D v RMC - [2023] NZHC 1440

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 1440

BETWEEN
D

Plaintiff

AND

RMC

Defendant

Hearing: On the papers

Parties:

Plaintiff in person Defendant in person

Judgment:

9 June 2023

JUDGMENT OF GAULT J

(Application to lift stay)

This judgment was delivered by me on 9 June 2023 at 4:00 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar

……………………………………

Parties:
The Plaintiff The Defendant

D v RMC [2023] NZHC 1440 [9 June 2023]

[1]D applies to remove (lift) the stay in force in this proceeding.

[2]The parties agreed that this application is to be determined on the papers.

Background

[3] Following acrimonious proceedings in the Family Court between D and her former partner under the Care of Children Act 2004 in which RMC was appointed as counsel for the children, D complained to the New Zealand Law Society (NZLS) about RMC’s conduct. The NZLS decided not to act on the complaint. The NZLS considered it more appropriate for D to use the specialised Family Court complaints process. A Family Court Judge reviewed D’s complaint and decided that RMC had not engaged in misconduct and rejected the complaint.

[4] Among the various legal proceedings D has pursued as a result of the Care of Children Act proceedings, in 2020 she commenced a proceeding in this Court against the NZLS and RMC (the judicial review proceeding). That proceeding concerned D’s complaints to the NZLS about RMC’s conduct in her capacity as lawyer for the children and NZLS’s response to the complaints.

[5] On 9 June 2021, D commenced this proceeding against RMC and applied for summary judgment. The proceeding seeks summary judgment, including substantial damages, in relation to a claim in tort against RMC “for failing her duty of candour”.

[6] The registry referred this proceeding to Jagose J as Duty Judge under r 5.35A of the High Court Rules 2016.

[7] On 2 July 2021, Jagose J delivered a judgment in which he referred to D’s earlier judicial review proceeding against the NZLS and RMC. Toogood J’s judgment on an application to strike out that claim was reserved. Given that, Jagose J was satisfied that bringing this proceeding in parallel was an abuse of process. However, given there remained a possibility that the judicial review proceeding would be struck out, Jagose J considered that rather than striking out this proceeding the better course was to stay it.

[8] Jagose J therefore:1

(a)

ordered:

(i)       this proceeding is stayed until further order;

(ii)      documents for service be kept by the court and not be served until the stay is lifted;

(iii)     no application to lift the stay be heard until…

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 1440
Case: [2023] NZHC 1440
Decision Date: 9 June 2023

CaseChat Overview and Summary

D, the Plaintiff, applied to lift a stay imposed on proceedings against RMC, the Defendant, in the High Court of New Zealand. The stay was imposed by Jagose J under rule 5.35B of the High Court Rules 2016, finding the proceedings to be an abuse of process due to their parallel existence with a judicial review proceeding also involving RMC. The Court of Appeal subsequently upheld the strike out of the judicial review proceeding, deeming the underlying tort claim untenable and potentially vexatious. D's application to lift the stay was heard on the papers, with RMC opposing the lifting of the stay on the basis that the tort claim against her lacks merit and that D is attempting to relitigate old complaints.

The court considered the merits of the underlying tort claim, concluding that it is untenable as the duties of a lawyer appointed by the Family Court to act for children are owed to the Court and the children, not to the other parties. The claim was deemed vexatious by the Court of Appeal, which found that D was seeking to relitigate complaints that had already been heard and determined in the correct forum. The court found that the proceedings should not proceed as they constitute an abuse of process.

The application to lift the stay was dismissed. If RMC seeks costs, a memorandum (not exceeding three pages) is to be filed within 20 working days, with a response within a further 10 working days, and the court will determine costs on the papers.

Orders