C v H - [2022] NZHC 3145

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2022-425-000072

[2022] NZHC 3145

BETWEEN
C

Appellant

AND

H

Respondent

Hearing: On the papers

Counsel:

Appellant in person

No appearance by or for the Respondent

Judgment:

29 November 2022

JUDGMENT OF NATION J

Introduction

[1] Mr C sought to appeal a decision in a minute of Judge Doyle declining to grant a without notice application for a protection order. Judge Doyle declined the application stating:

The application fails to establish the high threshold set for without notice orders … in that;

… there is not a clear case on the merits …

… I am not satisfied on the evidence that the requires form of harm or risk … would arise if the application proceeded on notice. The applicant’s own evidence is that the respondent has been inflicting the type of behaviour he complains of for at least the last 30 years so it is difficult to understand the immediate urgency behind this without notice application;

… the rights of the respondent … to be heard have not been displaced by establishing that a risk of harm/hardship might arise if the application were on notice.

C v H [2022] NZHC 3145 [29 November 2022]

… I am also advised that the applicant is the subject of a protection order and has twice applied to discharge that order (2020 and 2022) then discontinued his application. Against that background there is some concern that the applicant may be using this process to further harass the respondents.

[2] Mr C initially sought to file a criminal notice of general appeal. That was rejected. He then purported to file a further appeal but this was not accepted because it was not in the form required by the High Court Rules 2016, notwithstanding staff advising him of the relevant rules and what they require.

[3] As Duty Judge, I was asked to consider how the Registry should deal with the forms filed. There is an issue as to whether this Court has jurisdiction to hear the purported appeal.

Law

[4] Section 177 of the Family Violence Act 2018 (the Act) governs appeals to the High Court:

177 Appeals to the High Court

(1) This subsection applies to a decision of a court, in proceedings under this Act, to—

(a)make or refuse to make an order; or

(b)dismiss the proceedings; or

(c)otherwise finally determine the proceedings.

…

(3) A party to proceedings in which there is made a decision to which subsection (1) applies, or any other person prejudicially affected by the decision, may appeal to the High Court against the decision.

(4) The High Court Rules 2016 and sections 126 and 130 of the District Court Act 2016, with all necessary modifications, apply to an appeal under subsection (3) as if it were an appeal under section 124 of that Act.

…

(7) The decision of the High Court on an appeal to that court under this section…

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 C v H

Details

AGLC: C v H [2022] NZHC 3145
Case: [2022] NZHC 3145
Decision Date: 29 November 2022

CaseChat Overview and Summary

Mr C sought to appeal a decision of Judge Doyle declining to grant a without notice application for a protection order. Judge Doyle declined the application stating that it did not establish the high threshold required for without notice orders, particularly as the applicant's own evidence indicated the respondent had been engaging in the complained-of behaviour for at least 30 years, and there was no clear evidence of imminent harm if the application proceeded on notice. Mr C initially sought to file a criminal notice of general appeal, which was rejected, and subsequently attempted to file another appeal which was also not accepted because it did not comply with the required form as stipulated by the High Court Rules 2016.

The court considered whether it had jurisdiction to hear the appeal. The Family Violence Act 2018 governs appeals to the High Court, and while there is some authority that suggests a decision declining a protection order is subject to judicial review, there is also precedent indicating that decisions declining without notice applications for a protection order can be challenged by judicial review. However, in certain cases, Judges have pragmatically allowed appeals to proceed in a way that minimises inconvenience and burden on other parties and the Court. The court observed that if a Family Court Judge has determined an application should proceed on notice, it will be because they consider the threshold for a without notice application has not been met. The court concluded that there is no right of appeal against a decision directing an application to proceed on notice and that such decisions are more akin to a procedural direction than a refusal of an order. The court also noted that the aggrieved applicant could proceed with their application through the on notice proceedings already before the Family Court, and that the more appropriate remedy in the context of the Act and the interests of justice would be to continue with the on notice application.

For these reasons, the court ruled that it had no jurisdiction to receive the appeal from Mr C against the refusal of a temporary protection order on his without notice application to the Family Court.

Orders