Greig v Hutchison
[2015] NZHC 3067
•4 December 2015
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV-2014-409-000301 [2015] NZHC 3067
BETWEEN MS GREIG
Appellant
AND
MR HUTCHISON First Respondent
MRS HUTCHISON Second Respondent
MR HUTCHISON AND MS CHAPMAN AS TRUSTEES OF THE HUTCHISON TRUST
Third Respondent
CIV-2014-409-000302
BETWEEN MR HUTCHISON First Appellant
MS GREIG Second Appellant
ANDMRS HUTCHISON First Respondent
MR HUTCHISON AND MS CHAPMAN AS TRUSTEES OF THE HUTCHISON TRUST
Second Respondent
Hearing: 12 October 2015 Appearances:
J Wren for Ms Greig
H Cull QC and S van Bohemen for Mr Hutchison
J V Ormsby and M K Prendergast for Mrs Hutchison
A Corry for Representatives of the Hutchison TrustJudgment:
4 December 2015
GREIG v HUTCHISON [2015] NZHC 3067 [4 December 2015]
JUDGMENT OF GENDALL J
(Note: The names of the parties to this litigation have been anonymised.) Introduction
[1] Mr Hutchison (the husband) and Ms Greig seek leave to appeal to the Court of Appeal and Mrs Hutchison (the wife) (but only on a conditional basis) also seeks leave to cross-appeal a decision I gave in this Court on 17 June 2015. This decision related to an appeal to this Court against an earlier Family Court decision dividing relationship property following separation of the marriage between the husband and the wife.1 A major issue in this litigation was whether the husband was in a de facto relationship with Ms Greig, contemporaneous with his marriage to the wife of some
47 years.
[2] In my decision on the appeal to this Court largely I upheld the carefully reasoned judgment of Judge Walsh in the Family Court on the principal issues at stake.2 The facts and background to this matter are set out in my 17 June 2015
appeal judgment and I do not propose to repeat them here.3
Leave to appeal and cross appeal is sought
[3] Ms Greig and the husband now seek leave to appeal specific aspects of my
17 June 2015 appeal judgment to the Court of Appeal. From submissions, it seems the grounds advanced for their appeal can be aggregated to the following questions:
(i)whether the High Court misdirected itself as to the interpretation and application of section 2D of the Property (Relationships) Act 1976 (the Act) when determining that Ms
Greig and the husband were not in a de facto relationship;
1 Greig v Hutchison [2015] NZHC 1309 [High Court Decision].
2 [… v …] [2014] NZFC 2895 [Family Court Decision].
3 High Court Decision, above n 1.
(b)whether the High Court failed to consider evidence that Ms Greig had an equitable claim over the shares in the company concerned;
(c) whether the High Court failed to consider the implications of the husband’s and Ms Greig’s relationship from 2007 to 2012 on the status, value, and division of relationship property between the husband and the wife; and
(d)whether the High Court accordingly failed to consider and apply s 52A of the Act and, on the basis of what were said to be contemporaneous or successive relationships, to carry out a property division between all the parties involved in this litigation.
[4] In addition to the application for leave to appeal noted at [3] above, the wife has herself filed what she describes as a “Conditional Application for Leave to Cross-Appeal”. The purpose of this, she says, is simply that if (and only if) this Court determines that the husband and Ms Greig should be granted leave to appeal my 17 June 2015 judgment, then the wife seeks leave to cross-appeal certain parts of that judgment. Those parts deal with the status and ownership of a Marlborough Sounds property known as Kaipapa Bay No. 2. In particular that proposed cross- appeal is concerned with the High Court’s interpretation and application of s 44 of the Act. More on that aspect later. For the moment I turn back to the principal leave to appeal application that occupied most of the hearing time before me on
12 October 2015, this being the application by the husband and Ms Greig noted at
[3] above.
Approach to an application for a second appeal
The statutory provisions
[5] Section 39B of the Act imports the provisions of the Judicature Act 1908 relating to second appeals. Relevantly, s 67 of the Judicature Act 1908 stipulates:
67 Appeals against decisions of High Court on appeal
(1) The decision of the High Court on appeal from an inferior court is final unless a party, on application, obtains leave to appeal against that decision—
(a) to the Court of Appeal; or
(b) directly to the Supreme Court (in exceptional circumstances as provided for in section 14 of the Supreme Court Act
2003).
