Chea v Chan HC Auckland CIV 2008-404-002469
[2008] NZHC 2675
•19 November 2008
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV 2008-404-002469
BETWEEN SOPHEA CHEA Intending Appellant
ANDDARA CHAN Intended Respondent
Hearing: 12 November 2008
Counsel: E Orlov and Ms Kuo for Intending Appellant
RC Knight for the Intended Respondent
Judgment: 12 November 2008 at 11:30am
Reasons: 19 November 2008
REASONS FOR JUDGMENT OF HUGH WILLIAMS J
These Reasons for Judgment were delivered by
Hon. Justice Hugh Williams on
19 November 2008 at 11:30am
Pursuant to Rule 540(4) of the High Court Rules
……………………………………………..
Registrar/Deputy Registrar
Date:………………………
A.On 12 November 2008 the intending appellant’s application for leave to appeal to the Court of Appeal was dismissed.
B. On 12 November 2008 the respondent’s application for stay of the two interlocutory applications discussed in this judgment was granted.
C. There will be timetable orders relating to the respondent’s application for solicitor/client costs as appearing in para [43] of these reasons.
CHEA V CHAN HC AK CIV 2008-404-002469 12 November 2008
Introduction
[1] As directed in a minute issued on 20 October 2008 (and subsequent date variations to accommodate the commitments of Mr Deliu, then expected to be counsel for Ms Chea, the intending appellant), a hearing was convened on
12 November 2008 to deal with:
a) Ms Chea’s application for leave to appeal against Harrison J’s dismissal on 16 July 2008 of her appeal from a decision of the Family Court of 10 April 2008 dismissing her application for interim maintenance under s 82 of the Family Proceedings Act 1980; and
b)An application by Mr Knight, counsel for the intended respondent, to stay or dismiss what Potter J, in a minute issued on 18 August 2008, described as an “omnibus” interlocutory application by Ms Chea for recusal of Harrison J, leave to appeal the 16 July 2008 judgment and permitting cross-examination in relation to any application for costs. That application was based on the failure by Ms Chea to comply with Potter J’s directions, timeously or at all.
[2] At the conclusion of the 12 November 2008 hearing, Ms Chea’s application for leave to appeal to the Court of Appeal was dismissed and the “omnibus” application was stayed for non-compliance with Potter J’s directions, with the reasons for those orders to follow.
[3] These are those reasons.
Leave to appeal to Court of Appeal
[4] The appeal with which Harrison J dealt was against a reserved decision delivered by Judge Lawrence Ryan in the Family Court on 10 April 2008 dismissing Ms Chea’s application for interim maintenance.
[5] To appreciate the background to the dismissal of the leave application, it is accordingly pertinent to review that judgment briefly.
[6] It began with a brief recital of the basic facts underpinning the interim maintenance application:
[1] The parties met on 2 January 2004 and commenced living together and were married on 17 May of the same year. They were both born in Cambodia. They lived together until 3 December 2006. When they ceased living together the Respondent notified the Immigration authorities that they had ceased living together and as a result his sponsorship, which was required for the purposes of the Applicant’s application for permanent residency, was withdrawn.
[2] There are no children of the marriage. The Applicant says that she is now not a legal resident in New Zealand and therefore not entitled to any assistance from the Government by way of a benefit or such like. As she has no work permit she is unable to secure employment. She says she is destitute and requires maintenance from her husband.
[7] After dealing with certain procedural matters, the Judge noted that during the parties’ short marriage they both worked in their café business, taking weekly drawings. He noted that company accounts were not produced, “nor any other documentary evidence to substantiate the income earned by the parties” (at p 2, para [5]). The Judge then reviewed certain other factual matters disclosed on the affidavits before noting Ms Chea sought interim maintenance of “somewhere between $300 and $1,000 per week”.
[8] Turning to legal issues, he then observed:
[9] Section 82 provides the Court with an unfettered discretion as to whether or not to make an interim spousal maintenance order and it is not necessary to have regard to the specific grounds for spousal maintenance set out in the other sections of the Act. Langridge [(1987) 3 FRNZ 272] is authority for the proposition that it is not wrong for the Court to have regard to the principles of spousal maintenance when considering whether or not to exercise the discretion.
[10] The purpose behind s 82 is to allow easy and quick access to a Court to avoid serious hardship or injustice arising to a claimant for spousal maintenance due to the length of time it takes for a substantive application for spousal maintenance to be dealt with in the Family Court. As a result hearings for interim spousal maintenance orders are, in the normal course of events, dealt with on the affidavit evidence with submissions from Counsel. This was the process adopted in this proceeding. As a consequence, where there is a conflict between the evidence of each party that conflict cannot be
resolved without a substantive hearing. There are serious challenges made by each party against the other as to matters of credibility. There is insufficient evidence for me to establish in any safe way what either party is earning and what either party’s financial obligations are on a weekly basis.
