.
[44] On 17 December 2012, Judge Wills dealt with questions of costs on the relationship property application. While refusing to make an order for indemnity
costs in favour of Mr Sinclair, she took the view that costs at the highest level of the
District Court scale should apply. Judge Wills said:35
[8] It would be fair to say that even if [Ms Brown] had engaged in the proceedings and filed documents in a timely way that costs would still have been incurred by [Mr Sinclair]. There is, in my view, no basis for the granting of indemnity costs despite the cavalier approach of [Ms Brown] in the proceedings. I am however satisfied that the costs of the expert’s report should be met in full by [Ms Brown] for whose benefit it was obtained. I am also satisfied that costs should be awarded in accordance with Band C of the schedule to the District Courts Rules.
[45] The decisions of 30 May 2012 and 17 December 2012 effectively resolved the relationship property proceeding in favour of Mr Sinclair.
[46] Having explained the way in which the relationship property proceedings came to be determined, I return to the various protection order applications.
[47] On 26 January 2012, Mr Sinclair applied on a without notice basis for a protection order. At this time, Ms Brown remained overseas, [occupation and nature of work redacted]. In his affidavit, of that date, Mr Sinclair deposed:
4. [Ms Brown] has used domestic violence against me as follows:
(a) On 1 January 2012 the locks were changed at my home [location redacted], … locking me out of my home without my knowledge and consent. I maintain for the reasons I give below that [Ms Brown] instigated this.
(b) On 6 January 2012 my parents, aunty and cousin arrived at the [location redacted] Property to find the locks had been changed. I was in Auckland at the time. I was telephoned by my mother … who said: “[Aaron] the locks on the house have been changed”. I said: “Contact the Police”.
(c) On 7 January 2012 I spoke to Constable Plowman who said “We have contacted [a family friend]. He said locks have been changed and that tenants would be moving back to the property in a few days time”.
(d) On 9 January 2012 my mother contacted [a locksmith] who told her that [Ms Brown] had phoned from overseas asking him to change the locks. [The locksmith] also advised that the locks had been changed on New Years Day. I refer to her Affidavit in this respect. I have subsequently received an email and the invoice from the Locksmith confirming the
35 [citation redacted].
work for [Ms Brown] on 1 January 2012 which I annex and
mark “A”.
(e) On 15 January 2012 [a family friend] arrived at the back door, out of view of the road, leaving my father … feeling shaken. My father telephoned me and said with words to the effect: “[The family friend] has just come to the home to try and get access to inspect the property”. My heart immediately began to beat faster and I felt very stressed by the visit. I am very concerned about what [Ms Brown] and her associates may do to the home and my belongings if no one is present at home. I refer to my father’s Affidavit in this respect.
(Emphasis added)
[48] Mr Sinclair added that he had arranged with his father to stay with him, but he could not do so longer than 31 January 2012. He expressed concern that Ms Brown may attempt (or have one of her intermediaries attempt) to return to the property to change locks and secure sole access. As a result, Mr Sinclair said that he was taking important documents and his laptop computer to work every day. The alarm system at the property had been reactivated and was being monitored. He identified a new email address used by Ms Brown: [email address redacted; the words used in the email address were disparaging of Mr Sinclair, suggesting that he was a liar].
[49] Mr Sinclair’s application was referred to Judge Wills. She directed that it should be heard on five days’ notice. No temporary order was made. Ms Brown was to be served by email, as was her “legal advisor in USA”. Personal service was also directed on [the family friend] of Ms Brown and Mr Sinclair, to whom Mr Sinclair had referred in his affidavit in support of the application.36 I am aware that he subsequently protested the fact that he was regarded as a person on whom service could be effected to give notice to Ms Brown. She was overseas at this time.
[50] On 8 February 2012, Ms Brown purported to file a second application for a protection order. That document was not accepted for filing. A new originating document was filed on 29 February 2012, on a without notice basis. That application came before Judge MacKenzie on 29 February 2012. She ruled that the application
should proceed on notice. Primarily, the Judge was concerned to ensure that
36 See para [4](c) and (e) of Mr Sinclair’s affidavit, set out at para [47] above.
differences evident from evidence in earlier parts of the proceeding should be determined after cross-examination. As one of her reasons for holding that the threshold test for without notice orders had not been met, she said:
[1] …
…
(d) I have been provided with recent judgments of Judge Boshier and Judge Wills which contain adverse credibility findings in relation to [Ms Brown] and thus, as I have already indicated the evidence will need to be tested before consideration of orders.
[51] Mr Sinclair’s application for a protection order was set down for formal proof on 30 March 2012. Counsel appeared for Ms Brown and sought leave to file a notice of defence and affidavit in support. That application was opposed. At the time of this hearing, Ms Brown was overseas, so if the application were granted the hearing would necessarily have been adjourned. Judge Coyle rejected her application, notwithstanding that a draft notice of defence and affidavit were before him and he had been told that Ms Brown had been granted legal aid about three weeks beforehand.
[52] Judge Coyle did not consider that Ms Brown had given any “satisfactory explanation … as to why [she] has now filed at the Court door”.37 In particular, he was influenced by what he described as a “multitude of breaches” by Ms Brown in relation to Court orders, both in relation to domestic violence and relationship property proceedings.38 The Judge concluded that he was “not satisfied that it [was] in the interests of justice to allow Ms Brown to be heard”. He left open the possibility of an application to have any order discharged, but put that on the basis that it would need to be on “new evidence” that was “not available for this hearing”.39
[53] The Judge proceeded to hear Mr Sinclair’s application. He did so, on the
basis of the affidavits Mr Sinclair had filed. One was the affidavit of 26 January
2012 on the basis of which Judge Wills had required the application to be heard on
37 [citation redacted].
38 [citation redacted].
39 [citation redacted].
notice. The other was filed on 29 March 2012, the day before the hearing. Ms Brown would not have had an opportunity to respond to the latter. Judge Coyle did not require Mr Sinclair to be cross-examined on his affidavits.40 On the basis of his evidence, Judge Coyle made a final protection order as sought, and directed Ms Brown to attend “a stopping violence programme”.41 Costs were reserved.42
[54] On 26 April 2012, Ms Brown discontinued her February 2012 application under the Domestic Violence Act. On the same day, Judge Coyle minuted that the application had been discontinued.43
[55] The question of costs arising out of the hearings on 30 March 2012 was dealt with in chambers, on the basis of a memorandum from counsel for Mr Sinclair. Ms Brown had had the opportunity to file submissions in response, but had not done so. On 21 May 2012, Judge Coyle ordered:44
[27] … I make an order that [Ms Brown] pay [Mr Sinclair’s] costs in the sum of $2290 for the period following the commencement of the domestic violence proceedings up to 4 March 2012.
