Christison v Manukau District Court

[2023] NZHC 397

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-001235

CIV-2023-404-000359 [2023] NZHC 397

UNDER

HIGH COURT RULES 2016 AND

THE NEW ZEALAND BILL OF RIGHTS ACT 1990, s 14 AND s 27

IN THE MATTER OF

MARIKA CHRISTISON v MANUKAU DISTRICT COURT & ORS

BETWEEN

MARIKA CHRISTISON

Appellant

AND

MANUKAU DISTRICT COURT

First Respondent

TEREAPII PARENGA [aka GEORGE]
Second Respondent

ORANGA TAMARIKI
Third Respondent

NICUSOR OANCEA

Fourth Respondent

Hearing:	On the papers at Auckland
Judgment:	6 March 2023

JUDGMENT OF POWELL J

[Consideration under r 5.35B of the High Court Rules 2016]

Solicitors:

Rachel Dewar Law, Wellington

Copy to:

M Christison

MARIKA CHRISTISON v MANUKAU DISTRICT COURT [2023] NZHC 397 [6 March 2023]

[1]    The Registrar has referred these proceedings to me for consideration under Rule 5.35B of the High Court Rules 2016 in order to assess whether the proceeding is plainly an abuse of the process of the Court.

[2]    The proceedings have been filed by Marika Christison and purport to be a “Urgent without notice appeal on papers to quash Judge Mahons decision dated 27 Feb 2023 preventing my filing of evidence for final Family Court proceedings, filed without notice under 7.23 HCR 2016”.

[3]    It appears that Ms Christison has proceedings in the Family Court at Manukau which are due to be heard between 14-16 March 2023.1 Although Ms Christison referred to a decision of Judge AG Mahon dated 27 February as being the decision she wishes to challenge, her supporting documents annex a memorandum of Judge Mahon dated 24 February 2023 issuing various procedural directions. It is the decisions in this memorandum that appear to be in issue. Judge Mahon issued his directions in response to a memorandum filed by Ms Christison. Ms Christison has taken issue with a number of the directions. In particular, the decision declining leave to file further evidence prior to the substantive hearing.

[4]    Generally, an appeal to the High Court is dealt with pursuant to Part 20 of the High Court Rules. Rule 20.6 provides that an appeal is brought when a notice of appeal has been filed in the High Court and served on every other party directly affected by the appeal. The contents of the notice of appeal are specified by r 20.9(1) and require the notice of appeal to:

(1)Unless the court otherwise directs, a notice of appeal must—

(a)    have a heading stating the full name and description of each party and referring to the enactment under which the appeal is brought; and

(b)    specify the decision or part of the decision appealed against; and

(c)    specify the grounds of the appeal in sufficient detail to fully inform the court, the other parties to the appeal, and the decision- maker of the issues in the appeal; and

1 FAM-2016-092-000534 and FAM-2016-092-000535.

(d)    specify the relief sought.

[5]    Nothing  in  Part  20  permits  an  appeal  to  be  brought  without   notice.  Ms Christison’s reliance on Part 7 of the High Court Rules and r 7.23 in particular is accordingly misconceived.

[6]    As well as these procedural issues it is noted that Ms Christison’s substantive proceedings in the Family Court appear to have been brought pursuant to the Oranga Tamariki Act 1989. Rights to appeal in respect of proceedings brought under this Act are restricted by the operation of s 341 of that Act which provides:

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

(a)    make or refuse to make an order (other than an interlocutory or interim order); or

(b)    dismiss the proceedings; or

(c)    otherwise finally determine the proceedings.

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

(3)A party to proceedings under this Act in the Family Court in which an interlocutory or interim order is made, a child or young person to whom the proceedings relate, or any other person prejudicially affected by the order, may, with the leave of the Family Court, appeal to the High Court against the order.

(4)An appeal under this section may be from the whole or part of the decision or order concerned.

[7]    Section 341(1) also acts as a restriction on the powers to appeal contained in s 124 of the District Court Act 2016.2 As a result, because none of the matters determined by Judge Mahon come within s 341(1) – as any orders were, at most, of an interlocutory nature only, it means that it is not possible for Ms Christison to bring an appeal against Judge Mahon’s directions.

2      See District Court Act 2016, s 124(1)(a).

[8]    The combination of the procedural flaws in Ms Christison’s proceedings and the restriction on the right of appeal means that the proposed appeal is not capable of rectification. To allow Ms Christison’s proceedings to be served would plainly be an abuse of process in terms of rr 5.35A and 5.35B of the High Court Rules. There is therefore no alternative but to strike out the proceedings and I do so.

[9]    A copy of this judgment is to be provided to Judge Mahon and the other parties in the Family Court Proceedings.

[10]   As Ms Christison has not been given the opportunity to be heard on these matters, I confirm that in accordance with r 5.35B(3) Ms Christison has the right to appeal against this decision.

Powell J