Edward v Family Court at Palmerston
[2023] NZHC 161
•9 February 2023
NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION,
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IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CIV-2021-454-69
[2023] NZHC 161
IN THE MATTER OF an application for judicial review under the Judicial Review Procedure Act 2016 BETWEEN
EDWARD
Applicant
AND
THE FAMILY COURT AT PALMERSTON NORTH
First Respondent
THE CHIEF EXECUTIVE OF ORANGA TAMARIKI MINISTRY FOR CHILDREN
Second Respondent
Hearing: 8 February 2023 Appearances:
Applicant in person and B Andrews as McKenzie Friend L Jackson and A Lyne for the Second Respondent Appearance excused for Lawyer for Child
Judgment:
9 February 2023
JUDGMENT OF GWYN J
(Application to strike out proceeding)
Solicitors:
Rachael Dewar Law, Wellington
EDWARD v THE FAMILY COURT AT PALMERSTON NORTH [2023] NZHC 161 [9 February 2023]
[1] Edward has sought to judicially review a decision of the Family Court placing his daughter, Natalie, under its guardianship.
[2] Because Edward’s daughter is a vulnerable person1 on account of her age and the court guardianship over her, her name and identifying information, including the names of her parents,2 are suppressed. For clarity, I refer to Edward’s daughter as Natalie, and Natalie’s mother as Lisa.
[3] The application before me is brought by the second respondent, the Chief Executive of Oranga Tamariki (the Chief Executive or Oranga Tamariki) to strike out Edward’s claim on the grounds that it is an abuse of process and has no realistic prospects of success.
Background
[4] On 29 October 2020 the Family Court at Palmerston North made an order placing Natalie under its guardianship, under s 33 of the Care of Children Act 2004 (the decision).3 Judge Broughton appointed Oranga Tamariki as the Court’s agent for the purpose of making care and contact decisions and consenting to a Gateway (medical and psychological) assessment.4
[5] Edward had 20 working days to appeal the decision.5 He did not do so and his automatic right of appeal expired on 26 November 2020. Edward may now appeal only with special leave of the High Court.6
Related Family Court proceedings
[6] On 8 October 2021, Edward applied without notice to discharge the guardianship order made by Judge Broughton and for parenting orders under the Care of Children Act. Judge Druce considered the application on the same day, but
1 Family Court Act 1980, s 11D.
2 Section 11(1)(c).
3 Edward v Lisa and Chief Executive of Oranga Tamariki [2020] NZFC 9450 at [15(a)].
4 At [15(b)]–[15(c)].
5 Care of Children Act 2004, s 143(4); and High Court Rules 2016, r 20.4(2)(b).
6 High Court Rules, r 20.4(3).
declined to grant the applications without notice. The Judge placed Edward’s application on the without notice track.
[7] On 21 October 2021 the Chief Executive applied for custody and additional guardianship orders fo Natalie under ss 101 and 110 of the Oranga Tamariki Act 1989.
[8] Both Edward’s application and the Chief Executive’s application remain live in the Family Court. Ms Jackson, counsel for Oranga Tamariki, advises that the Chief Executive’s application is set down for a judicial conference on 21 February 2023 to monitor compliance with directions and for timetabling directions leading up to a five-day substantive hearing. While that hearing is expected to occur this year, no date has yet been set.
This judicial review application
[9] The application for judicial review before this Court was filed by Edward on 7 October 2021. Edward’s statement of claim did not specify the decision he sought to review and on 6 December 2021 Gendall J directed Edward to file an amended statement of claim or further and better particulars.7 Edward did not do so. He took no further steps until 4 October 2022, by which time a formal proof hearing had been set down to determine the Chief Executive’s application to strike it out for want of prosecution.8
[10] On 1 November 2022, Edward filed an amended statement of claim seeking to judicially review the decision, on four grounds. The grounds of review are:
(a)That Edward and Natalie were prejudiced by the implementation of the guardianship order. In particular, by having Edward’s guardianship rights withheld – specifically, the right to decide where a child will reside.
7 Edward v The Family Court at Palmerston North HC Wellington CIV-2021-454-000069, 6 December 2021 (Minute of Gendall J) at [11(b)].
8 Edward v The Family Court at Palmerston North HC Wellington CIV-2021-454-69, 3 October 2022 (Minute of Gwyn J).
(b)That Edward’s guardianship and other rights (specifically, liberty and the ability to strengthen and preserve the father-daughter bond) have been deprived since the guardianship order was implemented.