[28] I make an order pursuant to s 45(2) that there are exceptional circumstances to justify a cost award in the sum of $1800 being made against [Ms Brown], and that would have been the cost award I make against her personally but for the fact that she was in receipt of civil legal aid.
[29] I make an order that [Ms Brown] pay [Mr Sinclair’s] costs in the sum of $862.50 in relation to her unmeritorious application for a protection order against [Mr Sinclair].
(b) The Tenancy Tribunal decision
[56] On 16 August 2011, the tenants of the family home filed an application in the Tenancy Tribunal in which relief was sought against Ms Brown, as “landlord”. The tenancy agreement had been signed on 18 April 2011, with a commencement date of
30 April 2011. The lease was for a fixed term of 12 months. In total, the tenants
paid a bond of $1,400. The tenants alleged that they were unlawfully evicted on 3
40 [citation redacted].
41 [citation redacted].
42 See para [55] below.
43 [citation redacted].
44 [citation redacted].
June 2011 following a telephone call they received that day from Ms Brown’s
lawyer. They were given 24 hours to vacate the premises.45
[57] On 10 April 2012, the Tribunal ordered that Ms Brown pay to the tenants of
the former family home a sum of $860.44. That sum included one week’s bond of
$350. In addition, the Bond Centre was directed to pay the bond of $1050 to the tenants.46
(c) Mr Sinclair’s application for “unless” orders
[58] On 18 February 2013, Ms Brown filed a third application for a protection order. Mr Sinclair applied to the Family Court for security for costs and an ‘unless” order. His applications were opposed by Ms Brown. They were heard on 8 May
2013. Judge Geoghegan gave judgment on 14 May 2013.47
[59] An “unless” order customarily operates to prevent a party from pursuing a particular application unless they take a specified step by a particular time.48 On this occasion, Mr Sinclair sought an order “preventing Ms Brown from taking any further steps in respect of any of her applications before the [Family] Court unless”49 she paid costs outstanding to Mr Sinclair in the sum of $12,478, pursuant to earlier Court orders.50 In addition, Mr Sinclair sought an order for security for costs in relation to her third Domestic Violence Act application.
[60] Judge Geoghegan considered the background in detail. Having done so, he made orders:
[64] … :
(1) In respect of [Ms Brown’s] application for a protection order
I make an order that [Ms Brown] gives security for the costs
45 This summary is taken from the Tenancy Tribunal’s decision: [citation redacted].
46 The reasons for the Tenancy Tribunal’s decision are set out at paras [173]–[176] below.
47 [citation redacted].
48 Generally, see SM v LFDB [2014] 3 NZLR 494 (CA). The Supreme Court gave leave to appeal:
LFDB v SM [2014] NZSC 131 but leave was subsequently revoked because the applicant had made a further default in relation to payment of a costs award: LFDB v SM (2014) 22 PRNZ 262 (SC). That being so, the Supreme Court expressed no views on the approach that commended itself to the Court of Appeal. See further, paras [111]–[91] below.
49 My emphasis.
50 [citation redacted].
of [Mr Sinclair] in the sum of $10,000. In assessing the amount of security for costs I note that Mr Eggleston sought the sum of $15,000 based on [Ms Brown’s] assertion that she would wish to call 20 witnesses. I have estimated the amount of security for costs on the basis of a three day hearing.
(2) I make an order staying all applications by [Ms Brown] before the Court unless and until [Ms Brown] has met all outstanding costs awards payable to [Mr Sinclair]. I include in these costs awards any costs awards which may be imposed by the Court in respect of applications for costs currently before the Court for consideration.
[65] I can indicate that in respect of the applications being determined in this case I do not consider an award of costs appropriate despite [Mr Sinclair’s] success. The application by [Mr Sinclair] involved difficult issues of the balancing of the rights and obligations of both parties and despite the fact that [Ms Brown] has been unsuccessful it could not be said that her defence of these applications had insufficient merit as to warrant an award of costs as being appropriate.
(Emphasis added)
[61] As a result of that decision, all proceedings filed in the Family Court to that date remain stayed.
(d) The dissolution of marriage application
[62] Mr Sinclair applied for an order dissolving his marriage to Ms Brown. His application was opposed. Ms Brown has never suggested that a dissolution order should not have been made. Rather, she disagrees with the separation date put forward by Mr Sinclair.51
[63] At the end of a hearing on 12 June 2013, at which both Mr Sinclair and Ms Brown gave evidence, Judge Geoghegan gave an oral judgment in which he found that the parties separated on 25 February 2011, the date for which Mr Sinclair had
contended.52
51 See para [14] above.
52 [citation redacted]. Judge Geoghegan’s reasons are set out at para [146] below.
(e) Ms Brown’s applications for maintenance
[64] Ms Brown filed an application for interim and lump sum maintenance in the Family Court at Auckland on 20 August 2013. On 2 September 2013, Judge McHardy abridged the time for Mr Sinclair to file a defence to five days. A further direction was made by Judge Druce on 13 November 2013 for Mr Sinclair to file and serve an affidavit in reply. Mr Sinclair applied to transfer the application to the Family Court at Tauranga. On 9 January 2014, Judge Adams made an order to that effect. It appears that direction was made without hearing from Ms Brown.
[65] The transferred application came before Judge Somerville on 4 February
2014. No further steps were taken at that time. On 18 March 2014, a case management conference was held before Judge Geoghegan.53 Mr Sinclair sought an order extending the “unless” order made by Judge Geoghegan on 14 May 2013 to the spousal maintenance application. Judge Geoghegan agreed that Mr Sinclair’s application should be considered first. He made timetabling directions for that to occur, leaving Ms Brown’s application in limbo meantime.54
[66] On 19 September 2014, a further directions conference was held. Judge Twaddle observed that Mr Sinclair had made an application to vary Judge Geoghegan’s order of 14 May 2013 so that it applied “to all applications including future applications filed by Ms Brown”.55 His Honour concluded that none of the proceedings before the Court ought to be heard further until “Mr Sinclair’s application to vary the stay order” had been addressed. His Honour noted that that could not be done until after proceedings in this Court had been resolved.56 As a result, no further steps have been taken on that application.
[67] I observe that there is no basis on which an order could have been made extending the “unless” order to any proceedings Ms Brown may file in the future. Even where a person has been declared a vexatious litigant, proceedings may be
brought by leave of the High Court.57 An order of the type sought would have had
53 [citation redacted].
54 [citation redacted].
55 [citation redacted].
56 [citation redacted].
57 Judicature Act 1908, s 88B.
more draconian consequences than a declaration that she was a vexatious litigant. That application was doomed to fail and ought not to have been made.
