KM v TL
[2016] NZHC 1327
•17 June 2016
PURSUANT TO S 125 DOMESTIC VIOLENCE ACT, REPORT MUST COMPLY WITH SS 11B TO 11D OF FAMILY COURTS ACT (PARTNER IS 'VULNERABLE PERSON')
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV 2015-485-972 [2016] NZHC 1327
BETWEEN KM
Appellant
AND
TL
First RespondentAND
TM
Second Respondent
Hearing: 26 May 2016 Counsel:
Appellant in Person (via AVL) No appearance for Respondents
Judgment:
17 June 2016
JUDGMENT OF BROWN J
Introduction
[1] This appeal is a further episode in what Judge G F Ellis described in the judgment under appeal1 as “the extraordinary history of the proceedings involving KM and TL”. The flavour of that history is captured in the observation of Dobson J:2
… There is a very protracted history of [KM’s] unsuccessful attempts to discharge the protection order [TL] has against her. The chronology is also peppered with convictions of [KM] for breaches of that protection order. That is the very antithesis of the context in which a Court might consider discharging a protection order as no longer being necessary. …
1 KM v TVL FC Hutt Valley FAM-2007-032-944, 31 August 2015.
2 KM v TL [2013] NZHC 2479 at [23].
[2] In his judgment dated 30 October 2015 Judge Ellis dismissed applications brought by the appellant:
(a) for leave to bring an application to discharge the final protection order made in April 2008; and
(b)for variation of that final protection order by the removal of TM as a protected person.
[3] The Judge also made a direction that, before KM may bring any further application in relation to the April 2008 protection order, whether for discharge, variation or otherwise, KM is required to obtain the leave of the Court.
[4] In this appeal the appellant challenges the Judge’s conclusion on each of
those three matters.
Background
[5] The circumstances relating to the making of the April 2008 protection order were explained by the Judge in this way:
[10] The applicant KM and the first respondent, TL, were in a domestic relationship for a brief period of years that ended in late 2006. In January 2007 TL applied without notice for a protection order against KM under the Domestic Violence Act 1995 (“DVA”). The original affidavit on which the protection order was made included evidence of domestic violence in the nature of psychological abuse, including damage to property and threats of violence against TL and any “new partner” of his.
[11] The protection order was made final in April 2008 in circumstances subsequently reviewed in the High Court. But the final order has nevertheless continued to stand. In 2010, following KM’s conviction for an assault against TL’s partner, TM, a direction was made by the Court adding TM as a protected person under the order. That direction also continues and TM is a protection person under the order.
[6] On 16 August 2011 Judge Ellis declined an application by KM to discharge the protection order. In that judgment he explained:
[30] … the crucial test is has the Court been satisfied by the applicant …
that the reasons giving rise to the order and for its continued necessity …
have now passed, or been extinguished, or been overtaken by subsequent events.
[31] I am not yet satisfied that that point has been reached … having regard to the relative seriousness of the incidents which have arisen as breaches of the order, and of the serious pattern of breaches that did at least continue up to the middle of last year. I am not yet convinced, although Ms M has made the beginnings of a persuasive argument, I am not convinced that she is at a place where either Mr L could be totally reassured that there is no longer any reason to have any fear of such ongoing communications, or where the Court could be convinced that the need for the order has totally passed.
[7] At the end of the judgment Judge Ellis added the following condition:
[40] … I will therefore direct that before Ms M makes any further application to discharge the protection order she should first seek leave. By applying for leave she will have to justify to the Court the bringing of an application and to be able to show evidence to the Court that there has been such a change of circumstances or such a further passage of time as to satisfy the Court that there is a reasonable likelihood that the order might be discharged.
[8] A further application by the appellant to discharge the protection order filed on 11 January 2012, but apparently made without seeking leave in advance, was struck out on 27 August 2012.
