Gunson v Waenga HC WN CIV-2007-485-612

[2008] NZHC 2338

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2007-485-612

BETWEEN  SIMON DOUGLAS GUNSON Appellant

ANDGAIL NGARIMU WAENGA Respondent

Hearing:         21 May 2008

Appearances: Appellant in person

W Davis for Respondent

Judgment:      21 May 2008

ORAL JUDGMENT OF RONALD YOUNG J

[1]      This is an attempt to obtain leave to appeal and appeal a decision of Judge Carruthers of 23 March 2001 granting the respondent a final protection order under the Domestic Violence Act.

[2]      The respondent says this application for leave to appeal and notice of appeal is res judicata, the appellant having previously unsuccessfully appealed the final protection order made in March 2001.

[3]      On 18 May 2001 Mr Boyes, as counsel for Mr Gunson, filed an application for leave to appeal (notice of appeal) in the High Court at Wellington against the decision of Judge Carruthers of 23 March 2001.   The application for leave was required  because  the  respondent  had  not  been  served  with  the  papers  in  time, although the appeal itself had been filed in time.  The respondent filed a notice of

opposition to the appeal.

GUNSON V WAENGA HC WN CIV-2007-485-612  21 May 2008

[4]      The  case  was  called  at  an  initial  case  conference  on  11  June  and  an appropriate memorandum from Mr Boyes was filed for consideration of the Judge at that conference.

[5]      On 6 July 2001 the appellant’s counsel and the respondent’s counsel filed a joint memorandum in the High Court.   The memorandum said the appellant discontinued his appeal from the decision of the Family Court of 23 March 2001.

[6]      On 13 July 2001, the High Court at Wellington sealed the following order:

[7]      Given those facts, the respondent understandably says that the appellant is estopped by the principle of res judicata from pursuing this appeal.

[8]      The appellant has filed lengthy affidavits in this case – over 200 paragraphs in total – detailing in part why he says the decision in the Family Court in 2001 was wrong and what has happened to the parties since 2001.  None of the affidavits nor any of the submissions by the appellant deal with the central issue of the appeal itself;  namely  whether  or  not  these  proceedings  are  estopped  by  virtue  of  res judicata.

[9]      Estoppel by res judicata involves establishing the following:

a)        That the decision in issue is a judicial judgment made by a Judicial

Tribunal;

b)        Secondly, the Judicial Tribunal had jurisdiction to decide the dispute;

c)        Thirdly the decision was final;

d)       Fourthly, the decision was the same as the one currently before the

Court and involves the same parties.

[10]     All four points are established in this case.  This was a decision by the High Court to dismiss an appeal from the Family Court.   The decision was final in the sense that a dismissal of an appeal is final.   It was not, for example, an interim decision.  Finally, it was the dismissal of an appeal from a decision of the Family Court granting a final protection order involving the appellant and the respondent, the same parties and the same issue on this appeal.  It does not matter that the appeal or that the judgment, as here, was by consent.

[11]     I am satisfied therefore that the matter is res judicata and these proceedings should be struck out because the appellant, Mr Gunson, is estopped from bringing them.

[12]     Even if I had decided otherwise, I would not have granted leave to appeal. These matters occurred seven years ago.  A reasoned decision was given by a senior Judge. Mr Gunson can apply now, of course, to have the protection order discharged and the matter would no doubt be considered by the Family Court.   No adequate reason has been given for the seven year delay.  This would essentially be an attempt to re-argue events of many years ago without apparent purpose or advantage.

[13]     For the reasons given therefore, the appeal will be dismissed.

[14]     Ms  Davis  seeks  costs  on  behalf  of  the  respondent.     Mr  Gunson,  in submissions, says that these proceedings were an attempt to correct what he saw as an injustice relating to the circumstances of the granting of the order and subsequent events.  I have advised him of course it is a matter for him to decide if he wishes now to apply to have the current order discharged, and I have encouraged him to try and deal with today rather than yetserday.  He points out that he is a sickness beneficiary and although he expects to inherit something from his mother’s estate, that remains still without probate.

[15]     There is no reason in my view not to grant costs.  This appeal could never have succeeded.  I grant costs on a 2B basis in favour of the respondent against the appellant, plus disbursements as fixed by the Registrar.

“Ronald Young J”

Solicitors:        Simon Douglas Gunson, 75 Monorgan Road, Wellington for Appellant

Wendy Davis, 154 Victoria Street, Wellington for Respondent