Dijkstra v Wellington Family Court
[2021] NZHC 1260
•31 May 2021
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2020-485-224
[2021] NZHC 1260
UNDER the Judicial Review Procedure Act 2016; Part 30 of the High Court Rules IN THE MATTER
of an application for judicial review
BETWEEN
HENDRIK GEZNIUS DIJKSTRA
First Applicant
BARBARD JANE DIJKSTRA
Second ApplicantAND
WELLINGTON FAMILY COURT
First Respondent
MARTHA TIERNEY
Second Respondent
Hearing: 27 October 2020 Appearances:
L M Hansen for First and Second Applicant
Q A M Davies and E J M Tucker for Second Respondent
Judgment:
31 May 2021
JUDGMENT OF CLARK J
DIJKSTRA v WELLINGTON FAMILY COURT [2021] NZHC 1260 [31 May 2021]
Table of Contents
Para Nos
Introduction [1]
Factual Background [4]
The parties [5]
The Dijkstra family [7]
Powers of attorney [12]
The Family Court proceedings [18]
Proceedings are filed and directions are given [19]
Interim orders applications and hearing [30]
Family Court interim orders hearing [34]
Application to set aside Interim Orders decision. [45]
30 November 2018 hearing [46]
The 31 January 2019 pre-hearing conference [51]
Post callover communications [57]
Substantive hearing on 18 February 2019 [66]
Costs decision [71]
Application for judicial review [72]
Applicants’ position [72]
Second respondent’s position [81]
Discussion [84]
Factors bearing on discretion to adjourn [94]
Applicants’ reasons for declining to appear [98]
Relief [125]
Result [133]
Introduction
[1] This application for judicial review is brought by Hendrik Dijkstra and his wife, Barbara Dijkstra (together, the applicants). The underlying proceedings in the Family Court arise out of contentions in relation to enduring powers of attorney signed by Gezinus Dijkstra in 2012 and 2017. The applicants say that in hearing and determining the underlying proceedings in their absence, the Family Court denied them the opportunity of a fair hearing and that decisions reached by the Family Court Judge should be set aside on the grounds of breach of natural justice.
[2]The applicants challenge three judgments of the Family Court:
(a)a judgment delivered 18 February 2019 in which Judge Black determined pursuant to s 102 of the Protection of Personal Property
Rights Act 1988 (the PPPR Act) that an instrument signed on 18 August 2017 was not an enduring power of attorney;1
(b)a results judgment delivered 18 February 2019 in which Judge Black, for reasons that were to follow, determined an application under s 103 of the PPPR Act and ordered the first applicant to refund to Gezinus Dijkstra some $136,000 and ordered the removal of the applicants as attorneys;2 and
(c)a judgment dated 26 August 2019 in which Judge Black ordered the applicants to pay costs and disbursements to the second respondent.3
[3]On 3 March 2019 Judge Black delivered his reasons for the s 103 decision.4
Factual Background
[4] The following narrative is taken from the admitted pleadings and from an interlocutory decision given by Judge Binns on 2 August 2018.5 That decision has not been appealed or otherwise successfully challenged.
The parties
[5] Mr Dijkstra’s son Hendrik (Henry) Dijkstra and Henry’s wife, Barbara Dijkstra are the applicants for judicial review. Because they share the same last name, I will refer to the father as Mr Dijkstra and to his son and daughter-in-law as Henry and Barbara. Henry’s sister, Martha Tierney, is the second respondent.
[6] As is customary the Family Court, which is joined as the first respondent, abides the decision of this Court but appeared to reserve rights.
1 Tierney v Dijkstra [2019] NZFC 1434 [Section 102 decision].
2 Tierney v Dijkstra [2019] NZFC 1170 [Section 103 decision].
3 Tierney v Dijkstra [2019] NZFC 6784 [Costs decision].
4 Tierney v Dijkstra [2019] NZFC 1172 [Reasons for judgment].
5 Tierney v Dijkstra [2018] NZFC 5680 [Interim Orders decision].
The Dijkstra family
[7] Mr Dijkstra died in February 2020. His wife died some years earlier. Mr and Mrs Dijkstra have four children, two of whom (Henry and Ms Tierney) are parties to this proceeding. A second sister lives in Australia. She has been served but has taken no formal step in the proceeding. A third sister is intellectually disabled and lives with Ms Tierney. In part, Ms Tierney was motivated to issue proceedings to protect the interests of her sister.
[8] Ms Tierney and Henry are estranged. Indeed, the voluminous record before the Court bears out what Ms Hansen characterised as the “significant hostility” between them.
[9] In December 2011 Henry and Barbara returned from overseas to live in New Zealand. They settled in Blenheim. During 2015 it seems Mr Dijkstra alternated between his home in Taverner Street, Carterton where Henry and Barbara stayed for periods of time and living with Ms Tierney in Tawa to be near his wife who was in a rest home in Tawa. Mr Dijkstra lived with Henry and Barbara at Taverner Street after his wife died until around August 2016.
[10] From August 2016 until he died, Mr Dijkstra was a resident in rest homes in Carterton and Masterton and then Manor Park Hospital in Lower Hutt.
[11] Henry and Barbara continued to live at Taverner Street until early September 2019 when they left New Zealand. As at May 2020 when they filed their statement of claim Henry and Barbara were residing in Curacao. They owned Pulse Telecom, a telecommunications business.
Powers of attorney
[12] On 3 July 2012 Mr Dijkstra appointed Henry as his attorney in relation to property affairs. I will refer to this as the 2012 EPA. On the same date Mr Dijkstra appointed Barbara as his attorney in relation to personal care and welfare.
[13] On 23 January 2015 Henry copied Ms Tierney into an email he was sending to Mr Dijkstra’s solicitors for the purpose of arranging certified copies of the EPAs so he could approach the banks to ascertain his father’s assets and declare that information to Work and Income New Zealand. Henry’s email advised there was a letter waiting at the Carterton medical centre declaring Mr Dijkstra to be incapable. He and Barbara intended to pick up the letter the following Monday and would collect the certified copies at that time.
[14] Ms Tierney became concerned that Henry and Barbara had been living rent free in Mr Dijkstra’s home in Carterton and using Mr Dijkstra’s funds to pay for their personal expenses. Ms Tierney sought information from Henry in September 2016 but received no response.
[15] In January 2018 Ms Tierney discovered that a new EPA in relation to property had been signed by Mr Dijkstra on 18 August 2017. Because Judge Black ultimately determined that this document was not an enduring power of attorney,6 I refer to it as the “2017 instrument”. As far as Ms Tierney had been aware, the operative documents were the 2012 EPAs appointing Henry as the attorney in respect of property, and Barbara as the attorney in respect of personal care and welfare.
[16] The 2017 instrument revoked the 2012 EPA and conferred wide powers on Henry and Barbara to use Mr Dijkstra’s property for their personal benefit.
(a)Where the 2012 EPA required Henry to consult his siblings and Mr Dijkstra in relation to property affairs, the 2017 instrument required no consultation with any person.
(b)Where the 2012 EPA required Henry to provide to his siblings and Mr Dijkstra if they requested it, information relating to the exercise of his powers of attorney, under the 2017 instrument there was no requirement to provide information to any person about how Henry was carrying out his role.
6 See above at [2](a).
(c)Where the 2012 EPA authorised Henry to take specific steps (such as recover expenses lawfully incurred in the management of Mr Dijkstra’s property affairs, pay the out-of-pocket expenses of the attorneys and pay the fees of professionals acting in their professional capacity), the 2017 instrument contained no such provision. The 2017 instrument expressly authorised Henry and Barbara to use Mr Dijkstra’s property for their own benefit:
My attorney(s) can act to their own benefit as stated here:
To live in my property at 6 Taverner Street, Carterton and to pay his living expenses out of funds held in my bank accounts to enable him to remain in Carterton to be close to me, rather than moving overseas to make a living.
My attorney(s) can act for the benefit of the following persons as specified:
To allow my daughter-in-law BARBARA JANE DIJKSTRA- MOREY to live in my property at 6 Taverner Street, Carterton and to pay her living expenses out of funds held in my bank accounts to enable her to remain in Carterton to look after me rather than moving overseas to make a living.
