DENNING AND ROBERTS

[2024] NZHC 3734

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2023-409-397 CIV-2023-409-398

CIV-2023-409-399 [2024] NZHC 3734

BETWEEN

DENNING

Appellant

AND

ROBERTS

Respondent

Hearing:	On the papers
Appearances:	Appellant self represented C E Finn for Respondent
Judgment:	9 December 2024
Reissued:	4 August 2025

JUDGMENT OF EATON J

This judgment was delivered by me on …….. at ……… pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

DENNING v ROBERTS [2024] NZHC 3734 [9 December 2024]

Introduction

[1]    Ms Denning has filed three notices of appeal. She appeals decisions of the Family Court. For case management purposes the appeals are being considered together. In relation to each of the appeals Ms Denning has made an application for waiver of security for costs and in relation to one, she seeks leave to appeal out of time.

[2]    Ms Denning did not attach any of the decisions under appeal when she filed her notice of appeal, having identified the decisions under appeal by reference only to dates.   She has not filed copies of the decisions under appeal.   That is in breach of   r 20.0(5) of the High Court Rules 2016 and has occasioned delay.

The three appeals

[3]I briefly summarise the three appeals.

CIV-2023-409-397 (397)

[4]    By way of notice of appeal dated 7 August 2023, Ms Denning appeals the decision of the Family Court dated 21 July 2023 which she says declined her access to a full and complete  copy  of  the  Care  of  Children  Act  2004  (COCA)  file.  Ms Denning says that the  decision  appealed  also  includes  related  decisions  of  18 October 2021, 12 April 2023 and 12 July 2023.

[5]    Decisions with those dates concerning the matters alleged do not exist. What Ms Denning is likely to be referring to is:

(a)a minute of Judge Duggan dated 12 April 2021;

(b)a minute of Judge Walsh dated 23 July 2021;

(c)a judgment of Judge Walsh dated 15 October 2021; and

(d)a minute of Judge Hambleton dated 12 July 2023.

[6]    Those decisions relate to Ms Denning’s application to have full access to Family Court files and documentation regarding proceedings that she is involved in pertaining to COCA. Judge Walsh declined Ms Denning access to the file, finding that there were special reasons why access should not be granted.1 In her notice of appeal, she says that she is entitled to a full and complete copy of the COCA file as she is a party to the proceedings.

CIV-2023-409-398 (398)

[7]    By way of notice of appeal dated 20 July 2023, Ms Denning appeals the decisions of the Family Court of 26 June 2023, which she says struck out without notice and in chambers proceedings consolidated under the Property Relationships Act 1976 and Family Proceedings Act 1980. Ms Denning says that because the COCA proceedings were stayed, the Court was not permitted to strike out the proceedings because she failed to progress them. Judge Hambleton’s minute matching the date in Ms Denning’s notice of appeal addressed emergent applications in the ongoing COCA proceedings and made a number of findings, however none of them relate to striking out proceedings as Ms Denning alleges.

CIV-2023-409-399 (399)

[8]    By way of notice of appeal dated 7 August 2023, Ms Denning appeals the decisions of the Family Court at Christchurch of 12 February 2019 which she contends was a decision made under multiple Acts. There is no decision of the Family Court dated 12 February, but there is a minute of Judge Manuel dated 13 February. The parties disagree on whether leave to appeal out of time is required.

[9]    Judge Manuel was asked to consider an interim contact order, an order appointing Mr Roberts as guardian, and a declaration of paternity. The Judge noted that the guardianship order and the declaration as to paternity had been made by consent. The guardianship order provides that Mr Roberts is a guardian of the children. The Judge recorded that Mr Roberts had undergone DNA testing that established conclusively that he is the father of the children.

1      Roberts v Denning [2021] NZFC 8062 at [22].

[10]   The Judge also observed that Ms Denning and Mr Roberts shared a fraught relationship followed by an equally fraught separation, with deep anger, hurt and difficulty remaining between them. There were cross-allegations of domestic violence, but no findings as to that.

[11]   Ms Denning says that the guardianship and paternity orders made by consent are invalid. She says this is so because Mr Robert’s application for guardianship dated August 2018 was invalid. She also says that she did not agree to the orders, and it follows they cannot have been made by consent.

