Burgess v Beaven - [2015] NZHC 790

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV2014-409-000622 [2015] NZHC 790

BETWEEN
GARY OWEN BURGESS

Applicant

AND

SUSAN NATALIE BEAVEN Respondent

Hearing: 11 March 2015

Appearances:

Plaintiff in person
A Corry for Respondent

Judgment:

21 April 2015

JUDGMENT OF NATION J

Introduction

[1] On 5 August 2014, Judge Somerville in the Family Court at Christchurch issued a decision striking out an application which Mr Burgess had filed with the Family Court on 9 September 2011.1 He also ordered that Mr Burgess must pay full solicitor and client costs to the respondent in relation to those proceedings.

[2] Mr Burgess filed a notice of appeal on 2 September 2014. In a memorandum for the first case management conference on 22 October 2014, Mr Burgess asked that security for costs be dispensed with. The Court was also advised that Mr Burgess had applied to the Family Court for a rehearing of the application which had been struck out.

[3] After the initial conference, Mander J adjourned the appeal proceedings to await the outcome of the application for rehearing.2

1 Burgess v Beaven [2014] NZFC 6378.
2 Burgess v Beaven HC Christchurch CIV-2014-409-622, 23 October 2014 (Minute No 1)

BURGESS v BEAVEN [2015] NZHC 789 [21 April 2015]

[4] There was a further conference with Mander J on 3 December 2014. Because there had been no progress in the Family Court on the rehearing application, Mr Burgess wished to proceed with his appeal. In order for the appeal to proceed to a hearing, his application to dispense with security for costs on the appeal had to be dealt with.

[5] The application for waiver of security for costs was accordingly set down for hearing on 11 March 2015. Mr Burgess represented himself. Ms Corry appeared for the respondent. Mr Burgess filed lengthy written submissions in relation to his application.

[6] Mr Burgess argued that security for costs should be dispensed with because:

(a) there was considerable merit in his appeal because he had not been put on notice in the proceedings that there was any risk of strike-out;

(b)

there was merit in the application he was seeking to pursue in the

Family Court;

(c)

he was not financially able to provide security for costs; and

(d)

this impecuniosity was the result of wrongs he had suffered in the

relationship property proceedings, wrongs which he was seeking to rectify through the proceedings which had been struck out.

[7]

Ms

Corry did not file submissions in opposition. However, in a

memorandum for the first case management conference, Ms Corry contended that the proceedings were struck out on the grounds that they were vexatious and an abuse of the Court’s process, that there was little merit in Mr Burgess proceeding with his appeal when he was endeavouring to obtain a rehearing in the Family Court, and that the appeal should be struck out. In oral submissions she said that the application for waiver had to be considered against the background of all the…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Burgess v Beaven

Details

AGLC: Burgess v Beaven [2015] NZHC 790
Case: [2015] NZHC 790
Decision Date: 21 April 2015

CaseChat Overview and Summary

Gary Burgess filed an application with the Family Court on 9 September 2011, which was subsequently struck out by Judge Somerville on 5 August 2014. Burgess appealed this decision to the High Court. He sought to have the requirement for security for costs waived so that he could proceed with his appeal. The respondent opposed the waiver of security for costs. The Court considered the legal principles applicable to the waiver of security for costs, including the relevant case law and the balance between allowing access to the Court of Appeal for impecunious appellants and protecting respondents from vexatious appeals. The Court also considered the litigation background between the parties, the potential merits of the appeal, and the potential benefits and burdens of proceeding with the appeal. The Court concluded that the appeal might have some prospect of success, but the potential benefits to the appellant were disproportionate to the burden on the respondent. The Court decided not to waive the requirement for security for costs and fixed the security amount at $1990, to be paid by 19 July 2015. The appeal was adjourned for a further case management conference to be held after 19 July 2015. The respondent was entitled to seek costs in respect of the application for waiver of security for costs.

Orders