Holden v Nicholson and Macky as Executors and Trustees of the Estate of Richard Charles Holden HC Auckland CIV 2009-404-3668

[2010] NZHC 351

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CIV-2009-404-3668

UNDER  the Status of Children Act 1908 and the

Declaratory Judgments Act 1908

IN THE MATTER OF     the Estate of Richard Charles Holden

(deceased)

AND IN THE MATTER   of an application for a declaration as to

Paternity

BETWEEN  GLEN MICHAEL HOLDEN Plaintiff/Applicant

ANDSTEPHEN PAUL NICHOLSON AND PETER WARWICK MACKY AS EXECUTORS AND TRUSTEES OF THE ESTATE OF RICHARD CHARLES HOLDEN

Defendants/Respondents

Hearing:         17 March 2010

Appearances:  Mr P H Tomlinson for Plaintiff/Applicant

Mr C J Baird for Defendants/Respondents

Judgment:      24 March 2010 at 12 noon

JUDGMENT OF ASSOCIATE JUDGE DOOGUE

This judgment was delivered by me on

24.03.10 at  12 noon, pursuant to

Rule 11.5  of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Counsel

Mr P Tomlinson, 2 Durham Street East, Auckland – by email:  [email protected]

Mr C J Baird, P O Box 5444, Auckland – by email:  [email protected]

HOLDEN V NICHOLSON & ORS HC AK CIV-2009-404-3668  24 March 2010

Background

[1]      The plaintiff has filed an application brought under the Status of Children Act

1969 for a declaration that the deceased Richard Holden, who died 25 August 2008,

is  his  natural  father.   The  defendants  are  the  trustees  of  the  estate  of  the  late  Mr Holden.

[2]      The defendant was born 14 January 1970.  His mother is Phyllis May Green but  the  birth  certificate  for  the  plaintiff  does  not  record  who  the  father  is. The plaintiff  claims  that  during  Richard  Holden’s  life  he  had  a  father/son  relationship with Richard Holden.   The deceased had two other natural children, Julie Harwood and  Joseph  Holden  (“Julie”  and  “Joe”)  who  were  born  to  different  mothers  in  or about 1969.  The plaintiff claims that he is the half-brother in each case of those two persons.  The plaintiff is a sentenced prisoner.  He found himself in jail after a long history  of   criminal   stalking   and   various   acts   of   dishonesty,   intimidation   and extortion.   The deceased, in particular was the target of much unwelcome attention from the plaintiff.  For his part, counsel for the plaintiff says that while many of the plaintiff’s actions were ill-judged, they were born from a sense of frustration at not being able to achieve clarity about whether or not the deceased was his father.

[3]      In  April  2009  the  plaintiff  filed  an  application  pursuant  to  the  Family Protection Act 1955 in the Family Court.  As part of the proceeding he alleged, inter alia, that he was the natural child of the late Mr Richard Charles Holden.  In his High Court  proceedings  he  initially  sought  relief  under  the  Status  of  Children  Act  as follows:

a)An  Order  that  the  Plaintiff  and  Julie  Harwood  and  Joseph  Holden take        paternity  or  parentage  tests  to  establish  whether  or  not  the Plaintiff is the son of the deceased Richard Holden.

Subsequently the  plaintiff  amended  his  application  to  seek  an  order  that the  Court make a recommendation that Julie and Joe undergo parentage testing.   The form of DNA testing which the plaintiff seeks is the provision of  buccal swab testing to take the sample and thereafter DNA analysis of the samples.   I was informed by counsel that the samples can be collected simply by taking a swab from a person’s mouth and it is minimally invasive.

[4]       At the same time he filed an interlocutory application on notice seeking the same items of relief which were in the   prayer   for   relief   in   the   substantive proceedings by way of interlocutory orders. On 10 September 2009 the plaintiff in the form of a memorandum, advised the Court that he intended to join Julie and Joe

as second defendants in the proceeding.  He did not file an application in furtherance

of that intention.  His counsel has today sought such orders.  I allowed the plaintiff to proceed with an application to that effect although no written application had been made.  I  did  so  because  Mr  Baird,  sensibly,  did  not  oppose  my  dealing  with  the matter and, in anticipation that such an application would be heard, had filed a notice of opposition dated 17 March 2010.