Procedural history

[12]   In a minute dated 7 September 2023, Harland J recorded that Ms Denning proposed filing applications seeking an order that the court dispense with security for costs  in  relation  to  all  three appeals.  For 397  and 398, Harland J ordered that   Ms Denning was to file and serve any application for an order dispensing with security for costs within 14 days, namely by 18 September 2023 and any notice of opposition or affidavit in response was to be filed by 25 September 2023. For 399, Harland J directed that any application Ms Denning wishes to file seeking orders to dispense with security for costs was to be filed and served by 11 September 2023.

[13]   Harland J identified that a further preliminary issue in the 399 appeal was whether Ms Denning’s appeal was filed in time. It was the respondent’s contention that there were at least four occasions when Ms Denning claims to have filed her notice of appeal, but on each occasion, for administrative and other reasons, they were not appropriately recognised and/or processed. If it was filed in time, additional issues are whether leave to appeal is required and if security for costs should be directed.

[14]   Ms Finn for Mr Roberts filed single memorandum (relating to all three appeals) in response to the application to dispense with security for costs dated 11 September 2023.

[15]   In a minute dated 9 November 2023, Preston J observed that Ms Denning had not filed submissions dealing with the preliminary issues as directed by Harland J. Ms Denning advised that she understood that she had filed submissions shortly after

her memorandum dated 16 October 2023, but said she has on occasions sent the wrong documents to the wrong court. Preston J ordered that Ms Denning was to file and serve further submissions addressing the applications for waiver of security for costs by 10 November 2023, and the other preliminary issues by 7 November 2023. Preston J directed that that the files then be referred to a Judge for the question of waiver of security for costs to be dealt with on the papers.

[16]   Ms Denning filed submissions on 10 November 2023. She filed identical submissions for each of the applications filed in relation to the three appeals.

[17]   An extension was granted for filing of the respondent’s submissions in a further minute of Preston J dated 21 November 2023. The respondent filed submissions on 23 November 2023. Those submissions predominantly address the issue of whether leave to appeal is required for 399.

[18]   Ms Denning filed reply submissions on 1 December 2023 addressing the merits of her appeals.

[19]   I issued a minute on 15 October 2024 directing a telephone conference be held to review the parties’ intentions in relation to these three appeals.

[20]   By way of memorandum dated 25 October 2024, Ms Denning said that she has been waiting for the Court decisions for her interlocutory applications and her intention was to pursue each of the appeals.

[21]   In a minute dated 29 October 2024, Dunningham J recorded that Ms Finn for the respondent confirmed that Mr Roberts was content for the matters to be dealt with on the papers and said that she assumes Ms Denning still wishes the applications to be dealt with on the papers. Ms Denning was given until 31 October 2024 to indicate otherwise. The Court has received no such indication. The outstanding applications have now been referred to me as duty judge to determine on the papers.

Legal principles

Application to dispense with security for costs on appeal

[22]   Pursuant to r 20.13(2) of the High Court Rules 2016, a Judge must fix security for costs at the case management conference relating to the appeal unless the Judge considers that in the interests of justice no security is required.2

[23]   There is a presumption that, unless the appellant is legally aided, they will be required to pay security for costs in case the appeal is unsuccessful. Costs may be waived. It is for the appellant to show that a waiver is in the interests of justice. In RIG v Chief Executive of the Ministry of Social Development, the Court of Appeal confirmed that impecuniosity of itself does not justify a waiver but may provide a reason to reduce the quantum of security.3 The test operates on the premise that security is the norm and some exceptional circumstance is required to justify a waiver and dispense with security.4 The Court shall have regard to the importance of the issues raised and the public interest in those issues being determined. Ultimately, if the Court considers there to be an arguable case on appeal, a waiver may be granted to an impecunious litigant. The Supreme Court on appeal endorsed those principles.5

[24]   In Reekie v Attorney-General, the Supreme Court found that applications to dispense with security are usually made on two broad grounds:6

(a)where costs are unlikely to be ordered against an appellant in any event; or

(b)where an appellant either cannot pay or will suffer severe hardship if payment is required.

