Dijkstra v Tierney
[2023] NZCA 379
•21 August 2023 at 2.00 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA380/2021 [2023] NZCA 379 |
| BETWEEN | HENDRIK GEZINUS DIJKSTRA AND BARBARA JANE DIJKSTRA |
| AND | MARTHA TIERNEY |
| AND | WELLINGTON FAMILY COURT |
| Hearing: | 6 July 2023 |
Court: | Miller, Collins and Mallon JJ |
Counsel: | N Levy KC and A Jeremich for Appellants |
Judgment: | 21 August 2023 at 2.00 pm |
JUDGMENT OF THE COURT
AThe appeal against the award of costs in the High Court is allowed.
B The application for a certificate under s 45 of the Legal Services Act 2011 in relation to costs in the High Court and in this Court is declined.
C The appeal is otherwise dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Miller J)
The appellants, Hendrik (Henry) and Barbara Dijkstra, seek judicial review of Family Court decisions which found invalid an enduring power of attorney allowing them to use the donor’s money for their own purposes, decided that they ought to repay funds withdrawn otherwise than for the donor’s benefit, and removed them as property and welfare attorneys, to be replaced by the Public Trust.[1] They had previously been refused an adjournment and did not appear at the hearing.[2]
[1]Tierney v Dijkstra [2019] NZFC 1434 [Section 102 decision]; Tierney v Dijkstra [2019] NZFC 1170 [Section 103 results decision]; and Tierney v Dijkstra [2019] NZFC 1172 [Section 103 reasons decision].
[2]Tierney v Dijkstra FC Wellington FAM-2018-035-40, 18 February 2019 [Minute No 3 of Judge Black].
Henry and Barbara did not appeal the decisions or a subsequent decision to award scale costs to Martha Tierney.[3] Rather, they applied for judicial review some 14 months later, naming the Wellington Family Court as first respondent and Martha Tierney as the second respondent.[4] In the judgment under appeal Clark J declined the application, finding there had been no breach of natural justice and adding that had she found otherwise she would have exercised her discretion to decline relief.[5] She also ordered that Henry and Barbara pay costs.[6]
Narrative
[3]Tierney v Dijkstra [2019] NZFC 6784 [FC costs decision].
[4]The judicial review application came nine months after the costs decision.
[5]Dijkstra v Wellington Family Court [2021] NZHC 1260 [Judgment under appeal] at [123]–[124].
[6]At [134].
The judgment below contains a long narrative which the appellants do not dispute. For our purposes, a much shorter account will suffice.
The donor was Gezinus Dijkstra. He and his wife Alida, who died on 23 October 2015, had four children: Henry, Martha, Elizabeth Halley and Wilma Dijkstra. Martha cares for Wilma, who is disabled. Elizabeth has not played an active part in the litigation, and Martha has effectively represented Wilma’s interests.
On 3 July 2012 Gezinus appointed Henry as attorney for property under the Protection of Personal and Property Rights Act 1988 (PPPRA) (the 2012 POA) and Barbara as attorney for personal care and welfare. The validity of these instruments is not in dispute. By 2015 Gezinus was sharing his time between Henry and Barbara at his Carterton home and Martha and Wilma at Martha’s home in Tawa, near to where Alida was in a rest home. In January 2015 his longstanding GP, Dr Craig Cherry, wrote a letter, at Henry’s request, advising that Gezinus no longer had the mental capacity to make decisions about health and welfare. (We record in passing that the doctor advised Kerry O’Brien, counsel appointed to represent Gezinus in the Family Court proceedings, in 2018 that he had not actually examined Gezinus at that time and now accepted that his letter was not sufficient to activate a power of attorney.) From August 2016 Gezinus lived in care facilities in Masterton and Lower Hutt, although Barbara returned him to his home for a brief period in 2018.
