D v RMC

[2023] NZHC 1931

NOTE: PENDING FURTHER ORDER OF THE COURT, PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE

FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-1171

[2023] NZHC 1931

BETWEEN

D

Plaintiff

AND

RMC

Defendant

Hearing:

On the papers

Parties:

Plaintiff in person

No appearance by or for the Defendant

Judgment:

21 July 2023

JUDGMENT OF GAULT J

This judgment was delivered by me on 21 July 2023 at 4:00 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………………

Parties / Solicitors: The Plaintiff

The Defendant

D v RMC [2023] NZHC 1931 [21 July 2023]

[1]                 D seeks leave to appeal this Court’s judgment of 9 June 2023 declining to lift the stay in force in this proceeding.1

Background

[2]                 The background is set out in the judgment of 9 June 2023 at [3]-[20] and need not be repeated here.

Court’s judgment of 9 June 2023 declining to lift stay

[3]                 Having identified the nature of the stay granted by Jagose J on 2 July 2021 under r 5.35B of the High Court Rules 2016, this Court’s 9 June 2023 decision referred to the appeals against Jagose J’s decision and in particular to the Court of Appeal’s decision which concluded that:2

The underlying tort claim is untenable. The duties owed by a lawyer appointed by the Family Court to act for children are owed to the Court and to the children, not to the other parties.   The claim is not only untenable,     it appears to be vexatious, as is the current appeal.

[4]                 After referring to D’s unsuccessful application for leave to appeal the Court of Appeal’s decision to the Supreme Court, I concluded:3

[26]      Thus, subsequent to Jagose J’s stay under r 5.35B on the ground of abuse of process, the Court of Appeal has considered the merits of [D]’s tort claim and concluded it is untenable. In these circumstances, there is no point in lifting the stay on the basis that it was imposed pre-service under r 5.35B and that the merits should be addressed on a separate strike out application which may be made by [RMC]…

[27]      Further, the Court of Appeal also concluded that the claim appears to be vexatious. I accept [RMC]’s submission that [D] is seeking to relitigate her complaints that have been heard and determined in the correct forum and that this proceeding is an abuse of process. It should not proceed.

Form of dealing with the application for leave to appeal

[5]RMC has not opposed D’s application.

1      D v RMC [2023] NZHC 1440.

2      D v RMC [2022] NZCA 562 at [11].

3      D v RMC [2023] NZHC 1440 at [26].

[6]                 D opposes “a decision in chambers”, which I take to mean she opposes a determination on the papers, but she has also repeatedly asked for the matter to be progressed.

[7]                 A preliminary issue arises as to whether a hearing is required. The High Court Rules 2016 do not specify when a hearing is required for an interlocutory application,4 except to provide specifically that a hearing is not required if a respondent consents or does not oppose the making of an order.5 As Venning J said in Jones v New Zealand Bloodstock Finance and Leasing Ltd:6

Generally a hearing date will be allocated by the Registrar for an interlocutory application.7 However, as Miller J  noted in  Party Bus  Company Ltd v A-G a hearing is not always required for interlocutory applications, particularly where the application is for leave to appeal.8 As the Judge said:9

On occasions the objective of the Rules can be met by a decision on the papers. A hearing is frequently unnecessary on a leave to appeal application because the judge is already familiar with the file and such applications are usually of narrow compass. They turn on the usually straightforward question whether there is an issue of sufficient importance to warrant the attention of the Court of Appeal.

[8]                 In Jones, Venning J determined that the applications did not require a hearing, particularly given the procedural background and the extant appeal before the Court of Appeal.10 The procedural background was important.

[9]                 Similarly, I consider that a hearing is not required in relation to this application for leave to appeal. D has fully set out in writing her complaints about the judgment (and other matters).11 An oral hearing would only delay her application for leave. Also, as the background set out in the 9 June 2023 judgment indicates, the stay in this proceeding has already been the subject of appeals and this proceeding is one of various legal proceedings D has pursued as a result of Care of Children Act proceedings. It is appropriate to determine the application for leave on the papers.

