Edwards v Perry

[2024] NZHC 3138

THE NAMES IN THE PUBLICLY AVAILABLE VERSION OF THIS JUDGMENT HAVE BEEN ANONYMISED FOR THE REASONS OUTLINED

IN THE JUDGMENT

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2024-409-536

[2024] NZHC 3138

BETWEEN

EDWARDS

Appellant

AND

PERRY

Respondent

Hearing:	On the papers
Counsel:	Appellant, self-represented T Cook for the Respondent
Judgment:	30 October 2024

JUDGMENT OF HARLAND J

[1]    Mr Edwards has filed a proceeding referred to as an application for review in which he names the respondent to be Ms Perry. It has been referred to me as Duty Judge by the Registrar. I am asked to consider whether the proceeding is an abuse of the process of the Court under r 5.35A of the High Court Rules 2016 (HCR) and, if it is, what orders I should make under r 5.35B.

Legislative provisions

[2]The sections referred to above provide as follows:

EDWARDS v PERRY [2024] NZHC 3138 [30 October 2024]

5.35A Registrar may refer plainly abusive proceeding to Judge before service

(1)   This rule applies if a Registrar believes that, on the face of a proceeding tendered for filing, the proceeding is plainly an abuse of the process of the court.

(2)   The Registrar must accept the proceeding for filing if it meets the formal requirements for documents set out in rules 5.3 to 5.16.

(3)   However, the Registrar may,—

(a)as soon as practicable after accepting the proceeding for filing, refer it to a Judge for consideration under rule 5.35B; and

(b)until a Judge has considered the proceeding under that rule, decline to sign and release the notice of proceeding and attached memorandum for the plaintiff or the applicant (as appropriate) to serve the proceeding.

5.35B Judge’s powers to make orders and give directions before service

(1)   This rule applies if a Judge to whom a Registrar refers a proceeding under rule 5.35A is satisfied that the proceeding is plainly an abuse of the process of the court.

(2)   The Judge may, on his or her own initiative, make an order or give directions to ensure that the proceeding is disposed of or, as the case may be, proceeds in a way that complies with these rules, including (without limitation) an order under rule 15.1 that—

(a)the proceeding be struck out:

(b)the proceeding be stayed until further order:

(c)documents for service be kept by the court and not be served until the stay is lifted:

(d)no application to lift the stay be heard until the person who filed the proceeding files further documents as specified in the order (for example, an amended statement of claim or particulars of claim).

(3)   Rule 7.43(3) does not apply. However, if a Judge makes an order on the Judge’s own initiative without giving the person who filed the proceeding an opportunity to be heard, the order must contain a statement of that person’s right to appeal against the decision.

(4)   A copy of a Judge’s decision to strike out a proceeding must, if practicable, also be served on the person named as a party or, if more than 1 person is named, those persons named as parties to the proceeding.

(5)   See rule 2.1(3)(b) concerning the exclusion of the jurisdiction and powers of a Judge under this rule from the jurisdiction and powers of an Associate Judge.

[3]    As well as Mr Edwards' application for review, I was referred to a judgment of Dunningham J between Mr Edwards and Ms Perry dated 9 October 2024.1 This judgment is relevant because it is referred to in the application for review and it provides background which, together with Mr Edwards' application, reveal that:

(a)        the parties commenced a relationship in 1994 and have two children aged 11 and 9;

(b)       the parties separated in November 2018 and Ms Perry applied for and obtained a without notice temporary protection order against Mr Edwards on 18 July 2019;

(c)        the parties have also disagreed about what the care and contact arrangements for their children should be post-separation.

(d)       the application for a final protection order and Ms Perry application for parenting orders were heard in the Family Court during a two day hearing in May 2023 before Judge Duggan. The Judge made a final protection order against Mr Edwards and she made a parenting order providing that:

(i)the children were to be in Ms Perry's day-to-day care;

(ii)Mr Edwards was to have supervised contact but move to unsupervised contact if he had had monthly contact 12 times and had engaged in therapy as recommended by Ms Abrahamson, the psychologist appointed by the Court to prepare a report; and

(iii)a variation of the parenting order could be sought where Mr Edwards had regular monthly contact and where he could provide a report from a clinician or agency he engaged with that confirmed he had addressed the interpersonal issues identified in Ms Abrahamson’s report.2

[4]    Mr Edwards represented himself in the Family Court and filed an appeal against the judgment of Judge Duggan. This appeal was heard before Dunningham J

1      Edwards v Perry [2024] NZHC 2925.

2 At [19].

on 10 September 2024, in respect of which she issued her judgment on 9 October 2024 dismissing the appeal. Mr Edwards represented himself in the High Court.