2      That rule does not apply to an appeal for which an appellant has been granted legal aid under the Legal Services Act 2011, see High Court Rules, r 20.13(1).

3      RIG v Chief Executive of the Ministry of Social Development [2010] NZCA 370, (2010) 20 PRNZ 703.

4      Fava v Zaghloul [2007] NZCA 498 at [9]; RIG v Chief Executive of the Ministry of Social Development [2010] NZCA 370 at [3]; and Mailley v Legal Services Commissioner [2024] NZHC 813 at [13].

5      G v Chief Executive of the Ministry of Social Development [2010] NZSC 141, (2010) 20 PRNZ 705.

6 At [19].

[25]   In Reekie, the Court recognised that the presumption in favour of an appellant providing security for costs imposes some discipline on appellants and discourages litigation which is disproportionate to the occasion.7 The Court further recognised that an appellant who will not be able to meet a subsequent order for costs is free of the constraints that affect other litigants, and that freedom carries with it the potential for injustice to a respondent.8 The Court confirmed that it is for the appellant to show impecuniosity and/or establish exceptional circumstances.9

Leave to appeal out of time

[26]   Section 143 of COCA gives a party to proceedings in the Family Court (and the child) a right of appeal to the High Court. Under s 143(4), the timings prescribed under r 20.4 of the High Court Rules apply to an appeal under COCA. Rule 20.4 applies to all situations where a party has a right of appeal to the High Court and      r 20.4(2)(b) states that, where no time for appeal is fixed by the statute giving the right of appeal, the appeal must be brought within 20 working days after the date of the decision appealed against is given. Special leave may be granted under r 20.4(3) to extend the time prescribed for appealing.

[27]   In Almond v Read, the Supreme Court set out the relevant principles.10 An application to extend time by a day or so as a result of an error or miscalculation should generally be dealt with on the basis it is a minor slip-up in an exercise of right and should generally be granted.11 The ultimate question is what the interests of justice require which requires consideration of such factors as:12

(a)the length of the delay;

(b)the reasons for the delay;

(c)the conduct of the parties, particularly of the applicant;

7 At [33].

8 At [33].

9 At [27].

10     Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801.

11 At [37].

12 At [38].

(d)any prejudice or hardship to the respondent or others with a legitimate interest in the outcome; and

(e)the significance of the issues raised by the proposed appeal.

[28]   The merits of the proposed appeal will not generally be relevant where there has been insignificant delay as the result of error and the respondents suffer no prejudice.13 Consideration of the merits in the context of an extension of time must necessarily be relatively superficial. Refusing an extension on the basis of merits should only occur where the appeal is clearly hopeless.14

Submissions

Applicant’s submissions

[29]   The  Court  has  in  its   possession   an   interlocutory   application   dated   18 September made by Ms Denning for a waiver of security for costs. Ms Denning seeks a waiver of security for costs because she is impecunious, her appeals have merit, and that “in an assessment of broad circumstances, the interests of justice require security to be dispensed with”.

[30]   Ms Denning has sworn an affidavit dated 19 September 2023, filed in support of her application. Ms Denning annexed financial information that she says shows that she is in a financial deficit. Those documents are:

(a)Some account transactions that do not indicate an account holder, account number, or bank, but merely show various deductions for transactions such as insurance and a gym membership and a $276.93 deposit for a work and income benefit.

(b)A tax invoice dated 19 May 2023 for storage of household goods in a full container and part container, totalling $373.75.

13     At [39(b)].

14     At [39(c)].

(c)A letter from the Ministry of Social Development stating that future payments will be $255.68 per week, starting  with the payment due    3 May 2023.

(d)A letter from Spark that regrettably is not readable due to the quality of the document that was sent to the Registry.

(e)There is also a tax invoice from Transworld that is not readable.

