Gordon v Quinn
[2024] NZHC 857
•19 April 2024
NOTE: PURSUANT TO S 182 OF THE FAMILY VIOLENCE ACT 2018 AND 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, PLEASE SEE
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IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE
CIV-2023-442-31
[2024] NZHC 857
BETWEEN MR GORDON
Appellant
AND
MS QUINN
Respondent
Hearing: 16 February 2024 Appearances:
Appellant in person
A N Gulbransen for the Respondent M J Vesty Lawyer for the Child
Judgment:
19 April 2024
JUDGMENT OF PALMER J
Solicitors
A N Gulbransen, Barrister, Wellington M J Vesty, Barrister, Nelson
GORDON v QUINN [2024] NZHC 857 [19 April 2024]
The appeal
[1] On 27 June 2023, after a hearing from 22 to 25 May 2023, Judge G P Barkle, in the Family Court at Nelson, made orders under the Care of Children Act 2004 regarding the care of the four children of Mr Gordon and Ms Quinn.1 The Judge decided that, in the interests of the children’s psychological safety, they should be in the day-to-day care of Ms Quinn and their contact with Mr Gordon was to be supervised.2 This was due to Mr Gordon’s conduct, personality and character, and beliefs.3
[2] Mr Gordon appeals the decision. This judgment deals with two interlocutory applications by Mr Gordon, to waive security for costs and to adduce further evidence.
Waiving security for costs
[3] Rule 20.13(1) and sub-r (2) of the High Court Rules 2016 (the Rules) requires the Court to fix security for costs “unless the Judge considers that in the interests of justice no security is required”. The security payable for a two-day category two appeal, as here, is $4,780. 4
[4] The default position is that security for costs should be provided in relation to appeals but impecuniosity itself is not enough to warrant dispensing with security.5 The discretion to waive security should be exercised so as to:6
(a)preserve access to the appeal by an impecunious appellant in a case in which a solvent appellant would reasonably wish to prosecute; and
(b)prevent the use of impecuniosity to secure the advantage of being able to prosecute an appeal which would not be sensibly pursued by a solvent litigant.
1 Quinn v Gordon [2023] NZFC 5617. The names are anonymised under s 11B of the Family Courts Act 1980.
2 At [272]–[289]. The Judge did not provide any contact between Mr Gordon and the eldest child.
3 At [193].
4 High Court Rules 2016, rr 14.3, 14.4, 20.13(3) and sch 2. See also Gordon v Quinn HC Wellington CIV-2023-442-31, 31 October 2023 (Minute of Churchman J) at [10].
5 Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737 at [20].
6 At [35].
[5] Mr Gordon applies to have security for costs waived or be sought from Ms Quinn. He has filed an affidavit stating that he struggles to meet his own personal costs each week, is only eligible for a Job Seeker benefit, and has total assets and savings of around $8,500. He is not legally aided now. He submits that he has never chosen these proceedings so the costs must be met by others. He is seeking to uphold his responsibilities as an impeccable parent. The decision is not justified, is disproportionate, and is based on lies. He has no means to do this any other way and will be relentless in pursuing justice.
[6] Ms Gulbransen, for Ms Quinn, submits Mr Gordon is clearly impecunious. But security is ordinarily required and there are no exceptional circumstances to justify a waiver. She suggests Mr Gordon may have access to funds through his mother’s savings which appear to be being used to pursue this matter. There was evidence of this in the Family Court. Ms Quinn is receiving legal aid and has repayment obligations that requires security for her costs.
[7] It does not make sense for Mr Gordon to say that the costs of the appeal must be met by others because he has not chosen the proceedings. He has chosen to appeal. His grounds of appeal are said to be:
… primarily on the grounds of general malpractice, the misapplication of law including the disregard of evidence, the refusal of evidence, and the resultant disproportionate conditions imposed that have resulted in the … children having little or no means to maintain or strengthen their relationships with their natural father or paternal family. Furthermore, this order has resulted in the unnecessary removal of guardianship rights and an unnecessary protection order over the children and [Ms Quinn] which is resulting in further estrangement of the … children from their entire paternal family culture.
[8] This is followed by a list of questions that could be asked of virtually every decision of this nature. It is very difficult to see merit in the grounds of appeal. In these circumstances, it is not in the interests of justice for the defendant to have to bear the costs of Mr Gordon’s appeal. I decline the application to waive security for costs.