(c)That decisions made by Oranga Tamariki as the Court’s agent have not been child-focussed.
(d)That Oranga Tamariki should not have been appointed the Court’s agent, as the legislation requires a “named person”.
Oranga Tamariki’s submissions
[11] Oranga Tamariki relies on two specific grounds contained in r 15.1 of the High Court Rules 2016 (Rules) relating to strike out applications: the judicial review application is an abuse of process and it discloses no reasonably arguable cause of action. Oranga Tamariki relies on delay as a subsidiary ground.
Abuse of process
[12] Edward had an automatic right to appeal the decision within 20 working days.9 That right expired on 26 November 2020 without Edward having filed an appeal. He may now appeal only with leave of the High Court but has not sought leave.
[13] The judicial review application is in substance an attempt to evade or avoid the statutory limitations in relation to an appeal. Statutory time limits for initiating appeals must be strictly complied with.10 All four of the causes of action pleaded by Edward could have been raised on appeal. If Edward had brought an appeal the Court could have considered the evidence afresh and reached its own view about the guardianship order. On appeal the High Court has very broad remedial powers, including the power to remake the decision.11
9 Care of Children Act, s 143(2).
10 Hawkes Bay Hide Processors of Hastings v Commissioner of Inland Revenue [1990] 3 NZLR 313 (CA) at 324 per Casey J.
11 District Court Act 2016, s 128(1)(a).
[14] Conversely, the four grounds of review pleaded by Edward do not include any grounds, such as breach of natural justice, that could not have been resolved at a rehearing and require judicial review.
[15] Ms Jackson, for the Chief Executive, submits that the claim cannot be cured by Edward repleading it as an application for special leave to appeal under r 20.4 of the Rules. The Court of Appeal in GPM v JHM set out the relevant factors in considering an application for special leave:12
· When and under what circumstances was the decision to appeal taken?
· The extent of the delay.
· Whether the delay is capable of a satisfactory explanation.
· Whether prejudice will be suffered by other parties if time is extended.
· The strength of the appeal and any other relevant circumstances.
[16] As Ms Jackson notes where, as here, the application for leave relates to a child the Court must treat the welfare and interests of the child concerned as the paramount consideration.13
[17] Counsel says Edward could not satisfy these factors. He has given no reason for his substantial (two year) delay. It is “extremely rare” for leave to be granted after such a lengthy delay.14 The delay and uncertainty created by a parallel appeal, while the Family Court applications remain in play, is not in Natalie’s welfare and best interests.15 As to that, Ms Jackson notes that s 4(2)(a)(i) of the Care of Children Act requires that any decision-maker considering the welfare and best interests of a child must take into account the principle that decisions affecting a child should be made and implemented within a timeframe that is appropriate to the child’s sense of time.
[18] Finally, Oranga Tamariki says the prospective appeal is weak. That submission was developed (see below) in relation to whether any aspect of the judicial review claim is arguable.
12 GPM v JHM [2013] NZCA 166 at [18].
13 Care of Children Act, s 4(1); and PKJW v DAR [Guardianship] [2006] NZFLR 946 (HC).
14 GPM v JHM, above n 12, at [15] citing Chisholm J.
15 Care of Children Act, s 4(2)(a)(i).
Claim not reasonably arguable
[19] Ms Jackson submits that, to the extent that any part of Edward’s statement of claim is not an abuse of process, it discloses no reasonably arguable cause of action.
[20] In considering whether there is a reasonably arguable cause of action, the following criteria are relevant:16
(a)Pleaded facts are assumed to be true.
(b)The cause of action must be clearly untenable – that is, the Court must be certain the claim cannot succeed.
(c)The jurisdiction is to be exercised sparingly and only in clear cases.
(d)The Court should be slow to strike out a claim in any developing area of the law, particularly where a duty of care is alleged in a new situation.
[21] First, counsel says that other than the last of Edward’s grounds of review, his proposed claim relies on events that have occurred after the decision was made, or relate to the way the order has been implemented. This Court on review could not reasonably say the Family Court’s decision was wrong, in any judicial review sense, because of matters occurring after the fact.17
[22] Ms Jackson acknowledges that later events may be relevant to an application to discharge the orders made by the Family Court, or to challenge Oranga Tamariki’s actions as agent, but do not go to whether the Family Court acted lawfully, fairly and reasonably in the first instance.