[31]   In her submissions dated 10 November 2023, Ms Denning again submits that she has a significant financial deficit. Ms Denning cites Reekie v Attorney-General for the proposition that “... judges are slow to make an order for security which will stifle a claim.15 She says that the test is whether the appeal is one that a solvent appellant would reasonably wish to pursue. Ms Denning submits that her appeal has merits and that determination of an application to waive security for costs is not an opportunity for the Court to rid the system of proceedings and dispose of self-litigants. Ms Denning submits that the ultimate test in the exercise of the Court’s discretion is the interests of justice.16

[32]   Regarding the 399 application, Ms Denning does not concede that this appeal is being brought out of time. Ms Denning submits that she did file a notice of appeal in time but withdrew the appeal because of inadvertent error in relying on advice from the High Court Registry.

Respondent’s submissions

[33]   By way of memorandum dated 11 September 2023, Ms Finn, noting that as far as she knows Ms Denning has not been granted legal aid for the purposes of the appeals, confirms that the respondent does not consent to a waiver of security and, pursuant to r 20.13 of the High Court Rules, sought that Ms Denning pays security for costs. Counsel submits that the subject matter of the three appeals are not of public importance such that security should be waived.

15     Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737, (2014) 21 PRNZ 776 at [3].

16     Almond v Read, above n 11.

[34]   Ms Finn submits that on 399 special leave to appeal out of time and extend the time for filing is required and should be declined. In counsel’s submission, it is an abuse of Court process for Ms Denning to persist in seeking leave to file an appeal that has already been addressed and declined by the Court.  Ms Finn submits that  Ms Denning’s disregarding of my findings as to paternity in an earlier judgment is vexatious, and shows no regard to proper Court process or acceptable use of Court time.

Analysis

Applications to dispense with security for costs on appeal

[35]   As I have previously stated in relation to an earlier application made by     Ms Denning for the Court to waive security for costs, Ms Denning carries the onus of establishing that a waiver of security for costs is in the interests of justice.17 This is because she does not claim to be legally aided. If a waiver is not granted, security will be required to be paid.

[36]   Ms Denning says she is impecunious and that her appeals against all three of the Family Court decisions have merit. I deal with both submissions.

Impecuniosity

[37]   I am wary to find that Ms Denning is impecunious given that the document that appears to be a bank statement annexed to Ms Denning’s affidavit that she deposes shows that she has “a financial deficit”, does not disclose any personal banking details nor show a bank balance that would prove any such deficit. Her submissions merely state that she is “clearly” in significant financial debt.

[38]   However, given that Ms Denning is on a work and income benefit and seems to have regular costs that are higher than the amount that benefit provides, and recognising that in other litigation I have accepted that Ms Denning is impecunious, I

17   See Denning v Linkpeople Ltd [2023] NZHC 1597 at [8]. That application related to an appeal Ms Denning filed in the District Court against a decision of the Tenancy Tribunal. Ms Denning was ordered to pay security for costs on the appeal in the sum of $955.

cautiously accept that Ms Denning remains impecunious and not in a position to pursue the appeal, as that consequentially requires payment of the security.18

Merit

[39]   The Court of Appeal in Reekie stated generally that respondents should not face the threat of hopeless appeals without provision for security.19 This Court in Ngai Te Hapu Inc v Bay of Plenty Regional Council commented that it is neither possible nor appropriate to consider the merits of the appeal in any detail, but said that some assessment of the merits is required, along with an assessment of whether the appeal raises issues of public interest.20

[40]   I  examine  the  merit  in  each  of  Ms  Denning’s  appeals   individually.   Ms Denning’s submissions dated 10 November 2023 do not address any specific merits of her appeals beyond the assertion that the appeals have merit. Her argument as to the merits can be found and discerned only by reference to the grounds provided in her three notices of appeals.

397

[41]   Turning first to the 397 appeal, in his decision of 15 October 2021, I am satisfied Judge  Walsh  carefully  considered  that  it  was  appropriate  to  restrict  Ms Denning’s access to the sought file. The Judge was appropriately concerned that Ms Denning’s intention to disclose all the documents to 34 separate individual and identified recipients, including such organisations as Linkpeople New Zealand and Te Puawaitanga Ki Otautahu Trust, and that there were particularly strong privacy interests given the high-conflict nature of the case. The Judge referred to relevant case law concerning misuse of the litigation process and the best interests of the child. Further, the Judge observed that some of the material requested by Ms Denning was not actually in the custody and control of the Court.