[5]           It had originally been intended that at the hearing on the 18 March a strike out application which the defendants had filed in September 2009 would be heard. That however did not proceed. The only application that went ahead before me was the  application  to  join  Joe  and  Julie  as  defendants. The  question  of  whether  the Court could make a recommendation that Julie and Joe take parentage tests, though, was closely tied up with the question of whether the plaintiff should be able to join them  as  second  defendants. If  the  objective  of  obtaining  the  directions  that  the plaintiff sought about a recommendation for parentage tests could not succeed, then obviously there would be little point in the joinder application proceeding. But there were two other substantial grounds which the defendants put forward on which they based their opposition to the joinder application and I shall deal with those shortly.  I should record that for the purposes of the present proceedings Mr Baird appeared for

both the existing defendants and the proposed second defendants, Joe and Julie.

The joinder application

Basis for application

[6]      The application to join the second defendants was brought under r 4.56 which provides as follows:

Striking out and adding parties

(1)      A Judge may, at any stage of a proceeding, order that -

(a)the name of a party be struck out as a plaintiff or defendant because the party was improperly or mistakenly joined; or

(b)the  name  of  a  person  be  added  as  a  plaintiff  or  defendant because -

(i)	the person ought to have been joined; or
(ii)	the   person's   presence   before   the   court   may	be

necessary  to  adjudicate  on  and  settle  all  questions involved in the proceeding.

(2)      An order does not require an application and may be made on terms the court considers just.

(3)      Despite  subclause  (1)(b),  no  person  may  be  added  as  a  plaintiff without that person's consent.

[7]      Mr  Baird,  though,  also  referred  me  to  rules  4.1  and  4.3  which  provide  as follows:

4.1      Limit on parties

The number of persons named or joined as parties to a proceeding must be limited, as far as practicable, to—

(a)persons  whose  presence  before  the  court  is  necessary  to justly   determine the issues arising; and

(b)      persons who ought to be bound by any judgment given.

4.3      Defendants

(1)Persons   may   be   joined   jointly,   individually,   or   in   the alternative as defendants against whom it is alleged there is a right  to  relief  in  respect  of,  or  arising  out  of,  the  same transaction,  matter,  event,  instrument,  document,  series  of documents, enactment, or bylaw.

(2)It is not necessary for every defendant to be interested  in all relief claimed or every cause of action.

(3)The court may make an order preventing a defendant   from being  embarrassed  or  put  to  expense  by  being  required  to attend  part  of  a  proceeding  in  which  the  defendant  has  no interest.

(4)A  plaintiff  who  is  in  doubt  as  to  the  person  or  persons against  whom the plaintiff is entitled to relief may join 2 or more  persons  as  defendants  with  a  view  to  the  proceeding determining -

(a)       which (if any) of the defendants is liable; and

(b)      to what extent.

[8]      Neazor J considered the scope of rule 4.1 (a) in his judgment in Johnston v Johnston  [1991] 2 NZLR 608,614 where Neazor J applied the passage in the judgment of Devlin J in Amon v Raphael Tuck & Sons Ltd [1956] 1 QB 357 at 380 concerning the meaning of the word “necessary”:

The  court  might  often  think  it  convenient  or  desirable  that  some  of  such person should be heard so that the court could be sure that it had found the complete answer, but no one would suggest that it is necessary to hear them for  that  purpose.     The  only  reason  which  makes  it  necessary  to  make  a person a party to an action is so that he should be bound by the result of the action,  and  the  question  to  be  settled  therefore  must  be  a  question  in  the action  which  cannot  be  effectually  and  completely  settled  unless  he  is  a party.

[9]      Mr Baird also drew my attention to the requirement in r 4.3 that there must be

an allegation of right to relief against the person proposed to be joined.  In this case, paternity  if  established  by  the  plaintiff  would  lead  to  his  obtaining  a  declaration against the putative father.

Discussion

[10]     The  question  of  why  Julie  and  Joe  need  to  be  bound  by  the  result  of  the substantive proceeding  is the central matter in issue in the proceedings.  The issue in the  proceedings  is  not  whether  the  plaintiff  is  the  half-brother  of  Julie  or  Joe. Therefore in my view, based upon the rules, the application to join those two persons must, subject to other matters which I mention next, fail.

