D v RMC - [2023] NZSC 6

NOTE: HIGH COURT ORDER PROHIBITING PUBLICAITON OF NAMES AND IDENTIFYING PARTICULARS OF THE APPLICANT AND FIRST RESPONDENT REMAINS IN FORCE: [2021] NZHC 2080.

NOTE: PURSUANT TO S 182 OF THE FAMILY VIOLENCE ACT 2018, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 126/2022
[2023] NZSC 6

BETWEEN	D (SC 126/2022) Applicant
AND	RMC First Respondent
ATTORNEY-GENERAL Second Respondent
FAMILY COURT AT MANUKAU Third Respondent

Court:	Glazebrook, Williams and Kós JJ
Counsel:	Applicant in person D Jones and N D White for Second and Third Respondents
Judgment:	17 February 2023

JUDGMENT OF THE COURT

A The application for leave to appeal is dismissed.
B The applicant must pay the respondents costs of $2,500.

____________________________________________________________________

REASONS

Introduction

Ms D seeks leave to appeal against the Court of Appeal decision of DFT v RMC.[1] In DFT v RMC, the Court of Appeal declined an application for an extension of time to appeal against two High Court judgments: DFT v RMC (first High Court judgment) and DFT v Attorney‑General (second High Court judgment).[2]

First High Court judgment

[1]DFT v RMC [2022] NZCA 562 (Miller and Gilbert JJ) [CA judgment].

[2][DFT] v [RC] [2021] NZHC 1633 (Jagose J) [first HC judgment]; and [DFT] v Attorney-General [2021] NZHC 1670 (Lang J) [second HC judgment].

RMC was appointed by the Family Court to act for Ms D’s children. Ms D filed proceedings in the High Court against RMC, describing the proceedings as a claim of “tort against [RMC] for failing her duty of candour”.[3] Ms D had previously issued judicial review proceedings against the New Zealand Law Society and RMC. The High Court described Ms D’s “tort claim against RMC” as a “parallel proceeding … against [RMC] and an “abuse of this Court’s processes”.[4] While the Court considered whether to strike out the proceedings, it ultimately decided to stay the proceedings until after the judicial review claim against the New Zealand Law Society and RMC was finally determined.[5]

Second High Court judgment

[3]First HC judgment, above n 2, at [3].

[4]At [6].

[5]At [8]. The judicial review claim against the New Zealand Law Society and RMC was later struck out in its entirety by the High Court: see DFT v New Zealand Law Society [2021] NZHC 2080 at [46].

In this proceeding, Ms D sought damages in tort against the Attorney-General and a Family Court Judge alleging “professional negligence and misbehaviour” on the part of the Judge. She claimed that the Attorney-General was vicariously liable for acts done by judges in their professional capacity.[6] Both claims were struck out by the High Court.[7]

Background

[6]Second HC judgment, above n 2, at [1].

[7]At [4].

When Ms D filed her appeal against the first High Court judgment, she sought an order to dispense with security for costs. The Deputy Registrar declined this.…

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 D v RMC

Details

AGLC: D v RMC [2023] NZSC 6
Case: [2023] NZSC 6
Decision Date: 17 February 2023

CaseChat Overview and Summary

In the Supreme Court of New Zealand, Ms D sought leave to appeal against a Court of Appeal decision which declined an application for an extension of time to appeal against two High Court judgments. The first judgment involved proceedings brought by Ms D against RMC, a lawyer appointed by the Family Court to act for her children. The second judgment involved proceedings brought by Ms D against the Attorney-General and a Family Court judge. The Court of Appeal declined to extend the time for appeal on the basis that Ms D's claims were untenable and vexatious. The legal issues before the Supreme Court were whether there was any wider general or public importance to the proposed appeal, and whether there was a risk of a miscarriage of justice. The Supreme Court found that the proposed appeal did not have any wider general or public importance and that there was no risk of a miscarriage of justice. The application for leave to appeal was dismissed and the applicant was ordered to pay the respondents costs of $2,500. This decision highlights the importance of the principles of finality and efficiency in the appellate process, and the need to ensure that appeals are not brought solely for the purposes of delay or harassment.

Orders