18     Denning v Linkpeople Ltd, above n 18, at [11].

19 At [4].

20 At [15].

[42]   Ms Denning is right that she was entitled to access the documents. This is expressly stated by Judge Walsh.21 However, what her submission fails to grasp is that her entitlement is only the starting point. As per the Family Court Rules 2002, there may be good reason to restrict access. Judge Walsh found that compelling reasons existed to restrict access. Ms Denning says her applications and demands to access the COCA file are being ignored or refused. As best I can assess, that is because she does not agree with the response to her demands. That does not provide a foundation to disturb the Judge’s findings.

398

[43]   As for the merit of the 398 appeal, the grounds provided in Ms Denning’s notice of appeal simply do not correspond to the decision under appeal that she has vaguely identified in her notice of appeal. Her submissions, as mentioned, do not assist her in raising any potential specific merits of her appeals. For completeness, I note that Judge Hambleton’s minute (the decision that Ms Denning has identified as being under appeal in her notice of appeal) makes the following findings:

(a)that Ms Denning files a medical certificate if she sought to continue appearing via teleconference as opposed to in person;

(b)that a second opinion be obtained to determine if a tonsillectomy was medically necessary for one of the twins;

(c)that for the issues before the  Court  at  that  time,  namely  whether Ms Denning’s contact is professionally supervised, whether the arrangements for Christmas contact should be varied, whether a warrant should be issued in response to Ms Denning’s application to enforce contact arrangements, what arrangements can be put in place to facilitate the currently frustrated contact arrangements, and whether the Court should order the children are placed under the guardianship of the Court, a s 133 report under COCA was not required;

21 At [6].

(d)that counsel to assist the Court and counsel for the Chief Executive have the ability to access the Family Court files for the proceedings;

(e)changeover arrangements with providers;

(f)that the advice received earlier by the registrar that Ms Denning and Mr Roberts had 21 days to file a notice of response to the s 31 application is still the case; and

(g)that there would be little jurisdiction for the Court to look at the warrant application regarding Ms Denning’s contact being restarted.

[44]   Ms Denning seems to seek to challenge findings relating to paternity and a stay of proceedings that are not a feature of Judge Hambleton’s minute. I am satisfied this appeal is devoid of merit.

399

[45]   Ms Denning’s ground of appeal, that leave was required before Mr Peter’s original guardianship order was made, lacks particularisation. Ms Denning is a former lawyer who is more than capable of citing relevant legislation that she considers support her argument, but she has chosen not to do so. The Family Court can appoint a guardian under s 27 of COCA on an application, and the Judge determined that a guardianship order was made by consent.

[46]   Ms Denning also challenges that orders were made by consent. She submits that she did not agree to the orders at the hearing in 2019 and did not sign anything. Ms Denning had a legal aid lawyer acting for her at the time. By alleging that she never gave consent, her arguments are really attacking the competence of her counsel, who allowed that order to be made.

[47]   Ms Denning has sought to re-litigate this issue before, entirely unsuccessfully.22 In her reply submissions, Ms Denning essentially submits that

22     Denning v Roberts [2022] NZHC 3318 at [124]–[128].

despite my comments and orders made in an earlier judgment dated 30 March 2022 declining Ms Denning’s appeal against the substantive Family Court decision of Judge Walsh  granting  day-to-day  care  of  Ms  Denning’s   biological   twins   to Mr Roberts, the facts do not point to that conclusion. Indeed, Ms Denning in her reply submissions submits that “the facts show the opposite”.

[48]   What is consistently lacking from Ms Denning’s submissions and her grounds of appeal is evidence to support her claims. I am far from persuaded that the decision that Ms Denning seeks to appeal represents a deviation from natural justice.

[49]   Ms Denning insists on again subjecting Mr Roberts to the financial and emotional cost of having to defend another unmeritorious application, challenging the paternity of his children. I agree with Ms Finn that Mr Roberts is entitled to finality. My findings remain as they were, and I find that Ms Denning’s appeal is again wholly devoid of merit.

Further considerations regarding security for costs

[50]In Reekie, the Supreme Court held:23

The Registrar should only dispense with security if of the view that it is right to require the respondent to defend the judgment under challenge without the usual protection as to costs provided by security.

