Dvorak v Yamamoto

[2017] NZCA 485

IN THE COURT OF APPEAL OF NEW ZEALAND

CA503/2017
[2017] NZCA 485

BETWEEN	JAKUB DVORAK Applicant
AND	SHIORI YAMAMOTO Respondent

Court:

Kós P, Harrison and Gilbert JJ

Counsel:

P A Kirk for Respondent

Judgment:

(On the papers)

27 October 2017 at 2.30 pm

JUDGMENT OF THE COURT

AThe application for an extension of time is deemed abandoned.

BThe application for leave to appeal is deemed abandoned.

CNo order for costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Harrison J)

1. On 23 August 2017 the late Jakub Dvorak[1] applied to this Court to bring an appeal against a decision of Moore J in the High Court, dismissing Mr Dvorak’s appeal against a Family Court decision making orders for the day-to-day care of his children.[2]  Mr Dvorak’s application for leave to appeal was filed some 10 days out of time, which is why he also applied for an extension of time.  However, Mr Dvorak did not pay a filing fee or file an application for a fee waiver. 

   [1]The names used in this judgment, as in the High Court, are fictitious to protect the identities of the parties and their children.

   [2]Dvorak v Yamamoto [2017] NZHC 1591.

2. Mr Dvorak died on or about 26 September 2017.  The nature of his application was personal to him.  Section 47 of the Care of Children Act 2004 provides that certain people may take the place of a parent who has died for the purposes of determining who may have contact with the child.  However, we are satisfied that this provision is applicable to a fresh application for a parenting order, not to an appeal, and in any event no party or legal representative has identified an interest in or asserted a right to continue the proceeding in this Court.  

3. This Court’s rules do not prescribe how to determine an application for leave to appeal, or to extend time, in the event of the applicant’s death.  However, under r 5(4) of the Court of Appeal (Civil) Rules 2005, if any matter arises in a proceeding for which no form of procedure is prescribed, this Court must dispose of the application in the manner which is best calculated to promote the ends of justice.

4. Because we have not assessed the merits, we are not in a position to positively decline the applications.  However, Mr Dvorak was not represented by counsel and we are satisfied in the circumstances that no other party will seek leave to pursue these applications and the proposed appeal on his behalf.  In our judgment the ends of justice would be best promoted by deeming both of his applications abandoned.  There will be no order for costs.

Solicitors:
O’Sullivan Clemens, Rotorua for Respondent