Adducing further evidence
[9]Rule 20.16 of the Rules provides, relevantly:
20.16 Further evidence
(1)Without leave, a party to an appeal may adduce further evidence on a question of fact if the evidence is necessary to determine an interlocutory application that relates to the appeal.
(2)In all other cases, a party to an appeal may adduce further evidence only with the leave of the court.
(3)The court may grant leave only if there are special reasons for hearing the evidence. An example of a special reason is that the evidence relates to matters that have arisen after the date of the decision appealed against and that are or may be relevant to the determination of the appeal.
[10] In B v A, Wylie J summarised the relevant principles of adducing further evidence on appeal:7
(a)the Court can receive further evidence if it thinks that the interests of justice require it to do so;
(b)it is wrong to allow an appellant to bolster his or her case with additional evidence that was available at the lower Court hearing, but not adduced because of the particular view of the case being taken at the time;
(c)admitting further evidence on appeal is exceptional rather than routine. A change of heart about how a case should have been run will not suffice. The prospect of further evidence triggering a substantial re-litigation before the appellate Court of the substantive case will count against admitting the further evidence;
(d)generally, the further evidence must be fresh, credible and cogent;
(e)evidence will not be regarded as fresh if it could, with reasonable diligence, have been produced at the trial;
(f)the absence of freshness is not an absolute disqualification. When the further evidence is not fresh, it will not generally be admitted unless the circumstances are exceptional and the grounds compelling. In addition, the further evidence needs to pass the tests of credibility and cogency;
(g)the interests of justice require the parties to put their best case forward at trial, in order to avoid wasting the Court’s limited time and
7 B v A [2020] NZHC 580 at [25] citing Hodgson v Hodgson [2015] NZCA 404, [2015] NZFLR 979 at [39]–[44]; Nation v Nation [2005] 3 NZLR 46 (CA); and Telecom Corp of NZ Ltd v Commerce Commission [1991] 2 NZLR 557 (CA).
resources. A high value is placed on finality when the parties have been afforded the opportunity and failed to take it; and
(h)the standard to be met is “rightly high”.
[11] Mr Gordon submits that there is new and important evidence that was not available before the final date for submissions in the Family Court, was not fully canvassed there, and was disregarded and disrespected in that Court. He says the evidence: contains acknowledgement of the conditions under which he was being oppressed; proves that important information was disregarded and suppressed from the Family Court; contains an admission of Oranga Tamariki intentionally omitting evidence and failing to investigate reports of concern; and proves that the provider of supervised contact failed to report red-flags indicative of child abuse and neglect.
[12] Ms Gulbransen submits that Mr Gordon’s characterisation of the evidence is misleading. Some of the evidence, such as the report from Oranga Tamariki, is fresh because it was not available at the May 2023 hearing of the Family Court. However, the evidence is not cogent and is not relevant to the questions before the Court on appeal. There are no special reasons why the further evidence should be adduced. Mr Vesty, for the children, submits there is nothing fresh, compelling, or relevant in the evidence sought to be adduced.
[13]In relation to each category of evidence:
(a)The report from Oranga Tamariki of 16 June 2023 post-dates the Family Court hearing. All of the material discussed in the report, however, predates the Family Court hearing. The concerns expressed in the report to not add anything to matters canvased in the Family Court.
(b)The only fresh information in the email correspondence between Mr Gordon and Oranga Tamariki, the Ombudsman, and the Ministry of Justice, are Mr Gordon’s opinions. His opinions are not admissible evidence, under s 23 of the Evidence Act 2006. The matters about which he expresses his opinions were canvassed at the Family Court hearing, including through cross-examination by Mr Gordon.
(c)The complaint against Mr Vesty was made after the hearing, so is fresh. But it is not relevant to the appeal.
(d)A picture drawn by the eldest child is not fresh, is similar to drawings that were in evidence, and is not relevant to the issues on appeal.
[14] There are no exceptional circumstances or special reasons why the evidence sought to be adduced should be admitted on appeal. The evidence is largely irrelevant to the issues on appeal from the Family Court decision. Rather, it relates to other complaints Mr Gordon is pursuing against Oranga Tamariki, Care Solutions, the Family Court, and the lawyer for the children. To the extent it is tangentially relevant, it does not add materially to the evidence already before the Court.
[15]I decline the application to adduce further evidence.
Palmer J
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