[11] On top of that, twelve months elapsed between the date of the separation and the application for interim spousal maintenance. However she did it, the Applicant was clearly able to support herself. If I accept the Respondent’s evidence it is because she has worked and received “money under the table”. If I accept the Applicant’s evidence she has supported herself by relying on the goodwill of friends. I do not know where the truth of the matter lies.
[12] As I have said, there is a dearth of evidence of a supporting nature such as company accounts, income tax particulars and the like, upon which I can base any interim findings of fact.
[13] When I couple these unsatisfactory aspects of the evidence with the unsatisfactory nature of the evidence relating to the Applicant’s current status in New Zealand and her ability or not to gain a work permit, I conclude that it would be unsafe to make any interim spousal maintenance order pending hearing of the substantive application. The application for interim spousal maintenance is refused.
[9] The Judge then made timetabling directions which should have led to a hearing of the substantive application for spousal maintenance within a relatively brief period following delivery of his decision.
[10] It appears, however, that instead of fully complying with Judge Ryan’s directions and having her substantive spousal maintenance application heard as quickly as pressure on Family Court business would permit, Ms Chea sought – and obtained – leave to appeal to this Court.
[11] Harrison J dealt with the appeal in an oral judgment delivered on 16 July.
[12] He first said he was unable to understand why leave to appeal had been granted, when the appeal raised no important issue of principle or law (p 2, para [2]). He noted Ms Chea’s application for interim maintenance on which Judge Ryan ruled was in fact her second such application, the first having been dismissed in February
2008 for procedural deficiencies (p 2 para [6]), and then turned to consider Judge
Ryan’s judgment.
[13] After citing paras [10]–[12] – also cited above – the Judge noted that, since
10 April 2008, Ms Chea’s immigration status had been clarified, that she was in New
Zealand lawfully, and had a work permit. As an aside, counsel advised on
12 November that Ms Chea now has paid employment.
[14] Harrison J summarised the grounds of appeal as being, first, that Judge Ryan failed to make a principled discretionary decision on the evidence or adjourn the hearing for additional evidence, and, secondly, that the Judge wrongly took Ms Chea’s immigration status into account.
[15] He disposed of the latter because of the updated information given him and observed that, in any case, Judge Ryan did not give the topic undue adverse weight.
[16] After citing the terms of s 82, Harrison J held Judge Ryan had exercised the discretion confirmed by s 82 on a principled basis, particularly given the dearth of evidence before the Family Court and the Judge’s inability to resolve disputed factual issues on the affidavits (at p 4, para [11]). Harrison J took the same view.
[17] The Judge noted information given him by Mr Knight, counsel for Mr Chan, that counsel for Ms Chea had asked the Family Court to defer allocating a fixture for their client’s substantive application, presumably pending determination of her appeal.
[18] The Judge then observed – in a passage on which Mr Orlov, leading counsel for Ms Chea, particularly relied in his oral submissions on the leave application (Mr Deliu having filed written submissions for her) - that the appeal had resulted in “wastage of public resources and funds” (at p 4, para [13]) and continued:
[14] This appeal was hopeless and I dismiss it. Counsel confirm that Ms Chea is in receipt of a grant of legal aid. I direct the registry to send a copy of this decision to the Legal Service Agency. It should not be meeting the costs of an appeal which never had any merit in circumstances where Ms Chea was provided an opportunity to have her substantive application for final maintenance orders determined by now.
Submissions on leave application
[19] Accepting that Ms Chea needed to demonstrate there was a point of law of such public or general importance as to justify the cost and the delay of a second appeal in order for leave for such an appeal to be granted (Judicature Act 1908, s 67, r 718E), the numerous grounds listed in the “omnibus” form of application were reduced in Mr Deliu’s written, and Mr Orlov’s oral, submissions to:
a) the refusal of interim maintenance was based primarily on Ms Chea’s lack of immigration status and failure to adduce evidence. These contravened procedural justice and fairness as taking the immigration status into account would breach s 21(1)(g) of the Human Rights Act
1993 prohibiting discrimination on the basis of ethnic or national origins;
b)Judge Ryan’s decision was such that he effectively failed to exercise his discretion that being a matter of public interest as potentially amounting to discrimination of a sector of the public based on their immigration status;
c) Harrison J gave an opinion to the Legal Services Agency that the appeal was baseless. That affected Ms Chea’s legal status. That was of public importance, as the Judge should not have done what he did. The judgment, he submitted, was “completely unprincipled”.
d)That instead of dismissing the appeal, Harrison J should have directed the Family Court to set a hearing date for Ms Chea’s substantive maintenance application.