The 2012 POA was in what Judge Black described as “an uncontroversial form”;[7] it required that Henry consult family before exercising powers and keep them informed, and it did not authorise any element of self-dealing. In September 2016 Martha made inquiries to Henry about financial transactions he had made in his role as attorney, and for information about Gezinus’ property. In 2017 Henry instructed a solicitor, Tim Slack, who was employed by WCM Legal, to prepare a new enduring power of attorney (the 2017 POA) which expressly permitted self-dealing. Specifically, it allowed Henry and Barbara to live at Gezinus’ home and pay their living expenses out of Gezinus’ bank account. Gezinus agreed to this, the Judge finding that Henry and Barbara had told him they would move overseas if he did not support them.[8] He signed the 2017 POA on 18 August 2017. Before he signed it he was assessed by Dr David Heard, who found him competent to give legal instructions.
[7]Section 102 decision, above n 1, at [4].
[8]At [5].
On 13 January 2018 a psychogeriatrician found Gezinus incapable of making decisions about property and welfare. Henry now maintains that Gezinus was competent until this date and thereafter he acted as attorney under the 2017 POA.
In January 2018 Martha’s lawyers wrote to Henry and Barbara requesting information in accordance with the 2012 POA, at which point Martha was made aware of the 2017 POA. Litigation began in February 2018, with Martha applying for review of Henry’s decision to refuse her information and Henry applying for a declaration that the 2017 POA was valid.
Throughout the proceedings Henry was represented by Keith McClure, a principal of WCM Legal, as to the validity of the 2017 POA. It was recognised that the firm had a conflict of interest and could not represent Henry and Barbara on the other applications.[9] Henry was represented by counsel, John Langford, on the other applications until August 2018. Henry and Barbara notified the Court on 21 August that they represented themselves. The Court appointed Mr O’Brien as counsel for Gezinus.
[9]Mr McClure has explained that he felt he had to file the application for Henry because the firm’s client, Gezinus, was no longer competent, and he thereafter tried to assist the Court as best he could.
On 2 August 2018 Judge Binns made interim orders restraining Henry from dealing with Gezinus’ assets other than to pay specified expenses such as rest home fees.[10] The Judge also joined Barbara as a party, noting that Henry had made payments into her accounts.[11] Henry had refused Mr O’Brien’s request that he disclose financial information and failed to comply with a judicial direction that he do so.[12] He was ordered to comply.[13] The issues were identified; relevantly, they included whether any transactions made by Henry in respect of Gezinus’ assets were properly made, and whether Henry or Barbara should be required to repay any sums.[14] Timetabling orders were made for the substantive hearing; these recorded that Henry would be required for cross‑examination.[15]
[10]Tierney v Dijkstra [2018] NZFC 5680 [Interim decision of Judge Binns] at [59].
[11]At [33] and [40]–[41].
[12]Tierney v Dijkstra FC Masterton FAM-2018-035-40, 5 April 2018 (Minute No 1 of Judge Grace) at [2].
[13]Tierney v Dijkstra FC Masterton FAM-2018-035-40, 19 June 2018 (Minute of Judge Walsh) at [11].
[14]Interim decision of Judge Binns, above n 10, at [68].
[15]At [72]–[77].
Henry moved to have the interim orders set aside. A hearing was held on 30 November 2018.[16] He and Barbara appeared in person. Mr McClure did not appear. Judge Black delivered an oral judgment, dismissing the application for review on the ground that an appeal was the proper course.[17] The Judge granted an application by counsel for Gezinus for review of Barbara’s decision to return Gezinus to his home, finding that he needed intensive psychogeriatric care.[18]
[16]Tierney v Dijkstra [2018] NZFC 9518.
[17]At [6].
[18]At [8]–[9].
At the same hearing the Judge dictated a minute in the presence of the parties dealing with the future of the litigation.[19] He made timetabling orders for evidence, under which Henry and Barbara were required to file any affidavits by 25 January 2019, and set a one-day fixture for 18 February 2019, to be preceded by a teleconference on 30 January 2019.[20] He would case-manage the proceeding himself and he directed any party who sought intervention before the hearing date should file a memorandum which would be referred to him. The minute was typed back and signed but through registry error it was not distributed.[21] Nor was any fixture notice issued by the Registrar.
[19]Tierney v Dijkstra FC Wellington FAM-2018-035-40, 30 November 2018 (Minute No 2 of Judge Black).
[20]At [3].
