F v Unidentified Customs Officer X - [2019] NZHC 1141

NOTE: THE NAMES OF THE APPLICANT/PROPOSED FIRST PLAINTIFF, THE PROPOSED SECOND PLAINTIFF, THE PROPOSED FIRST

DEFENDANT AND THE PROPOSED SECOND DEFENDANT HAVE BEEN ANONYMISED.

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2019-409-215

[2019] NZHC 1141

IN THE MATTER of an application to appoint a litigation guardian

BETWEEN

F

Applicant/Proposed First Plaintiff

AND

S (by F as litigation guardian) Proposed Second Plaintiff

AND

UNIDENTIFIED CUSTOMS OFFICER X

Proposed First Defendant

AND

UNIDENTIFIED POLICE CONSTABLE Y

Proposed Second Defendant

AND

ATTORNEY-GENERAL (on behalf of the Comptroller of Customs)

Proposed Third Defendant

AND

COMMISSIONER OF POLICE

Proposed Fourth Defendant

Hearing: (Determined on the Papers)

Counsel:

N J Hansen, G J X McCoy and S P H Elliott for Applicant/Proposed First Defendant

Judgment:

23 May 2019

JUDGMENT OF ASSOCIATE JUDGE LESTER

F & ANOR v CUSTOMS OFFICER X & ORS [2019] NZHC 1141 [23 May 2019].

[1] F, prior to the commencement of the substantive proceeding which he seeks to bring on behalf of himself and his infant son, seeks three orders.

[2] The first is that he be appointed litigation guardian for his son. The second is prohibiting publication of the names and/or identifying particulars of himself, his son, his wife, or the country to which his wife has taken their son, and the third is that the Court file not be searched without the leave of the Court.

Litigation Guardian

[3] F’s son S is nine years old. The application explains that on 1 February 2019, F obtained an order under s 77 of the Care of Children Act 2004 prohibiting S from being removed from New Zealand until further order of the Court. A border alert was registered with the New Zealand Police and Customs notifying them of the order.

[4] Notwithstanding the order, F says that on 7 February 2019 S’s mother, was permitted by Police and Customs Officers at Christchurch International Airport to pass through border control with S and to remove him from New Zealand. This was notwithstanding the border order having been activated and the Officers having knowledge of the order.

[5] F wishes to bring proceedings in his own name on behalf of S in relation to this event.

[6] As a minor, S must be represented by a litigation guardian under r 4.31 of the High Court Rules 2016.

[7] The commentary in McGechan on Procedure records the need for the litigation guardian to be appointed before the proceedings are commenced; hence the present application.1

1 McGechan on Procedure (online ed, Thomson Reuters) at [HR4.31.03].

[8] Rule 4.35(2) provides that the Court may appoint a litigation guardian where the litigation guardian is able fairly and competently to conduct proceedings on behalf of the minor, does not have interests adverse to those of the minor, and consents to being a litigation guardian.

[9] Given the circumstances described in the application, I accept that in respect of the prospective claims F’s interests and those of his son…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NZHC 1141
Decision Date: 23 May 2019

CaseChat Overview and Summary

In the case of F v Unidentified Customs Officer X, F sought to bring a proceeding on behalf of himself and his son, S, against Unidentified Customs Officer X and Unidentified Police Constable Y, alleging that they had permitted S’s mother to remove S from New Zealand despite a border alert. F sought three orders: that he be appointed litigation guardian for S; that publication of the names and identifying particulars of himself, his son, his wife, or the country to which his wife had taken their son, be prohibited; and that the Court file not be searched without the leave of the Court. The court considered the application on the papers. The court accepted that F’s interests and those of his son aligned and that F was able to fairly and competently conduct the proceeding. It found that the suppression of the son's name was appropriate and that there was limited legitimate public interest in his identity. The court also found that the suppression of the names of the parents and country Q was justified given the circumstances of the case. Accordingly, the court made orders appointing F as litigation guardian for his son, dispensing with service on S, prohibiting publication of the names and/or identifying particulars of the applicant, his son S, the mother of S, and the country to which S has been taken, and that this matter not be searched without leave of the Court. Leave was reserved to the defendants to apply on notice to review orders (3) and (4) above.

Orders