Edwards v Perry
[2023] NZHC 3276
•16 November 2023
NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B,
11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE
https://
THE NAMES IN THIS JUDGMENT HAVE BEEN ANONYMISED
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2023-409-630
[2023] NZHC 3276
BETWEEN K EDWARDS
Appellant
AND
W PERRY
Respondent
Hearing: On the papers Appearances:
K Edwards self represented T L Cook for Respondent
Judgment:
16 November 2023
JUDGMENT OF EATON J
This judgment was delivered by me on …….. at ……… pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
EDWARDS v PERRY [2023] NZHC 3276 [16 November 2023]
[1] K Edwards has filed a notice of appeal “appealing the Judge’s decision to give Ms Perry all the money.” With the notice of appeal Mr Edwards filed a copy of the judgment of a Family Court Judge dated 30 October 2023 where in orders were made under the Property (Relationships) Act 1976 (PRA). I proceed on the understanding that is the decision the subject of the notice of appeal.
[2] The proceedings have been referred to me as Duty Judge by registry staff under Rule 5.35A of the High Court Rules 2016. That rule provides:
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.
[3] Following a referral under r 5.35A, a Judge may make orders or give directions as to how the proceeding is to be disposed of or otherwise proceed in a way that is compliant with the High Court Rules, including making an order under r 15.1 that:
(a)the proceedings be struck out; or
(b)the proceedings be stayed until further order; and
(c)documents for service be kept by the Court and not be served until the stay is lifted.
The notice of appeal
[4] The primary basis upon which the registry staff have referred this proceeding to me relates to particular allegations raised as grounds of appeal including:
…
4) That the Judge has purposefully and knowingly been bias (sic) to a point that is racial…
…
12) That the Judge be recognised as a bully, a Māori basher, and fraudulent with evidence to the point the public should be warned about this style of corruption and abusive behaviour by a judge and lawyers.
…
14)That technically, Ms Perry and Ms Cook have perjured themselves.
15) That the Judge is a running a kangaroo court that blocks Police evidence, high court evidence and other evidence that proves what I’m alleging.
[5] The notice of appeal also includes what appears to be an extract from an email sent by Mr Edwards to various parties dated 17 November 2021 that records an allegation of criminal offending that, on the face of it, has nothing to do with relationship property.
[6] The relief sought in the notice of appeal includes “that the court formally recognises the pattern of the lawyers behaviours as being a breach of the lawyers and conveyance act and a breach of the bill of rights.”
The judgement under appeal
[7] I have reviewed the judgment under appeal. The judgment records that the only issue before the Court was the division of relationship property between the appellant and the respondent. It records that the respondent was represented by Ms Cook and Mr Edwards was self-representing. The Judge describes the relationship property hearing as “unfortunately something of a debacle due to Mr Edwards’s difficult and disrespectful behaviour in the Court room.”
[8] At the hearing, Mr Edwards was not permitted to personally question the respondent due to the restrictions on cross-examination by parties in person where there are allegations of family violence, and the fact the respondent has a final protection order against Mr Edwards. A lawyer was appointed by the Court to put Mr Edwards’s questions to the respondent. Mr Edwards took issue with that appointment and a second counsel was appointed at short notice.
[9] Ms Cook, on behalf of the respondent had filed the bundles of documents relevant to the proceeding and notified Mr Edwards that he could uplift his copies from the Court. He did not do so.
[10] The judgment records that Mr Edwards also failed to engage with the lawyer appointed in order to prepare any questioning of the respondent. The Judge described the questions that were ultimately put on behalf of Mr Edwards as being “almost without exception irrelevant to the issues that I need to determine.” Mr Edwards had not looked at the respondent’s bundles prior to the hearing and had not read submissions filed on behalf of the respondent. The Judge recorded him as considering it to be “pointless” for him to be given the opportunity to read those submissions.
[11] The judgment refers to other disruptive conduct of Mr Edwards throughout the hearing. When giving evidence, Mr Edwards declined to be sworn, said he would “probably not” tell the truth. Then said “I’ll try to.” He initially refused to give evidence until the Judge first dealt with Mr Edwards’s breach of his children’s rights. Under cross-examination about his expectations in terms of relationship property, Mr Edwards said to Ms Cook “I want to get you and her arrested for crimes.” He then refused to answer, instead asking counsel “are you a criminal?” and “did you lie to a Judge?” In response to subsequent questioning about property issues, Mr Edwards is recorded as answering “Bill of Rights. Children. Section 9” to the point where further questioning was assessed as pointless. Mr Edwards’s evidence then ended and following his continued chanting of “Bill of Rights” and “children” and making what the Judge describes as various other allegations against counsel, the respondent and the Court, Mr Edwards was asked to leave. He refused to do so.
[12] The Judge then reserved his decision having heard brief oral submissions from Ms Cook on behalf of Ms Perry. The Judge formed the view notwithstanding the debacle of a hearing, the evidence was clear and he said he had no difficulty in making full and final orders under the PRA.
Discussion
[13] The notice of appeal contains allegations that are highly derogatory and assert criminal offending. This is not the first appeal filed by Mr Edwards in which he has such allegations which, on their face, lack foundation.1
[14] In Schmidt v Pepper New Zealand (Custodians) Limited2 the Court of Appeal considered an application for extension of time to pursue an appeal against orders granting summary judgment and dismissing applications for injunctions. In considering the merits of the appellant’s case, the Court referred to the pleadings that made allegations of fraud. The Court described the allegations of fraud or dishonesty as very serious and as being allegations, that must be pleaded with care and particularity. If such an allegation is to be raised there must be reasonable credible material to establish a prima facie case of fraud. It is not sufficient to make general allegations. The Court also emphasised those principles apply with equal rigour to those who represent themselves.
[15] As was observed by Dunningham J when directing that a previous appeal of Mr Edwards be stayed until inappropriate allegations were removed, the Court will supervise the content of legal proceedings to ensure that scandalous and unfounded allegations are not allowed to proceed.
[16] Mr Edwards notice of appeal falls far short of establishing that the particular grounds of appeal I have identified above at [4] are well-founded. Nothing within the judgment under appeal justifies the allegations raised against the Judge, counsel or Ms Perry.
1 Edwards v Perry [2023] NZHC 1577.
2 Schmidt v Pepper New Zealand (Custodians) Limited [2012] NZCA 565 at [15].
[17] I am satisfied that, as presently framed, this proceeding is plainly an abuse of process of the Court.
[18] I therefore direct that Mr Edwards’s notice of appeal is stayed until or unless the grounds of appeal numbered 4, 14 and 15 and the reference to the 17 December 2021 email are removed.
...................................................
Eaton J
Counsel:
T L Cook, Christchurch
Copy to:
K T Edwards
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