[23] Edward’s fourth ground, that Oranga Tamariki should not have been appointed the Court’s agent, as the legislation requires a “named person”,18 is accepted to be a point which could be argued on judicial review (or appeal). However, counsel submits that the point is a technical one which can be easily remedied by adding the words “The Chief Executive of” in front of “Oranga Tamariki” on the order.19 Oranga
16 Attorney-General v Prince [1998] 1 NZLR 262 (CA) at 264.
17 “Judicial review is primarily limited to an examination of the [decision-making] process.”:
Aorangi School Board of Trustees v Ministry of Education [2010] NZAR 132 (HC) at [8].
18 Care of Children Act, s 31(1)(b).
19 Family Court Rules 2002, r 78.
Tamariki has no separate legal personality from its Chief Executive and best practice is for orders to be in the name of “The Chief Executive of Oranga Tamariki” (a named person). While Judge Broughton has used “Oranga Tamariki” as a shorthand, this does not render the decision or consequent order unlawful.20 The applicant says this aspect of the claim is a trivial one in respect of which Edward has experienced no prejudice.
[24] At the hearing Mr Andrews, assisting Edward, advanced a further, related ground, relying on s 31(2) of the Care of Children Act. He says the application before Judge Broughton was made by counsel to assist (Ms Devlin) who required leave to apply, under s 31(2)(g) of the Act. Judge Broughton’s judgment does not refer to leave being sought or granted.
[25] In response, Ms Jackson says this alleged error of law is not pleaded in Edward’s amended statement of claim. In any event there is no requirement for a separate leave hearing and decision and – given that the Family Court heard and determined the application – it can be inferred that leave was granted. Further, it is a technical argument that could be readily cured if necessary. It does not overcome or outweigh the other deficiencies in Edward’s judicial review application.
[26] Counsel says that the other matters raised by Edward’s application for review which challenged the veracity of the evidence before Judge Broughton in the Family Court, are matters more properly contained within reply evidence before the Family Court, as that is the appropriate way to test the truth of the evidence. Counsel notes that in any event the matters in those paragraphs bear little relationship to the grounds for review.
[27] On that basis the Chief Executive says Edward’s claim is not capable of serious argument. Even if it were, as the Court of Appeal has observed, judicial review will be refused if alternative remedies have not been exhausted.21 Edward has not exhausted his appeal rights and, in addition, has the ability to pursue his application to
20 Judicial Review Procedure Act 2016, s 19: the reviewing court has a discretion either to refuse relief, or to validate a decision, where a sole ground of relief established is a defect in form or a technical irregularity and no substantial wrong or miscarriage of justice has occurred.
21 Fraser v Robertson [1991] 3 NZLR 257 (CA) at 260.
discharge the guardianship order, as well as to defend the Chief Executive’s applications in the Family Court.
Delay
[28] Finally, Ms Jackson notes that, while there is no statutory time limit for bringing an application for judicial review, the Court is entitled to insist on reasonable promptness.22 There has been a lengthy delay here – more than two years between the decision being issued and Edward filing his amended statement of claim – and that delay is prejudicial to Oranga Tamariki, Lisa (Natalie’s mother) and Natalie. That delay is sufficient to tip the balance in the Court’s assessment.
Edward’s submissions
[29] In reply Edward says that he was not aware of his right to bring an appeal, or an application for judicial review. Although he was represented by counsel at the time of the decision,23 his counsel did not advise him of these rights.
[30] The delay after Gendall J’s minute of 6 December 2021 requiring Edward to file an amended statement of claim, arose from Edward seeking assistance to comply with that direction.
[31] Edward emphasises that he has had no intention to abuse the Court’s process, but has been seeking a way of having his concerns about the Family Court decision, and about Natalie’s ongoing care, dealt with as quickly as possible.
[32] Edward says he is frustrated by the Family Court’s processes. Although his applications for a parenting order and for discharge of the order appointing the Family Court as Natalie’s guardian were both filed on 8 October 2021, no hearing date has been set to hear his applications. Nor does he feel adequately informed about progress of the Chief Executive’s application under ss 101 and 110 of the Care of Children Act. Edward says he was not aware of the 21 February 2023 judicial
22 Fraser v Robertson [1991] 3 NZLR 257 (CA) at 260.
23 Judge Broughton made the decision on the papers but having received written submissions from the parties, including Edward.
conference. It appears these concerns are based on a perception that Edward’s current counsel does not have sufficient regard to Edward’s instructions or keep him adequately informed of what is occurring in the current Family Court proceedings.