[21]Judgment under appeal, above n 5, at [50].
Counsel for Martha, Ms Tucker, filed and served a memorandum on 12 December 2018 seeking review of a decision of Barbara’s to refuse to allow Martha to take Gezinus out of the rest home for a drive when she visited him. Counsel recorded that the next event was a teleconference on 31 January 2019.
On 23 January counsel for Gezinus circulated a checklist for the teleconference to be held at 2.45 pm on 31 January, and on 24 January 2019 Ms Tucker filed and served a memorandum for the teleconference. Martha also applied (on 25 January) for removal of Henry and Barbara as attorneys. That application had been foreshadowed at the hearing before Judge Binns.[22]
[22]Interim decision of Judge Binns, above n 10, at [69]–[70].
Henry and Barbara responded by memorandum on 25 January, noting that they had not “received any correspondence from the court” about the teleconference. They had insufficient time to prepare. Also, they wanted to brief counsel, having now realised that it was not enough to simply “communicate the truth”. They needed legal aid. They would advise the Court once they had a lawyer.
On 28 January Henry filed a further memorandum, stating among other things that he and Barbara had been out of the country on dates when money was withdrawn from Gezinus’ accounts using ATMs in New Zealand and he needed time to obtain Immigration New Zealand records to verify that fact.
Judge O’Dwyer conducted the teleconference. She took Henry’s memorandum of 25 January as an application for adjournment, which she declined.[23] She observed that Henry and Barbara had known of the fixture since 30 November 2018.[24]
[23]Tierney v Dijkstra FC Wellington FAM-2018-035-40, 31 January 2019 (Minute of Judge O’Dwyer) at [2] and [4].
[24]At [3].
On 7 February Henry emailed the registry complaining that the Court had not given him notice of the callover or the fixture. He asked that the hearing be adjourned so he and Barbara might obtain counsel and prepare. In the meantime, he and Barbara had applied for legal aid, through the firm Main Street Legal, at the end of January, though the Court was not told of that at the time.
Counsel filed submissions before the hearing, Ms Tucker and Mr O’Brien on 11 February and Mr McClure (as counsel for Henry on the 2017 POA validity issue) on 12 February. Mr McClure noted that Henry had said he and Barbara could not proceed on 18 February but submitted that the validity issue could be decided separately on that date.
On 13 February Henry filed a memorandum repeating his complaints about lack of notice from the Court, unfair treatment and being given insufficient time to prepare. He could show that Gezinus had capacity and authorised payments made before the 2017 POA, and further that he and Barbara had been out of the country when withdrawals were made. He complained about counsel for Gezinus, accusing him of bias.
On 14 February the Registrar replied to Henry’s email of 7 February, apologising for lack of notice of the callover, attaching the minute of Judge O’Dwyer and advising that “[t]he matter is back before the court on Monday 18th February”. Henry responded immediately, claiming this left only one working day to prepare for the hearing and advising that as a result he and Barbara were unable to attend. He appears to have assumed an adjournment would follow, because he added that he would keep the Court informed about obtaining legal aid and when he obtained evidence from Immigration New Zealand. He would also advise when he and Barbara would be out of New Zealand for work reasons. He subsequently complained to the Ministry of Justice about the way he and Barbara had been treated, and in due course received an apology.
On 13 February legal aid was declined on the ground that Henry and Barbara did not meet financial eligibility criteria. The Court was not told of this at the time, nor did Main Street Legal take any steps to appear or secure an adjournment.
At the hearing on 18 February, Judge Black began by considering whether to adjourn. He stated that:[25]
[7] I am satisfied that Mr Dijkstra knew of today’s hearing. He was in Court when it was allocated. He knew that it was to be in the Wellington Court. It would have been a relatively simple matter for him to enquire as to what courtroom. He was directed on 30 November to file updating evidence and any response evidence by 25 January. He has not complied with that direction and I am not prepared to grant what I have taken as his application for an adjournment. At the very least if that application was prosecuted I would have expected him to appear today and address it but he has not.
[25]Minute No 3 of Judge Black, above n 2.
