Johnson v Johnstone HC Whangarei CIV 2010-488-108

[2010] NZHC 1158

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV 2010-488-108

BETWEEN  MICHAEL CLARKE JOHNSON Appellant

ANDDUWAINE ROBERT JOHNSTONE First Respondent

ANDTHE NEW ZEALAND GUARDIAN TRUST COMPANY LIMITED Second Respondent

Hearing:         9 July 2010

Counsel:         R O Parmenter (by telephone) for Appellant

A B Fairley and M J Wills for First Respondent

No appearance by, or on behalf of Second Respondent (abides Court decision)

Judgment:      9 July 2010

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Daniel Overton & Goulding, PO Box 13017, Onehunga, Auckland
Thomson Wilson Law, PO Box 1042, Whangarei

New Zealand Guardian Trust Co Ltd, PO Box 913, Wellington

JOHNSON V JOHNSTONE AND ANOR HC WHA CIV 2010-488-108 9 July 2010

[1]      Mr Michael Johnson appeals against a decision made by Judge Maude in the Family Court at Whangarei, on 26 January 2010.  The judgment was given in the course of proceedings under the Family Protection Act 1955.

[2]      Mr Johnson is the nephew of the deceased and was the sole beneficiary of the deceased’s last Will and Testament of 28 July 2000.  The contest was initiated by Mr Duwaine Johnstone, who is the adopted son of the deceased.   He received no provision from his father’s estate.  Judge Maude held that the qualifying criteria for a claim had been met and awarded 60% of the net value of the estate in favour of Mr Johnstone.

[3]      On appeal, the question of quantum is in issue.  The main area of dispute in the Family Court involved the question of contact between the adopted son and his father.

[4]      The evidence established that the son had left home and moved up north. Between 1990, when Duwaine Johnston’s mother separated from the deceased, until about 2004, there was little or no contact.   Since 2004, there was some telephone contact and some meetings between Mr Johnston and his father.  The deceased died aged 79 years, on 29 September 2008.

[5]      That is a very broad and incomplete summary of the facts on which Judge Maude made his decision, but is probably sufficient for the purposes of the present application.

[6]      Mr Johnson applies for leave to adduce further evidence on appeal.  The right to do so is governed by s 15(5) of the Family Protection Act 1955, which provides:

15.   Right of appeal

...

(5)   The High Court or (as the case may be) the Court of Appeal may, in its discretion, rehear the whole or any part of the evidence, or may receive further evidence, if it thinks that the interests of justice so require.

[7]      Section 15(5) is in all material respects a companion provision to s 39B(3) of the Property (Relationships) Act 1976; a provision which has received appellate consideration.  In Nation v Nation, the Court of Appeal said:

[165]   This Court has power under s 39B(3) of the PRA to receive further evidence if it thinks that the interest of justice require it to do so. This Court described the power under s 39B(3) as wider than the discretion to allow further evidence under (now) r 24 of the Court of Appeal (Civil) Rules 1997 in Castle v Castle [1980] 1 NZLR 14 at 17. But in the same case, this Court said it would be wrong to allow an appellant (or presumably any party to an appeal) to bolster his or her case with additional evidence that was available at the lower court hearing but not adduced because of the particular view of the case being taken at that time.

[8]      It is accepted that the threshold test of “interests of justice” creates a lesser bar to overcome than the “special reasons for hearing the evidence” set out in the High Court Rules for other types of appeals.

[9]      The trustee of the estate, New Zealand Guardian Trust, has not sought to be heard on the present application.  It abides the decision of the Court on this and the substantive appeal.  Counsel for the Trustee has been excused from attendance for this hearing and for the substantive appeal.  The appeal is set down for hearing on 19

October 2010.

[10]     I take the same approach to s 15(4) as I did in relation to s 39B(3), in Coory v Coory.[1]   In that case I considered first the relevance of the “new” evidence and its cogency.  I took the view that if the new evidence were relevant and cogent and there was a valid explanation for it not having been adduced before the Family Court, good reason may exist in the interests of justice for the evidence to be admitted.  In saying that, the desirability of finality in litigation must be taken into account.  That point was emphasised in the final sentence of the passage from Nation v Nation.[2]

[1] Coory v Coory HC Auckland CIV 2008-404-4431, 14 November 2008. 

[2] See [7] above.

[11]     There are two aspects to the application.  The first involves the introduction of telephone records designed to cast doubt on evidence that there was contact of that type flowing from the deceased to Mr Johnstone.

[12]     Mr Parmenter, for Mr Johnson, submits that the evidence suggests that Mr Johnstone’s credibility on this topic may be doubted; whereas Mr Fairley, for Mr Johnstone, submits that no inference can properly be drawn of the absence of any calls due to the possibility that calls may be made from other telephones.

[13]     Looking at the relevance of this evidence, it is of marginal relevance in relation to whether the Judge ought to have relied on evidence as to telephone calls from a deceased to Mr Johnstone.  However, its cogency is slight.  It cannot rule out the possibility that Mr Johnstone’s evidence was correct.   In that regard I see no basis to admit that evidence.  Leave to admit the Telecom records is refused.

[14]   The second aspect relates to accounting evidence which is designed to demonstrate that the adopted son’s evidence as to the reasons for the parlous position of a business he operated was either false or embellished.  This evidence is in the form of a draft affidavit from an accountant who explores possible reasons for the state of Mr Johnstone’s business.

[15] In the Family Court, the actual means available to Mr Johnstone was taken into account in determining whether there was a qualifying need for Family Protection Act purposes. The Judge did record, however, that there was no evidence before him as to the market for work in his field of business “to assist [the Judge] to determine whether [Mr Johnstone’s] business’s low gross income is low due to market forces or [his] own choice not to work”: at para [33].

[16]     It appears that the state of Mr Johnstone’s business may have played some role in the fixing of the quantum of the award.   Having said that, the Judge also relied on emotional need to found his decision that the qualifying criterion had been met.

[17]     The only issue, in my view, is whether the evidence that Mr Parmenter seeks to adduce is sufficiently cogent to influence an appellate decision on the question of quantum.   Ultimately, as is the norm in Family Protection Act proceedings, there will not be cross-examination on affidavits.  For that reason the value of the evidence to the finder of fact is limited.  Submissions may still be made on the evidence that

was before the Family Court to indicate the extent, if any, to which it ought to have been taken into account in fixing the quantum of the award.  Again, I take the view that the cogency of the evidence is limited.  For that reason, I also refuse leave to admit this evidence.

[18]     For  the  reasons  given,  the  application  to  adduce  further  evidence  is dismissed.

[19]     All questions of costs will be reserved.  They will fall for determination by the Judge who hears the appeal.

P R Heath J