[17] On 24 January 2018 Ms Tierney’s solicitors wrote to Barbara and Henry pointing out that the 2017 instrument was not a valid enduring power of attorney. Mr Dijkstra’s signature had not been witnessed and no witness certificate had been completed. Ms Tierney was also concerned that her father did not have capacity to execute the 2017 instrument — unless he had regained capacity since the doctor’s certification of lack of capacity in January 2015.
The Family Court proceedings
[18] Although the applicants’ judicial review challenge is directed to the three judgments set out at [2] above, they also claim to have been prejudiced by failures in registry processes. Therefore, the decisions that were made and the directions that were given by the Family Court between the commencement of proceedings in February 2018 and the challenged determinations in 2019, and the various registry interventions and failings along the way, become relevant. In the remaining part of this background section I chart the progress of the proceedings to their final outcome.
Proceedings are filed and directions are given
[19] On 19 February 2018 Ms Tierney applied under s 103 of the PPPR Act to have the Family Court review Henry’s decision not to release information to her of any financial transactions since January 2015 that benefitted Henry or Barbara.
[20] On 20 March 2018 Henry applied under s 102 of the PPPR Act to have the Family Court determine whether the 2017 instrument was an enduring power of attorney. The 2017 instrument had been prepared by Mr Slack, a solicitor employed by WCM Legal. In his capacity as “counsel for the applicant” Mr McClure, a principal with that firm, filed a memorandum explaining that the 2017 instrument which Mr Slack had prepared on instructions in June 2017 had not been witnessed or certified when Mr Dijkstra signed it in August 2017. Mr Slack surrendered his practising certificate in October 2017.
[21] Mr O’Brien, counsel appointed by the Family Court to represent Mr Dijkstra, filed his first report to the Court on 27 March 2018. He had visited Mr Dijkstra and spoken with both Ms Tierney and Henry. Henry had made it clear to Mr O’Brien that the financial information he sought would not be forthcoming. Mr O’Brien submitted Henry could have allayed his sister’s concerns by simply providing the information sought. Instead he had “aggregated further powers to himself and remov[ed] the duty to provide information relating to the exercise of his powers”. Mr O’Brien recommended to the Court that Henry should be required to disclose financial information.
[22] On 5 April 2018, following receipt of Mr O’Brien’s memorandum Judge Grace directed Henry to provide within 14 days a schedule of Mr Dijkstra’s assets and liabilities as at 21 January 2015 when the 2012 EPA was activated; a schedule of current assets and liabilities; copies of Mr Dijkstra’s bank statements; and a list of the expenses claimed by Barbara and Henry and paid from Mr Dijkstra’s assets pursuant to the 2017 instrument.
[23] In an affidavit dated 24 April 2018 Henry explained, presumably to the Court, that while he would cooperate with the Court’s review, he and Barbara had a business commitment overseas “from about 30 April 2018” until 4 June 2018. He would not
therefore be in a position to provide the required information until after their return as he needed to obtain older bank statements. Henry said he was not opposed to providing the statements but his father was “certainly not in favour of it” because he wished to “keep his finances closely guarded”.
[24] Henry then addressed service of the court papers and his interactions with Mr O’Brien. Papers were not initially served on him but arrangements were made to have them served via Mr McClure at WCM Legal. Before he had seen anything “official” regarding Mr O’Brien’s appointment he was “shocked” to be telephoned by Mr O’Brien on 15 March and to learn of the Family Court’s direction that Henry should provide his father’s bank statements. As it happened the served documents arrived on 17 March 2018 and were “at the base of the letterbox in a wet and tangled condition”.
[25] Henry advised in his memorandum that he had made a complaint to the Law Society about Mr O’Brien’s “biased conduct”.
[26] On 24 May 2018, Mr O’Brien filed a memorandum informing the Family Court that Henry had not complied with Judge Grace’s directions to provide financial and medical information by 19 April 2018.
[27] As at 14 June 2018 Henry had still not complied with the Court’s directions to provide information. Judge Doyle directed that Henry’s complaint about Mr O’Brien should be referred to Mr O’Brien for comment. Then the complaint would be determined on the papers. In the meantime, Mr O’Brien’s appointment was to continue and his brief was extended so that he might consider applying for an order for non-party discovery if the information was not able to be obtained from Henry.
[28] Following a case management conference on 19 June 2018, Judge Walsh issued a Minute in which he recorded that Henry had instructed Mr Langford in relation to the s 103 application. Ms Pearson appeared for Mr McClure who was acting in relation to the s 102 application.7 In relation to Henry’s failure to provide
7 Ms Pearson was a solicitor with WCM Legal, the firm in which Mr McClure was a principal.
financial information by the due date of 19 April 2018 Judge Walsh directed compliance by 4 July 2018.
[29] As at 16 July 2018 Henry had still not complied with Judge Grace’s and Judge Walsh’s directions.
Interim orders applications and hearing
[30]On 12 July 2018, Ms Tierney applied for orders:
(a)adding Barbara as a respondent to the proceedings;
(b)appointing the Public Trust as a receiver of Mr Dijkstra’s estate; and
(c)restraining disbursement from a lawyer’s trust account half of the proceeds of the sale of a property in Blenheim in which Henry and Barbara owned a half share.
[31] In support of her application Ms Tierney attached to her affidavit bank statements showing that between February and June 2018 sums totalling approximately $37,000 had been transferred from Mr Dijkstra’s account to Barbara’s account. Of that amount, $6,700 was transferred between 11 January 2018 and 27 February 2018. Those withdrawals had the reference “Aunty Cath’s Funeral”.
Cath was Barbara’s aunt and had died in February 2015.8
[32] On 16 July 2018, Judge Binns convened a conference. Mr Langford appeared for Henry on the s 103 application. Once again, Ms Pearson appeared on behalf of Mr McClure in relation to Henry’s s 102 application. In her Minute Judge Binns recorded that Mr McClure wished to have a role in the proceeding because it was his staff member who had prepared and arranged the execution of the 2017 instrument. Ms Tierney’s interlocutory applications were set down for hearing on 18 July 2018.
8 In his detailed affidavit in reply to Ms Tierney’s evidence Henry addressed this matter. He explained that his mother asked that flowers be purchased from her account for the funeral and he did as requested using the reference “Aunty Cath’s Funeral”. From that date Henry said he used the same reference whenever he needed to reimburse himself from the Westpac account so that he would not mistakenly transfer money into the incorrect account.
Judge Binns directed that the application to add Barbara as a party be served on Ms Pearson who was acting as counsel on the s 102 application “based on instructions from Mr McClure”.9
[33] Noting that Henry had still not complied with earlier Court directions Judge Binns confirmed those directions: “I make it clear to Henry Dijkstra that those directions must be complied with.”10
Family Court interim orders hearing
[34] On 18 July 2018 Judge Binns heard the three interlocutory applications set out above at [30].
[35] In relation to the opposed application to join Barbara to the proceedings, Judge Binns considered her presence before the Court was necessary to enable effective and complete adjudication on all issues arising from the application to determine the validity of the 2017 instrument and the s 103 application. The Judge noted that Mr Dijkstra’s funds were paid into Barbara’s bank account even before the execution of the 2017 instrument which Henry relied upon as authority to use his father’s funds for his personal benefit. As there was “currently inadequate accounting of what the funds were paid for and why they were paid into [Barbara’s] bank account” Judge Binns ordered that Barbara be joined as a party to Ms Tierney’s application.11
[36] In relation to the application to either appoint a receiver or issue an interlocutory injunction to restrain Henry from dealing with assets, Judge Binns noted the total amount of the transfers from Mr Dijkstra’s Westpac account with the reference “Aunty Kath’s Funeral” and that between 10 February and 17 August 2017, before the 2017 instrument was signed, the amount transferred and referenced to “Aunty Kath’s Funeral” was $13,672.12
9 Tierney v Dijkstra FC Wellington FAM-2018-035-40, 16 July 2018.
10 At [11].
11 Interim Orders decision, above n 5, at [41].
12 The judgment contained typographical errors in that the bank statements actually referenced “Aunty Cath’s funeral” (not “Aunty Kath”).