The hearings proceeded. Mr Slack and Dr Heard were called by Mr McClure. The Judge accepted, with reservations, that Gezinus had capacity to sign the 2017 POA,[26] but because s 94A(6) of the PPPRA (matters which must be explained to a donor) had not been complied with he found that the document was not an enduring power of attorney.[27] He found that payments had been made to Henry and Barbara that were not authorised under the 2012 POA and he accepted a schedule in which Ms Tucker had calculated the sum repayable, which came to $136,766.31.[28] He ordered that Henry repay that sum.[29]
[26]Section 102 decision, above n 1, at [15]. Under s 93B of the Protection of Personal and Property Rights Act 1988 [PPPRA] a presumption of competence must be displaced.
[27]Section 102 decision, above n 1, at [25]–[26].
[28]Section 103 results decision, above n 1, at [3]–[5].
[29]At [5].
The Judge accepted that Henry and Barbara could not remain as attorneys.[30] They were removed. The Public Trust was appointed as property manager,[31] and Martha’s request for appointment as welfare guardian was adjourned for further consideration.[32]
[30]At [6].
[31]At [11].
[32]At [7].
It appears that the Court distributed the judgments on 6 March 2019. On 11 April 2019 Graeme Reeves, solicitor, advised Ms Tucker that he acted for Henry. No steps were taken to appeal or seek a rehearing.
On 26 August 2019 the Judge ordered that Henry and Barbara pay Martha’s costs as per scale.[33] This decision is also the subject of the judicial review application, which was brought on 8 May 2020.
[33]FC costs decision, above n 3, at [14].
Gezinus died on 20 February 2020.
The judicial review application
The application for judicial review was filed, through then counsel on 8 May 2020. It sought review for breach of natural justice and s 27(1) of the New Zealand Bill of Rights Act 1990, saying that the Family Court failed to give Henry and Barbara an opportunity to be heard, either in support of adjournment or at the hearing. The claim was squarely framed as a denial of the right to a hearing.
Clark J carefully reviewed the facts. She recorded that counsel accepted that Henry and Barbara did have notice of the hearing on 18 February (and she found as a fact that they knew of the teleconference on 31 January).[34] However, counsel argued that the Court had failed to provide a copy of the minute of 30 November 2018, notice of the teleconference, formal notice of the fixture, a copy of Judge O’Dwyer’s minute of 31 January 2019, copies of the 18 February minute and judgments of Judge Black or his costs decision. Clark J acknowledged these failings but observed that the question was whether fair hearing rights had been breached.[35]
[34]Judgment under appeal, above n 5, at [99] and [101].
[35]At [93].
As to that, the Judge found the absence of formal written notice from the Registry immaterial.[36] Henry and Barbara had known since 30 November of the hearing and knew what they were required to do by way of preparation.[37] They knew they were required for cross-examination. The question was whether they were denied a fair hearing because they lost the opportunity to prepare what they described as crucial evidence and engage counsel.[38]
[36]At [115].
[37]At [101].
[38]At [101].
Addressing the first of these complaints, Clark J noted that Henry and Barbara had still not, after all this time, produced evidence that they were overseas when certain withdrawals were made from ATMs.[39] The issue was in any event peripheral, because those withdrawals were not in issue; the money Martha wanted repaid comprised payments for Henry’s living expenses and into Henry’s bank account.[40]
[39]At [105]–[106].
[40]At [107]–[108].
Turning to the second complaint, the Judge observed that Henry was represented by counsel on the 2017 POA validity issue.[41] He had failed to show Judge Black that he had tried to obtain representation. He claimed to have correspondence from lawyers who were too busy to represent him, but he had not produced it at that time.[42] This was in keeping with “his apparent disinclination to co‑operate with other processes to which he object[ed]”, such as disclosure of information required by the Court.[43] In effect he and Barbara simply decided not to participate. Clark J concluded that:
[122] No matter their justifiable sense of grievance about administrative failings in court processes litigants may not seek to vacate a long-scheduled hearing date, about which they had ample notice (and do not now argue otherwise) by simply notifying the Court that they have decided not to attend.