(2) An application under subsection (1) for leave to appeal to the Court of Appeal must be made to the High Court or, if the High Court refuses leave, to the Court of Appeal.
(3) …
(4) If leave to appeal referred to in subsection (1)(a) is obtained, the decision of the Court of Appeal on appeal from the High Court is final unless a party, on application, obtains leave to appeal against that decision to the Supreme Court.
(5) …
Principles
[6] Inherent in leave requirements, is a need to ensure appellate courts are not flooded with inappropriate appeals able to be brought as a matter of right.4 There are two gatekeepers of propriety. The first is this Court. If an application for leave fails before the High Court, the Court of Appeal represents a second option for an intended appellant. While inherently limiting, the process is also expanding in the sense that access to appellate review is increased for those cases deemed worthy.5
[7] The principles to be applied to applications for leave to appeal are well settled. To bring a second appeal, the Court must be satisfied the proposed appeal:
(a) raises some question of law or fact capable of bona fide and serious argument;
(b)the case must involve some interest, public or private, of sufficient importance to outweigh the cost and delay of a further appeal.
4 Smith Kline & French Laboratories (Aust) Ltd v Commonwealth (1991) 173 CLR 194 at 218.
5 Coulter v R (1988) 164 CLR 350 t 359.
[8] The leading decision as to the threshold for granting leave to appeal is that of the Court of Appeal in Waller v Hider.6 In that case the Court of Appeal observed:7
Upon a second appeal [the Court of Appeal] is not engaged in the general correction of error. Its primary function is then to clarify the law and to determine whether it has been properly construed and applied by the Court below. It is not every alleged error of law that is of such importance, either generally or to the parties, as to justify further pursuit of litigation which has already been twice considered and ruled upon by a Court.
When the disputed matter is entirely or largely a question of fact the task of the applicant under s 67 (of the Judicature Act 1908) is harder. An issue of fact in a matter falling within the jurisdiction of an inferior Court will seldom be of public importance. It is better that we make no attempt to define the circumstances in which a factual contest can be taken to have private importance, but obviously it may do so if the amount at stake is very substantial or the decision reflects seriously on the character or conduct of the would be appellant or, as in Cuff, the judgment below had special consequences (for example, bankruptcy) for the losing party. Even then, however, leave cannot be anticipated if the applicant is seeking to disturb concurrent findings of fact in the lower Courts.
[9] The turning point for any leave application as noted above will be whether the appeal raises some question of law or fact capable of bona fide and serious argument where there is some interest, public or private, which is of sufficient importance to outweigh the cost and delay of a further appeal.8 The guiding principle is the requirements of justice.9 The test can be no more accurately defined than to ask the question what the requirements of justice may command in the
circumstances of the individual case.
[10] As Waller v Hider noted, it is possible for a question of fact to found an appeal, however it will seldom be of public importance.10 Attacking findings of fact therefore presents a greater hurdle than questions of law. Here, counsel for Ms Greig has nonetheless suggested that the factual barrier on such appeals has been weakened by the Court of Appeal judgment in Burgess v Beaven.11 In that case, the Court of
Appeal granted leave to appeal the High Court decision because the Court
6 Waller v Hider [1998] 1 NZLR 412 (CA).
7 At 413.
8 At 413.
9 At 413.
10 At 413.
11 Burgess v Beaven [2009] NZCA 229.
considered it “seriously arguable that Judge Strettell adopted the wrong approach in
assessing the financial contributions of the parties”.12
[11] For my part I do not consider the approach taken by the Court of Appeal in Burgess v Beaven to have impacted the long-settled approach expressly confirmed by the Court of Appeal in successive judgments. The standard is what it is.
[12] It is of vital import that scarce judicial resources not be wasted on meritless second appeals, or appeals which have little enduring import. The role of the Court of Appeal is limited in relation to second appeals.13 As the Court of Appeal also
noted in Waller v Hider:14
Notwithstanding frequent reminders of the test, applications continue to be made which have little or no prospect of success. Counsel are of course to be commended for making all reasonable efforts to advance the cause of their clients but after a first appeal they must draw back and appraise the state of the case dispassionately, asking whether in truth the disputed matter contains the requisite element of sufficient importance. The scarce time and resources of the High Court and of this Court are not to be wasted, nor additional expense for an unsuccessful client incurred without realistic hope of benefit.
