JN v LCF
[2012] NZHC 2731
•18 October 2012
NOTE: PURSUANT TO S 125 OF THE DOMESTIC VIOLENCE ACT 1995, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO
11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
CIV 2012-443-459 [2012] NZHC 2731
BETWEEN JN Appellant
ANDLCF Respondent
Hearing: (on the papers)
Counsel: N R Harding for Appellant
A Leonard for Respondent
Judgment: 18 October 2012
JUDGMENT OF HEATH J
This judgment was delivered by me on 18 October 2012 at 2.15pm pursuant to Rule
11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors:
Thomson O’Neil & Co, 7 Stanners Street, ElthamParker and Marriner, PO Box 443, Hawera
JN V LCF HC NWP CIV 2012-443-459 [18 October 2012]
The application
[1] JN appeals against a decision given by Judge Courtney, in the Family Court, by which he was refused leave to file affidavits out of time, in domestic violence proceedings. The appeal is brought on the grounds that the Judge dismissed his application without holding a “hearing”.
Background facts
[2] On 21 March 2012, LCF applied for a protection order against JN. The application was made on a without notice basis and granted on the same day. JN filed a notice of defence on 30 March 2012, in conjunction with an objection to a direction that he attend a domestic violence programme.
[3] The proceeding was called in the Family Court on 24 May 2012. On that date, Judge Courtney made timetabling directions to ready the proceeding for hearing. He directed:
Any further affidavits for applicant to be filed and served by 7 June. Any reply affidavits by 14 June 2012.
Set down for hearing – 2 hours.
No further affidavits without leave of the Court.
[4] Originally, the application was to be heard on 5 July 2012. Because time had become available earlier, the date was moved forward to 15 June 2012, only one day after the further affidavits were due. However, the 15 June date could not proceed. Another date was fixed for 16 August 2012. That was vacated, again because of the unavailability of counsel for JN.
[5] The Registrar then advised that the proceeding could be heard in New Plymouth on 16 July 2012. That could not proceed as, by then, JN’s solicitor had advised that he intended to call six witnesses, most of whom were located in another
part of Taranaki. A further hearing for 6 September 2012 was allocated. That did not proceed because this appeal was pending.
[6] On 8 August 2012, JN filed an application for leave to file further affidavits in opposition to the application. In part, they were designed to provide an alibi for the period during which the alleged domestic violence occurred. No hearing date was endorsed on the application by the Registrar of the Family Court.
[7] LCF opposed the grant of leave, citing the time that had passed since the timetabling orders were made and the obvious delay in resolving the proceeding. Ms Leonard, for LCF, pointed out that s 76(3)(b) of the Domestic Violence Act 1995 states that any hearing to determine whether a protection order should be made final must be set down for hearing no later than 42 days after the respondent’s notice of intention to appear is filed, in the absence of special circumstances. On the basis that the application was to be heard on 6 September 2012, over five months had passed since the notice of defence was filed and served.
[8] Counsel for LCF indicated, in a memorandum in opposition dated 15 August
2012, that she was agreeable for the interlocutory application to be dealt with on the papers, in chambers.
The Family Court’s decision and the appeal
[9] On 16 August 2012, the day after receipt of Ms Leonard’s memorandum,[1]
[1] See para [8] above.
Judge Courtney issued a Minute dealing with the application for leave to file further affidavits. He said:
No reason is given as to why these affidavits were not, or could not be filed by 14 June 2012 as directed on 24 May 2012.
Indeed one of them was sworn on 1 June 2012, but never filed.
Application declined. The only witnesses to be heard on 6 September are those whose affidavits were filed by 24 May 2012 or in accordance with the Minute of that date.
[10] JN filed an appeal against the Family Court’s decision on 30 August 2012. A case management conference was held on 13 September 2012 at which, with the consent of the parties, I made directions for the filing of a bundle of relevant documents and submissions. The parties agreed that the appeal could be determined, thereafter, on the papers.
Analysis
[11] The issue on appeal is simply whether the Judge erred in dealing with the application without hearing from counsel for JN.
[12] The application was filed in a conventional way. No memorandum was submitted by counsel for JN. However, when the notice of defence was filed, an extensive memorandum was put before the Court on behalf of LCF. I suspect that the Judge thought that LCF’s counsel’s position that the application could be dealt with on the papers was one shared by JN’s counsel, whereas it was not.
[13] Some debate took place over whether it was necessary for the Registrar to confer with counsel before giving notice of the date and time for a hearing. That occurred because of the changes in the Family Court hearing dates and the differences it made to the time available to consider affidavits filed in terms of the original directions made on 24 May 2012. I accept Ms Leonard’s submissions, for LCF, that the Registrar is under no obligation of that type, though clearly it is
desirable to liaise to ensure that hearing dates are not set that counsel cannot keep.[2]
[2] Family Courts Rules 2002, r 52A.
[14] Mr Harding, for JN, relies on a judgment of Peters J, in KDP v ARC.[3] In that case, the Judge allowed an appeal and set aside the Family Court Judge’s decision refusing leave for the appellant to file affidavits out of time. In that particular case, the Judge proceeded to deal with the application on its merits. Having reviewed Peters J’s judgment, I find myself in entire agreement with it.
[3] KDP v ARC HC Auckland CIV 2010-404-3783, 18 October 2010
[15] In short:
(a) The Registrar, on any application filed on notice, must fix a date and time for the hearing or enter it onto a Registrar’s List for monitoring and management.[4]
[4] Family Courts Rules 2002, r 229(1).
(b)The combined effect of those parts of the Family Courts Rules that deal with interlocutory applications is that there be a “hearing” of the application at which the parties should have an opportunity to appear, in the absence of an agreement that the application be dealt with on
the papers. As Peters J said in KDP v ARC:[5]
[5] KDP v ARC HC Auckland CIV 2010-404-3783, 18 October 2010 at para [37].
[37] . . . the point of that hearing is to give each party an opportunity to inform the Court of their position on the application before the Court makes a decision on the matter.
. . . .
[16] It follows that the Family Court Judge erred in not holding a “hearing” before determining the application. In my view, it was not necessary for there to be any elaborate hearing in person. A telephone conference involving counsel for each party would have sufficed. The important point is that, in the absence of evidence of unequivocal agreement to the application being dealt with on the papers, the Judge ought to have heard from counsel before making the order.
[17] Unlike Peters J in KDP v ARC, I am not prepared to deal with the application on its merits. The nature of the proceeding (domestic violence), the time that has passed since its filing, the absence of any obvious reasons for the delay in filing the affidavits and the need to expedite a hearing of the substantive application are factors that all make it more appropriate for the ultimate decision on the application to be made by a Family Court Judge.
Result
[18] For the reasons given, the appeal is allowed. The decision made on 15
August 2012 to refuse leave to file further affidavits is set aside. The application is
remitted to the Family Court for a hearing in accordance with directions to be made by a Family Court Judge.
[19] In the circumstances, there will be no order as to costs.
P R Heath J
Delivered at 2.15pm on 18 October 2012
0
0
1