(f) Mr Sinclair’s security for costs applications in the High Court
[68] In the period between Judge Geoghegan making an “unless” order on 14 May
2013 and Ms Brown filing her maintenance application on 20 August 2013, Ms Brown filed six judicial review applications in this Court to challenge various orders for security for costs that had been made. Mr Sinclair sought security for costs in respect of each of those proceedings. The decisions before this Court were summarised by Associate Judge Doogue, in his judgment of 6 November 2013, on the security for costs applications before him:58
[3] [Ms Brown] is dissatisfied with the outcome of a number of the Family Court hearings and has filed the following proceedings in the High Court to obtain judicial review.
(i) CIV-2013-470-495 (judicial review of Judge Geoghegan’s
oral decision, judgment dated 12 June 2013).
(ii) CIV-2013-470-419 (judicial review of Judge Geoghegan’s
reserved judgment, dated 14 May 2013).
(iii) CIV-2013-470-424 (judicial review of Judge Coyle’s
judgment, dated 21 May 2012).
(iv) CIV-2013-470-485 (judicial review of Judge Coyle’s
judgment, dated 30 March 2012)
(v) CIV-2013-470-425 (judicial review of Judge Wills’ decision,
dated 22 December 2011).
(vi) CIV-2013-470-489 (judicial review of Judge Wills’ direction
in [8] of the decision, dated 10 October 2011).
[69] Associate Judge Doogue made the following orders:59
[150] The application for security for costs is granted and [Ms Brown] is ordered to pay security for costs to the Registrar of the High Court at Tauranga in the sum of $34,666.00. That sum is to be held by the Registrar as security for costs against orders that might be made in any of the six judicial review proceedings which [Ms Brown] has filed.
58 [citation redacted].
59 [citation redacted].
[151] The terms of the order that I make are such that while the security for costs figure has been calculated in respect of one of the several judicial review proceedings, the security for costs some will be available for the applicant, [Mr Sinclair], to apply in reduction of any costs order made in any of the judicial review proceedings.
[152] The security for costs is to be paid by way of instalments:
a) the sum of $12,000 not later than 30 November 2013;
b) the sum of $12,000 not later than 31 January 2014;
c) the balance not later than 31 March 2014.
[153] There will be an order staying the judicial review proceedings until the first instalment of the security for costs is made. There will also be stay orders in the event that any succeeding instalment is not paid on time.
(g) The attachment order
[70] On 30 May 2014, Mr Sinclair made an application for an attachment order in respect of the various costs orders that had been made against Ms Brown in his favour. As at that date, the outstanding Court-ordered costs totalled $12,972.50, made up as follows:
(a) $9,820, as a result of an order made on 21 February 2012. (b) $2,290, as a result of an order made on 21 May 2012.
(c) $862.50, in respect of an order made on 21 May 2012.
[71] In his application for an attachment order to compel payment of those costs, Mr Sinclair said:
9.Provide the details of the judgment debt and any enforcement costs you want to claim (judgment creditor only)
You can claim some of your costs from trying to enforce the judgment or court order. Enter the judgment debt, and costs you want to claim, in the table below.
Debt
Amount of judgment debt $12,972.50
Less amount already paid
Sub-total $12,972.50
Interest you want to claim (for debts over $3000)
Interest on the remaining debt $ 1,420.00
Sub-total $ 1,420.00
Enforcement costs you want to claim
Fee for filing application $ 50.00
Lawyer costs for this application
Costs of previous enforcement action
Sub-total $ 50.00
Total amount owed $14,442.50
[72] On 19 June 2014, the District Court made an attachment order reflecting the outstanding claim of $14,442.50.
(h) Review of Associate Judge Doogue’s orders60
[73] Ms Brown’s applications to review orders for security for costs made by
Associate Judge Doogue were determined by Duffy J in two judgments, delivered on
5 September 2014 and 30 June 2015 respectively. Ms Brown was successful on all but her challenge to the order made in respect of the dissolution proceeding.61 Ms Brown applied to recall that aspect of the judgment. Her application was dismissed by Duffy J, after having heard from both Ms Brown and Mr Sinclair in person, on 17
December 2015. Costs were reserved.62
(i) Tenancy related proceedings in the High Court
[74] Separate proceedings were issued by Mr Sinclair in the High Court to claim moneys allegedly owed by Ms Brown and the trustees of the Trust arising out of the tenancy of the family home, which was owned by the Trust. Brewer J gave
judgment on those claims on 26 June 2015.63
60 See para [69] above.
61 [citation redacted]. See para [24] above.
62 [citation redacted].
63 A summary of the salient aspects of that decision are set out at paras [168]–[170] below.
Analysis
(a) Preliminary comments
[75] My task is to determine whether each of the decisions that Ms Brown challenges is susceptible to judicial review and, if so, what relief should be granted. In doing so, I shall:
(a) Explain the nature of each of the individual judicial review applications and the specific orders that each challenges;
(b) Identify relevant legal principles;
(c) Apply relevant principles to each of the specific applications; and
(d) Explain my reasons for granting or refusing relief.
[76] I have already provided a summary of the circumstances that led to the decisions now under challenge.64 From the judicial perspective, it is impossible to read the numerous decisions given by Family Court Judges in the course of proceedings between Ms Brown and Mr Sinclair without appreciating the evident sense of frustration under which each of them laboured. That frustration seems to have been borne of what the Judges perceived to be unwarranted delays, on the part of Ms Brown, in the resolution in a timely way of what ought to have been relatively simple relationship property and domestic violence issues. There were also apparent
concerns about their need to consider repetitious and (sometimes) ill conceived applications for protection orders. My sense is that the Judges regarded Ms Brown as someone who was deliberately flouting the process and orders of the Court.
[77] So far as relationship property is concerned, the marriage was one of short duration. The financial value of the property in dispute was modest.65 The legal
issues arising out of the property dispute were not complex. In the absence of the
64 See paras [1]–[11] above.
65 Generally, see para [43] above.
tangential disputes that enveloped the proceeding, all property issues were capable of resolution relatively quickly and comparatively inexpensively.
[78] So far as the protection order applications are concerned, there were multiple proceedings. At least one was based on a false allegation.66 Others seem to have been based on unreasonable perception rather than reality. Ms Brown believed that Mr Sinclair was persistently harassing her; Mr Sinclair believed the opposite was true. Both beliefs were, I am sure, genuinely held.
[79] I have no doubt that this sense of frustration influenced the outcome of many of the decisions now in issue. While those frustrations are understandable, in human terms, a Judge must remove himself or herself from the arena, put aside idiosyncratic behaviour of the parties, and determine the issues in a detached and dispassionate manner.
[80] I accept that is easier said than done. From personal experience at both first instance and appellate levels, I can say unequivocally that it is a much easier task at the second stage. On appeal or review, this Court has the benefit of a greater degree of detachment, as well as an ability to see and to understand the consequences of a series of independent decisions made by different Judges. The likely consequences of the collective group of decisions is less likely to have been appreciated at the time each was made.