[123] The applicants were afforded an opportunity to protect their hearing rights either by seeking an adjournment on 18 February or advancing their defence. They cannot now complain they were denied natural justice when, for reasons that are far from compelling, they failed to take the opportunity available to them to appear and take either step. In the circumstances in which the substantive hearing proceeded on 18 February 2019, the applicants were not unfairly denied their right to a hearing and they have not established a breach of natural justice.
[41]At [110].
[42]At [113].
[43]At [115] and [126].
Clark J went on to add that had there been a breach of natural justice she would have denied relief:
(a)Henry’s conduct of his case in the Family Court was marked at times by flagrant non-compliance with directions and a high-handed approach to timeframes.[44]
(b)He and Barbara had shown they were able to represent themselves when it suited them; they did so when seeking to set aside the interim orders made by Judge Binns, filing evidence and making oral submissions.[45]
(c)Henry chose not to appear in support of his adjournment application, and he still had not explained the nature of his defence.[46]
(d)Henry and Barbara might have appealed, or sought a rehearing, and their explanation for not doing so was unsatisfactory.[47]
(e)The judicial review application was filed late, 14 months after receipt of the written decisions of the Family Court.[48]
[44]At [126].
[45]At [127].
[46]At [128].
[47]At [129]–[130].
[48]At [131].
Costs were awarded to Martha.[49] It does not appear that the Judge was aware that Henry and Barbara were legally aided.
The appeal
[49]At [133]–[134].
Ms Levy KC, who did not appear below, contended that Henry and Barbara were denied a hearing. Natural justice required an adjournment so they could secure representation and file evidence. She focused on the Registrar’s email of 14 February 2019, arguing that it conveyed that the hearing would proceed come what may and left Henry and Barbara with the impression that they could not appear on 18 February and seek an adjournment in person. She submitted that they stayed away because experience had taught them they would have no voice until they had a lawyer. A second pre-hearing conference ought to have been held to address their request for time to prepare. The issues were complex and it was essential that they have legal advice. They realised that on 30 November 2018. Having regard to the Christmas vacation and the need to seek legal aid, the timetable left them insufficient time to arrange counsel. There were no grounds for awarding costs against a legally aided person.
Discussion
In substance Clark J found against Henry and Barbara on the facts relevant to the pleaded breaches of natural justice, which as noted allege denial of the right to a hearing. We can state shortly that we are not persuaded she was wrong to do so.
Henry and Barbara knew on 30 November of the fixture and what they were required to do in preparation for it. Judge Binns had already made similar directions.[50] They knew in advance of the teleconference on 31 January. The correspondence strongly invites the inference that they seized on the Court’s failure to notify them of these events through the Registry as a pretext for not attending the hearing on 18 February. We do not accept that the Registrar’s email of 14 February conveyed the impression that no purpose would be served by appearing on 18 February to seek an adjournment in person; that email merely confirmed, neutrally, that the matter was back before the Court on that day. We do not accept that Henry saw it that way either at the time; the substance of his response on the same day, 14 February, was that he still required an adjournment and was entitled to one. He stated that he would keep the Court informed about progress in obtaining a “legal aid solicitor”.
[50]Interim decision of Judge Binns, above n 10, at [65]–[77].
We accept that legal representation is relevant to the pleaded question of whether Henry and Barbara were denied a hearing. Natural justice may require more of a court which is dealing with a self-represented litigant.[51]
[51]Philip A Joseph Joseph on Constitutional and Administrative Law (5th ed, Thomson Reuters, Wellington, 2021) at [25.4.2(2)].
Henry and Barbara had had ample opportunity to seek legal advice following the filing of Martha’s application in 2018. They had taken it in relation to the validity of the 2017 POA. We agree with Clark J that they were represented by Mr McClure on that issue, including at the hearing on 18 February.[52] Evidence was called.
[52]Judgment under appeal, above n 5, at [110].
With respect to the other issues, Henry had been represented by Mr Langford until August 2018 but he and Barbara then decided to self-represent. As Clark J noted, they showed themselves able and willing to do so in their application to set aside the orders made by Judge Binns.[53] The issues had been identified, and to some extent rehearsed, at that hearing, and they were not complex. Henry understood that it would be necessary to justify payments as having been made for Gezinus’ benefit or with his authority at a time when he was competent. These were questions of fact, and the facts were within his and Barbara’s knowledge and control. While legal representation would have been advantageous, we do not accept Ms Levy’s contention that Henry and Barbara could not have a fair hearing without it.