[51]   In Ms Finn’s submission, the Supreme Court’s dicta in Reekie is highly relevant. Ms Finn submits that at least three costs  orders have been made against  Ms Denning in favour of the respondent after her appeals were dismissed. As at the time Ms Finn’s memorandum was filed on 11 September 2023, the respondent had been unable to recover any of the costs ordered against Ms Denning, yet he continued to incur costs defending appeals in multiple jurisdictions — Ms Denning has appealed all cost orders to the High Court, Court of Appeal, and the Supreme Court.

[52]   It is submitted that if security for costs was dispensed with as sought by     Ms Denning, this would be highly prejudicial to the respondent, as he will continue to incur fees defending these appeals with little likelihood of recovering costs if

23 At [21].

Ms Denning’s appeals are unsuccessful. I agree. I reject Ms Denning’s general submission that judges are slow to make an order for security which will stifle a claim based on the Court’s discussion on Reekie. As the Supreme Court observed, a somewhat different approach has been taken in respect of appeals.24

[53]   I am not satisfied that Ms Denning would be likely to find success in these appeals against decisions of  the  Family  Court.  It  follows  that  notwithstanding Ms Denning’s impecuniosity, I am not persuaded that it is appropriate to waive security for costs on the appeals. Ms Denning has not persuaded me she has arguable cases on appeal.

Leave to appeal out of time for 399

[54]   399 cannot therefore proceed unless security for costs is paid. I nevertheless consider whether leave to appeal out of time should be granted.

[55]   There is no doubt that the notice of appeal was not filed within 20 working days after the decision appealed was given — it was filed on 7 August 2023.25 Special leave is therefore required for Ms Denning to bring this appeal.

[56]   Granting leave would be a significant indulgence given the years that have passed since the Family Court’s decision — this is not a mere slip-up in the exercise of an appeal right, given that Ms Denning has already exercised that right before.26

[57]   I am satisfied that this falls squarely into the category of a clearly hopeless appeal, discussed by the Supreme Court in Almond v Read. Specifically, that there is, as the Supreme Court put it, “an abuse of process (such as a collateral attack on issues finally determined in other proceedings) or where the appeal is frivolous or vexatious”.27

24 At [3].

25     High Court Rules, r 20.4(2)(b).

26     See Almond v Read, above n 11, at [37]. This is not a situation where Ms Denning missed the specified time limit by a day or so as a result of an error or miscalculation.

27     At [39(c)].

[58]   The lack of merit, for the same reasons outlined above regarding the application to dispense with security for costs for the 399 appeal, is readily apparent.

Other factors that similarly point away from a grant of leave include:28

(a)as Ms Finn submits, this is the fourth time that Ms Denning is attempting to file this appeal, indicating that she is simply not prepared to accept decisions of the Court that she disagrees with;

(b)the prejudice to the respondent of allowing this appeal to go ahead is extreme;

(c)Ms Denning’s questionable conduct in attempting to bring this appeal, again, for the fourth time; and

(d)that there is an argument, as Ms Finn submits, that s 143(1) of COCA does not contemplate a pathway to appeal to this Court given that the Family Court orders were made by consent, although I note s 143(1)(a) expressly permits a decision of the Family Court of making an order.

Fixing the security

[59]   As regards quantum, the daily recovery rate for this proceeding is $1,590.29 If Ms Denning’s appeals are to proceed, they should each be heard within a single half day. Per the formula set out in r 20.13(3), I calculate the appropriate security to be

$795 for each.

Result

[60]   Ms Denning’s applications to dispense with security for costs on appeal are dismissed.

28     See Slater v Blomfield [2014] NZHC 612 at [20].

29     High Court Rules, r 14.4 and sch 2.

[61]   Ms Denning is to pay security for costs on each appeal in the sum of $795. Security is to be paid on or before 15 January 2025. If security is not paid by that date, the respondent may apply for an order dismissing the appeals.30

[62]Ms Denning’s application to appeal 399 out of time is dismissed.

...................................................

Eaton J

Solicitors:
Layburn Hodgins, Christchurch

Copy to:
M E [Denning]

30     High Court Rules, r 20.13(5).