[81] Ms Brown’s fundamental complaint is that she was shut out of the decision- making process, either through the Court dealing with an application on a without notice basis, or by being debarred from participating in a proceeding. A sense of injustice inevitably affects a person who believes he or she had been denied a say in legal proceedings that may affect them adversely. For that reason, a Court must always bring a sense of proportion to decision-making that involves the potential (or actual) debarring of a person from bringing or defending proceedings.
[82] Peremptory orders of that ilk will typically provoke the litigant concerned to respond by engaging in a procedural war within the litigation, thereby extending the
66 See paras [29]–[31] above.
nature of the issues that truly require determination, unduly prolonging the proceeding, and throwing unnecessary cost on other parties. Experience demonstrates that type of reaction is often due to an intense sense of injustice, as opposed to an act of spite.
[83] Those considerations explain why the law has developed in a way that requires Judges to hesitate before making orders that may deny a litigant the right to be heard on a particular issue, or worse, the right to pursue or defend a claim. Very rarely will it be appropriate for a Court to prevent a party from participating in a meaningful way in a proceeding at a relatively early stage of its progression through the judicial system. Properly, “unless” orders and those that immediately operate to debar a party from participating in a legal proceeding should be regarded as remedies
of last resort.67
(b) Judicial review: legal principles
[84] The applications that Ms Brown has brought are not appeals against the decisions in issue. Rather, they ask this Court to exercise its supervisory jurisdiction over public decision-making. It is important to distinguish between the powers that may be exercised by this Court on an appeal (on the one hand) and on a judicial review application (on the other). Save for cases in which appeals will lie only on questions of law, an appellate court will generally reconsider the merits of the
original decision afresh.68 As Elias CJ said, for the Supreme Court, in Austin Nichols
& Co Inc v Stichting Lodestar: “Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court”.69 By contrast, the judicial review jurisdiction is primarily directed at questions of process, and does not involve this Court pronouncing on the merits of a particular application or proceeding.
[85] Ordinarily, judicial review will lie where a decision-maker has taken into account irrelevant considerations, failed to take account of relevant considerations,
67 See SM v LFDB [2014] 3 NZLR 494 (CA) at para [31](a), set out at para [117] below.
68 See Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141 and Kacem v Bashir
[2011] 2 NZLR 1 (SC).
69 Ibid, at para [16].
made an error of law, or was plainly wrong. The remedy is also available where it can be said that a decision is “unreasonable”, in a commonly understood administrative law sense.70 The approach to “unreasonableness” that I apply in this case, is to ask whether the decision in issue was “beyond the limits of reason”.71
[86] The supervisory jurisdiction is based on the fundamental premise that powers conferred on statutory bodies or tribunals can be validly exercised only within their true limits. As the High Court is a Court of unlimited jurisdiction,72 it has power to determine those limits, and uses the process of judicial review for that purpose. The nature of the jurisdiction was summarised succinctly by Arnold J, for Elias CJ and himself, in Ririnui v Landcorp Farming Ltd:73
[1] … Judicial review is a supervisory jurisdiction which enables the courts to ensure that public powers are exercised lawfully. In principle, all exercises of public power are reviewable, whether the relevant power is derived from statute, the prerogative or any other source. The courts acknowledge limits, however. These limits are reflected primarily in the notions that the case must involve the exercise of a public power, that even if the court has jurisdiction, the exercise of power must be one that is appropriate for review and that relief is, in any event, discretionary. ….
[87] For the purposes of this proceeding, the High Court has jurisdiction to review decisions of a District Court, a Family Court and the Tenancy Tribunal. They each are judicial authorities of “limited jurisdiction”.74
[88] The High Court’s powers of review are constitutional in nature. They are designed to promote the rule of law, and provide a means by which a remedy can be granted for a proved public law wrong. Every person whose own “rights, obligations, or interests protected or recognised by law” may have been adversely
affected by a determination of a “tribunal or other public authority” has the right to
70 This concept has its origins in Associated Provincial Picture Houses Ltd v Wednesbury
Corporation [1948] 1 KB 223.
71 Webster v Auckland Harbour Board [1987] 2 NZLR 129 (CA) at 131 (Cooke J), applied by
Thomas J in Waitakere City Council v Lovelock [1997] 2 NZLR 385 (CA) at 413.
72 Isaacs v Robertson [1984] 3 All ER 140 (PC) at 143.
73 Ririnui v Landcorp Farming Ltd [2016] 1 NZLR 1056 (SC); [2016] NZSC 62, at para [1].
74 Sometimes (but not pejoratively) called “inferior Courts”. Generally, see Auckland District Court v Attorney-General [1993] 2 NZLR 129 (CA) at 133, citing R v Chancellor of St Edmundsbury and Ipswich Diocese [1948] 1 KB 195 (CA) and R v Cripps, ex parte Muldoon [1984] QB 68 (CA) at 87.
seek judicial review of that determination. That right is expressly recognised by s 27(2) of the Bill of Rights.
[89] The judicial review applications raise two issues of fundamental importance:
(a) The first is access to justice. That value concerns the right of every person to have access to the Courts to obtain redress for any wrong done to him or her. The importance of the value is underscored by s 3 of the Legal Services Act 2011. It states that an object of that Act is “to promote access to justice by establishing a system that” both “provides legal services to people of insufficient means” and “delivers
those services in the most effective and efficient manner”.75
(b)The second is a core principle of natural justice; namely, the need for a court or tribunal that is seized of a dispute to hear from both parties before making a decision. It is the existence of this principle that explains why rules of court generally prescribe strict limits within which orders may be made on a without notice basis.76
[90] Most of the judicial review applications raise one (or both) of those issues. For example, Ms Brown asserts that:
(a) A number of the Family Court Judges exercised jurisdiction to prevent her from being heard on substantive applications.
(b)A number of orders were made without giving her an opportunity to be adequately heard. That led, Ms Brown submits, to the exercise of
judicial discretions in an arbitrary and capricious manner.
75 More generally, see Marteley v The Legal Services Commissioner [2016] 1 NZLR 633 (SC).
76 See Martin v Ryan [1990] 2 NZLR 209 (HC) at 229 and Skelton v Family Court at Hamilton
[2007] 3 NZLR 368 (HC) at para [90].
(c) The individual claims
(i) CIV 2013-470-425: Decisions of 10 October 2011, 22 December
2011, 21 February 2012 and 30 May 2012
[91] The first issue raised by Ms Brown concerns the decision made by Judge Wills on 10 October 2011.77 This was made in the context of a Domestic Violence Act application. The Judge made an order removing information published about Mr Sinclair and the proceedings brought by Ms Brown “in the Google email forum”. The clear inference from the terms of the order is that Ms Brown was expected to undertake whatever steps were required to comply.78
[92] Ms Brown makes three complaints about this order. The first is that she was not given notice of the hearing. The second is that counsel recorded as appearing on her behalf did not have her instructions to consent to the order. The third is that she could not have complied with the order without involving “Google” in the process. That, she suggests, would have required her to take steps at an “international” level.