[13] When the parties are at the point of contemplating a second appeal, their dispute has already been pronounced upon twice. In a case such as the present, once by a tribunal that is specialist in nature such as the Family Court and once by this Court. In Snee v Snee, the Court of Appeal stated that “[i]t is the High Court, as the intermediate appellate Court, that has primary responsibility for correcting error and
ensuring that justice is done to the parties.”15 There is therefore an understandable
reluctance to afford a third bite at the cherry. This is not a new principle. It was articulated by Professor Peter Spiller (as he then was) in New Zealand Court of Appeal 1958 to 1996: A History (Brookers Ltd Wellington 2002 at 244) (citations omitted), when he said:
A particularly formidable hurdle for [intended] appellants was where there were concurrent or similar findings of fact in the lower courts or tribunals. The Court acknowledged the significance of the fact that two trained judicial minds, approaching the case separately, should have reached the same result. Another situation where the Court was reluctant to intervene was where the
12 At [20].
13 Hutt City Council v New Zealand Railways Corporation (1998) 12 PRNZ 264 (CA) at 266.
14 Waller v Hider [1998] 1 NZLR 412 (CA) at 413.
15 Snee v Snee [2000] NZFLR 120 (CA) at [21].
trial judge’s decision was essentially discretionary. Thus, in family disputes, the Court conceded that on the same evidence two different judicial minds might properly take different approaches without either being successfully appealable. Particularly in borderline cases, the Court would tend not to interfere with a decision which the trial judge was entitled to find in exercising a discretion. The Court acknowledged the substantial advantage that the trial Judge had in determining fine questions and would refuse to disturb such findings unless they were plainly unsound.
[14] It is apparent that the threshold for a second appeal is necessarily high, both as a matter of policy and practicality. Indeed, the Court of Appeal has gone so far as to suggest the test ought to be more stringent. In Downer Construction (New Zealand) Ltd v Silverfield Developments Ltd, it was stated:16
There may be a need to reconsider the criteria under s 67 of the Judicature Act, with a view to restricting second appeals even further. The British, following a report into the Civil Division of the Court of Appeal by Sir Jeffery Bowman, have done so. This was achieved by s 55(1) of the Access to Justice Act 1999 (UK), which provides that, where an appeal is made to a county court or the High Court and a decision is made by that Court on that appeal, no further appeal may be made to the Court of Appeal unless the Court of Appeal considers that the appeal raises an important point of principle or practice or there is some other compelling reason for the Court of Appeal to hear it. The thinking behind that provision was “to reverse the steady increase in the number of [second appeals] reaching the Court of Appeal, and so to free up valuable and expensive judicial resources to give more and more effective attention to hearing first appeals” (Drewry, Blom-Cooper and Blake (eds), The Court of Appeal (2007), p 59). For a discussion on s 55(1), see Tanfern Ltd v Cameron-MacDonald [2000] 1
WLR 1311 (CA).
[15] The Access to Justice Act 1999 (UK) has its origins in Sir Jeffery Bowman’s
Report to the Lord Chancellor completed in September 1997 (Bowman Report).17
The Bowman Report also resulted in new procedural rules being implemented, which provide:18
52.13
(1) Permission is required from the Court of Appeal for any appeal to that court from a decision of the County Court, family court or the High Court which was itself made on appeal.
16 Downer Construction (New Zealand) Ltd v Silverfield Developments Ltd [2007] NZCA 355, [2008] 2 NZLR 591 at [36]. See too Chief Executive of Land Information New Zealand v Luke [2008] NZCA 43 at [18].
17 Sir Jeffery Bowman Review of the Court of Appeal (Civil Division) (Report to the Lord
Chancellor, September 1997).
18 Civil Procedure Amendment Rules 2000 (SI 2000/221) (UK). Rule 52.13 effectively replicates s 55 of the Access to Justice Act 1999 (UK).
(2) The Court of Appeal will not give permission unless it considers that–
(a) the appeal would raise an important point of principle or practice; or
(b) there is some other compelling reason for the Court of Appeal to hear it.