[20] Whilst admitting the Family Court Judge had an unfettered discretion under s 82, Mr Orlov submitted the nature of the decision effectively amounted to a failure to exercise that discretion. He relied on s 27 of the New Zealand Bill of Rights Act
1990 and what he submitted were relevant provisions of the International Covenant on Civil and Political Rights and the United Nations Declaration on the Elimination
of Violence against Women. In Ms Chea’s case, he submitted that the “New Zealand Government via the Judiciary, has failed to comply with its international obligations” in enacting s 82, and in the Courts’ approach to exercising the jurisdiction under that section. He submitted it was wrong for the Judge to direct the Registry to send a copy of his judgment to the Legal Services Agency as that “denied access to justice” to Ms Chea. He made fairly extensive submissions on the facts of the matter, though accepting they were, at most, marginally relevant to the test for granting leave for a second appeal. He particularly stressed in his submission that it would be in the public interest to grant leave to Ms Chea to appeal in an area where the law in international domestic relations is in an “emergent state”, particularly as regards the international instruments mentioned.
[21] Mr Knight relied on the submissions he had earlier made to refute the submissions made on Ms Chea’s behalf. In particular, he submitted the international instruments were irrelevant to the exercise of a statutory discretion such as that conferred by s 82; that a number of the submission made on Ms Chea’s behalf were both factually irrelevant and incorrect; and that Harrison J was fully entitled to take the view he did concerning communication by the Registry with the Legal Services Agency. Of note, Mr Knight advised Ms Chea her legal advisers never sought discovery, gave notice of a wish to cross-examine, or invoked any other interlocutory step which might have advanced Ms Chea’s position.
Discussion and reasons for dismissing leave application
[22] Ms Chea’s second interim maintenance application was based on s 82 of the
Family Proceedings Act 1980, which reads:
82 Interim maintenance
(1)Where an application for a maintenance order or for the variation, extension, suspension, or discharge of a maintenance order has been filed, any District Court Judge may make an order directing the respondent to pay such periodical sum as the District Court Judge thinks reasonable towards the future maintenance of the respondent’s spouse, civil union partner, or de facto partner until the final determination of the proceedings or until the order sooner ceases to be in force.
(2)No order made under this section shall continue in force for more than 6 months after the date on which it is made.
(3)An order made under this section may be varied, suspended, discharged, or enforced in the same manner as if it were a final order of a Family Court.
[23] As both Judge Ryan and Harrison J observed, that section plainly confers an unfettered discretion as to whether an order should be made and the amount of an order with the decision turning on all the circumstances of the case (Webb et al Family Law Service, para 5.30, p 5, 602, 401 and cases there cited).
[24] In reaching his decision, Judge Ryan plainly acted in accordance with the discretion conferred by s 62, though holding that, because of the paucity of evidence put before him by the parties and the conflicts between them on factual issues, the appropriate result of the exercise of his discretion was to dismiss Ms Chea’s application. In doing so, he clearly – as he said – was unable to determine “where the truth of the matter lies”, having regard to the parties’ clash of views of the facts. As explained to Mr Orlov during the 12 November hearing, it is by no means an uncommon experiences for judges dealing with applications on affidavit evidence alone, to find themselves unable to determine factual matters because of differing versions of the facts put forward by deponents, even applying a “robust and realistic judicial attitude” to such matters (Bilbie Dymock Corporation Ltd v Patel (1987)
1 PRNZ 84, 86).
[25] However, it is impossible to equate a judge’s inability to resolve factual disputes on affidavits and thus arrive at a discretionary decision with a failure to exercise the discretion itself. That is the point taken, first by Judge Ryan, then by Harrison J, and that is a commonplace outcome unable to be elevated into a point of law of public or general importance sufficient to justify a second appeal in this matter.
[26] Further, where the Government of New Zealand has provided a statutory mechanism for spouses to apply for interim maintenance and for their cases to be judicially evaluated, it is not possible to argue that such a mechanism in some way engages the terms of the International Instruments on which Messrs Deliu and Orlov
rely or the provisions of s 27 of the NZ Bill of Rights Act 1990. It followed that no point of law of general or public importance arose from that submission.
[27] Turning to Harrison J’s direction concerning the Legal Services Agency – and the other evidential matters concerning legal aid which Mr Orlov mentioned – the short answer must be that, whether counsel for Ms Chea are being remunerated or not, the fact is she has been legally represented in the Family Court, before Harrison J and at the 12 November hearing, copious oral and written submissions being advanced on her behalf at every level.