[33] Edward also submits that Oranga Tamariki, in its role as agent for the Family Court, does not keep him informed, or consult with him where appropriate, about matters relating to Natalie’s day to day care. The examples given by Edward of that failure to inform or consult related to Natalie’s (non-kin) caregiver taking Natalie to Vision Church and the medical prescription for her of an inhaler.
The law
Striking out a pleading
[34] Rule 15.1 of the Rules permits the Court to strike out all or part of a pleading if it:
(a)discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or
(b)is likely to cause prejudice or delay; or
(c)is frivolous or vexatious; or
(d)is otherwise an abuse of the process of the court.
[35] The same principles apply to striking out a judicial review proceeding as apply to striking out an ordinary proceeding.24
Abuse of process
[36] This ground of strike-out extends beyond the other grounds and captures all other instances of misuse of the Court’s processes, such as a proceeding brought with
24 Easton v Broadcasting Commission & Anor HC Wellington CIV-2008-485-2270, 1 December 2008 at [3].
an improper motive or an attempt to obtain a collateral advantage, beyond that legitimately gained from a Court proceeding.25
[37] In Dotcom v District Court at North Shore, the Court’s jurisdiction under the abuse of process ground was summarised in the following terms:26
The Court … has the inherent power to strike out all or part of a pleading if to permit it to continue would be an abuse of the process of the Court. Justice Richardson elaborated on the policy behind such a power:
Misuse of the judicial process tends to produce unfairness and to undermine confidence in the administration of justice … In exercising that jurisdiction the Court is protecting its ability to function as a Court of law in the future as in the case before it. The public interest in the due administration of justice necessarily extends to ensuring that the Courts’ processes are fairly used and that they do not lend themselves to oppression and injustice. … Such is the fundamental importance of the doctrine to the fair and proper administration of justice that Lord Diplock characterised the exercise of the power in appropriate cases as a duty rather than a discretion …
[38] The Court in the Dotcom case also discussed the relevant policy considerations on an application to strike out for abuse of process, as previously set out in Air National Corporate Limited v Aiveo Holdings Ltd:27
(a)In general, the Courts should exercise their jurisdiction on matters properly brought before them.
(b)It is important to preserve freedom of access to the Courts.
(c)The Courts need to be vigilant that abuse of process claims are not advanced other [than] in clear and appropriate cases, and are not brought for tactical reasons.
25 Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53 at [89].
26 Dotcom v District Court at North Shore [2017] NZHC 3158 at [22], citing Reid v New Zealand Trotting Conference [1984] 1 NZLR 8 (CA) at 9 (footnotes omitted).
27 Dotcom v District Court at North Shore, above n 26, at [23] citing Air National Corporate Limited v Aiveo Holdings Ltd [2012] NZHC 602 at [31].
(d)Equally fundamentally, however, the Court should be alert to misuse of its processes, and be prepared to exercise its power to stay where the interests of justice demand it.
Analysis
Abuse of process
[39] I accept that Edward did not have any conscious intention to try and “get round” the statutory limits on appeal. He was initially unaware of his right to appeal the decision and he subsequently filed the application for judicial review on the advice of Mr Andrews, who was trying to assist him. My sense is that Edward was acting out of a genuine and urgent desire to find some forum that would hear his concerns about the guardianship order made in relation to Natalie in a prompt way. For whatever reason, the Family Court has not to date provided that forum.
[40] Having said that, the practical effect of Edward’s judicial review application, if it were to be considered, would be to circumvent the appeal requirements. That may, in legal terms, amount to an “abuse of process”.28 While the existence of a right of appeal does not preclude judicial review,29 a Court may strike out judicial review proceedings where it is satisfied that appeal rights provide a more appropriate pathway to a remedy than judicial review.30
[41] In Prescott v Police, Jagose J said “… [j]udicial review on grounds open to being raised in support of an application for leave to appeal would undermine the statutory process.”31 The subsequent decision of the Court of Appeal in that case noted it was an abuse of process to attempt to overturn judgments of lower courts of competent jurisdiction through judicial review and it was also an abuse of process to
28 Singh v Auckland District Health Board [2022] NZHC 2229 at [9] and [40]; Prescott v Police [2019] NZCA 380 at [18]; Haden v Wells HC Auckland CIV-2010-404-2050, 25 November 2010 at [79]; and Works Civil Construction Limited v Accident Rehabilitation and Compensation Insurance Corporation [2001] 1 NZLR 721 (HC) at [53].