[16] The concern is to free up the judicial resource in the higher appellate courts.19
In Clark (Inspector of Taxes) v Perks, the Court of Appeal commented:20
… the whole thrust of the new appellate reforms is to use the time and resources of the judges of the Court of Appeal, and of the lawyers and staff who support them, on matters which really merit the attention of a court of this stature in the judicial hierarchy.
Summary
[17] One rationale underpinning the leave requirement for second appeals at least in part is that of resource allocation. Appeals are not brought as of right, but rather at the discretion of the gatekeeper sitting in judgment upon the cause. This has the effect of narrowing the availability of higher appellate courts to the world at large, but increasing access to those with cases deemed worthy of attention of a court at that level of the judicial hierarchy. In the case of general second appeals under s 67 of the Judicature Act 1908, Parliament has couched the leave requirements in broad terms, effectively vesting the setting of the threshold in the hands of the courts.
[18] For the time being the threshold that has been set by the courts, as I have noted, is that articulated in cases such as Waller v Hider and Snee v Snee. That is to say, whether the appeal raises some question of law or fact capable of bona fide and serious argument in a situation where there is some interest, public or private, which is of sufficient importance to outweigh the cost and delay of a further appeal. The test can be no more accurately defined than what the requirements of justice command in the circumstances of the application before the court.
[19] But, in the recent past, there have been suggestions made as to the threshold for a second appeal being increased to further preserve the resources of the Court of
19 Tanfern Ltd v Cameron-MacDonald (Practice Note) [2000] 1 WLR 1311 at [41]–[46].
20 Clark (Inspector of Taxes) v Perks [2001] 1 WLR 17 (CA) at [17].
Appeal by ensuring only those cases truly warranting high appellate court consideration pass the gates. In this respect, the comments of the Court of Appeal in Waller v Hider relating to the Court of Appeal being flooded with leave applications are perhaps relevant.
[20] Against this framework I turn now to consider whether the threshold for a second appeal has been met in the present case.
Resolution
General
[21] This is a case where there are some general factors which favour the grant of leave, and those which militate against. As to the former, those factors are:
(a) the sums involved are substantial (total property in excess of
$26 million).
(b)as a result of the rulings, one person who is said to be an affected party (Ms Greig) has achieved nothing.
(c) the issue of contemporaneous relationships and how this is addressed in proceedings under the Act requires further broad consideration.
(d)linked to this is whether the general approach of the Courts to the issue of contemporaneous relationships needs to be revisited as a result of changing times and society.
[22] As to the latter category, the general factors militating against the grant of leave are:
(a) The issues raised here by the husband and Ms Greig have twice been adjudicated upon. On each occasion the same result has ensued.
(b) This proceeding has already been on foot for some eight years.
(c) The matters raised by this proceeding arose over eight years ago, when the husband and the wife separated in 2007. There is a need for finality in litigation.
Section 2D of the Act
[23] The application under this head effectively comes down to a contention that it is seriously arguable the Court erred in determining that certain s 2D factors had been met and others had not (lack of financial dependence/interdependence, public aspect or reputation, and mutual commitment to a shared life). There is also a suggestion that the Court misdirected itself as to the law pertaining to contemporaneous relationships.
[24] The overarching consideration under s 2D is whether Ms Greig lived together as a couple with the husband. The s 2D factors are merely indicia of this. In cases such as this, the weight to be ascribed to the various factors is a matter for the discretion of the Judge presiding over the matter. As to the misdirection argument, in my view, the matter has been approached in an orthodox fashion, with the overall question being the touchstone; whether the husband and Ms Greig lived together as a couple. The suggestion that this Court found that the existence of the marriage of the husband and the wife meant that it was not possible, as a matter of law, for a de facto relationship to exist is simply incorrect.
[25] In my view there is no sufficient interest, public or private, that can surmount the threshold required for an appeal of this kind. First, two independent Judges have reached largely the same conclusions. Secondly, the issues raised are matters of weight and discretion afforded to the presiding Judge. There is simply no question of law or fact capable of bona fide and serious argument where there is some interest, public or private, which is of sufficient import to outweigh the cost and delay of a further appeal. This is not a case where the interests of justice require a second appeal here. This is particularly so in relation to the attempt to attack factual findings of this Court and the Family Court.