[53]At [127].
The record also shows that after the 30 November hearing Henry and Barbara briefed solicitors, Main Street Legal, through whom they belatedly sought legal aid for the hearing. The failure of that firm to put themselves on the record and appear on 18 February to seek an adjournment indicates that Henry and Barbara chose not to engage the firm when legal aid was declined. We observe that Main Street Legal were notified of the couple’s ineligibility on 13 February, the day before Henry’s memorandum telling the Court that he would keep the Court informed about progress in obtaining legal aid. The reason given by the grants officer was that their disposable capital exceeded the prescribed threshold by $37,000.
For these reasons we agree with Clark J that there was no breach of natural justice.
We also agree with Clark J that, had there been a breach of natural justice, relief would be unwarranted in the particular circumstances of this case, for three reasons.
First, any failure of court process was minor. As we have said, it is not in dispute that Judge Black told Henry and Barbara on 30 November of the February hearing and explained what they had to do to prepare. The timetable was not unreasonable, and the Judge had explained that they knew they might approach the Court if they were unavailable for work reasons. They elected not to comply with the timetable, or to appear, personally or by their then counsel, at the teleconference or on 18 February to explain themselves and seek an adjournment.
Second, to justify relief in such circumstances they ought to show that their defence has substance. They have not done so to our satisfaction. We do not accept that there is a viable defence as to validity of the 2017 POA; the Family Court heard evidence from Mr Slack and argument from Mr McClure, and was satisfied that the necessary processes had not been complied with. Nothing before us suggests that conclusion was wrong.
That being so, and Gezinus having died, what remains of the dispute is the quantum of liability to repay money which was paid for the benefit of Henry and Barbara.
It appears that Henry and Barbara wish to argue generally that to meet their living expenses so they could support Gezinus was not to benefit themselves at his expense. We accept they feel strongly that everything they did was for his benefit. However, payments for their living expenses undoubtedly benefited them even if Gezinus also benefited, indirectly, through their continued presence. Further, they knew the payments were vulnerable to challenge. Henry has explained that he obtained legal advice that payment of his and Barbara’s living expenses benefited them and so was prohibited under the 2012 POA and s 107 of the PPPRA.[54] That advice led him to arrange the 2017 POA.
[54]Section 107 took its present form in 2008. As originally enacted it permitted an attorney to benefit to the extent that the donor might be expected to provide for the attorney’s needs. Since 2008 it has provided that an attorney may not act to their own benefit (or that of any person other than the donor), absent court permission or a specific power to do so in the enduring power of attorney.
They also wish to argue that some of the payments, although made by Henry, did not engage the 2012 POA at all because the payments were authorised by Gezinus while he was competent, or by Alida (most of the payments came from joint accounts) before her death; alternatively, that some payments can be validated by the Court under s 103C of the PPPRA because they were made in the good faith belief that the 2017 POA was valid. Ms Levy pointed out that Judge Black did not specify a date on which Gezinus became incapable; he accepted rather that capacity may come and go.[55] These arguments confront the difficulty that Henry himself maintained Gezinus was incapable from January 2015 and thereafter relied on the 2012 POA to make payments. There is contemporaneous evidence from other sources tending to confirm that assessment. (He now maintains that his stance reflected a misunderstanding on his part about what is required to activate a POA.)
[55]Section 102 decision, above n 1, at [15].
However, we think it plausible that had Henry and Barbara appeared at the hearing they might have been able to show that some payments were made for Gezinus’ benefit and not their own. The question of available defences has exercised us, as it did Clark J, for that reason.
Ms Tucker’s schedule was provided during the hearing at our request. It impresses as a good-faith attempt to quantify liability. It takes the sums transferred to Henry and Barbara’s accounts, and utilities paid by Henry directly from Gezinus and Alida’s accounts, totalling $160,981.48, and deducts amounts for which Henry had provided receipts, amounts which were not receipted but which Martha accepted had been paid for Gezinus’ benefit and, on the assumption that the 2017 POA was relied on in good faith, an allowance (based generally on Henry’s own claim) for living expenses of Henry and Barbara between August and December 2017, when Martha gave notice of her allegation that the POA was invalid.
