J v S

[2019] NZHC 892

NOTE: PURSUANT TO S 125 OF THE DOMESTIC VIOLENCE ACT 1995 AND S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-2365

[2019] NZHC 892

BETWEEN

J

Appellant

AND

S

Respondent

Hearing:

27 February 2019

Appearances:

Appellant in person

S J Larkin for Respondent

Judgment:

18 April 2019

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 18 April 2019 at 4.30 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:           Appellant

J v S [2019] NZHC 892 [18 April 2019]

Introduction

[1]    J appeals a decision of Judge de Jong in the Family Court at Auckland, in which the Judge declined J’s application for rehearing.1

[2]    J was seeking a rehearing in respect of an application by S, J’s former partner, for a protection order. The Court heard S’s application and made the protection order sought on 23 April 2018.

[3]    An application for a rehearing may be filed as of right within 28 days of the date of judgment, and the Court may order a rehearing if it considers that there has been a miscarriage of justice.2 In this case, J filed his application for rehearing out of time, and thus required an order extending time. The Judge declined to extend time.

Jurisdiction

[4]    This appeal proceeds as a general appeal, to be determined in accordance with the principles in Austin, Nichols & Co Inc v Stitching Lodestar.3

Background

[5]    What follows is the background to this matter as regards S’s application for protection order. For the sake of completeness, however, I record that, at the same time, S sought a variation to a parenting order and some aspects of the applications proceeded in tandem.

[6]    S filed an “on-notice” application for a protection order in the Family Court on 27 September 2017.

[7]    By minute dated 25 October 2017, the Court abridged J’s time for filing a notice of defence from 21 days to five days.

1      [S] v [J] FC Auckland FAM-2017-044-321, 5 October 2018 per de Jong DCJ.

2      Family Court Rules 2002, r 210(1).

3      Austin, Nichols & Co Inc v Stitching Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

[8]    On 29 March 2018, S made an application for directions as to substituted service. It is necessary for me to set out matters relating to service in some detail because at the heart of J’s application for rehearing was an allegation that he was not notified of the application for the protection order or the date allocated for hearing, that is 23 April 2018.

[9]    By the time S applied for directions as to substituted service, process servers had made five unsuccessful attempts to serve J with S’s application for a protection order and other documents. These attempts were made in November and December 2017. The process servers were seeking to serve J at the address for service he had provided to the Court some months earlier, that being an address in Unsworth Heights, Auckland.

[10]   On some occasions, the door was not answered even though people were obviously inside and, on others, the process servers were given to understand that J did not live at the address. The process servers’ view was that J was avoiding service.

[11]   Before I continue, I note that on 18 January 2018, that is to say about a month or so after the process servers’ last attempt, J filed a memorandum with the Court giving the same Unsworth Heights address as his address for service. J also referred in this memorandum to S’s application for a protection order, so he knew it was pending. Moreover, on this memorandum, and other documents he filed, J provided and/or used the email address [email protected] (“Gmail address”).

[12]   On 4 April 2018, Judge Partridge gave directions for substituted service.4 By minute of that date, the Judge directed that S serve her application for a protection order by post, and by email to the Gmail address. Judge Partridge also ordered that the file be transferred to the Family Court at Auckland, which it was. The Court allocated a hearing of S’s application for a protection order on 23 April 2018.

[13]   On 5 April 2018, the Court emailed Judge Partridge’s minute and the notice of the hearing on 23 April 2018 to the Gmail address. In addition, there is evidence that:

4      [J] v [S] FC Auckland FAM-2017-044-321, 4 April 2018, per Partridge DCJ.

(a)on 11 April 2018, the application for the protection order was emailed to the Gmail address;5

(b)on 16 April 2018, S’s legal advisers posted the notice of hearing, the minute, and other documents to J at the Unsworth Heights address.

They emailed the same documents to the Gmail address. 6

[14]   I am satisfied that by these various actions there was compliance with the directions for substituted service.

[15]   J denies receiving any of these documents, however sent. His evidence is that his Gmail address has not been reliable in receiving emails for some time, and that he had adopted a Hotmail address. J submits that S’s legal advisers erred in sending the documents to the Gmail address, as opposed to his Hotmail address.

[16]   Judge de Jong heard S’s application on 23 April 2018. J had not filed a notice of defence, he was not present, the hearing proceeded in his absence, and the Judge made the protection order.

Decision Under Appeal

[17]   J was required to file any application for rehearing by 21 May 2018, that being 28 days after the order was made.7 J filed well out of time, on 18 July 2019.

[18]   J’s evidence, which I accept, is that despite his best efforts, he did not obtain a copy of the Judge de Jong’s  minute recording that the order had been made  until   21 May 2018. That was the last day for filing any application for rehearing as of right. J attributes his subsequent two-month delay in filing to the failure of Family Court Registry staff to advise him as to how to make the necessary application(s). This is a convenient point to record that it is not for Court staff to advise J on how to make an application. That is a matter for J and any legal adviser he instructs.

5 Affidavit of [S] sworn 12 September 2018 at [24].

6      Affidavit of M Stead sworn 18 April 2018.

7      Family Court Rules 2002, r 132.

Application for rehearing

[19]   J’s application for rehearing came before Judge de Jong on 15 August 2018. The miscarriage of justice on which J relied in his application was that he had no notice of the application or of the hearing on 23 April 2018.

[20]   In his minute of 15 August 2018, the Judge said that J’s evidence did not address the circumstances that he alleged had resulted in the miscarriage (mandatory pursuant to r 209(4) Family Court Rules 2002 (“FCR”)), and he gave J an opportunity to file further evidence. J did so, again denying that he received notice of the application or of the hearing.

[21]   The Judge determined the application for rehearing on 3 October 2018. The Judge referred to many of the matters to which I have referred regarding J’s use of the Gmail address to communicate with Court and said that he was satisfied, as I am, that S had effected service in accordance with Judge Partridge’s directions and that J had been notified of the hearing date. The Judge dismissed J’s application accordingly.

[22]   I am satisfied the Judge was correct to dismiss J’s application for rehearing for these reasons.

[23]First, S had complied with the Court’s directions for service.

[24]   Secondly, J’s denial of receipt of the application and notice of hearing was and is implausible. The relevant documents were posted to the Unsworth Heights address and they were emailed to the very email address that J was using at the time, that is the Gmail address.

Result

[25]   I dismiss this appeal accordingly. S having succeeded, she is entitled to an award of costs and disbursements, these to be fixed by the Registrar in the event of dispute.

Peters J