J v S

[2019] NZHC 1535

NOTE: PURSUANT TO S 182 OF THE FAMILY VIOLENCE ACT 2018, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION,

PLEASE SEE judgments/

ORDER PROHIBITING PUBLICATION OF THE NAMES OR IDENTIFYING PARTICULARS OF THE PARTIES EXCEPT IN ACCORDANCE WITH THE INTITULING OF THIS JUDGMENT.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-2365

[2019] NZHC 1535

BETWEEN

J

Applicant

AND

S

Respondent

Hearing:	On the papers
Counsel:	Self-represented Applicant S J Larkin for Respondent
Judgment:	2 July 2019

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 2 July 2019 at 3.30 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date: ...................................

Solicitors:           Ferguson Tuilotolava, Auckland Counsel:       S J Larkin, Auckland

Copy for:           Applicant

J v S [2019] NZHC 1535 [2 July 2019]

[1]I refer to:

(a)J’s application (to the High Court) dated 17 May 2019 for leave to appeal to the Court of Appeal against my decision of 18 April 2019;1

(b)the memorandum of counsel for S, Ms Larkin, dated 12 June 2019; and

(c)S’s proposed notice of opposition of the same date.

[2]In his application, J refers to r 20.22 High Court Rules 2016, which provides:

20.22   Applications for leave

(1)This rule applies when an enactment provides that a decision of the court may be appealed to the Court of Appeal with leave of the court.

(2)If this rule applies, an application for leave to appeal must be made to the court within 20 working days after the decision is given.

(3)A respondent who wishes to cross-appeal must apply for leave to cross-appeal within 10 working days after the date on which a copy of the application under subclause (2) is served on the respondent.

(4)An application for leave to appeal under subclause (2) or to cross- appeal under subclause (3) must be made by interlocutory application.

[3]        As is clear from r 20.22(1), the rule applies only “... when an enactment provides that a decision of the [High Court] may be appealed to the Court of Appeal with leave of the [High Court]”. Rule 20.22 is inapplicable in this instance for the following reasons.

[4]        J’s  appeal to the High Court was against a decision of Judge de Jong dated    5 October 2018. The Judge declined J’s application pursuant to r 209 Family Court Rules 2002 for a rehearing of S’s application for a protection order.2 The Judge had granted S’s application, and made the order sought, on 23 April 2018.

[5]        I consider J brought his appeal to this Court against the Judge’s decision pursuant to s 91 DVA, the relevant parts of which provide:

1      J v S [2019] NZHC 892.

2      Made pursuant to Domestic Violence Act 1995 (“DVA”), s 7.

91       Appeals to High Court

(1AA) This subsection applies to a decision of a court, in proceedings under this Act, to—

(a)make or refuse to make an order; or

(b)dismiss the proceedings; or

(c)otherwise finally determine the proceedings.

(1) A party to proceedings in which there is made a decision to which subsection (1AA) applies, or any other person prejudicially affected by the decision, may appeal to the High Court against the decision.

...

(4)Subject to section 93, the decision of the High Court on an appeal to  that court under this section is final.

[6]Judge de Jong’s decision fell within s 91(1AA)(a) or (c).

[7]Pursuant to s 91(4), my decision is final, subject to s 93 which provides:

93       Appeals to Court of Appeal

(1)A party to any appeal under section 91 may, with the leave of the Court of Appeal, appeal to the Court of Appeal against any determination of the High Court on a question of law arising in that appeal.

(2)On an appeal to the Court of Appeal under this section, the Court of Appeal has the same power to adjudicate on the proceedings as the High Court had.

(3)The decision of the Court of Appeal on an appeal to that court under this section, and on an application to it under this section for leave to appeal, is final.

[8]        It follows from s 93(1) that J is required to apply to the Court of Appeal for leave to appeal to that Court against my judgment. J will also need to seek from the Court of Appeal an extension of time for making his application.3

[9]        Lastly, I note that the DVA was repealed yesterday, 1 July 2019, by s 258 Family Violence Act 2018 (“2018 Act”).4 Despite that, any application by J for leave to the Court of Appeal is to be determined as if the 2018 Act had not been enacted, so

3      See Court of Appeal (Civil) Rules 2005, rr 14 to 18 inclusive.

4      Family Violence Act 2018, ss 2 and 258.

under s 93 DVA.5 If I am wrong in that, ss 177 and 179 of the 2018 Act and ss 91 and 93 DVA are to the same effect in any event.

Peters J

5      Family Violence Act 2018, sch 1 pt 1 cl 2.