[9] An application for leave made by the appellant on 30 August 2012 was declined by Her Honour Judge Johnston on 18 February 2013. Having reviewed the history of the proceedings and concluded that the time had come for a further restriction on applications of that kind, Judge Johnston added the condition that the appellant was not to apply again for leave to discharge the protection order within two years, that is, not before 18 February 2015.
[10] The appellant’s appeal against that refusal of leave and the imposition of the further condition was dismissed in the High Court by Dobson J.3 The appellant’s application to the Court of Appeal for leave to appeal was dismissed on
3 June 2014.4
3 KM v TL, above n 2.
4 KM v TVL [2014] NZCA 218, [2014] NZFLR 635.
[11] Some of the subsequent history is recorded in the judgment under appeal which it is convenient to repeat:
[29] I will not try to set out the whole history of KM’s subsequent proceedings, or of proceedings in which she has been involved, but it is relevant to note that on 10 September 2013, KM was sentenced in the District Court at Wellington to two years and one month imprisonment on charges of intentional damage and breach of the protection order arising from her actions at the home of TL and TM in December 2012.
[30] Upholding that sentence on appeal, Asher J had this to say at paragraph [13] of the Court of Appeal judgment of 27 November 2013:
Ms M’s conduct over the five and a half years in which the protection order has been in place has been extraordinary. She has undertaken a deliberately imposed sequence of intimidatory events, inflicted on the victims with complete disregard for repeatedly imposed Court strictures and punishments, and the most explicit warning at her last appearance. While recognising that her actions did not involve extreme personal violence, we accept Judge Becroft’s assessment that on an overview, “it would be hard to think of a breach that was more serious than this”. If, of course, there had been physical violence, that would have been the subject of particular further charges.
[31] Then, on 11 March 2015 KM was sentenced in the District Court at Wellington on four charges of breaching the protection order going back to November 2012. Those breaches related to abusive voice messages left on the telephone in the home of TL and TM. KM was sentenced to a further four months imprisonment cumulative on the sentence imposed in September 2013.
The judgment under appeal
[12] The appellant’s applications5 were heard in the Family Court at Lower Hutt on 31 August 2015. The reserved judgment delivered on 30 October 2015 first sets out the background and context to the applications before summarising the grounds advanced in support of the applications and recording the appellant’s expansion of her argument at the hearing.
[13] The Judge noted that it was unfortunate that the appellant had not offered any affidavit evidence directed at discharging the onus on her to show the Court that there had been a change of circumstances or such a further passage of time (with no
incidents of abuse, harassment or interference in the lives of the protected persons)
5 At [2] above.
as to satisfy the Court that there was a reasonable likelihood that the order might be discharged.
[14] The Judge then proceeded to address the grounds stated in the appellant’s
application for leave under the following headings: (a) Is the order still “necessary”?
(b) Was “domestic violence” limited to property damage? (c) Have police been the “driving force” behind the order? (d) Has KM been denied her natural justice rights?
(e) Colledge v Hackett factors.
(f) Did the violence occur so long ago in the past that its effect is spent? (g) Was the violence a one-off event with no lasting threat of future
abuse?
(h)Was the violence simply symptomatic of the breakdown of the relationship?
(i)If the parties have since separated the threat of violence may have dissipated.
(j)Is the character of the applicant such that it is difficult to see why that person should need protection?
(k)What is the perspective of the applicant and the effect on the applicant?
(l)Have any other protective measures been taken with the result that the applicant does not need the protection of an order?
Application for leave to seek discharge
[15] The Judge concluded that KM had notably failed to satisfy the Court that an application for discharge of the protection order at that time had any prospect of success. In particular he said:
[74] The way KM presented her case in her written material indicates that she had no intention of demonstrating that the protection order was no longer necessary, but had pinned all her hopes on again attacking the making of the original order and expecting either the respondent or the Court to justify its necessity from the beginning. That was at best misguided, and at worst mischievous and an abuse of the Court’s process.
Application for variation
[16] As with the protection order, the Judge observed that it was not the function of the Court on the applications before it to review the actions of the Judge who made the direction adding TM as a protected person. There was clearly evidence on which that order could be made.