[37] Henry’s position was that the funds used for living expenses had been approximately $4,000 per month. He was concerned Mr O’Brien, the Court appointed lawyer for Mr Dijkstra, was biased and had pre-judged matters. Mr O’Brien was concerned that Henry had failed to comply with the Court’s directions to furnish financial information and thereby breached s 99B of the PPPR Act.
[38] Judge Binns regarded as “seriously concerning, the available evidence suggesting Henry made decisions under the 2012 EPA as early as May 2015, and that payments were made to Barbara with the only reference being “Aunty Kath’s Funeral”.13 Judge Binns was satisfied an order was necessary to protect against the risk of dissipation of Mr Dijkstra’s funds.14
[39] Even if there could be subsequent compliance with the requirements of s 94A as to execution and certification, those steps did not occur until 1 February 2018. Therefore, it must have been the 2012 EPA that took effect on 16 January 2018, the date of Dr Duncan’s certificate.15
[40]The Judge set out her reasons for making interim orders:16
(1)Mr Dijkstra lacks capacity.
(2)The validity of the 2nd EPA and whether Mr Dijkstra was mentally capable at the time it was signed by him as donor, are yet to be determined however there are EPAs in existence.
(3)Prima facie, the 2nd EPA was not executed in accordance with the requirements in s 94 the Act on the date Henry says it was invoked, being 16 January 2018.
(4)Mr Dijkstra’s decision to appoint Henry in 2012 and 2017, should be respected in the interim.
(5)The orders are necessary to protect the interests of Mr Dijkstra and are the least restrictive intervention.
(6)Mr Dijkstra’s funds have ostensibly been used for the personal benefit of Mr H Dijkstra and his wife, in contravention of Mr H Dijkstra’s obligations under the first EPA which the evidence suggests was operative from 21 May 2015.
13 At [54].
14 At [53].
15 At [56].
16 At [57].
(7)The breach of Mr H Dijkstra’s obligation under s 99B.
(8)The orders are necessary in the interim to protect the interests of Mr Dijkstra and are the least restrictive intervention.
(9)The protective purposes of the Act.
[41] Pending the substantive hearing, Henry was restrained from dealing with Mr Dijkstra’s assets other than to pay rest home fees and additional expenses for Mr Dijkstra; insurance premiums; rates; and other expenses related to Mr Dijkstra’s Taverner Street property and assets. Henry was to provide accounts and produce records at the end of each calendar month. The 2017 instrument was modified in the interim to conform with the 2012 EPA.
[42]Judge Binns formulated the issues for the substantive hearing:17
(a)Whether the enduring power of attorney as to property dated 18 August 2017 is valid.
(b)When did Mr Henry Dijkstra begin acting as attorney for his father?
(c)Were all the transactions made by Mr H Dijkstra in respect of his father’s assets, properly made?
(d)Should Mr H Dijkstra or Ms Morey-Dijkstra repay any sums to Mr Dijkstra?
(e)If the Court finds that payments or deductions from Mr Dijkstra’s bank accounts were not properly made, should Mr H Dijkstra continue as attorney in relation to property and if not, who should be appointed?
[43] Judge Binns directed either Henry or Mr O’Brien to file a further affidavit from Dr Heard or Dr Cherry addressing the records (if any) in relation to Dr Cherry’s letter of 21 January 2015 confirming Mr Dijkstra lacked mental capacity to make decisions regarding health and welfare, or any subsequent verification of it in relation to Mr Dijkstra regaining capacity.
[44] Both Barbara and Henry were included in the list of persons required for cross- examination although if Barbara did not file evidence, leave was granted to seek the issue of a summons. All further evidence was to be filed within 21 days of service of
17 Interim Orders decision, at [68].
the proceedings on Barbara and updating evidence was to be filed at least 21 days before the hearing which was to be allocated as soon as possible for two days.
Application to set aside Interim Orders decision.
[45] On 14 September 2018 Henry applied to have the Interim Orders decision set aside on the grounds it had stopped Henry and Barbara’s cash flow and was causing them undue financial hardship. Henry stated in his application that the bank statements he provided proved that in 2015 Mr Dijkstra was “not impaired enough to stop him from withdrawing cash out of ATMs in Tawa and Porirua while under [Ms Tierney’s] care”.
30 November 2018 hearing
[46] On 30 November 2018 Judge Black dealt with two of a number of applications before the Court. The first was Henry’s application to set aside Judge Binn’s decision. In an oral judgment following the hearing, Judge Black dismissed the application to set aside on the grounds of lack of jurisdiction.18 Rule 56 of the Family Court Rules 2002, which confers power to set aside or vary a judgment if a party has not appeared, did not apply. Henry had appeared at the hearing.
[47] The second matter was Mr O’Brien’s application under s 103 of the Act to review Barbara’s decision that Mr Dijkstra should be cared for in his home. The application was brought on the basis that Barbara’s proposal was contrary to Mr Dijkstra’s best interests. Medical advice was that Mr Dijkstra could not be managed at home. He needed to be managed at a level 5 psychogeriatric facility and such a facility was not available in the Wairarapa. Judge Black said he was required to have regard to that evidence and it was —19
… somewhat ironic that [Henry and Barbara] in the associated proceedings urge me to have regard to the preponderance of medical opinion evidence in relation to capacity but invite me effectively to ignore it when it comes to placement …
18 Tierney v Dijkstra [2018] NZFC 9518 at [6].
19 At [8].
[48] Accordingly, the s 103 application was granted and an order was made that Mr Dijkstra be cared for at Manor Park home or a level 5 equivalent facility.20
[49] After the hearing on 30 November 2018, Judge Black took the opportunity to discuss with the parties and counsel steps towards progressing the substantive proceedings which had been placed on the ready list with a two-day estimate. Following discussion the Judge considered that with some robust management the hearing could be completed within one day and that would be the objective because otherwise the family would be waiting until the second half of 2019 for a fixture “and that is just not okay”.21 Against that background Judge Black directed that:
(a)Mr O’Brien was to liaise with Dr Cherry with a view to obtaining further information from him as to the basis of his incapacity opinion in 2015.
(b)The parties were to file any response to Dr Cherry’s affidavit and any other matters of an updating nature by 25 January 2019.
(c)The proceedings were adjourned to a telephone conference before Judge Black on 30 January 2019.
(d)The proceedings were directed to be heard in a one-day fixture on 18 February 2019.
(e)Any party seeking intervention between 30 November 2018 and the hearing date should file a memorandum directed to Judge Black.
[50] As is apparently common, the Minute was dictated following the hearing on 30 November 2018 and in the presence of the parties and counsel. Unfortunately, it was not provided to any party or counsel. As a result of what Judge Black attributed to registry error, the conference he directed for 30 January 2019 was not arranged but was the subject of a callover on 31 January 2019 conducted by Judge O’Dwyer.
20 At [9].
21 Tierney v Dijkstra FC Wellington FAM-2018-035-40, 30 November 2018.
The 31 January 2019 pre-hearing conference
[51] On 23 January 2019 Mr O’Brien emailed to the Court his completed standard checklist for a callover which was now to be on 31 January 2019 at 2.45 pm. Counsel for Ms Tierney filed a memorandum on 24 January 2019 agreeing with most of Mr O’Brien’s checklist and adding further information concerning the order of witnesses. Counsel referred to the Interim Orders hearing at which it was agreed that Henry should be the first witness as his evidence was the most important.
[52] Having received counsels’ memoranda, on 25 January 2019 Henry and Barbara filed a memorandum referring to the upcoming callover on 31 January. Neither Henry nor Barbara had received any correspondence from the Court regarding a callover on the 31st and therefore Mr O’Brien’s email and checklist had come as a “complete surprise”. The memorandum stated that due to the fact they had received no correspondence from the Court they had not made any arrangements to be available: “[c]onsequently, and regrettably, we are unable to participate”. The memorandum continued:
(a)Following Mr Langford’s resignation in August 2018 Henry said he understood that all that was required of him to defend himself was “to be truthful” but after reading the Court’s recent judgments and Dr Cherry’s affidavit it had become obvious that to communicate only the truth would be “grossly insufficient”.
