Gordon v Quinn - [2024] NZHC 857

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…

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.

Continue reading Gordon v Quinn

Details

AGLC: Gordon v Quinn [2024] NZHC 857
Case: [2024] NZHC 857
Decision Date: 19 April 2024

CaseChat Overview and Summary

In the case of Gordon v Quinn, Mr Gordon appeals a decision made by Judge G P Barkle in the Family Court at Nelson, which mandated that the four children of Mr Gordon and Ms Quinn should be in the day-to-day care of Ms Quinn, with supervised contact for Mr Gordon due to concerns about his conduct, personality, character, and beliefs. The appeal focuses on two interlocutory applications by Mr Gordon: the waiver of security for costs and the adducing of further evidence. The appeal was heard on 16 February 2024, with Mr Gordon appearing in person, Ms Gulbransen representing Ms Quinn, and Mr Vesty, a lawyer for the children, also appearing. The judgment was delivered by Palmer J on 19 April 2024.

The legal issues before the court were whether security for costs should be waived and whether further evidence should be admitted. Rule 20.13(1) and (2) of the High Court Rules 2016 mandates that security for costs should be fixed unless the judge considers that in the interests of justice no security is required. The court considered Mr Gordon's financial situation and his arguments for waiving security. However, the court found that Mr Gordon's grounds for appeal were weak, and it was not in the interests of justice for Ms Quinn to bear the costs of Mr Gordon's appeal. The court declined the application to waive security for costs. For the second issue, Rule 20.16 of the High Court Rules 2016 outlines the circumstances under which further evidence can be adduced on appeal. Mr Gordon sought to adduce new evidence he claimed was unavailable at the time of the Family Court hearing. However, the court found that the evidence was largely irrelevant to the appeal and did not meet the criteria for exceptional circumstances or special reasons. The court declined the application to adduce further evidence.

In conclusion, the High Court upheld the Family Court's decision, rejecting Mr Gordon's applications to waive security for costs and to adduce further evidence. The court emphasized the importance of the interests of justice and the need for finality in legal proceedings. The court's decision reinforces the principles of finality and the high threshold required for admitting further evidence on appeal.

Orders