D v RMC

Case [2023] NZHC 1931 21 July 2023

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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

https://

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…

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] NZHC 1931
Case: [2023] NZHC 1931
Decision Date: 21 July 2023

CaseChat Overview and Summary

D sought leave to appeal the High Court's decision of 9 June 2023 declining to lift the stay in force in the proceedings. The appeal was heard on the papers, as RMC did not oppose D's application. The court determined that a hearing was not required for this interlocutory application. The court found that the application to lift the stay was an interlocutory application as defined, and therefore, leave was required to appeal the interlocutory decision of 9 June 2023. The principles governing interlocutory appeals were considered, and it was found that D had not identified an arguable error of law or fact in the court's decision declining to lift the stay. The court concluded that the interests of justice were not served by granting leave to appeal. Therefore, leave to appeal was declined.

Orders