[93] There are two linked reasons why I do not need to determine Ms Brown’s
complaints on the merits.
[94] Whatever may be the position in relation to personal notice of the hearing being given to Ms Brown, her counsel did appear at the hearing. From a legal point of view, that meant that Ms Brown had an opportunity to be heard. To the extent that Ms Brown complains that her counsel did not have instructions to consent to any orders, she must fail, as a matter of law.
[95] In Carrell v Carrell79 a similar issue arose. A wife, in proceedings under the Domestic Proceedings Act 1968, applied to set aside a consent order made by a Magistrate after hearing from her counsel. Although one distinguishing feature of
that case is that the wife was present in Court when consent was given, the principle
77 See para [31] above.
78 [citation redacted]. See also para [31] above.
79 Carrell v Carrell [1975] 2 NZLR 441 (SC).
underlying the Court’s decision is of more general application. This Court held that
counsel had ostensible authority to bind a client. Cooke J said:80
I think that, in normal circumstances, if counsel appears for a party and informs the Court on behalf of that party that he consents to a certain order, the Court is entitled to rely on the authority of counsel - as, indeed, is the other party. Normally that is so even if the client on whose behalf counsel gives consent is not present in Court. A fortiori it is so if the client is personally present and makes no demur. If counsel is exceeding his actual authority, that is normally a matter between him and his client (or his instructing solicitor) and does not affect his apparent or ostensible authority in the eyes of the Court or the other party. I think that those normal principles must apply under s 120 of the Domestic Proceedings Act. Particularly if the client is not personally present, it may at times be prudent to inquire further; but that is a matter of discretion and does not, as I see it, go to jurisdiction.
[96] Although Cooke J observed that “conceivably” circumstances could arise in which the Court had reason to doubt whether counsel was acting within the scope of his or her authority, he held that it was for the Judge to raise any question, as a matter of discretion, if he or she considered an inquiry ought to be made.81 Accordingly, there being no apparent reason why the Judge would need to inquire in this particular case, Ms Brown was bound by the consent given by her counsel.
[97] The second involves the issue being moot. I do not need to inquire into whether Ms Brown was able to comply with the order. The information was removed, and no further issues have arisen.
[98] The Court does not generally embark on inquiries where resolution of the issue will not determine a real controversy between the parties. The principle, from which the Court may depart in cases involving public interest, was set out by McGrath J, giving the judgment of the Supreme Court in R v Gordon-Smith (on appeal from R v King).82 While the authorities tend to be concerned with appeals, the same principles must apply on an application for judicial review. In Gordon- Smith, McGrath J said:
[14] The traditional position taken in New Zealand has been that the
courts will not hear an appeal “where the substratum of the . . . litigation
80 Ibid, at 445–446.
81 Ibid, at 446.
82 R v Gordon-Smith (on appeal from R v King) [2009] 1 NZLR 721 (SC).
between the parties has gone and there is no matter remaining in actual controversy and requiring decision”. This approach was followed in accordance with a principle referred to in Sun Life Assurance Co of Canada v Jervis, where Lord Simon LC said:
“. . . it is an essential quality of an appeal fit to be disposed of by this House that there should exist between the parties a matter in actual controversy which the House undertakes to decide as a living issue.”
(Footnotes omitted)
[99] Following Judge Boshier’s adjournment of the “application” to debar,83 Judge Wills considered it on 22 December 2011. In doing so, she referred to those provisions of the Family Courts Rules 2002 that empower the Family Court to dismiss proceedings if one party fails to prosecute his or her claim or defence.84
Rules 195(1)(b) and 176(2) respectively state:
195 Dismissal if proceedings or defence not prosecuted
(1) An opposite party may apply to have dismissed—
…
(b) all or part of a respondent's defence, if the respondent has failed to prosecute the defence or part of it.
….
176 Non-compliance with orders or directions
…
(2) If the respondent fails to comply with an order made, or a direction given, by the Judge under rule 175, the Court may order that the respondent be allowed to appear at the hearing and defend the application only on terms that the Court directs.
….
[100] Judge Wills said:85
[12] In considering this issue the Court is required to consider three matters:
83 See paras [35] and [38] above.
84 Family Courts Rules 2002, rr 195(1)(b) and 176(2).
85 [citation redacted]. The Judge applied one of my decisions, in Roulston v Roulston HC Auckland CIV-2004-404-7120, 9 August 2005 at para [8], in which I had adopted a dictum of Eichelbaum CJ in Lovie v Medical Assurance Society Ltd [1992] 2 NZLR 244 (HC) at 253. Roulston was a case in which matrimonial property proceedings had been on foot for 14 years.
(a) Has there been inordinate delay;
(b) If so, is the inordinate delay excusable;
(c) Is [Ms Brown] likely to be seriously prejudiced by the delay. (d) Where do the overall interests of justice lie.
[101] The Judge held:
(a) In circumstances where time to file a notice of defence had been
abridged to 10 days, “the delay must be seen as inordinate”.86
(b) Because of “the very limited pool of relationship property assets”
there was prejudice to Mr Sinclair.
(c) An order for costs could not properly address the prejudice caused to Mr Sinclair, because of the limited asset pool and Ms Brown’s limited means.87
[102] The Judge made no specific finding of “serious prejudice”; I infer that she intended to use the word “prejudice” to encompass that concept. The Judge was concerned that there was “a risk that the value of assets may in the end be less than the costs that have been incurred”.88
[103] Judge Wills also considered reasons given by Ms Brown for failing to prosecute her defence. She said:89
[21] [Ms Brown] travelled to America in September 2011 to [occupation and nature of work redacted]. Her counsel’s memorandum indicates that she had been dependent on [payments from a third party] to survive and [nature of employment redacted]. There has throughout been an indication that [Ms Brown] would have difficulty in arranging for her affidavits to be sworn but that this could be done.
[169] Importantly, for present purposes, Ms Brown alleged that Mr Sinclair should pay to the Trust a sum of $16,800 “for wrongfully causing tenants of the property to break a 12 month’s fixed tenancy after two months’ of occupation”. She also alleged that $1,050 was owing to her “because, as a result of [Mr Sinclair’s] wrongful actions, the Tenancy Tribunal ordered her to refund the tenants’ bond”.162
[170] Brewer J expressed his conclusions by saying:
[68] [Mr Sinclair] and [Ms Brown] both succeed in their occupation rent claims against one another.
(a) [Ms Brown] owes [Mr Sinclair] $9,450 in occupation rent.
(b) [Mr Sinclair] owes [Ms Brown] $21,982.50 in occupation rent.
I set off these amounts against each other and direct [Mr Sinclair] to pay [Ms
Brown] $12,532.50 in occupation rent.
160 See para [57] above.
161 [citation redacted].
162 [citation redacted].