[17] Consequently the Judge explained:
[84] The starting point for this Court on the application for variation – for removal of TM as a protected person – must be similar to that for the application for discharge of the order itself. It has been determined that it was necessary for the protection of TM that she be added as a protected person under the order. If she is to be removed, the application will need to satisfy the Court that the order is no longer necessary for TM’s protection.
[18] Judge Ellis considered that the application for variation appeared to be an attempt to put TM in the position of having to justify the order protecting her, and noted that that would clearly be contrary to the objects and principles of the Domestic Violence Act 1995. The Judge concluded that the material filed by the appellant disclosed no reasonable basis for the application to remove TM from the protection of the order.
Procedural directions to manage further proceedings
[19] Counsel for the respondents had requested the Court to reconsider the previous directions made, including those in the judgment of 16 August 2011,6 in order to control the circumstances in which any future proceedings might be brought by KM in relation to the 2008 protection order. After hearing submissions from counsel for the respondent and from the appellant and considering the judgments at all three stages in the case Hirstich v Family Court at Manukau,7 the Judge concluded in this way:
[103] The extraordinary history of the proceedings involving KM and TL has been commented on extensively in the High Court, and in the Court of Appeal (as noted in paragraph [30] above). In many respects the situation has worsened since the hearing before me in August 2011, both in relation to the number and seriousness of breaches of the order for which KM has been sentenced, and charges on which she awaits trial, and in relation to the further proceedings initiated or attempted by KM against both TL and TM.
[104] I am well satisfied that a new approach is justified to the management of these and any future proceedings involving the same parties. Taking note of the observations of the higher courts in these proceedings, and in the Hirstich case, the directions that I now make are as follows:
1.Before KM may bring any further application in relation to the existing protection order, whether for discharge, or for variation, or otherwise, she is required to obtain leave of the Court.
2.On any such application in relation to the existing protection order KM will need to produce evidence to satisfy the Court that there is a reasonable basis for the application having regard to the current circumstances of the parties, and that no part of such an application seeks to re-litigate matters already determined in this Court (unless by specific direction of a superior court).
3.Any such application by KM for leave, and any other application by KM against either or both of the Respondents whether under the Domestic Violence Act 1995 or any other Act is to be referred in the first instance to a Family Court Judge nominated by the Administrative Family Court Judge for the Wellington region for assessment having regard to the provisions of Rule 193 and/or Rule 194 Family Court Rules 2002.
6 At [7] above.
7 Hirstich v Family Court at Manukau [2014] NZCA 305, [2015] NZFLR 317.
The scope of the appeal
[20] The detailed handwritten notice of appeal filed on 23 November 2015 states that the appeal is brought against the judgment in respect of:
The appellant’s (Applicant’s) Application for Leave to Apply for a Discharge of a Final Protection Order and an Application for Variation of a Final Protection Order and in particular the Judge’s determination at 73-77 and
78-87 and in relation to the respondents’ submissions for procedural
directions – determinations at [84]–[104], particularly [104](1) – (3).
[21] The grounds of appeal are extensive. In the circumstances I set them out in full:
2The Appellant relies on precedent case law and dicta in May v May (1982) 1 NZFLR 165, Court of Appeal, [3 February 1982], McMullin J at 169–170.
That Judge G F Ellis:
· acted on a wrong principle;
· that he failed to take into account some relevant matter;
· that he took account of some irrelevant matter; and
· that he was plainly wrong;
3At paragraph [8] of Judge G F Ellis’ reserved judgment the Judge refers to the Respondents’ memorandum of Counsel for the First and Second respondents’, dated 23 June 2015. This memorandum was not a ‘consent memoranda’ under Rule 217(2) Family Court Rules 2002.