Equitable claim
[26] This head is reducible to the contention that Ms Greig, as a longstanding employee of the husband’s company, arguably has claims under constructive trust principles against the assets of the husband. If made out, this would have the effect of potentially reducing the available pool of relationship property for distribution.
[27] I agree with submissions advanced before me by counsel for the wife that this was not seriously pursued or argued before this Court. Nor was there a mention of this by the Family Court. It is therefore questionable whether this argument was advanced in the Family Court proceedings. This is particularly so given it did not form part of the notice of appeal to this Court.
[28] In the event, I do not consider this to be an issue warranting the attention of the Court of Appeal.
Impact of the husband’s and Ms Greig’s relationship from 2007 to 2012
[29] I can state at the outset that this is not a ground warranting the grant of leave. The notices of appeal from the Family Court to this Court narrowed the issue as to one being whether the husband and Ms Greig were in a de facto relationship from
1980 to 2007. The period 2007–2012 was not the subject of pleading. Neither was the case presented on that basis. As counsel for the wife confirmed before me:
55.This is the first time in this prolonged litigation that this matter has been raised. Again there is no evidence from 2007 to the date of hearing to support the contention.
[30] Counsel for the husband in submissions before me sought to meet this barrier in the following way:
52.Notwithstanding the Family Court finding of a de facto relationship after October 2007, (which was not challenged on appeal or disturbed by the High Court), neither the Family Court nor the High Court considered that there was any necessity for the Court to consider s 52A of the PRA, because of their findings that the marriage/de facto relationship were not contemporaneous.
[31] This Court and the Family Court however did not consider s 52A of the Act post-2007 for the simple reason that this was not the focus of the cases as presented by the parties. An election was made to argue the case on the basis of the 1980–2007 period. No detailed argument has previously been directed towards this issue, and in any event there is a dearth of evidence relating to the later period.
[32] The Court of Appeal is not a court of original jurisdiction. It adjudicates on disputes argued before lower courts. The matters I have just mentioned have not previously been the subject of argument. It is inappropriate to permit fresh issues to be ventilated at the level of the Court of Appeal. I decline to grant leave in respect of this ground.
Section 52A of the Act
[33] Arguments regarding the immediately preceding head, in my view, are also dispositive of this ground of appeal. The case before this Court was framed in terms of whether there was a qualifying de facto relationship between the husband and Ms Greig between 1980 and 2007. That question was answered in the negative by two consecutive courts. Thus, for all intents and purposes there was no qualifying de facto relationship upon which s 52A of the Act could bite.
[34] The fact that the intended appellants have now belatedly sought to endeavour to argue issues relating to the 2007–2012 period does not alter that finding, nor its consequences. I decline to grant leave in respect of this ground.
Outcome
[35] I have not been moved to the point where I consider there to be any interest, public or private, sufficient to outweigh the expense and delay of a further appeal here. Two Judges have presided over this proceeding which has been the subject of extensive examination before both the Family Court and this Court, and they have both then reached the same substantive conclusion. Further, this proceeding has its origins in events occurring over eight years ago. There is a need for finality in litigation. In my view, the time has come for that finality to crystallise. I am reinforced in this view by the fact that neither the husband nor Ms Greig has been
able to establish that there is a risk of injustice here. The main plank of their application has comprised an attack on factual findings of this Court and the Court below.
[36] The application for leave to appeal brought by the husband and Ms Greig is refused.
Application for leave to cross-appeal by the wife
[37] I turn now to the wife’s “Conditional Application for Leave to Cross-Appeal” noted at [4] above. As to this, given my decision at [36] refusing leave to the husband and Ms Greig to appeal, Mr Ormsby, counsel for the wife, made it clear before me that if this occurred the wife’s conditional application for leave to cross- appeal was not to proceed. No decision is required on that application therefore. I leave it to one side here.
Costs
[38] Costs on the applications before me are reserved. In the absence of the parties being able to resolve the question of costs directly between themselves, they may file memoranda sequentially which are to be referred to me, and I will then make a decision on costs based on all the material which is then before me.
...................................................
Gendall J
Solicitors:
Wynn Williams, Christchurch
Copies to:
Jason Wren, Barrister, Christchurch
Helen Cull QC, Barrister, Wellington
Stephen van Bohemen, Barrister, Christchurch
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