Clark v Williams

[2022] NZHC 3205

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2021-409-000469

[2022] NZHC 3205

IN THE ESTATE

of WILLIAM JOHN ROBERTSON CLARK

BETWEEN

JOHN ROBERTSON CLARK

Plaintiff

AND

ROBYN LISBETH WILLIAMS

First Respondent

AND

MONIQUE NANCYE PHILLIPS SELFE

Second Respondent

Hearing:

On the papers

Counsel:

P J Stevenson for the Plaintiff

M J McKay for the Second Defendant

Judgment:

1 December 2022

JUDGMENT OF NATION J

[1]                 William Clark (Will) was killed in a car crash on 25 September 2021. He was 29 years old at the time. Will had been in a relationship with Monique Selfe before his death. Following Will’s death, there were issues between his parents and Monique as to what funeral arrangements would be appropriate and what should be on Will’s death certificate.

[2]                 In October 2021, Will’s father, John Clark, filed a statement of claim for the grant of letters of administration and, on an on notice basis, an application for an injunction so appropriate arrangements could be made for Will’s funeral.

CLARK v WILLIAMS [2022] NZHC 3205 [1 December 2022]

[3]                 After a conference with the parties, I issued a judgment in draft setting out orders which were intended to record agreed funeral arrangements. Counsel for the parties confirmed such orders were appropriate. The orders largely related to agreed funeral arrangements, but also included:1

(j)    in the exercise of the Court’s inherent jurisdiction, I direct:

i.Lamb & Hayward are to notify the Registrar of Births, Deaths and Marriages of the death of William John Robertson Clark within three days of his cremation;

ii.the information provided to the Registrar of Births, Deaths and Marriages and any death certificate completed on the basis of that information is to show the parents of William John Robertson Clark but is to be blank as concerns a spouse/partner;

iii.the Registrar of Births, Deaths and Marriages is to hold the certificate so provided on an interim basis and subject to that certificate being replaced with a certificate showing his spouse/partner if and when an issue as to that has been determined by the High Court; and

iv.no copy of the interim death certificate is to be released to any party or the Registrar of Births, Deaths and Marriages without a direction to do so from the High Court.

[4]                 The proceedings in which Will’s father sought letters of administration remained before the Court.

[5]                 In a minute of 22 November 2021, Mander J noted that the parties had identified the prime issue in dispute was who qualified as the deceased’s next of kin.

[6]                 There was a judicial settlement conference on 14 September 2022 before Associate Judge Paulsen.

[7]                 There was a telephone conference before the Associate Judge on 26 October 2022. In a minute following the conference, Associate Judge Paulsen noted that the parties had filed a joint memorandum seeking consent orders. He said the consent orders appeared to be generally appropriate, but he did not feel able to make them because of the proposed order reading:

1      Re Clark [2021] NZHC 2873 at [11].

(Pursuant to the inherent jurisdiction of the High Court), the orders of Nation J in his reserved judgment dated 28 October 2021, [11] (j)(iii) and (iv) are discharged, with immediate effect.

[8]                 The Associate Judge was concerned as to whether the Court, in its inherent jurisdiction, could discharge orders which had been perfected by sealing. He asked for written submissions from counsel supporting the existence of inherent jurisdiction to make such orders and directed that, once the submissions had been filed, the file should go immediately to Nation J to decide whether to make the orders sought or to refer the matter back to Associate Judge Paulsen.

[9]                 On 8 November 2022, counsel for John Clark and Monique Selfe filed a joint memorandum. They submitted a full High Court Judge would have jurisdiction to discharge the relevant orders for two independent reasons, being:

(a)        the relevant orders of Nation J were continuing orders rather than final orders and circumstances have changed since they were made which warrant discharge of the orders; and

(b)       the relevant orders of Nation J were made by consent (albeit pursuant to the inherent jurisdiction of the Court) and are now sought to be discharged by consent.

[10]             Counsel helpfully referred to the way courts have recognised that the High Court has an inherent jurisdiction to set aside an order that can properly be described as a nullity but how the Court has no general jurisdiction to generally rehear and reconsider final orders as to which a court is functus officio.2 They also referred to the way Judges have recognised the Court retains a supervisory jurisdiction in respect of continuing orders such as an interim injunction until the resolution of a substantive proceeding.3

2      R v Nakhla (No 2) [1974] 1 NZLR 453 (CA) 455; Re Victim X [2003] 3 NZLR 220 (CA) at [14];

and Foodtown Supermarkets v Tse (1987) 2 PRNZ (HC) 545 at 546.

3      Foodtown Supermarkets v Tse, above n 2, at 546; and Ryde Holdings Ltd v Sorenson (1995) 8 PRNZ 339 at 345.

[11]             The parties’ settlement agreement records, amongst other matters, that the parties had agreed on a plaque for Will’s ash burial plot at the Yaldhurst Cemetery and the wording that would be on that plaque. They had also agreed as to a named solicitor being appointed as administrator of Will’s estate. They agreed that Monique Selfe would not be referred to or named as Will’s next of kin on his final death certificate. They also agreed that:

… they will not rely upon or use Will’s final death certificate to obtain funds or any other benefit and acknowledge that any funds otherwise payable to Will’s “next of kin”, whether from ACC or an insurer (whether in relation to Sanfords, Heartland Bank lending or otherwise), shall be paid to Will’s estate to be distributed in accordance with [the settlement agreement].

[12]             I consider the orders in [11](j)(iii) and (iv) of my earlier judgment were of an interim nature, pending resolution or determination of the substantive issues. I accept, as counsel submitted, that the 28 October 2021 orders no longer serve a purpose.

[13]             I consider that the proposed order to discharge the orders in [11](j)(iii) and (iv) is not an order which ceases to nullify the effect of those orders. Those orders were in the nature of interim orders pending resolution of the issues to which they related. Those issues have now been resolved. The original orders have been given effect to. The proposed order is to discharge them so no party or the Registrar of Births, Deaths and Marriages will be bound by those orders any longer. I do not consider the proposed agreed order requires the Court to set aside a previous sealed order as if it had no effect.

[14]             Having read the settlement agreement of the parties dated 13 October 2022 and the joint memorandum of counsel and the first defendant filed 25 October 2022, I accordingly make orders by consent as set out in para [5] of that joint memorandum. On the making of those orders, these proceedings will be discontinued. There are no orders as to costs.

Solicitors:

P J Stevenson, Barrister, Auckland M J McKay, Barrister, Christchurch

Copy to:
Robyn Williams, First Respondent.