[28] In those circumstances, there is no basis for Mr Orlov’s submissions that what has occurred in this case amounts to a denial of access to justice for Ms Chea. Thus no point of law or of general or public importance sufficient to justify a second appeal arose in that regard.
[29] The final reason for dismissing the leave application is related to a number of largely procedural points.
[30] In the first place, even had Ms Chea obtained an order for interim maintenance in her favour on 10 April 2008, it would, by now, have expired pursuant to s 82(4). Mr Orlov submitted it could have been renewed. He may be correct but, if so, such a course of action does not appear to come within s 82(5), nor is renewal of such orders mentioned in the text to which reference has been made.
[31] Further, had Ms Chea complied with Judge Ryan’s directions, by now her position concerning maintenance would either have been determined by the Family Court – taking account of the change in her personal circumstances mentioned earlier in this judgment – or would be close to being determined. There is no basis for giving leave for a second appeal against what is, essentially, a refusal to exercise in her favour a judicial discretion, and thus permit her to prolong what should have been a straightforward, expeditious determination of her entitlement.
[32] A third point – though one of admittedly lesser importance – is that the cost to the parties or to the Legal Services Agency of permitting what should have been
uncomplicated litigation of this sort to continue is likely now to be approaching the sum Ms Chea might have obtained in interim maintenance had an order been made in her favour. When, throughout, this has been a matter of the exercise of discretion in the face of conflicting factual accounts on affidavits and there is no point of principle involved, that, too, is a point militating against the granting of leave for a second appeal.
[33] Standing back and looking at this aspect of the matter overall, the conclusion is inescapable that Ms Chea’s second application for interim maintenance application to the Family Court for interim maintenance could, and should, have been capable of being dealt with in a straightforward fashion as could, by now, her application for final maintenance. But that process has become needlessly complicated and attenuated by the procedural steps taken by her or on her behalf, steps which have attempted to invoke expressions of high principle which, on examination, are unconnected to the exercise of discretion for which s 82 provides.
[34] In relation to all of the above, it is noted that, when asked, Mr Orlov was firm that every step taken on her behalf has been specifically discussed with Ms Chea and taken on her express instructions. In light of the firm terms of the various Court directions and judgments, it may be a possibility that she has not fully grasped all the nuances of the instructions she was giving.
Stay
[35] This matter can be dealt with briefly.
[36] As mentioned, Mr Deliu filed what Potter J described as “omnibus”
applications on 13 August 2008.
[37] Each of those applications raised different legal and factual issues and thus, for good reason, Potter J directed on 18 August 2008 that separate applications be filed with separate timetable orders leading to separate hearings for the widely varying applications. In particular, she directed that each of the three separate applications should be filed by 25 August 2008 with supporting affidavits.
[38] That has not occurred. As a result on 15 September 2008, Mr Knight filed applications to strike out or dismiss those applications (and amended his application on 26 September 2008).
[39] True, on 22 August 2008, Mr Deliu filed a memorandum seeking clarification of some of Potter J’s directions and also asking for a “direction as to what was wrong with my interlocutory application dated 13 August 2008”.
[40] The directions were clear on their face. No clarification was needed. Courts adjudicate on compliance with the Rules of documents filed by counsel, they do not advise counsel concerning the form of such documents.
[41] In those circumstances, there was no basis other than to conclude that there had been a failure on the part of Ms Chea and her counsel to comply with Potter J’s directions. Accordingly, on 12 November 2008, an order was made under r 258 staying both the recusal application and that seeking cross-examination of Mr Chan and his solicitors and counsel before costs were determined.
Respondent’s costs application
[42] On 15 September 2008, Mr Knight, on Mr Chan’s behalf, applied for an order requiring Ms Chea to pay Mr Chan’s costs on a solicitor/client basis (and amended that application on 26 September 2008).
[43] That application now requires to be timetabled for hearing, as follows:
a) Any affidavits in support of the application are to be filed and served by 21 November 2008.
b)Any notice of opposition and supporting affidavits are to be filed and served by 5 December 2008.
c) Any affidavits in reply are to be filed and served by
12 December 2008.
d)By 12 December 2008, counsel are to advise the Registry by letter of their estimate of the likely duration of the hearing. The file is then to be referred to Hugh Williams J for the setting of the fixture.
…………………………………
HUGH WILLIAMS J.
Solicitors:
Equity Law, P O Box 8333 Symonds Street, Auckland 1150, for intending appellantDennis Jay Gates, P O Box 222 Whangaparaoa
Counsel:
Ross C Knight, P O Box 2946 Shortland Street, Auckland 1140, for intended respondent
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