(b)Without legal representation Henry and Barbara considered they would be at a major disadvantage and their statements and evidence would be disregarded “possibly because we do not understand the court’s rules and procedures”.
(c)Although they had previously assumed the effect of Judge Binns’ Interim Orders decision was to prevent them seeking new client work
overseas it was not until Judge Black’s judgment of 30 November 2018 that they understood that was not the case.22
(d)They had accepted recommendations to apply for legal aid and had contacted numerous legal aid solicitors in the Wairarapa but not one had responded.
(e)Since beginning their search for a legal aid provider they had learned there was a severe shortage of Family Court lawyers in the Wairarapa and that they may need to start approaching Wellington-based solicitors. Their search for a legal aid provider had been hindered by the fact that some of the solicitors appearing on the Ministry of Justice’s legal aid webpage did not in fact accept legal aid cases and therefore the New Zealand Law Society had been approached for an updated list. Henry and Barbara awaited the Law Society’s response.
(f)They did not feel justice could be served if they continued to represent themselves and once they had secured a solicitor willing and able to act for them on legal aid they would instruct that solicitor to inform the Court and other solicitors of their appointment.
[53]The memorandum concluded:
[I]f we are out of the country before this case is concluded, we will instruct our new solicitor to inform the court as per Judge Black’s order.
[54] On 28 January 2019 Henry filed a further memorandum most of which took issue with Ms Tierney’s updating affidavit sworn 24 January 2019. In particular and in relation to moneys withdrawn from ATM’s in Tawa and Porirua in 2015, Henry said he had cross-checked the dates he was out of the country in 2015 with dates money was withdrawn using ATMs in Tawa and Porirua and could confirm he and Barbara
22 In his judgment dismissing Henry’s application to set aside Judge Binns’ Interim Orders decision Judge Black said it was “just not right” that Henry had to stay in New Zealand pending the substantive hearing and therefore could not accept work overseas. As long as Henry kept the Court informed events could be scheduled around his availability. If necessary he could participate in conferences from “anywhere in the world”:
were in Niue on a number of dates when money was being withdrawn. They would be contacting Immigration New Zealand (INZ) for evidence “stating when we were out of New Zealand during 2015” and that evidence would be submitted to the Court via their legal aid solicitor when that person was appointed. For reasons stated in their memorandum dated 25 January 2019 Henry was “very” reluctant to litigate at any future hearing “without assistance”. He expressed himself to be “no longer confident” that he could present the truth in such a manner that complied with the Court’s rules, procedures and protocols. Henry hoped to secure a solicitor as soon as possible but unfortunately was continuing to receive letters from them stating they were unable to help due to their current workload.
[55] Judge O’Dwyer convened a pre-trial conference on 31 January 2019. Addressing Henry’s two memoranda,23 Judge O’Dwyer approached the memorandum dated 25 January 2019 as an application for an adjournment. Her Honour noted that Henry wished to secure a legal aid solicitor but she was urged by other counsel to give directions for the hearing on 18 February 2019. Accordingly, directions were given to ensure the hearing proceeded on 18 February, as scheduled. The fixture had been known to all parties since 30 November 2018 when Judge Black directed that the matter be set down for a one-day hearing before him:24
Henry Dijkstra was present on that occasion and Barbara was also present. Mr Henry Dijkstra and Barbara are therefore aware of the hearing date on 18 February.
[56] Once again, the order of witnesses was addressed and Henry and Barbara were confirmed to be the first and second witnesses. Henry was to arrange for Dr Heard’s evidence to be given by way of AVL if that were necessary. He was to liaise with the registry in that regard. Mr McClure was to file within seven days a memorandum as to any conflict of interest and, if he continued to be instructed, he was to address the scope of his instructions.
23 See above at [52] and [54].
24 Tierney v Dijkstra FC Wellington FAM-2018-035-40, 31 January 2019.
Post callover communications
[57] On 7 February 2019 Henry emailed the registry to ask why he had not received notice of the callover. Henry stated it was impossible to have a fair hearing if excluded from pre-hearing conferences.
[58] In addition to his email on 7 February 2019 Henry filed a memorandum that day in which he made the following points:
(a)A callover had been held on 31 January 2019 yet the Court had sent no prior notice. He and Barbara had made arrangements to be available on 28 January and were expecting to be contacted but there had been no contact.
(b)Not only had the Court not informed Henry or Barbara of any callover, it had not informed them of any scheduled hearing.
(c)In relation to the withdrawals of money from Mr Dijkstra’s bank account using ATMs in Tawa and Porirua, Henry stated they were able to provide evidence from INZ to prove that, at the time, they were both out of the country. This was described as a crucial piece of evidence. INZ had written to Henry and Barbara advising that their Official Information Act (OIA) request would take 20 working days from 1 February 2019.
(d)After referring to Mr Langford’s resignation and Henry’s earlier confidence that he could defend himself against untruthful allegations simply by reporting the truth, Henry said since the hearing on 30 November they had changed their view because the Court did not send notices of callovers or hearings and they were unsure how to submit crucial evidence which had been applied for but which would be subject to delay over which they had no control and because Dr Cherry had submitted an affidavit that was said to contradict his earlier email to Henry and Barbara. For these reasons legal representation was “now” required.
(e)Their efforts to secure a legal aid solicitor in December was fruitless. A letter from the New Zealand Law Society responding to Henry’s email of 24 January 2019 recorded its understanding there was a shortage of family lawyers undertaking legal aid work in the Wairarapa region.
[59] The memorandum concluded with the statement that if there was a hearing scheduled for 18 February 2019, Barbara and Henry were not ready for it:
True justice can only be served if we are granted sufficient notice to prepare for any such hearing and all parties are provided with the same amount of notice.
We need to wait until we have received the requested information from Immigration New Zealand and until we have secured legal representation.
We submit to the Court that the callover is rescheduled and that we are provided with a formal notice and an opportunity to participate. We further submit to the Court that any hearing scheduled for February is postponed until we have obtained the needed evidence and we have secured legal representation.
[60] In accordance with the Court’s earlier directions, Mr O’Brien filed a written synopsis of submissions on 11 February 2019.
[61]Henry filed a further memorandum dated 13 February 2019 noting that:
(a)the Court had replied to none of his earlier communications;
(b)he had received no notification of a defended hearing on 18 February 2019 nor the time it was scheduled to be heard;
(c)he and Barbara had “drawn the unfortunate conclusion” that there was nothing to gain by sending further correspondence concerning the matter as they had been unfairly excluded from the pre-hearing conference call and they now feared the Court would hold a defended hearing without their knowledge and “this would mean that we would not be given a fair and just hearing”;
(d)the evidence from INZ was still awaited;
(e)they had witnesses who were willing to testify but one in particular would be required to travel from Australia and this would require sufficient notice of a hearing date. A second witness was a psychogeriatrician who would also require sufficient notice to attend.
[62] Henry levelled a large number of criticisms at Mr O’Brien who Henry maintained was biased, was not acting in Mr Dijkstra’s best interests, made unfounded claims, and was aware there was “evidence pending that will prove my father managed his own money in 2015 using his ATM card, as we were not in New Zealand at the time”:
[17] We are constantly playing a “catch up” game. Mr O’Brien and [Ms Tierney’s counsel] make unfounded allegations which we feel obligated to respond to with provable evidence. Unfortunately, it takes more time and effort to obtain and present this evidence, than it takes to make yet another unfounded allegation…
[18] Mr O’Brien is biased, unfair and fabricates information almost to the extent of lying. This is one of the reasons that we cannot continue to represent ourselves. We will be making this point very clear to our legal aid solicitors, once we have secured them.
[19] Because of the reasons explained, we are no longer representing ourselves. We remain confident that the next correspondence will be made by our newly appointed solicitors.
