K v TVL - [2014] NZHC 945

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 WELLINGTON REGISTRY

CIV 2013-485-3311 [2014] NZHC 945

UNDER the Judicature Amendment Act 1972

IN THE MATTER

of an application for judicial review

BETWEEN

K M Plaintiff

AND

T V L

First Defendant

AND

FAMILY COURT AT HUTT VALLEY Second Defendant

Hearing: 6 May 2014

Counsel:

Self represented
C F Rieger for First Defendant
Second Defendant excused

Judgment:

9 May 2014

JUDGMENT OF RONALD YOUNG J

Introduction

[1] In November 2007 T V L obtained a without notice protection order against K M. K M subsequently filed an objection to the protection order being made final. The case was to be heard in the Family Court on 5 March 2008. At Court on
5 March 2008 K M sought an adjournment from the presiding Family Court Judge.

K M v T V L [2014] NZHC 945 [9 May 2014]

She said she wanted to file further evidence and wanted a lawyer to appear for her. The Family Court Judge granted the adjournment but on the basis that if K M did not advise the Court who would be representing her by 14 March 2008, then the Judge would bar her defence to the application.

[2] As it turned out, although there were letters from lawyers to the Court who might have represented K M, no such confirmation was received by the Court. On
7 April 2008 the Family Court Judge issued a minute barring K M “from advancing a defence”. The fixture that had been allocated for the case was vacated and the Judge directed a formal proof hearing take place. At the formal proof hearing on
24 April 2008, another Family Court Judge made a final protection order.

[3] In these judicial review proceedings K M seeks to review the decision of the Family Court Judge who, in her decision of 7 April 2008, barred K M from advancing a defence to the application for a final protection order. K M seeks orders because the decision was “unfair and procedurally wrong and that it be quashed and that the matter be remitted to the Family Court for a hearing de novo on the merits of the notice of intention to defend the application for the final protection order”.

Background

Case chronology

[4] The chronology of the events both before and after the granting of the protection order are important in this case. A summarised chronology is set out below:

(a) 7 November 2007 – without notice application for protection order heard and temporary order granted;

(b)12 December 2007 – K M filed notice of intention to appear and supporting affidavit;

(c) 5 March 2008 – adjournment and directions issued by the Court;

(d) 7 April 2008 – Court barred K M from advancing a defence;

(e) 24 April…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading K v TVL

Details

AGLC: K v TVL [2014] NZHC 945
Case: [2014] NZHC 945
Decision Date: 9 May 2014

CaseChat Overview and Summary

The case of K v TVL involved a judicial review application by K M against the Family Court's decision to bar her from advancing a defence to an application for a final protection order. The Family Court had barred K M from defending the application on the basis that she had not confirmed representation by a lawyer by a specified deadline. K M argued that the decision was procedurally unfair, a breach of natural justice, and an error of law. The High Court of New Zealand reviewed the decision to bar K M from defending the application.

The central legal issue was whether the Family Court Judge's decision to bar K M from advancing a defence constituted an error of law. The court considered the relevant Family Court Rules, particularly Rule 193 which allows the Court to strike out pleadings if they disclose no reasonable basis, are likely to cause delay, or are an abuse of the Court's process. The court examined whether the Family Court Judge had grounds to strike out K M's defence, focusing on whether the delay or an abuse of process occurred.

The court found that the Family Court Judge erred in law by barring K M from defending the application. The court concluded that neither likelihood of delay nor abuse of process justified the order, as K M had genuinely attempted to obtain legal representation. However, the court declined to quash the final protection order. It reasoned that the delay in bringing the application, the existence of appeal rights, and K M's conduct since the order was made justified the protection order. The court declared the decision to bar K M from defending the application as based on an error of law but dismissed the application for review.

The final order was that the decision by the Judge of 7 April 2008 banning K M from defending the protection order application was based on an error of law. The application for review was dismissed, and no order for costs was appropriate.

Orders