[5]    Dunningham J’s judgment has been followed by this application for review, which was filed on 15 October 2024.

Application for review

[6]    The document filed by Mr Edwards seeks to review Judge Duggan’s decision in the Family Court. There are various reasons why Mr Edwards says this is required and he asks for the following orders, which he described as “protective orders”, to be made:

1.    Immediate restriction of unsupervised contact between Ms. [Perry] and the children until further evaluations can be conducted.

2.    Mandatory participation in counselling and rehabilitation programs for Ms. [Perry] to address violent and manipulative behaviours.

3.    Regular reviews of the situation to ensure the ongoing safety and well- being of the children.

4.    Review of the existing custody and protective arrangements

5.    Dissolution of marriage

[7]    Mr Edwards then sets out the grounds upon which he seeks the review, citing the following:

The observance of Section 27 of the New Zealand Bill of Rights act 1990, the “Right to justice” and Whether the conclusion of the High Court judge [upholding the family court’s decision in the Care of Children Act Proceedings] and The family court’s decision to give Ms [Perry] a protection are consistent with ss 5 and 9 of the New Zealand Bill of Rights Act 1990 And The Family Violence Act 2018 ss 4 (h) and (l).

[8]    Next, Mr Edwards sets out various specific grounds for the review over the next four pages. The grounds appear to relate to the subject matter of the Family Court applications and Mr Edwards' appeal against the Judge’s order in respect of them. One of the grounds relates to procedural irregularities. Mr Edwards describes these as:

k)     ** Procedural Irregularities** Concerns regarding procedural irregularities and lack of accountability in the ongoing legal proceedings involving myself and the parties identified herein. It is imperative that

these matters be addressed to ensure fairness and transparency within the justice system.

a.     -**Communication with Court Authorities** I corresponded with Robynne Hayward of the justice department via email on 16 January 2022, in which I emphasized the absence of crucial court documents, specifically, the minutes from the judgment delivered by Judge Neal on 19 May 2020. Despite requests for transparency, it appears that practices within the court system remain inconsistent, undermining the integrity of legal proceedings and the rights of the parties involved.

b.     -** Allegations of Vexatious Proceedings and Bias** I assert that I have been subjected to vexatious proceedings and bias, which has significantly affected the judicial process. The failure to adequately consider my submitted Memorandum for a Protection Order, dated 25 November 2021, further exemplifies the systemic issues at play. My requests for protection have been minimized, thereby endangering my welfare and undermining my rights.

[9]    At the end of the document, after referring to various cases, the Family Violence Act 2018 and the New Zealand Bill of Rights Act 2018, Mr Edwards references s 8 of the Judicial Review Procedure Act 2016.

Discussion

[10]   Mr Edwards' application for review is misconceived. If it is an application for judicial review, it does not comply with the jurisdictional requirements of the Judicial Review Procedure Act 2016 in many respects but, by way of example, the named respondent Ms Perry is not a person who has exercised a statutory power. There is no basis for an application for judicial review evident on the application filed. For this reason alone, the proceeding should be struck out.

[11]   But, as well, it appears that Mr Edwards is effectively trying to appeal the judgment of Judge Duggan again when his appeal against that judgment has already been determined by Dunningham J. The proceeding is effectively a collateral attack on Dunningham J’s decision in this Court which cannot occur and is plainly an abuse of the process of the Court.

[12]   I am therefore satisfied, in terms of r 5.35B, that the proceeding should be struck out.

Result

[13]   The application for review dated 14 October 2024 is struck out under r 5.35B(2)(a) of the HCR.

[14]   I have determined this matter without giving Mr Edwards an opportunity to be heard. I am entitled to do this but, under r 5.35B(3), I need to advise Mr Edwards that he has the right to appeal against my judgment.

[15]   As is provided in r 5.35B(4), a copy of this judgment is to be served on Ms Cook, who was the lawyer representing Ms Perry before Dunningham J, given that I am not aware of Ms Perry's address.

[16]   Because the matters raised in the application for review refer largely to the Care of Children Act proceedings, I have decided to anonymise the names in this judgment to accord with those adopted by Dunningham J for the purposes of publication. A copy of the judgment that is not anonymised as well as the anonymised judgment is to be sent to Mr Edwards and to Ms Cook.

Harland J

Solicitors:

T Cook, Christchurch

Copy to:
Mr Edwards, Appellant.