[63] On 14 February 2019 the Deputy Registrar replied to Henry’s email of 7 February 2019. She confirmed that the callover did take place on 31 January 2019 and apologised for the fact Henry had not been informed. No reason was given for the lack of formal notice. The Deputy Registrar also confirmed the substantive hearing was to proceed on 18 February at 10 am.
[64] Henry replied within the hour to say the response was not good enough as they now had only one full working day to prepare for the defended hearing. Henry stated that the Court could not expect them to appear at such extremely short notice and without the benefit of having participated in the callover. One day was said to be insufficient time to call witnesses and prepare evidence from INZ that they had not yet received. Therefore, he and Barbara were unable to attend on 18 February.
[65] Henry’s final communication prior to the substantive hearing was a letter dated 16 February 2019 addressed to the Ministry of Justice at its DX address and for the attention of Mr Williams, Regional Manager, Courts and Tribunals. Henry documented the many ways in which he and Barbara had been failed by the court’s processes. In relation to the substantive hearing scheduled for 18 February 2019 Henry said they had witnesses who were willing to testify but he had not been able to tell them when they were required. Henry said he and Barbara “[could] not be expected to be available for a defended hearing with only 1-days’ notice, when the details have only been served to us in a one-line email. Neither can our witnesses. We all have other commitments”. Henry’s letter concluded with 13 questions for Mr Williams and a request that he notify Judge Black and “explain to him the reasons as to why Barbara and I will not be present in court on 18 February 2019”.
Substantive hearing on 18 February 2019
[66] The substantive hearing proceeded before Judge Black on 18 February 2019 in three stages. First, prior to witnesses being called, Judge Black addressed the several memoranda Henry had filed and his email correspondence with the registry. Judge Black acknowledged that his Minute of 30 November 2018 had never been sent to the parties or counsel but he was satisfied Henry knew of the fixture on 18 February 2019. Henry was in court when it was scheduled. Additionally, the parties were directed on 30 November 2018 to file updating evidence and any response evidence by 25 January 2019. He had not complied with the direction and the Judge was —25
…not prepared to grant what he had taken as [Henry’s] 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.”
[67] In the second stage of the hearing on 18 February 2019, evidence was called, witnesses were cross-examined and submissions were made. At the end of this part of the hearing which occupied the morning, Judge Black delivered an oral judgment determining the s 102 application. His Honour was not satisfied that the statutory requirements for an enduring power of attorney had been met The evidence of the solicitor who drafted the “open slather” instrument, and accepted that he had never
25 Tierney v Dijkstra FC Wellington FAM-2018-035-40, 18 February 2019, at [7].
drafted an EPA with such a wide self-dealing provision, did not satisfy the Judge that the instrument’s effects had been explained to Mr Dijkstra or that Mr Dijkstra understood its effects. Judge Black determined that the 2017 instrument was not an enduring power of attorney.26
The third stage involved the hearing of the following applications:
(a)Ms Tierney’s application to be appointed as Mr Dijkstra’s welfare guardian;
(b)the s 103 application to review Henry’s actions as attorney;
(c)Ms Tierney’s application to have Henry and Barbara removed as property and welfare attorneys; and
(d)an application for the appointment of the Public Trust as the property manager.
[69] At the end of the day Judge Black delivered a results judgment with reasons to follow. His Honour: 27
(a)ordered Henry to refund to Mr Dijkstra the amount of $136,766.31 on the basis that decisions and payments made by Henry for his and Barbara’s benefit went beyond the scope of the power of the 2012 EPA;28
(b)revoked Henry and Barbara’s appointments as attorneys pursuant to s 105 of the PPPR Act;
26 Section 102 decision, above n 1. Ms Hansen pointed out that the decision incorrectly records that the application was made pursuant to s 103. Ms Hansen is correct. However, nothing turns on the typographical error.
27 Section 103 decision, above n 2.
28 At [3]–[4].
(c)adjourned to a case management review (because it raised a risk of further litigation) Ms Tierney’s application to be appointed welfare guardian;
(d)discharged the order for Mr Dijkstra’s care that Judge Black made on
30 November 2018 and made a further interim personal order to become final on 31 May 2019 if resumption of the welfare guardianship hearing was not sought;
(e)timetabled applications and submissions in relation to costs; and
(f)appointed the Public Trust as property manager for Mr Dijkstra.
[70]On 3 March 2019 Judge Black issued his reasons for judgment.29
Costs decision
[71] In his costs decision delivered on 26 August 2019, Judge Black stated that Ms Tierney had been effectively forced to bring proceedings because Henry and Barbara misconducted themselves in administering Mr Dijkstra’s affairs and there could be “no clearer case for an award of costs to follow the event given that her concerns have been established as valid …”.30 If Henry and Barbara had relied on advice given to them by their lawyers that was a matter as between them and their lawyers but was irrelevant to the question of whether there should be an award of costs in favour of Ms Tierney. In relation to the s 102 application, Henry was ordered to pay costs and disbursements in the amount of $6,987.25. In relation to the s 103 application, Henry and Barbara were ordered to pay costs and disbursements in the sum of $16,777.25.
29 Tierney v Dijkstra [2019] NZFC 1172.
30 Costs decision, above n 3, at [8].
Application for judicial review
Applicants’ position
[72] Ms Hansen helpfully confirmed no issue arose as to whether Henry and Barbara had notice of the hearing on 18 February 2019. They did have notice.
[73] Ms Hansen highlighted registry failings between November 2018 and March 2019. There was a failure to provide:
(a)a copy of Judge Black’s Minute dated 30 November 2018 (which the applicants acknowledge no party received);
(b)notice of the callover on 31 January 2019;
(c)formal notice of the hearing on 18 February 2019;
(d)a copy of Judge O’Dwyer’s Minute dated 31 January 2019 (until 14 February 2019 and acknowledging no other party received this Minute either);
(e)a copy of Judge Black’s Minute dated 18 February 2019;
(f)a copy of Judge Black’s judgments dated 18 February and 3 March 2019 until 6 March 2019.
[74] Citing Ali v Deportation Review Tribunal, Ms Hansen submitted natural justice requires that where a person will be affected by a decision, that person must be given an opportunity to be heard and a reasonable opportunity to present their case and reasonable notice of the case to be met.31 Ms Hansen also cited Khalon v Attorney- General in which Fisher J stated that “a party should normally be given the opportunity to respond to an allegation which, with adequate notice, might be effectively refuted”.32
31 Ali v Deportation Review Tribunal (1997) NZAR 208 (HC) at 220.
32 Khalon v Attorney-General [1996] 1 NZLR 458, at 466.
[75] Ms Hansen’s principal submission was that Henry and Barbara were unfairly denied an opportunity to be heard in relation to the s 102 and s 103 applications and the application to remove them as attorneys and replace them with the Public Trust. The Family Court ought to have adjourned the hearing to allow Henry and Barbara to obtain legal representation, formally oppose the new application by Ms Tierney to have them removed, adduce further evidence, give further oral evidence, and to be cross-examined and to cross-examine. In light of the Family Court’s determination that Henry owed more than $136,000, and the detrimental effect of the judgment on Henry’s reputation, Ms Hansen submitted it was extraordinary that “the Judge failed to allow” Henry’s evidence to be tested. Ms Hansen characterised the failure as “a manifest injustice”.
[76] Ms Hansen submitted the Family Court was wrong to refuse an adjournment to allow Henry and Barbara to obtain legal representation. Their concerns about their need to engage a lawyer were raised in four memoranda dated 25 January 2019, 28 January 2019, 7 February 2019 and 13 February 2019 and also in an email dated 14 February 2019 and a letter dated 16 February 2019.
[77] In relation to the Judge’s criticism of Henry and Barbara’s failure to appear on 18 February 2019 to make their request for an adjournment, Ms Hansen pointed out that they had “advised the Court that they would not be appearing on three occasions”.
[78] Ms Hansen submitted that with an opportunity to be heard Henry could have (among other things) provided evidence about how the 2017 instrument came about, that the arrangement was reached “out of mutual love and affection” and that there was never expenditure of $8000 a month.