4      High Court Rules 2016, r 7.34.

5      Rule 7.37.

6      Jones v New Zealand Bloodstock Finance and Leasing Ltd [2022] NZHC 93 at [8].

7      High Court Rules 2016, r 7 .33.

8      The Party Bus Company Ltd v Attorney-General [2012] NZHC 445.

9 At [7].

10     Similarly, in Faloon v Palmerston North Airport Ltd [2013] NZHC 3325 the Court refused an application for leave to appeal decisions dismissing interlocutory applications without a hearing.

11     In memoranda dated 10 June and 7 July 2023, and miscellaneous emails.

Is leave to appeal required?

[10]             On receipt of this Court’s decision on 9 June 2023, D immediately sought to appeal to the Court of Appeal. However, the Court of Appeal registry replied to her stating that the appeal was not accepted for filing as there is no right of appeal against an interlocutory application pursuant to s 56(3) of the Senior Courts Act 2016 (SCA).12 The Court of Appeal registry advised D that she would therefore need to apply for leave to appeal in the High Court (which she had also already done).

[11]Section 56 of the SCA relevantly provides:

(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.

(4)Any party to any proceedings may appeal without leave to the Court of Appeal against any order or decision of the High Court—

(a)striking out or dismissing the whole or part of a proceeding, claim, or defence; or

(b)granting summary judgment.

[12]The term “interlocutory application” is defined in s 4(1) of the SCA:

interlocutory application—

(a)means any application to the High Court in any civil proceedings or criminal proceedings, or intended civil proceedings or intended criminal proceedings, for—

(i)an order or a direction relating to a matter of procedure; or

(ii)in the case of civil proceedings, for some relief ancillary to that claimed in a pleading…

[13]             I consider that D’s application to lift the stay was an interlocutory application as defined. An order lifting a stay is an order relating to a matter of procedure.13 Subsection (4) applies to strike out or dismissal but does not apply to a decision

12     Minute (No. 2) of Gault J dated 29 June 2023.

13     Kidd v van Heeren HC Auckland CIV-2004-404-6352, 16 November 2006 at [15], in relation to the similar definition of “interlocutory order” in the (previous) High Court Rules.

declining to lift a stay. Therefore, leave is required to appeal the interlocutory decision of 9 June 2023.

Applicable principles for interlocutory appeals

[14]             The principles governing interlocutory appeals are well established. They were summarised by the Court of Appeal in Tomar v Tomar:14

[6]        In Finewood Upholstery Ltd v Vaughan, Fitzgerald J appropriately observed that the requirement for leave to appeal should serve as a filtering mechanism to ensure that unmeritorious appeals of interlocutory orders, or appeals of interlocutory orders of no great significance to either the parties or more generally, do not unnecessarily delay the proceedings in which the orders were made.15 The following considerations were recognised as relevant on an application for leave to appeal:16

(a)A high threshold exists.

(b)The applicant must identify an arguable error of law or fact.

(c)The alleged error should be of general or public importance warranting determination or otherwise of sufficient importance to the applicant to outweigh the lack of general or precedential value.

(d)The circumstances must warrant incurring further delay.

(e)The ultimate question is whether the interests of justice are served by granting leave.

[7]        This Court in Ngai Te Hapu Inc v Bay of Plenty Regional Council indicated that considerations similar to the principles applicable to applications under the former s 24G of the Judicature Act 1908, as explained in Meates v Taylor [Leave],17 apply to applications under s 56(5) of the Senior Courts Act, stating:18

We agree that leave to appeal should only be granted where the significance or implications of an arguable error of fact or law, either for the particular case or for the applicant or as a matter of precedent, warrants the further delay which the appeal process would involve.

[15]             In Simons v ANZ Bank New Zealand Ltd,19 Venning J observed that the nature of the application and the potential effect of the judgment support a lesser threshold for leave in a case concerning an appeal against a decision declining an application for

14     Tomar v Tomar [2021] NZCA 419.

15     Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [13].