29 Judicial Review Procedure Act, s 16(3)(a).
30 H v Refugee and Protection Officer [2019] NZSC 13 at [78].
31 Prescott v Police [2019] NZHC 175 at [6].
attempt to circumvent leave requirements by initiating an application for judicial review without first exhausting statutory appeal pathways.32
[42] Time limits in relation to appeals are essential so that all parties to a proceeding have some certainty and finality about the issues that the earlier court has ruled on. Time limits are also important in the general public interest, so that court time is available in a timely way to those who need it.
[43] I conclude that the application for judicial review is, in the particular circumstances where the statutory right of appeal was not pursued, and no application for leave to appeal made, an “abuse of process”.
Reasonably arguable claim
[44] I also accept Ms Jackson’s submission that the grounds of review set out in Edward’s amended statement of claim are grounds that would more properly have been considered on an appeal. On an appeal the High Court could have reconsidered the evidence, including hearing new evidence, and could effectively remake the decision. Judicial review in contrast is review by a higher court of the manner in which a decision has been made. The focus is on process, not outcome given33 “[j]udicial review is primarily limited to an examination of the [decision-making] process”.34
[45] An appeal and a judicial review serve different purposes. They are not interchangeable. Although the amended statement of claim uses the language of judicial review (the four separate grounds are all prefaced by the words “Judicial impropriety, illegality and irrationality and unreasonableness”) the actual grounds as they are elaborated are not grounds of judicial review. The first three grounds are concerned with events occurring after Judge Broughton’s decision, or the way in which the decision has been implemented. In large part they appear to be directed at challenging the decision made by Oranga Tamariki, as the Family Court’s agent, to place Natalie outside of Edward’s care.
32 At [18].
33 Independent Fisheries Ltd v Minister for Canterbury Earthquake Recovery [2014] NZHC 2810.
34 Aorangi School Board of Trustees v Ministry of Education [2010] NZAR 132 (HC) at [8].
[46] While the fourth ground is of a different nature, s 31(2)(f) specifically names the chief executive35 as an “eligible person” who may make an application to the court for a guardianship order. It is a technical error that has not prejudiced Edward and could be validated under s 19 of the Judicial Review Procedure Act 2016.
[47] The claims set out in the amended statement of claim do not disclose a reasonably arguable claim in the context of the judicial review process.
Delay
[48] Although I am persuaded that the application for judicial review does not contain a tenable cause of action and is otherwise an abuse of process, I will go on to consider the question of delay.
[49] Edward has explained the reasons for the delay, although I take Ms Jackson’s point that there is no affidavit evidence before the Court of those reasons.
[50] In any event, those reasons do not offset the prejudice caused to the parties. Oranga Tamariki has been prejudiced in the sense that it has been put to the time and expense (of public money) in bringing the strike-out application, preparing for a formal proof hearing and then having to withdraw that application at the eleventh hour.
[51] Although Lisa was not represented in this Court, I infer that she too will have been prejudiced by the delay. She is entitled to certainty in the arrangements made for Natalie. Finally, there is no doubt that the delay is prejudicial to Natalie who has statutory entitlements to have decisions made about her in accordance with her sense of time.36
Outcome
[52]For the reasons discussed above – abuse of process, no arguable case and delay
– I am satisfied that the Chief Executive has made out the case for a strike-out.
35 Defined in s 8 of the Care of Children Act as “the chief executive of the department”; “the department is defined as “the department for the time being responsible for the administration of the Oranga Tamariki Act”.
36 Care of Children Act, s 4(1)(a)(i).
Edward’s Amended Statement of Claim dated 1 November 2022 is struck out accordingly.
[53] I am conscious that Edward will feel frustrated by this outcome. While ultimately it is a decision for him how he proceeds now, a scatter gun approach of filing a number of applications in different courts will not be in his best interest. If he continues to do so, he risks costs being awarded against him. In any event, it seems to me that the current Family Court proceedings (both Edward’s own application and the Oranga Tamariki applications) will provide the best vehicle for him to raise the issues he wants the Court to hear. Who is best placed to provide safe care for Natalie is the very issue before the Family Court. If Edward has concerns about his current counsel (and I emphasise that I am not in a position to assess any such concerns) there are avenues for him to raise those concerns. Edward also has the option of representing himself, with or without assistance from a McKenzie friend, as he has done in this Court.
Gwyn J
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