[79] Although her written submission focussed on the s 103 application, Ms Hansen clarified that Henry maintained his challenge in relation to the s 102 decision. Ms Hansen argued he was denied a fair hearing in relation to that application as well. Ms Hansen submitted that in hearing the applications in Henry’s absence the Family Court made a material error. Ultimately, they were denied the opportunity to fairly defend themselves and they are entitled to relief.
[80]The key relief sought is an order quashing the decision to impose a debt of
$136,766.31 and quashing the costs decision dated 26 August 2019.
Second respondent’s position
[81] For the second respondent, Mr Davies submitted that the failure to take an opportunity to be heard does not result in a breach of natural justice. In support of that argument Mr Davies cited R v Home Secretary, Ex p Al-Mehdawi and West v Martin.33 Highlighting that the requirements of natural justice depend on context and subject matter, Mr Davies submitted it was proper to take into account the other participants in the litigation process including that judicial resources were at capacity and that there is a need for finality in civil litigation. Mr Davies referred to the actual knowledge the applicants had of the hearing date and also that Henry was represented in relation to the s 102 application which his counsel agreed to have managed and heard together with the s 103 application.
[82] Mr Davies relied on evidence in the Court record showing that either firsthand or through his counsel, Henry knew of the pre-hearing conference on 31 January 2019, of the substantive hearing on 18 February 2019, what was to be addressed at the substantive hearing and that he understood the consequences of not attending. Mr Davies submitted the applicants did not appear in support of an adjournment, nor did they instruct a lawyer to appear on their behalf when the evidence shows they had that ability. Legal aid was refused on 13 February 2020 on the grounds the applicants had disposable assets exceeding the amounts prescribed in the Legal Services Regulations by $37,000. As well, when Henry wrote to the Minister of Justice, the Secretary for Justice and the Office of the Ombudsman between 10 July 2019 and 31 July 2019, he said he had paid $10,000 to a Wellington lawyer who advised him that the Judge was wrong not to grant an adjournment and that Henry had been denied natural justice. Mr Davies’ point was that Henry appeared to have assets to fund representation at the substantive hearing on 18 February 2019.
[83] In relation to relief, Mr Davies submitted that Henry’s delay in bringing the application for judicial review has caused prejudice and undue distress to Ms Tierney.
33 R v Home Secretary, Ex p Al-Mehdawi [1990] 1 AC 876; West v Martin [2001] NZAR 49, at [19].
Relief should be refused because Henry had alternative remedies available to him such as applying for a re-hearing, or that the judgment be set aside due to his non- appearance.
Discussion
[84] The applicants’ case is that they were unfairly denied the right to a hearing that resulted in determinations affecting their rights and interests. Before discussing the applicants’ claim of breach of natural justice it is helpful to summarise the effect of and reasons for Judge Black’s determinations.
[85] In relation to the s 102 application the Judge regarded the circumstances as almost “the paradigm situation” which amendments to the PPPR Act were designed to avoid:34
A 91 year old vulnerable person does not contact a lawyer with a view to drafting a new document. The attorney, his son, contacts a lawyer, a new lawyer, not the person who has been Gez’s lawyer for the last 30 years, and asks Mr Slack to prepare a document allowing for Henry and his wife to live rent and expense free, or live all expense paid by Gez for the rest of Gez’s life
[86] Mr Slack’s evidence was that it was an unusual request; he had never drafted an EPA with such a wide self-dealing provision; he met Mr Dijkstra on only one occasion; his instructions came entirely from Henry who, although he offered to excuse himself, was present throughout the meeting; he knew nothing of the circumstances of Mr Dijkstra’s other children or his financial affairs and did not ask; and he did not know that one of the children had a significant disability and that Mr Dijkstra had made particular provision for her in his will.
[87] Mr McClure had submitted “on behalf of Henry” that the 2017 instrument was an enduring power of attorney and the Judge accepted that the post-facto signing of the witness certificate was not material. The Judge expressly paid no “regard to Henry’s subsequent behaviours in relation to his father’s affairs” and accepted he should not impose on Mr Slack the lens of hindsight. The Judge also accepted the
34 Section 102 decision, above n 1, at [16]–[22].
medical evidence of Mr Dijkstra’s capacity to grant a power of attorney in 2017 and specifically found he did have capacity.
[88] Ultimately, the Judge was not satisfied s 94A(6) of the PPPR Act had been complied with and, notwithstanding Mr McClure’s representation of Henry’s interests, he determined that the 2017 instrument was not an enduring power of attorney.
[89] In relation to the s 103 application and Ms Tierney’s interlocutory applications, the Judge had before him three bundles of evidence which included four affidavits filed by Henry between April and September 2018, Barbara’s affidavit dated 23 August 2018, six memoranda filed by Henry between August 2018 and February 2019 two memoranda filed by Barbara in November and December 2018 and two joint memoranda filed in January and February 2019.
[90] In response to Ms Tierney’s allegation that Henry used the power of attorney to make payments for his own and Barbara’s benefit, the Judge recorded Henry’s position that “the payments were made either by his father, or expressly authorised by him while he still had capacity.35 Judge Black was unable to accept Henry’s assertion that the transactions the subject of complaint were authorised by Mr Dijkstra.
[91] In relation to the application to remove Henry and Barbara as attorneys, Mr O’Brien, counsel for Mr Dijkstra supported the application. Having accepted that Henry made unauthorised transactions Judge Black accepted also that Barbara had been a party to and benefitted from the transactions:36
… And of course, I am the Judge who made the decisions overruling two of her decisions late last year. I find that there is a prospect that Barbara will continue to not act in Gez’s best interests.
[92] Judge Black added that if he were required to make a finding he would have found that neither Henry nor Barbara was a proper person to hold appointment as they “had consistently put their own interests ahead of Gez’s interest, and it is not appropriate that they continue in those roles”. Consequently, their appointments were revoked and the Public Trust was appointed.
35 Section 103 decision, above n 2, at [8].
36 At [19].
[93] The serial administrative failings that Henry and Barbara experienced in their dealings with the Family Court must be acknowledged. Henry and Barbara were owed the apology that Mr Williams offered on the Ministry’s behalf for the many ways in which the court’s processes had failed them. But the question raised by the application for judicial review is whether, given the applicants’ reasons for refusing to appear at the hearing, the Judge breached their fair hearing rights by proceeding to hear and determine the issues in their absence. That question is to be assessed in light of factors that have been considered relevant in comparable situations where parties have either failed to appear or have been denied adjournments.
Factors bearing on discretion to adjourn
[94] Rule 192 of the Family Court Rules 2002 permits the Court, before or at the hearing, to adjourn a hearing “if it appears expedient in the interests of justice to do so”. The wording of r 192 is very similar to r 10.2 of the High Court Rules which permits the Court, if it is in the interests of justice to do so, to adjourn a trial. (A trial includes a judge-alone hearing.)
[95] In addition to the interests of the immediate parties, a factor bearing on the exercise of the Court’s discretion is the public interest in the efficient use of resources. The courts are increasingly concerned at the delay caused by adjournments which in turn increase cost and anxiety for parties and can be wasteful of court resources:37
Administrative practices designed to ensure that a case proceeds on the appointed day undoubtedly have their place in the disposition of the Court’s business. There is an obvious public interest in achieving the efficient administration of justice.
[96] An allied consideration when assessing whether the interests of justice favour an adjournment is the need for the Court to consider the interests of parties in cases in the queue. That said, administrative convenience cannot override the right of parties to a fair hearing and the administration of justice may have to yield to the interests of justice in a particular case. The conduct and attitude of the parties themselves may then become relevant to a consideration of the interests of justice in a particular case.
37 Willis v G Kline (1995) 8 PRNZ 546 (HC) at 549, as cited in Brookers Family Law — Family Procedure (online ed, Thompson Reuters) at [FC 192.03].
[97] I turn to the applicants’ stated reasons for declining to appear at the substantive hearing.