[69] [Mr Sinclair] is successful in his claims against the Trust. I direct that the Trust pay [Mr Sinclair]:
(a) $7,168.73 interest on the loan of $356,000.00.
(b) $9,284.00 for outgoings and repairs in respect of the Trust property and interest of $849.55.
A total of $17,302.28.
[70] [Ms Brown] is unsuccessful in her claim against [Mr Sinclair] for wrongfully inducing a breach of contract and in her claim against the Trust for reimbursement of payments made in respect of the house.
[171] The circumstances in which Ms Brown challenges the Tenancy Tribunal’s decision have been detailed earlier.163 As Mr McArthur did not have instructions to act for Ms Brown on this particular application, no submissions were filed. In a memorandum provided to the Court after the judicial review applications were heard, Mr McArthur made it clear that while no steps had been taken by the tenants to recover the damages of $860.44 ordered to be paid by Ms Brown to them,164 she was still concerned that they may do so. Mr McArthur sought leave to file additional papers to which Ms Brown had referred in her memorandum of 31 October 2016. In that memorandum, Ms Brown simply asks for leave to file evidence in relation to the Tenancy Tribunal hearing.
[172] As a matter of law, I am not entitled to interfere with the decision of the Tribunal if it made an order within its jurisdiction on the basis of evidence available to it, and on which it was entitled to act. As Ms Brown’s application could not succeed on any basis, there is no reason to adjourn for further evidence to be given. The Adjudicator heard such evidence as was available and formed his own view of it. Had I thought that further evidence might assist, I would have adjourned the application. I would also have ensured that the tenants had adequate notice of a new date, so that they could be heard if they wished.
[173] The Adjudicator wrote a detailed decision which set out the history in some detail. Ms Brown contended that the Tribunal had no jurisdiction to deal with the
tenants’ claims because of s 5(n) of the Residential Tenancies Act 1986. That states:
163 See paras [166]–[170] above.
164 See para [57] above.
5. Act excluded in certain cases
(1) This Act shall not apply in the following cases:
…
(n) where the premises, not being a boarding house, continue to be used, during the tenancy, principally as a place of residence by the landlord or the owner of the premises or by any member of the landlord’s or owner’s family:
….
[174] Sections 10 and 78(1) of the Residential Tenancies Act are also relevant. They were considered by the Adjudicator. Those two provisions state:
10 Onus of proof
Where, in any proceedings before the Tribunal, any party contends that this Act does not apply in respect of any tenancy of any residential premises, it shall be for that party to establish the facts upon which it is contended that this Act does not apply.
78 Orders of Tribunal
(1) Without limiting the generality of section 77 or the nature or extent of orders that the Tribunal may make in the exercise of its jurisdiction, the Tribunal may, in respect of any claim within its jurisdiction, make 1 or more of the following orders:
(a) an order in the nature of a declaration, whether as to the status for the purposes of this Act of any premises or of any agreement or purported agreement, or as to the rights or obligations of any party, or otherwise:
(b) an order that a party yield possession of any premises to any other party:
(c) an order that a party deliver any specific chattels to any other party:
(d) an order that a party pay money to any other party: (e) a work order:
(f) where it appears to the Tribunal that an agreement between the parties, or any term of any such agreement, is harsh or unconscionable, or that any power conferred by an agreement between them has been exercised in a harsh or unconscionable manner, an order varying the agreement, or setting it aside (either wholly or in part):
(g) where it appears to the Tribunal that an agreement between the parties has been induced by fraud, misrepresentation, or mistake, or that any writing purporting to express the
agreement between the parties does not accord with their true agreement, an order varying, or setting aside, the agreement or the writing (either wholly or in part):
(h) any other order that the High Court or a District Court may make under any enactment or rule of law relating to contracts:
(i) an order dismissing an application.
[175] Ms Brown contended that she lived in the property and therefore the Residential Tenancies Act could not apply. As a result, she contended that the Tribunal lacked jurisdiction to make any order.
[176] Ms Brown attended the hearing by telephone. She was given an opportunity
to respond to the tenants’ position. The Adjudicator found:
37.[One of the tenants] …, gave his evidence in a frank and straightforward manner. Although there were minor discrepancies in his evidence regarding dates and amounts paid, that is not surprising given the lapse of time since the end of the tenancy, and his likely nervousness at appearing in the Tribunal. Despite the landlord’s claims to the contrary, my clear impression of [the tenant who gave evidence] was of an honest and reliable witness. The landlord’s reference to the tenants being “sneaky” was a little unfair. There is nothing untoward about the tenants applying to the Tribunal for refund of the bond; and the landlord herself made a ‘one party’ application for bond refund to the Bond Centre.
38.Because the landlord attended the hearing by telephone; it was more difficult to assess her reliability from the manner in which she gave her evidence. She presented as a very forceful and forthright person. However, when I compare the evidence given by both parties against the background ‘matrix of facts’, I have reached the clear conclusion that the landlord did not tell the tenants, prior to signing the agreement, that she intended to live in the property. Whatever her real intention may have been at that time, she did not communicate it to the tenants, and they were misled into believing that they were signing a standard residential tenancy agreement for their exclusive occupation of the premises.
…
40.Having considered the evidence as a whole, despite the unusual circumstances, I am satisfied that: the parties signed a standard residential tenancy agreement; the landlord did not disclose her intention to live at the premises prior to signing the agreement; the landlord’s failure to disclose her intention misled the tenants into believing that they would have exclusive occupation of the premises; and the landlord breached the tenancy agreement and the Act by living at the premises after the commencement of the tenancy. It
follows from those findings of fact that the agreement between the parties as not excluded by section 5(n) of the Act. The landlord cannot bring that section into operation by virtue of her breach of the agreement.
(Emphasis added)
[177] I can discern no error of law in the Tribunal’s approach. The Adjudicator, whatever view a party may take of it, was entitled to come to the conclusion he did on the evidence. As a result, it cannot be said that the Adjudicator made an unreasonable decision that could be set aside on an application for judicial review.
[178] I decline leave for further evidence to be adduced or for the statement of claim to be amended. This application for judicial review will be dismissed.
(vii) CIV 2015-470-104: Attachment order of 19 June 2014
[179] On 25 June 2014, Judge Somerville heard from Ms Brown and Mr Eggleston on her application for an interim maintenance order.165 That application was opposed. Ms Brown was concerned about her financial situation because, at that time, about 40 percent of her income was subject to an attachment order granted in favour of Mr Sinclair in respect of costs ordered to that time.166 The Judge adjourned the proceeding for three months “to monitor determination of the application by Mr Sinclair for a stay of proceedings”.167 It appears that the Judge thought that Ms Brown’s applications for judicial review might have been resolved by that time.168
[180] In this proceeding, Ms Brown seeks judicial review of the attachment order itself. She contends that she was not given adequate notice of the application and was prevented by the approach taken by Judge Somerville from obtaining relief from the financial hardship caused to her.