16     At [9] and [14], citing A v Ministry of Internal Affairs [2017] NZHC 887.

17     Meates v Taylor (1992) 5 PRNZ 524 (CA) at 526.

18     Ngai Te Hapu Inc v Bay of Plenty Regional Council [2018] NZCA 291 at [17].

19     Simons v ANZ Bank New Zealand Ltd [2022] NZHC 2842 at [7].

leave to sue as a representative plaintiff. In Mathias v Earthquake Commission¸20 concerning a similar application for leave to sue as a representative plaintiff, Associate Judge Lester agreed, noting that Venning J’s approach is consistent with the need to assess whether the interests of justice are served by granting leave. More recently, in Singh v Body Corporate 207650,21 Associate Judge Lester took a similar approach, this time in the context of an application for leave to appeal a judgment declining to lift a stay of proceedings. He was mindful that the decision was practically a final determination of the applicant’s ability to pursue her proceeding.22

[16]             I agree that, at least in the application of the approach to leave to appeal and the interests of justice, it is appropriate to take into account that in the circumstances of this case the effect of declining to lift the stay is in a practical sense to finally determine the proceeding by staying it indefinitely.

D’s submissions

[17]             D seeks leave to appeal on the basis that the stay has obstructed her right to justice and that none of the matters regarding RMC’s “offending” have ever been heard. She also submits this Court erred at [27] of the judgment which, as indicated, stated that the Court of Appeal also concluded that the claim appears to be vexatious, and stated this Court’s conclusion that D was seeking to relitigate her complaints that have been heard and determined in the correct forum and this proceeding is an abuse of process which should not proceed.

[18]             D also appears to challenge this Court’s acceptance of RMC’s notice of opposition and affidavit after the date directed.23

[19]             In addition, D criticises this Court’s anonymisation of RMC’s name and refusal to refer the matter to an impartial court, which I apprehend is reference to my earlier minute declining to recuse myself.24

20     Mathias v Earthquake Commission [2023] NZHC 705 at [21].

21     Singh v Body Corporate 207650 [2023] NZHC 1269.

22     At [13]-[14].

23     D alleges this involved knowingly misleading the Court and fabricating an “email storage issue”, which she says is being addressed in the Christchurch criminal court.

24     D v RMC HC Auckland CIV-2021-404-1171, 20 April 2023.

[20]             D relies on various High Court rules, the New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993.

[21]             D also alleges prejudice on the part of the Auckland High Court and seeks leave for the Court of Appeal “to take over these proceedings by way of appeal”. D says she would support a transfer of the matter in its entirety.

[22]             D also seeks a transcript of the first call of her application to lift the stay (on 18 April 2023).

Discussion

[23]             Dealing first with the request for a transcript of the procedural first call of the application to lift the stay, transcripts of hearings are only provided if there is good reason in the interests of justice.25 Given that D was able to pursue her application to lift the stay, and then for leave to appeal, making reference to that first call as she considered appropriate, there is no need or good reason in the interests of justice for a transcript of the procedural first call to be provided.

Arguable error?

[24]             Turning to the substantive application for leave to appeal, I cannot identify among D’s submissions an arguable error in this Court’s decision declining to lift the stay. The merits of D’s claim have already been considered by the Court of Appeal. The Court of Appeal clearly concluded that D’s underlying tort claim is untenable.

[25]             D’s further submissions alleging a history of obstruction of justice in other matters are irrelevant and misconceived. They relate to my strike out of an earlier proceeding on 4 April 2022. As indicated in my minute declining recusal in this proceeding, D’s appeal against that judgment in the earlier proceeding was dismissed by the Court of Appeal,26 an application for recall of the Court of Appeal decision was also declined,27 and D’s application for leave to appeal to the Supreme Court was

25     Siemer v Heron (Recusal) [2011] NZSC 116, [2012] 1 NZLR 293 at [9].

26     D v Auckland High Court [2022] NZCA 478.

27     D v Auckland High Court [2022] NZCA 623.

dismissed.28 In addition, D’s submission as to alleged conflict of interest and requests for information under the Official Information Act 1982 are misconceived.

General or public importance?

[26]             Even if an arguable error had been identified, there is no issue of general or public importance. The issue is clearly important to D given the various legal proceedings she has pursued, but this does not outweigh the lack of general or precedential value justifying a further appeal.

Interests of justice

[27]             I accept that delay is not an issue in this case as it may be when an interlocutory appeal holds up progress of a substantive proceeding. However, the interests of justice in this case are not served by granting leave to appeal. The untenable claim against RMC should not proceed.

Result

[28]Leave to appeal is declined.

Gault J

28     D v Auckland High Court [2023] NZSC 3.