Harrison v Harrison - [2021] NZSC 115

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 81/2021
[2021] NZSC 115

BETWEEN	PAULINE JANICE HARRISON Applicant
AND	ADRIENNE HARRISON AND GRAEME ROSS HARRISON First Respondents NICOLAS HAMILTON BIRDSEY Second Respondent RAYMOND OWEN PARMENTER Third Respondent CHILDFUND NEW ZEALAND LIMITED Fourth Respondent ASB BANK LIMITED Fifth Respondent

Court:	William Young, O’Regan and Ellen France JJ
Counsel:	Applicant in person P M Webb for First Respondents M J Francis and M A Karlsen for Second Respondent Third Respondent in person R A Rose for Fourth Respondent S C D A Gollin for Fifth Respondent
Judgment:	13 September 2021

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

The applicant, Ms Harrison, wished to be able to proceed with an appeal to the Court of Appeal without putting up security for costs. The mechanism by which her argument came before the Court of Appeal was an ex parte application by her to that Court for a “declaration of inconsistency” between the rules as to security for costs in the Court of Appeal and ss 145 and 148 of the Senior Courts Act 2016.
The Court of Appeal dismissed the application.[1] This was for two reasons: (a) the issue which Ms Harrison wished to raise was not able to be appropriately dealt with on an interlocutory ex parte application;[2] and (b) the application was not within the jurisdiction of the Court of Appeal and should have been brought in the High Court.[3]
[1]Harrison v Harrison [2021] NZCA 301 (Cooper and Brown JJ).
[2]At [6].
[3]At [8].
She now seeks leave to appeal to this Court from that decision.
This application raises the question of whether the requirements of the Court of Appeal (Civil) Rules 2005 as to security for costs are ultra vires.
As advanced, her argument focuses on s 145 of the Senior Courts Act, which provides that:
145 Purpose of rules of practice and procedure
The purpose of rules of practice and procedure is to facilitate—
(a) the just, speedy, and inexpensive dispatch of the business of the High Court, the Court of Appeal, and the Supreme Court; and
(b) the administration of justice.

Section 148 permits the making of rules relating to the Court of Appeal.

Ms Harrison’s argument is that requiring security for costs is inconsistent with the purpose of facilitating the “inexpensive dispatch of the business of … the Court of Appeal” and that the rules requiring such security are therefore invalid.
The Court of Appeal (Civil) Rules were made under s 51C of the Judicature Act 1908, which permitted the making of rules “regulating the practice and procedure … of the Court of Appeal”, for the “purposes of facilitating the expeditious, inexpensive, and just dispatch of the business of the court, or of otherwise assisting in the due administration of justice”. An argument broadly similar to that advanced by Ms Harrison could be advanced as to ultra vires in relation to s 51C.
We agree with…

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 Harrison v Harrison

Details

AGLC: Harrison v Harrison [2021] NZSC 115
Case: [2021] NZSC 115
Decision Date: 13 September 2021

CaseChat Overview and Summary

In the Supreme Court of New Zealand, Pauline Janice Harrison sought to appeal a decision from the Court of Appeal. The issue was whether she could proceed with the appeal without providing security for costs, as stipulated by the Court of Appeal (Civil) Rules 2005. This requirement was in conflict with sections 145 and 148 of the Senior Courts Act 2016, which Harrison argued made such a requirement inconsistent with the purpose of facilitating an inexpensive and speedy administration of justice. The Court of Appeal dismissed her application, and she now sought leave to appeal this decision to the Supreme Court.

The legal issue before the Supreme Court was whether the Court of Appeal (Civil) Rules 2005, which mandated security for costs, were beyond the scope of authority (ultra vires) given by the Senior Courts Act 2016. Harrison argued that requiring security for costs was inconsistent with the purpose of facilitating an inexpensive and speedy administration of justice. The court considered whether the rules could be challenged as ultra vires under section 51C of the Judicature Act 1908 and whether they were valid under section 145 of the Senior Courts Act 2016.

The Supreme Court agreed with the Court of Appeal that it did not have jurisdiction to deal with the application as it was presented. However, the court considered the merits of Harrison's argument. The court found that the challenge to the validity of the security for costs rules had insufficient prospects of success, for several reasons. First, the High Court Rules 2016, which have statutory effect, also provided for security for costs, indicating that such rules are within the statutory purposes. Second, the validity of the security for costs rules should be assessed against section 51C of the Judicature Act 1908, which allows rules to be justified by reference to the purposes in section 145 of the Senior Courts Act 2016. Third, the court found that the requirement for security for costs was not inconsistent with the inexpensive dispatch of court business and that the key policy issue was access to justice rather than expense. Finally, the court was doubtful that the jurisdiction to order security for costs came from the rules themselves, as rules of court regulate how jurisdiction is exercised, not confer it.

The application for leave to appeal was dismissed, and as Harrison was bankrupt, no order was made as to costs.

Orders