Applicants’ reasons for declining to appear
[98] There was a strong focus in the applicants’ arguments on the Judge’s refusal to grant an adjournment. In a sense Judge Black’s purported dismissal of an application for an adjournment that was never formally made, is beside the point. Henry had determined in advance of the hearing that he and Barbara would not be attending. Henry had asked Mr Williams to notify the Judge that he and Barbara would not be present in Court and to explain their reasons.38 As Ms Hansen submitted, they advised the Court on three occasions that they would not be appearing. But nor did they appear for the purpose of ensuring the Judge had received and understood their several memoranda detailing the reasons why they needed an adjournment. Henry and Barbara’s decision not to appear was independent of any judicial determination about an adjournment.
[99] In his affidavit filed in support of this judicial review proceeding, Henry offered explanations for not attending the callover or appearing on 18 February 2019. In relation to the callover Henry stated he and Barbara did not participate because they did not receive notification of the date or time and did not know whether they needed to ring in or the number to be called. Henry said they waited to be called on 29 January “but the court did not call us the entire day.” It is not at all clear why Henry and Barbara waited on 29 January to attend the callover when they had already discovered it was scheduled for 31 January and sent a memorandum to the Court on 25 January saying they were unable to attend on the 31st
[100] In his affidavit Henry gives the following explanation for his non-appearance on 18 February:
140. We did not attend the hearing because we had received no official notification from the court about the callover. This had already placed us at a major disadvantage. The court was unable to explain why this had happened.
38 See Henry’s letter dated 16 February 2019, at [65] above.
141. The callover date had been changed that proved that the court was at liberty to change the hearing date without notifying us.
…
143. The court had the opportunity to reply to my email of 7 February 2019 and inform me of the 18 February hearing. The Court took 7 days to reply to my email and provided me with one business day to prepare witnesses and evidence.
[101] Henry was incorrect to say that he and Barbara had only one business day to prepare witnesses and evidence. They had known of the substantive hearing since 30 November 2018 and they had known since that time that they were to appear as the first witnesses for cross-examination. Importantly, in this proceeding, the applicants accepted that they knew the substantive hearing was to be on 18 February 2019. The unfairness is said to arise because the hearing proceeded in the face of Henry and Barbara needing more time to arrange “crucial evidence” and obtain legal representation.
[102] I address first the crucial evidence point. Henry insisted in his several communications with the Family Court, and maintains in this Court, that he needed evidence from INZ in order to defend himself and that evidence was not available in time for the hearing.
[103] In support of his position Henry attached to his memorandum dated 7 February 2019 an automated reply from INZ dated 31 January 2019 stating that it would endeavour to complete his request as soon as possible within 20 days. I do not know what Henry requested as a copy of the request itself was not provided to this Court. Henry said the evidence he sought from INZ would enable him to disprove the accusations Ms Tierney made in her affidavit of 24 January 2019 as to who used Mr Dijkstra’s ATM card at Tawa in early 2015.
[104] The difficulty I have with Henry’s position is that he had been on notice of this issue for many months. In his affidavit sworn on 24 September 2018 in support of his application to set aside Judge Binns’ decision, Henry deposed to Ms Tierney taking Mr Dijkstra to ATMs in 2015 and that it was under the “watchful eye” of Ms Tierney who made allegations against Henry, that the withdrawals occurred. Putting to one side the fact that making an OIA request of INZ is an unusual means by which to prove
one’s own travel movements, Judge Binns directed the parties on 2 August 2018 to file their evidence within 21 days.
[105] Henry maintains there is crucial evidence which “proves” a fact that would have been decisive on the issue of whether he made unauthorised transactions and therefore acted other than in Mr Dijkstra’s interests, as Judge Black found.39 If the evidence was critical to his position Henry has provided no explanation to any Court as to why he waited until January 2019 to seek evidence from INZ to prove he was out of the country in January 2015.
[106] Furthermore, presumably INZ replied to Henry’s OIA request and provided him with what he sought, yet that information has not been brought to this Court’s attention. As far as I have been able to tell, Henry has not referred to the existence of this evidence in the affidavits filed in this proceeding: his 189-paragraph affidavit in support of the application for judicial review and his 130-paragraph affidavit in reply.
[107] In any event, whether or not Henry was overseas in January 2015 was not particularly relevant to the February 2019 hearing. Ms Tierney alleged (as reflected in the written submissions of her counsel) that Henry acted as Mr Dijkstra’s attorney from January 2015 and that he “made transactions which paid for his own living expenses (power and phone bills) or transferred money directly into his and/or [Barbara’s] bank accounts”. Judge Black was invited to find that transfers into Henry’s personal bank accounts and payments for living expenses totalling more than $160,000 were improper. There was no mention by any counsel in their written submissions, nor mention in the judgment, of withdrawals in January 2015 using ATMs in Tawa or Porirua.
[108] It seems to follow that evidence showing Henry’s travel movements at certain dates in January 2015 was not required because it was not relevant to the issues for determination. That being the case there was no denial of a fair hearing in relation to this evidence.
39 Reasons for judgment, above n 4, at [18].
[109] I turn next to Henry’s stated inability to obtain legal representation. Henry’s evidence is that Mr Langford, who represented him on the s 103 application “resigned” to travel overseas in August 2018. Henry said that following Mr Langford’s resignation he thought he could defend himself by being “truthful” but that it became obvious after reading the Court’s recent judgments and Dr Cherry’s affidavit that to communicate only the truth would be “grossly insufficient” and they needed legal representation. This was one of the reasons given in the memorandum filed a few days before the callover as to why Henry would not be attending the callover.40
[110] There is no doubt that Henry was represented by counsel in relation to the s 102 application. Mr McClure’s first memorandum was filed in March 2018 in his capacity as “counsel for the applicant” that is, counsel for Henry.41 And his letter dated 12 February 2019 transmitting his memorandum to the Family Court, advised that he acted for Henry in his capacity as attorney. Mr McClure did not take instructions from Henry nor represent Henry or Barbara in relation to any other matter. Mr Davies invited me to draw inferences from the fact Henry blind-copied Mr McClure into his email communications with the registry and the Ministry of Justice on 14 February 2019. But there is no particular inference to be drawn. The evidence confirms Henry was in contact with Mr McClure. That was to be expected.
[111] Pointing to Henry’s correspondence with the Minister of Justice, the Office of the Ombudsman and others in which he described paying $10,000 in legal fees in March 2019 to obtain advice about a possible appeal,42 Mr Davies said the available inference was that Henry did in fact have funds to obtain a lawyer for the substantive hearing the month before. I do not find it necessary to draw that inference either.
[112] I do conclude, however, that Henry was obliged to attend on 18 February 2019. At that stage an adjournment application could have been made. He had the opportunity to do so but declined to appear and present to the Judge his reasons for an adjournment along with any evidence in support. Evidence in support might have included the nature of the crucial evidence that Henry now says would have proved
40 See [52](a) above.
41 See [20] above.
42 See [82] above.
his absence overseas and that therefore he could not have wrongfully withdrawn funds on stipulated days in early 2015. Henry could have but did not support his position by giving the Judge an opportunity to view the nature of the request Henry made to INZ.
[113] Henry could have shown, but did not show, the Judge evidence of the efforts he said he made to obtain legal representation. Henry stated in his memorandum filed in the Family Court on 25 January 2019 that he continued to receive letters from lawyers who stated they could not represent him because of their workloads.43 Henry could have, but did not, place those letters – or any other evidence – before the Court to demonstrate that he had done everything practicable to avoid seeking an adjournment.
[114] In simply refusing to attend on 18 February, Henry knowingly waived an opportunity to seek an adjournment and present his case as to the substantive impediments to proceeding on that day. A substantiated basis for an adjournment was unlikely to be declined. Had it been, the applicants would have had the option of appealing any substantive determination on the basis that the decision to proceed was wrong.
