D v Family Court at Manukau
[2023] NZHC 1853
•17 July 2023
NOTE: ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980.
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ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE APPLICANT AND SECOND RESPONDENT.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2020-404-1800
[2023] NZHC 1853
UNDER The Judicial Review Procedure Act 2016 Family Court Care Act 1980
Care of Children Act 2004IN THE MATTER OF
An application for Judicial Review
BETWEEN
D
Applicant
AND
FAMILY COURT AT MANUKAU
First Respondent
AND
N
Second Respondent
Hearing: On the papers Judgment:
17 July 2023
JUDGMENT OF HARLAND J
D v FAMILY COURT AT MANUKAU [2023] NZHC 1853 [17 July 2023]
Introduction
[1] D has applied for leave to appeal to the Court of Appeal against my decision dated 13 June 20231 dismissing her application requesting access to the transcripts of a judicial review hearing held in the High Court before me on 19 July 2021.2
[2] In the judicial review proceedings, D sought to review two decisions made by Judge Mahon in relation to applications filed by D after the Family Court’s final parenting and other related orders were made by Judge Adams.3 The application for judicial review was dismissed but for an order by the Judge in relation to communications with the Family Court Registry, which I set aside.4
[3] On 4 April 2023, D requested to have access to the audio or a transcript of the judicial review proceedings. I dismissed this application after considering the time and expense that would be involved in providing the audio recording and transcript, and D’s failure to establish a sufficient basis both for requiring a transcript to be produced and to justify making time available for D to listen to the audio recording.5 It is this decision D now seeks leave to appeal to the Court of Appeal.
The application
[4] D seeks leave to appeal under rr 11.16 and 20.22 of the High Court Rules 2016 (the Rules). She submits the court transcripts contain information paramount to the merits of the case under appeal in the higher courts and that the refusal to grant access to them breaches her rights not to be subjected to cruel treatment, of freedom from discrimination, and of natural justice.6 D submits the refusal was made to conceal the truth.
Discussion
[5]Rule 20.22 of the Rules provides:
1 D v Family Court at Manukau [2023] NZHC 1467.
2 D v Family Court at Manukau [2021] NZHC 2326.
3 N v D [2020] NZFC 7185.
4 Above n 3, at [95] and [99].
5 Above n 1, at [11].
6 New Zealand Bill of Rights Act 1990, ss 9, 19 and 27.
20.22 Applications for leave
(1)This rule applies when an enactment provides that a decision of the court may be appealed to the Court of Appeal with leave of the court.
(2)If this rule applies, an application for leave to appeal must be made to the court within 20 working days after the decision is given.
(3)A respondent who wishes to cross-appeal must apply for leave to cross-appeal within 10 working days after the date on which a copy of the application under subclause (2) is served on the respondent.
(4)An application for leave to appeal under subclause (2) or to cross- appeal under subclause (3) must be made by interlocutory application.
[6] Pursuant to r 20.22(1), an enactment must provide that a decision of the court may be appealed to the Court of Appeal with leave of the court.
[7] The relevant provision is s 56(3) of the Senior Courts Act 2016. In context, it reads:
56 Jurisdiction
(1)The Court of Appeal may hear and determine appeals—
(a) from a judgment, decree, or order of the High Court:
(b) under the Criminal Procedure Act 2011.
(c) from any court or tribunal under any other Act that confers on the Court of Appeal jurisdiction and power to hear and determine an appeal.
…
(3)No appeal, except an appeal under subsection (4), lies from any order or decision of the High Court made on an interlocutory application in respect of any civil proceeding unless leave to appeal to the Court of Appeal is given by the High Court on application made within 20 working days after the date of that order or decision or within any further time that the High Court may allow.
[8] The refusal to grant access to the court transcripts was an interlocutory decision and r 20.22 is applicable given the jurisdiction created by s 56(3). The application was made within the specified timeframe.
[9] D’s previous application for the court transcript was unclear as to why the request was being made when her leave to apply for an extension of time to appeal the
judicial review judgment had been refused. No further reasoning has been provided here. D is equally unclear as to the grounds upon which she seeks leave to appeal. There is no allegation of an arguable error of law or fact, and her allegation that the refusal to grant access to the transcripts amounts to concealing the truth or evidence lacks any evidential foundation.
[10] This is not the type of application that warrants the attention of the Court of Appeal, particularly when considering the avenue provided to apply for appeal to leave operates as a filtering mechanism. D does not have an automatic right to appeal and there is not a sufficient basis to grant leave.
Result
[11]The application for leave to appeal is dismissed.
Harland J
Solicitors:
G Taylor and A Lawson, Crown Law V McCall, Crown Law.
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