[181] Ms Brown seeks a declaration that the attachment order is unlawful and unenforceable and orders that the moneys attached be reimbursed by Mr Sinclair,
165 Family Proceedings Act 1980, s 82.
166 See paras [70]–[72] above.
167 [citation redacted].
168 [citation redacted].
together with interest at 5 percent. She also seeks an order against the District Court that it pay damages for breach of s 27 of the Bill of Rights.169
[182] Mr McKillop, for the District Court, initially filed an application to strike out this particular claim, though that did not proceed because he recognised it was capable of being re-pleaded. Two other parties were initially named as defendants, the Tauranga Collections Unit and the National Office of the Ministry of Justice. Both of those parties were struck out. No amended pleading has been filed in respect of this application. At the hearing on 31 October 2016, the application to strike out was withdrawn.
[183] Now that the District Court is the sole defendant, Mr McKillop abides my decision on Ms Brown’s application for review but submits that her claim for damages for breach of her right to justice conferred by s 27 of the Bill of Rights should be refused. In support of that submission, he relies on a recent judgment of
the Supreme Court in Attorney-General v Chapman.170
[184] Apart from the order made on discontinuance of Ms Brown’s first application for a protection order in the sum of $862.50, the costs awarded in favour of Mr Sinclair are to be set aside. Without going into the merits of the application so far as the District Court’s attachment order is concerned, I am satisfied that it has no present utility and ought to be set aside. I record Mr Sinclair’s agreement with that proposition. There is no lawful basis on which I could make any order for damages against Mr Sinclair, who used the Court’s process in an appropriate way. Ms Brown is protected by the fact that adjustments can be made in the context of the relationship property proceeding in respect of costs that remain outstanding and claims by Ms Brown for reimbursement from Mr Sinclair of funds paid to him following the attachment.
[185] There is another reason why it is unnecessary to deal with the merits of the application to set aside the attachment order because the second aspect of the claim
169 In reliance on Simpson v Attorney General [1994] 3 NZLR 667 (CA).
170 Attorney-General v Chapman [2012] 1 NZLR 462 (SC) at para [97]. Subsequently, in Thompson v Attorney-General [2016] NZSC 134, the Supreme Court refused leave to appeal on a point involving the scope of its decision in Chapman.
which seeks damages for breach of the Bill of Rights against the District Court cannot succeed, as a matter of law. Assuming (without deciding the point) that there was such a breach, the law does not permit a claim for public law compensation for alleged breaches by the judicial branch of Government. In Chapman, that view was taken by a majority of three to two.171
[186] In Chapman, McGrath and William Young JJ took the view that Simpson v Attorney-General [Baigent’s Case]172 was not authority for the proposition that public law damages could be awarded in such circumstances. Their Honours also held that Maharaj v Attorney-General of Trinidad and Tobago (No 2)173 was not “of controlling significance”. They said:174
[97] But although we will engage with the cases relied on by [counsel for Mr Chapman] – and in some detail – the reality is that the case also turns on a policy judgment. Judicial immunity gives effect to systemic public interest considerations, the most important of which is judicial independence. As we will explain, allowing a claim of this kind to proceed would be as inimical to those public interest considerations as allowing a personal claim against judges. Given this and our view that there is no particular need for the provision of financial remedies for judicial breaches of the Bill of Rights Act, we conclude that the claim is not available.
[187] Gault J agreed. He added:
[213] I consider that the independence of the judiciary and its concomitant principle of judicial immunity are fundamental elements of our constitutional structure. They are not to be interpreted away by importing a different context. The immunity with which this case is concerned is, in any event, of a different order of importance from that in Baigent’s case.
[214] On these matters, and whether the Baigent cause of action should apply in respect of breaches of rights by judges, I am content to express agreement with the reasons and decision in the joint judgment of McGrath and William Young JJ.
[188] In those circumstances, the claim against the District Court, as a judicial tribunal, must be dismissed.
171 McGrath, William Young and Gault JJ, Elias CJ and Anderson J dissenting.
172 Simpson v Attorney-General [Baigent’s Case] [1994] 3 NZLR 667 (CA).
173 Maharaj v Attorney-General of Trinidad and Tobago (No 2) [1979] AC 385 (PC).
174 Attorney-General v Chapman [2012] 1 NZLR 462 (SC) at para [97].
(viii) CIV-2015-470-69: Decision of 18 March 2014, 25 June 2014, 11
July 2014, 6 August 2014, 22 August 2014, 19 September 2014, 20
November 2014 and 6 March 2015
[189] This proceeding is directed to a number of orders with which I have already dealt, or have been set aside in consequence of other decisions. Any remaining aspects are of no practical significance because no orders were made that can affect the overall outcome. In that situation, I propose to treat this application as moot. It will be dismissed on that basis.
(d) Subsequent transfer order of 15 July 2016
[190] During the hearing, I learnt of a decision made by Judge Coyle of his own motion on 15 July 2016, pursuant to which he purported to transfer three sets of Family Court proceedings to the Family Court at Auckland.175 The parties were not heard on this point.
[191] Judge Coyle reasoned:
That is the Court where the proceedings can be more efficiently and conveniently dealt with on the basis that the parties reside in Auckland, but more importantly, there is a greater pool of Family Court Judges who are not conflicted out of dealing with these proceedings when they are returned to the Family Court from the High Court.
[192] With respect, such an order should not have been made without hearing from the parties. To avoid unnecessary further proceedings, I set aside that order, of my own motion. The difference between the order made by Judge Coyle and the one that I shall make is that both parties indicated at the hearing before me that they expected any proceedings that required further attention to be dealt with in Tauranga.
[193] Any application to transfer that either party may wish to make should be made in the first instance to the Family Court at Tauranga. I am aware that, owing to a pending retirement and a secondment overseas, next year there will be two resident
Family Court Judges in Tauranga, who have had no involvement in the litigation
175 [FAM case numbers redacted].
between Ms Brown and Mr Sinclair. Ideally, remaining aspects of the proceeding should be assigned to one or the other.
Result
(a) The applications for judicial review
[194] For those reasons:
(a) In CIV-2013-470-425:
(i)I make orders setting aside the decisions made by Judge Wills on 22 December 2011, 21 February 2012, 30 May 2012 and 17
December 2012.
(ii)I remit the relationship property proceeding to be reheard in the Family Court.
(iii)I direct the Family Court to allocate a case management conference so that timetabling directions can be made for the substantive relationship property proceeding as soon as practicable.
(iv)I direct the Family Court to give consideration to the assignment of a single Judge to deal with all outstanding applications in that Court.
(b) In CIV-2013-470-485:
(i) I make an order setting aside Judge Coyle’s first decision of 30
March 2012 refusing leave for Ms Brown to file a notice of defence to Mr Sinclair’s application under the Domestic Violence Act.