[115] As I have observed, Henry and Barbara were owed the apology and explanation that Mr Williams gave for the process failures. And I readily acknowledge their frustration and concern and the cumulative effects of these failures in process. But those failures did not excuse Henry and Barbara from appearing on 18 February 2019 and making their case for an adjournment. Unfortunately, Henry’s failure to offer any evidence in support of his contention that decisive evidence was awaited, and that he had made strenuous efforts to obtain legal representation together with his refusal to appear, seem to be in keeping with his apparent disinclination to cooperate with other processes to which he objects. For example:
(a)When Ms Tierney sought financial information from Henry in 2016, she received no response.44 It was Henry’s lack of response that led
43 See [54] above.
44 Interim Orders decision above n 5 at [11].
Mr O’Brien to seek, and the Family Court to make, a direction that Henry provide a schedule of Mr Dijkstra’s assets and liabilities.
(b)Henry’s response to the Court’s direction was to file an affidavit on 24 April 2018 saying he would be overseas “from about 30 April” and would not therefore be in a position to meet the 14-day timeframe for compliance.45
(c)As at 14 June 2018 Henry had still not complied and Mr O’Brien sought a further direction which Judge Walsh made on 19 June 2018.46
(d)As at 16 July 2018 Henry had still not complied with the Court’s several directions.
(e)In her Interim orders decision delivered on 2 August 2018, Judge Binns ordered Henry to provide accounts and produce records at the end of each calendar month in relation to his management of Mr Dijkstra’s property for that month. Commencing 31 July 2018, the accounts for that month were to be provided to Mr O’Brien and counsel for Ms Tierney no later than the 10th of August and thereafter on the 10th of each calendar month.47 As at 24 January 2019 when counsel for Ms Tierney filed a memorandum for the callover, the relevant statements for November and December had not been received and counsel sought a further direction that they be provided immediately.
(f)The evidence that Henry maintained they had only one working-day to prepare ought to have been filed in 2018, in accordance with Judge Binns directions.
[116] Henry and Barbara should have received formal notification of the callover to be held on 31 January 2019. They did know of the callover however. In his memorandum of 25 January 2019 Henry referred to the failure to provide them with
45 See above at [23].
46 See above at [27].
47 Interim Orders decision, above n 5, at [59](2).
formal notice when the other parties had such notice and advised that as they had not received notice, they had not made arrangements to attend and consequently were unable to participate.48
[117] It may be that Henry and Barbara felt some justification in taking that position given the real failures to provide them with information they were entitled to receive in a timely way. But in the absence of any explanation to the Family Court as to why they could not attend a brief telephone conference at any time on 31 January, and in light of the failures to cooperate that I have discussed, their non-appearance at the callover seems to be as much an unwillingness to attend as an inability. That view is supported by Henry’s explanation in his affidavit filed in this proceeding:
126. There was a callover on 31 January 2019. Barbara and I did not participate because we had not received any notification from the Court as to the date and time of the callover. We did not know whether we needed to ring in, and if so, the number to call – or whether we would be called …
[118] Henry had every opportunity to be heard and to provide the evidence Ms Hansen submitted he could have provided about the circumstances in which the 2017 instrument came about and evidence bearing on his and Barbara’s expenditure.
[119] Henry’s position is unlike the position of the appellant in PB v BJB, a decision cited to me in argument.49 In that case the appellant appealed rulings that had been made in a telephone conference that he sought to have adjourned. Having made two applications for an adjournment, the appellant did not then attend the conference. Brewer J said the appellant was not entitled to assume there would be an adjournment. Henry made no such assumption. He had determined in advance of any judicial pronouncement about an adjournment that he would not be attending on the day.
[120] The applicants had known since 30 November 2018 of the substantive fixture on 18 February 2019. Judge Black underscored the importance of a hearing at that time when he said to the parties that if it did not take place in February 2019 “this
48 See [52] above.
49 PB v BJB [2017] NZHC 715.
family is going to be waiting until the second half of next year for a fixture, and that is just not okay”.50
[121] By refusing to appear Henry brought about the very prospect he said in his memorandum they feared: “a defended hearing without their knowledge [which] would mean they would not be given a fair and just hearing”.
[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.
[124] Even had the applicants shown they were unfairly denied their right to a hearing I would have refused to grant relief for the reasons I explain in the following part of this judgment.
Relief
[125] The conduct of an applicant for judicial review is relevant to the discretion to grant relief.
[126] The record shows that Henry’s conduct of his defence in the Family Court was marked at times by flagrant non-compliance with Court directions and orders, and a high-handed attitude to time-frames. For example, when Judge Grace directed Henry to provide by 19 April 2018 the financial information he had declined to provide to
50 See above at [49].
counsel assisting, Henry did not seek an enlargement of time. Instead, he filed an affidavit after the due date for the information the essence of which was to say he would comply when he could, on his return from an overseas commitment.51 The unwillingness to appear at the callover on 31 January 2019, and refusal to appear on 18 February 2019 to seek an adjournment, appears to be in similar vein.
[127] The applicants’ disinclination to appear for the substantive matters contrasts with their willingness to represent their interests after August 2019 when Henry said Mr Langford “resigned”. Without legal assistance, Henry not only prepared and filed an urgent application to set aside Judge Binns’ Interim Order, he prepared, swore and filed a detailed affidavit in support. Then on 30 November 2018 Henry and Barbara appeared in person and made oral submissions before Judge Black.
[128] Henry did not appear and support his request for a “postponement” of the substantive hearing and take the opportunity to explain to the Judge the nature of the “crucial” evidence which he maintains would prove a decisive point in the substantive hearing. Not even for the purpose of this judicial review proceeding, by which time it might be assumed that Henry had received from INZ the evidence he sought 20 months earlier, did Henry produce that evidence to this Court. He did not at the time, and still has not explained the nature of the defence he would have mounted in the Family Court based on that evidence. Not only has Henry not revealed the evidence said to be so critical to his case he has not explained why he did not seek it before January 2019. The supposed issue had been alive for some time and the parties had been directed to file evidence in 2018. Even if I had concluded there was a breach of natural justice, I would have declined relief because the non-availability of evidence that Henry says is crucial to his interests, can be attributed to Henry’s failure to exercise due diligence to obtain the evidence in time.52
[129] There is a further impediment to the grant of relief. Henry and Barbara could have advanced their case that there has been a miscarriage of justice on both procedural and substantive grounds by applying for a rehearing,53 or applying to have
51 See above at [23].
52 Cf R v Home Secretary, Ex p Al-Mehdawi, above n 33, at 900.
53 Under Family Court Rules 2002, r 59.
the judgment set aside following their non-appearance.54 They had very recent experience of that process and would have understood that the Family Court had jurisdiction to set aside a judgment where a party had not appeared.55 They did not take that step. Nor did they file an appeal.
[130] Henry’s explanation for not filing an appeal is unsatisfactory. He engaged counsel to act for him in March 2019, within the appeal period. Henry said his lawyer advised him that he had been denied natural justice and that the Judge was wrong not to grant an adjournment. Henry explained in his letters to the Ombudsman and others that this step cost him $10,000 which exhausted his savings.56 Henry does not say why an appeal was not filed. The cost of prosecuting an appeal is a separate point and does not arise because the first elementary step of commencing an appeal was not taken.
[131] The judicial review proceeding was commenced on 8 May 2020. Even taking into account the delayed delivery of Judge Black’s decisions, the application for judicial review was filed 14 months after receipt of his written decisions. The delay in commencing the challenge to the Family Court decisions has caused undue stress to Ms Tierney whose evidence is that she believed matters were at an end when no appeal was lodged and then submissions were filed by counsel for Henry on 5 April 2019 in relation to costs on the s 102 application.
[132] When viewed alongside the other factors that I have discussed, particularly the contribution of the applicants themselves to the fact the substantive hearing proceeded in their absence, the delay in commencing this judicial review challenge justifies the refusal of relief.
Result
[133]The application for judicial review is dismissed.
54 Under r 56.
55 See above at [45] –[46].
56 See above at [82].
[134] As costs follow the event, the second respondent is entitled to scale costs on a 2B basis57 and reasonable disbursements as fixed by the registrar.
Karen Clark J
Solicitors:
Lisa Hansen, Wellington for Applicants
Crown Law Office, Wellington for First Respondent Gascoigne Wicks, Blenheim for Second Respondent
57 Counsel filed a joint memorandum dated 17 June 2020 agreeing that the proceedings were to be categorised 2B.