Harrison v Harrison - [2021] NZCA 301

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA725/2020
[2021] NZCA 301

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

Court:	Cooper and Brown JJ
Counsel:	Appellant 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 and H M Jaques for Fifth Respondent
Judgment: (On the papers)	7 July 2021 at 10.30 am

JUDGMENT OF THE COURT

AThe application for a declaration is declined.
B The appellant is allowed five working days to provide the information sought by the Deputy Registrar.
CIf no response is received within that timeframe, the Deputy Registrar should proceed to deal with the application for dispensation with security for costs on the basis of the information she currently has.

____________________________________________________________________

REASONS OF THE COURT

(Given by Cooper J)

Ms Pauline Harrison, the appellant, applied to dispense with security for costs in respect of this appeal.
By letter dated 15 June 2021 the Deputy Registrar wrote to Ms Harrison noting that one of the grounds raised in Ms Harrison’s application was that she was unable to pay security for costs. The Deputy Registrar sought detailed financial information to assess that ground, referring to the Supreme Court’s decision in Reekie v Attorney‑General.[1] The Deputy Registrar’s letter stated that if the further information was not received by 28 June 2021, the application would be determined on the information currently before her. Ms Harrison has not provided the further information.
[1]Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737.
Instead Ms Harrison has filed an “Interlocutory Application Ex-Parte” in which she seeks a “declaration of inconsistency” between rr 35–37 of the Court of Appeal (Civil) Rules 2005 (the Rules) and ss 145 and 148 of the Senior Courts Act 2016.
Rule 35(2) of the Rules, which applies in this case, provides that the appellant must pay security for a respondent’s costs in the Court. Under r 35(6), the Registrar may, amongst other things, dispense with security if satisfied that is warranted in the circumstances. Ms Harrison has invoked the Registrar’s jurisdiction under that rule by applying for an order dispensing with security for costs. Rule 37 provides that the Court may make an order striking out an appeal if security for costs is not paid by the time payment is due, and further, that the appellant may not apply for the allocation of a hearing date under r 38(1) if the appellant is in default of any obligation to pay security for costs.
Section 145 of the Senior Courts Act sets out two purposes of the rules of practice and procedure. They are to facilitate the just, speedy and inexpensive dispatch of the business…

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] NZCA 301
Case: [2021] NZCA 301
Decision Date: 7 July 2021 at 10.30 am

CaseChat Overview and Summary

The appeal in Harrison v Harrison was heard by Cooper and Brown JJ in the Court of Appeal of New Zealand. The appellant, Pauline Janice Harrison, sought to have security for costs dispensed with in the appeal, but had not provided the financial information requested by the Deputy Registrar. Instead, Ms Harrison filed an interlocutory application ex parte seeking a declaration that certain rules of the Court of Appeal were inconsistent with sections of the Senior Courts Act 2016. The respondents argued that Ms Harrison's application was not an interlocutory application and could not be heard by the Court of Appeal in the context of an existing appeal.

The court considered whether Ms Harrison's application was an interlocutory application under the Court of Appeal (Civil) Rules 2005. The court found that the application sought a substantive declaration that certain rules were inconsistent with statute, rather than a procedural matter relating to the appeal. The court held that such an application should be made in the High Court, not the Court of Appeal. The court also noted that if sustained, Ms Harrison's argument would have wide implications for the security for costs regime, an essential element of the Court's business. The court declined to engage with the substantive issue in an interlocutory process.

The court declined Ms Harrison's application for a declaration. It allowed her five working days to provide the financial information requested by the Deputy Registrar. If no response was received within that timeframe, the Deputy Registrar was directed to proceed with the application for dispensation with security for costs based on the information she currently had. The court's judgment made it clear that substantive applications regarding the consistency of court rules and statute should be made in the High Court, not the Court of Appeal.

Orders