No real attempt has been made on judicial review to quantify any further deductions, though Henry does depose that some of the money went on the costs of daily running a car to visit Gezinus at his retirement home in Masterton. It appears proof would now be difficult because Henry did not retain records of some payments said to have been made for Gezinus’ benefit using money transferred from Gezinus’ accounts to his and Barbara’s.
In addition, the record quite plainly justifies the concerns of Judge Binns and Judge Black; Gezinus, vulnerable and of doubtful capacity, was prevailed upon to authorise free use of his funds to support Henry and Barbara because they told him that if he did not agree they would move overseas. When Martha challenged them about their use of his funds they arranged for Gezinus to sign the 2017 POA, seeking to validate past and future payments from which they benefited directly.
We are nonetheless prepared to accept that had Henry and Barbara appeared and explained what they had done for Gezinus, a trial judge might have allowed them some additional “in the round” deduction. They invested a great deal of time in his care and support, both in his home and when he was in care.
But we are dealing with judicial review, not leave to appeal a substantive decision out of time. Our task is not that of weighing explanations for delay, any injustice to the other party, and the merits of the defence. Rather, we must decide whether Henry and Barbara were denied a hearing. If they were, the merits of their defence would not matter unless the defence was so obviously inadequate as to justify denying relief in the exercise of discretion. If they were not, then they must accept that the adverse outcome is the consequence of their decision not to participate.
That brings us to the third reason why relief would be declined if we accepted that the Registry’s process failings in this case amounted to a minor breach of natural justice. The hearings having proceeded without Henry and Barbara, an appeal, or perhaps an application for rehearing founded on the existence of a substantive defence, was the appropriate remedy. They took advice about an appeal, but chose not to file one.
We agree with Clark J that the reasons given for not appealing, if only to preserve time while they sought legal aid, are unsatisfactory.[56] Henry deposes that they took legal advice (for which they paid) just before the appeal period expired but thought they could not afford an appeal and decided they would seek judicial review once they had legal aid. This was to treat judicial review as a substitute for an appeal, capable of addressing the merits but available for prosecution at a time suitable to them. The appeal period — 20 working days — reflects legislative policy about finality in PPPRA litigation.[57] That cannot be overlooked when considering a judicial review application designed to achieve the same outcome as an appeal (a full rehearing in the Family Court).
Costs appeal
[56]Judgment under appeal, above n 5, at [130].
[57]PPPRA, s 83; and High Court Rules 2016, r 20.4.
It is common ground that Clark J must have overlooked the fact that Henry and Barbara had legal aid for the judicial review application. Martha had sought not costs but a certificate under s 45(5) of the Legal Services Act 2011, on the ground that Henry’s conduct of the litigation put her to unnecessary cost. Mr Davies, for Martha, accepted that the costs award must be set aside. He asked us to issue the certificate requested.
We are not persuaded that a certificate should have been issued in the High Court and we are not prepared to issue one here. Judicial review was the wrong process, but there were failures of court process and an appeal would hardly have been less expensive for Martha.
Disposition
The appeal against the award of costs in the High Court is allowed. There will be no s 45 certificate as to costs in that Court or this one.
The appeal is otherwise dismissed.
We understand that Gezinus’ home has been sold and the estate, which includes as an asset the judgment sum fixed by the Family Court, remains to be distributed by the executor, a corporate trustee firm. Henry’s liability will be deducted from his share of the estate, which is to be divided four ways under Gezinus’ will. Although we can make no order to this effect, we encourage the family to see the distribution as an opportunity to agree quantum. Henry and Barbara must accept that they cannot claim their own living expenses, but there may have been other payments which directly benefited Gezinus. We were told that Martha has always accepted that credit should be given for such payments.
Solicitors:
Treadwells, Wellington for Appellant
Gascoigne Wicks, Blenheim for First Respondent
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