(ii) I make an order setting aside Judge Coyle’s second decision of
30 March 2012 in which he granted a protection order in favour of Mr Sinclair.
(iii)I make an order setting aside the order for costs made by Judge Coyle on 21 May 2012 on Mr Sinclair’s application for a protection order, in the sum of $2,290.
(iv)The application for judicial review of Judge Coyle’s decision of 21 May 2012 to order costs to be paid by Ms Brown to Mr Sinclair in the sum of $862.50 on her discontinued application for a protection order is dismissed.
(c) In CIV-2013-470-419, I make orders setting aside the “unless” order made by Judge Geoghegan on 14 May 2013, and the order for security for costs.
(d)In CIV-2013-470-495, the application to set aside Judge Geoghegan’s decision of 12 June 2013 (on the dissolution application) is dismissed. Any issues arising out of the point raised by Ms Brown in relation to the date of separation shall be addressed in the context of any financial adjustments that may be required to secure a “just division” of relationship property.
(e) In CIV-2015-470-050, I make a declaration that the Family Court ought to have allowed Ms Brown to proceed with her application for a protection order that was filed in the Family Court at Auckland. No other order is required.
(f) In CIV 2015-470-105, the application to review the decision of the
Tenancy Tribunal of 10 April 2012 is dismissed.
(g)In CIV-2015-470-104, the attachment order of 19 June 2014 is set aside, on the basis that the order for costs of 21 May 2012 in the sum
of $862.50 and the question of reimbursement of payments made to Mr Sinclair under the attachment order shall be addressed in the context of any financial adjustments that may be required to secure a “just division” of relationship property.
(h) The application for judicial review in CIV-2015-470-69 is dismissed.
That application has been adequately determined by reference to the overlapping application under CIV-2015-470-050. It is moot.
[195] The outcome is that the Family Court remains seized of the relationship property application, the application for a protection order made by Ms Brown, her application for spousal maintenance and competing applications in respect of contempt proceedings. For completeness, I indicate that if I have overlooked any live applications they too will be able to proceed. All are to be considered by the Family Court. Any outstanding interlocutory issues in respect of any of those proceedings remain on foot.
[196] I am conscious that Ms Brown has asked the Court to deal with a wider range of issues than those I have addressed. For example, I have no jurisdiction to deal with complaints about the conduct of Mr Eggleston, and I decline to do so. Nor is it appropriate in a proceeding of this type to consider whether Mr Sinclair may or may not have given false evidence on any particular issue. I have explained my
perception of why the problems emerged.176 I say no more about that.
[197] Mr Sinclair sought an order that relationship property proceedings be retained in the High Court. The issues are such that a Family Court Judge coming afresh to the proceeding should be able to address the outstanding issues competently and efficiently. In any event, the jurisdiction to transfer to the High Court lies with the
Family Court.177
176 See paras [1]–[12] and [76]–[83] above.
177 Property (Relationships) Act 1976, s 38A.
(b) Costs
[198] I make no order as to costs in this Court. Questions of costs arising out of the orders made in the Family Court are to be addressed in that jurisdiction.
[199] Each party has suffered hardship in the costs they have incurred. I see no benefit in ordering costs either way. Although Ms Brown has been successful on many of her applications, Mr Sinclair did not, in the end, offer resistance. While the strident stance he took in the early part of the proceeding played its own part in bringing about the complex situation that arose, I do not consider he ought to bear all costs that resulted. There were a number of contributing factors to the problems that
arose.178
[200] I am sure that neither party will be happy with that outcome. Nevertheless, I hope that they will accept it so that they can move on to resolve outstanding issues promptly. This will be the best opportunity for that to be done. If it were not, their lives will be ruined even more than they have been already. There are many better ways to spend one’s life than participating in bitterly fought litigation in Court.
(c) Public distribution of judgment
[201] There are systemic issues that require this judgment to be publicly available. That is a matter of the public interest overriding the parties’ rights to privacy. If improvements can be made to Court processes as a result of the difficulties encountered in this case, there will be a small silver lining.
[202] I make an order prohibiting publication of the names and any identifying particulars of the parties. I make a further order prohibiting search, copy or inspection of the Court files in respect of which this judgment has been given without leave of a Judge on an application made on notice to all parties. These orders have been made to protect the privacy interests of the parties given the nature of publicity that might follow debate about the systemic issues. I am satisfied that extreme hardship could be caused to the mental health of both Mr Sinclair and Ms
Brown if such an order were not made. This version of the judgment has been
178 See para [9] above.
anonymised so that the Registrar can distribute it publicly. Although this judgment is anonymised, any reporting of it must avoid any information that could identify the true identity of the parties.
[203] I shall arrange for a copy of the judgment in both redacted and unredacted form to be sent to the Chief District Court Judge and the Principal Family Court Judge for their consideration.179 Copies will also be sent to the Judges from whose decisions the applications for review were brought. Any further dissemination from any of those Judges is confined to this anonymised version. [The tenants] did not take any steps in respect of the proceeding and their interests have not been
adversely affected by this judgment. In that circumstance, I direct the Registrar not to send a copy of the judgment to them. I make that direction to preserve privacy interests of Mr Sinclair and Ms Brown.
Where to from here?
[204] I propose to offer some thoughts on how proceedings might best be progressed in the Family Court. That Court is free to accept or reject what I say. I am making these comments as a result of similar experiences that I have encountered in this Court.
[205] If practicable, a Judge without prior involvement in the proceedings, should be assigned to deal with all outstanding applications. A case management conference should be convened. Sufficient time should be allocated for that conference to ensure that the parties are able to discuss constructively all relevant procedural issues. It will be necessary to make arrangements for the hearing that minimise any friction that remains between Ms Brown and Mr Sinclair. A telephone conference in the first instance might assist in resolving procedural issues of that type. A fixture should not be allocated until a Judge is confident that the parties are ready, and an accurate estimate of its likely duration can be made. It is in the
interests of both parties to co-operate in having outstanding issues resolved promptly.
179 See para [12] above.
[206] Mr Sinclair and Ms Brown need to be aware that compliance must be made with timetabling directions made after input from each. It is necessary that this dispute be resolved finally. While the interests of justice should always rule the procedural orders required, the Family Court must also be astute to ensure that its processes are not abused. I have already indicated one potential remedy that may be
available after 1 March 2017.180 I trust that it will not be necessary for anyone to
make an application of that type.
[207] I have already made an order for Mr Scott’s costs and disbursements as
amicus to be paid out of funds appropriated by Parliament for the purpose.
P R Heath J
Delivered at 3.00pm on 22 December 2016
Solicitors:
Holland Beckett, Tauranga Crown Law, Wellington Counsel:
G C McArthur, Tauranga
S T Scott, Tauranga
180 See para [162] above.
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