Other Grounds for joinder

Plaintiff’s wish to obtain recommendation under Family Proceedings Act  that  Julie and Joe undergo parentage testing as ground for joinder application

[11]     This ground was based on s 54 of the Family Proceedings Act 1980 which

provides:

54       [Parentage] tests

(1)In any civil proceedings (whether under this Act or not) in which the parentage of a child is in issue -

(a)The   Court   may,   of   its   own   motion   or   on   the application                  of   a    party   to    the    proceedings,

recommend  that  [parentage]  tests  be  carried  out on—

(i)        The child; and

(ii)      Any person who may be a natural parent of the child -

and that a report of the results be compiled, by  a person  who  is  qualified  to  compile  such  a report, and submitted to the Court; and

(b)Whether    or    not    the    Court    has    made    a recommendation               under   paragraph   (a)   of   this subsection, the Court may, of its own motion or on the application of a party to the proceedings, adjourn the  proceedings  in  order  to  allow  time  for  such [parentage]  tests  to  be  carried  out  and  for  such  a report to be compiled and submitted to the Court.

(2)      For the purposes of this section—

(a)[parentage] tests may be carried out by any person or persons   who are qualified to do so, whether or not any  of  them  is  the  person  by  whom  the  report  is compiled; and

(b)      The consent of a minor who has attained the age of

16  years to submit to [parentage] tests shall have the same effect as the consent of a person of full age.

[12]     Section 54 then envisages a case where an order is made which is cumulative

in effect and which directs the carrying of tests on the child and the person who may

be a natural parent of the child.  It is accepted on both sides that this section does not apply because the tests are not sought on the late Mr Holden.   Section 54 does not provide statutory authority authorising an order “recommending” that the persons in the position of the half-brother and sister provide DNA samples.

[13]         Mr Tomlinson for the plaintiff conceded, as in my view he was bound to, that the procedure under s 54 did not apply.  But it is clear to me that s 54 only applies to either  a  child  or  a  parent.               The  wording  of  the  section  does  not  contemplate recommendations that half-siblings undergo parentage testing.

[14]     Reference was also made in argument to s 57 of the same Act which provides

as follows:

57       Refusal of [parentage] tests

(1)In any civil proceedings in which the natural parentage of a child is in issue, whether or not the Court has recommended under section 54(1) of this Act that [parentage] tests should be  carried  out  on  a  person,  evidence  may  be  given  to  the Court as to the refusal of that person to consent (or, where the  person  is  under  16  years  of  age,  as  to  the  refusal  to consent  to  such  [parentage]  tests  of  the  person  who  is competent to do so on that person's behalf).

(2)      Subject to the right of the person who refuses to consent to the [parentage] tests to explain the reasons for that person's refusal,  and  to  cross-examine  witnesses  and  call  evidence, the Court may draw such inferences (if any) from the fact of refusal as appear to it to be proper in the circumstances.

[15]     Mr Tomlinson suggested that that section somehow expanded jurisdiction to recommend the provision of tests. But in my view Mr Baird is right when he says that s 57 refers back to and is limited by the terms of s 54. That is, any inference to

be drawn from the refusal of parentage tests is limited to those required of a child or

a parent and not a wider group of persons.   It is correct that s 57 recognises that a request  may  be  made  other  than  by  the  Court.   For  example,  s57  would  seem  to extend  to  a  request  made  by  one  party to  another  in  a  paternity dispute.   But  the recognition  in  s  57  of  the  possibility  of  adverse  inferences  being  drawn  in  that circumstance  as  well  as  where  a  s  54  recommendation  has  been  made,  does  not logically  lead  to   a   conclusion  that  the  Court  is  also  empowered   to  make   a recommendation in cases other than those involving parent and child.

[16]     I  am  satisfied  that  there  is  no  power  under  s  54  to  make  the  directions sought.  I consider that s 54 does not apply as between a claimant child and the half siblings.  Therefore it is my view that the possibility of a direction under s 54 would not  justify  the  joinder  of  the  second  defendants.  In  any  case  I  do  not  accpt  that joinder could be justified solely on the basis that it was for the purpose of making the intended defendant amenable to a recommendation under s 54.

Inherent jurisdiction to recommend parentage testing?

[17]     Mr  Tomlinson  for  the  plaintiff  alternatively  submitted  that  it  would  be possible  for  the  Court,  relying  on  its  inherent  jurisdiction,  to  recommend  that parentage testing occur.

