HBT v Manukau Court - [2023] NZHC 423

NOTE: ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. SEE:

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-1149

[2023] NZHC 423

UNDER
the High Court Rules Act 2016,

Crimes Act 1961 and New Zealand Bill of Rights Act 1990

BETWEEN

HBT

Plaintiff

AND

MANUKAU COURT

First respondent

BM
Second respondent

CHIEF EXECUTIVE OFFICER FOR ORANGA TAMARIKI

Third respondent

FIONA COWAN

Fourth respondent

Hearing: 3 March 2023

Appearances:

Plaintiff in person

Appearance excused for the first respondent Second respondent in person

A Hill for third respondent
P Moodley for fourth respondent

Date of judgment:

8 March 2023

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 8 March 2023 at 11.00am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

HBT v MANUKAU COURT [2023] NZHC 423 [8 March 2023]

[1] The mother, HBT, seeks leave to appeal my 16 November 2022 minute’s stay of her application for judicial review of Judge Mahon’s 11 January 2017 interim parenting decision in the Family Court. The stay is pending that Court’s final determination of the Care of Children Act 2004 proceeding before it (presently scheduled for a five-day hearing commencing 13 March 2023, although the mother has sought its vacation).

Approach to applications for leave to appeal

[2] Section 56(3) of the Senior Courts Act 2016 prohibits appeals of orders or decisions on interlocutory applications in civil proceedings without this Court’s leave. The object of requiring such leave is:1
… to limit the cases which may go on appeal in the interests of finality of litigation and the workload of the [appellate] Court, while preserving the integrity of the law and the interests of justice.

[3] It is “well settled” the approach to leave is as a “filtering mechanism” for which “[t]he threshold is high”:2

… leave to appeal should only be granted where the significance or implications of an arguable error of fact or law, either for the particular case or for the applicant or as a matter of precedent, warrants the further delay which the appeal process would involve.

The question is if there is something justifying intermediate appeal.

Discussion

[4] The mother would contend on appeal my decision is “fundamentally flawed” because I misapprehended her application as interlocutory. She says I therefore have obstructed natural justice, and it is “unreasonable” of me to delay her contest of the Family Court’s 2017 decision. She would argue I disregarded the “mandatory considerations” of ss 4 and 5 of the Care of Children Act. And she emphasises the Family Court cannot ‘review’ its own decision, meaning its prospective final determination should be irrelevant to her application for judicial review.

1 Sandle v Stewart [1982] 1 NZLR 708 (CA) at 715.
2 Stockman v Health and Disability Commissioner [2022] NZCA 511 at [13], citing Greendrake v District Court of New Zealand [2020] NZCA 122 at [6]…

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.

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Details

Case: [2023] NZHC 423
Decision Date: 8 March 2023

CaseChat Overview and Summary

The High Court of New Zealand, Auckland Registry, was presented with an application for leave to appeal a decision made by Jagose J regarding a stay of an application for judicial review of an interim parenting decision made by Judge Mahon in the Family Court. The applicant, HBT, sought to contest the interim parenting decision, arguing that the Family Court's final determination should not be relevant to her application for judicial review. The court was required to decide whether the applicant's case warranted an intermediate appeal, given the established threshold for such appeals.

The court considered whether the applicant's case met the high threshold for leave to appeal as outlined in Section 56(3) of the Senior Courts Act 2016. The court noted that the applicant argued the decision was fundamentally flawed because the judge misapprehended her application as interlocutory. However, the court found that the applicant's reliance on case law was misplaced, as her argument did not reach the required threshold for significance or implications. The court also found that the Family Court's prospective final determination was irrelevant to the applicant's application for judicial review, but this did not warrant an intermediate appeal.

In conclusion, the court denied the applicant leave to appeal the decision, finding that the case did not warrant an intermediate appeal. The court found that the applicant's arguments did not meet the high threshold for leave to appeal and did not have significant implications for the case, the applicant, or as a matter of precedent. The applicant's application was dismissed, and if she wished to pursue the matter further, she had 20 working days to apply to the Court of Appeal for leave to appeal.

Orders