[18]     Mr Baird cited a decision of Priestley J  in  Atkins  v  Jones  HC  Auckland M474-SD02, 19 August 2002 as being relevant to the argument as to  inherent powers. In that case, as here, there was before the Court an application under s 10

of the Status of Children Act in which the plaintiff sought a declaration of paternity. The plaintiff sought to persuade the Court that it had inherent jurisdiction to direct the  ESR,  which  held  a  blood  sample  taken  from  a  deceased  person,  to  enable  the blood sample to be subjected to DNA testing.  The Judge said at [3]:

Having regard to the provisions of s 54 of the Family Proceedings Act  1980

it  is  highly  doubtful  whether  this  Court  could  make  such  an  order.   The

Court’s  power  in  respect  of  a  living  putative  father  is  merely  to  make  a recommendation that blood tests be carried out.  I doubt whether any greater power  should  be  exercised  in  respect  of  remaining  body  parts  or  blood samples of a deceased person.   Given that Parliament has legislated in this field, an argument that the Court retains some inherent jurisdiction is at best tenuous.

[19]     That  decision (inter alia) was considered further in  a  Court  of  Appeal judgment in T v S  and W [2005] NZFLR  466. There,  the  Court  had  before  it  an application for an order placing a child under the guardianship of the Court pursuant

to Section 10B of the Guardianship Act 1968 in order to the circumvent the refusal

of the mother of the child to allow DNA testing.   It was not therefore a case where the inherent jurisdiction of the Court was under examination.   As it happened, the Court considered that having regard to the best interests of the child and the adoption

by  New Zealand of  the United Nations Convention on the Rights of the Child (“UNCROC”) amongst other considerations, it was a proper exercise of the guardianship jurisdiction to make the order  sought  so  that  the  Director  General would consent on behalf of the child to the taking of the DNA sample.   The Court was influenced by the fact that, in disputes about guardianship matters, the fact that the mother might be opposed to the taking of DNA samples was not the matter of prime importance: what was of the greatest weight was the best interests of the child. It was in the interests of the child to know who its father was.  As well, the making

of a paternity order (if indeed it was made in favour of the father) would by means of access orders and the like enable the child to build its relationship with its father.  In summary, the decision in T v S and W was a case about which the Court could make arrangements so that consent could be given on  behalf of a minor to DNA testing which was in its interests where, given the absence of ability of the child to consent, some other person needed to. It involved the taking of a DNA sample restricted to the child. The case of T v S and W is therefore quite a different one from the present case. The present case does not concern the consent of a minor to DNA testing and it is not one which is restricted to recommendations of testing by either the child or the parent.   It does not therefore, in my view, throw any light upon the question of whether the Court has inherent jurisdiction to make an order of the kind which the plaintiff seeks.

[20]     I consider that the process of reasoning which Priestley J adopted in Atkins v Jones  is,  with  respect,  correct.   As  parliament  in  legislating  in  this  area  restricted itself  to  recommendations  that  either  a  child  or  a  parent  should  be  the  subject  of recommendations,  I  do  not  see  how  the  Court  could,  in  exercising  its  inherent jurisdiction, extend that process to a wider group of persons – namely siblings.

[21]     In any event, I do not understand the utility of the proposed orders. If a recommendation is made but not followed, the effect is essentially an evidential one. That is, the Court  may  draw  such  inferences, if any, from the fact  of  refusal  as appear to be proper in the circumstances: s 57 Family Proceedings Act 1980.   But this brings us back full circle to the fact that in this case, the declaration of paternity is, and only could be, sought against the late Richard Charles Holden.  A refusal by Joe or Julie to submit to testing notwithstanding the making of the recommendation by the Court, could logically only give rise to inferences being drawn against them. But  if  such  inferences  are  of  no  evidential  value  as  against  the  defendant  to  the proceedings,  it  is  difficult  to  see  what  use  there  would  be  in  recommending DNA testing in the first place.

[22]     My view is that there is no inherent jurisdiction to make the orders that the plaintiff seeks against Joe and Julie.  Even if there had been, I am not persuaded that

that  is  a  proper  basis  upon  which  they  should  be  joined  as  defendants  in  the proceedings.

[23]     In my view, the application to join them as defendants must fail.

Costs

[24]     The  parties  should  attempt  to  agree  on  the  matter  of  costs.   If  they cannot then I will hear them at 9 a.m on a convenient date.

Progress with proceeding from this point

[25]     Counsel should confer on what steps are now required to progress this proceeding and if  possible  submit  a  consent  memorandum. As  a  backstop,  the

Registrar is to allocate a further case management conference.

J.P. Doogue

Associate Judge