The Family Court Judge was plainly wrong to determine the applications in this manner and to state that the Applicant agreed to deal with this so called submissions without getting the Applicant’s written consent was also plainly wrong by the Judge. See paragraph [9];
4The Judge was wrong in principle when he allowed the Respondents’ counsel to make submissions when no notice of defence or notice of intention to appear had been filed;
5Also the Respondents relied on a memorandum of counsel for the First and Second respondents to make an application for ‘triage of process’ this is unlawful and clearly wrong in principle and law. The Judge erred in law by allowing an application in this way;
6The Appellant seeks the High Court to invoke Rule 56 of the Family Courts Rules 2002 to return the Appellant to her original application given this miscarriage of justice caused by the Judge’s error of law
this error of law is a ‘question of law’ under the first manifestation of error of law mentioned by Lord Radcliffe in Edwards v Bairstow [1956] AC 14 at 36, [1955] 3 All ER 48 at 57 (HL);
7The Judge caused a manifestation of error of law by not taking into account the mandatory provision of Rule 42(3)(a) and (b).
No reason for non-compliance was offered by the Respondents (First and/or Second) and the effect on the Applicant of non-compliance. In particular the additional expense of going to appeal, the time involved and the abuse of the purpose of the Family Courts Rules 2002 and sections – Object of Domestic Violence Act 1995;
8Judge Ellis made a factual error of law when he referred to the other Judge at paragraph [8] especially when an application of reclusal (sic) against that Judge had been filed by the Appellant;
9Judge Ellis was “factually wrong” at paragraph [18] of his reserved judgment. The application was not “struck out” it was thrown out for no legitimate reason and hence was unlawful;
10Once again the Judge made a factual error of law that the Respondent never had an opportunity to be heard Judge Moss refused the Appellant her right so Judge Ellis is factually wrong at [60] and Justice Ronald Young determined that fact in his judgment;
11 The Judge, Judge G F Ellis, was factually wrong to draw the inferences that the Appellant had “no intention of demonstrating that the protection order was no longer necessary”. Two years have passed since the last application and the Appellant has served her sentence and is now in a position to be returned to the community and is able to prove the relevance paragraph [74]. I am self representative with no income so I’m sorry I don’t have a house and car and relationship and writing materials, to be able to meet the Colledge v Hackett factors paragraphs [63]–[72];
12The Judge – Judge G F Ellis was factually wrong to attack the Appellant on the lack of support and help she achieved from the state ie WINZ, Corrections, District Health Board, the Appellant cannot control the state’s criteria for aid. Parliament stated inmates are not allowed a benefit until release. It is not the Appellant’s fault she is homeless. And it is not relevant to whether the Respondents need a final protection order that they were not entitled to any way. See paragraph [76];
13Judge G F Ellis failed again to acknowledge that Judge Grace had conducted another ex parte hearing breaching the Appellant’s Natural Justice Rights without determining her application or credible evidence after hearing both sides;
14The Appellant now wishes to appeal the Order that Judge G F Ellis talks about in paragraph [83] of the addition of [TM] and seeks the appeal and the discharge on this Respondent independent from the First Respondent;
15On 16–23 November 2015, the trial on all the offences was conducted. It was obvious from evidence given during trial there was plenty of New Zealand Police harassment Judge G F Ellis was wrong to rule without knowing that there was no harassment at [55] and [56]. Ask [CM] the joint person to the Harassment Application;
16The Appellant and the First Respondent do not have children. The use of “referral to a Family Court Judge” cannot be used in this way for the Appellant. The purpose of bringing parties’ applications to a Family Court Judge is to ensure there is no ‘parental alienation’ and that the welfare of children is paramount in the Family Court and that the child should not be exposed to unnecessary applications contrary to Child Lawyers’ recommendations and psychologists’;
17The Appellant cannot be restricted in this way and should not be punished for the actions of Judge Moss and Judge Grace that had improper purposes when making determinations against the Appellant;
18 The Appellant is in custody and does not have access to case law.
Once again the Family Court thinks I know it all. I have been in
custody for two years and have no money so even if I could I can’t
get the case of Hirstich. The Judge was wrong to assume I had read it. I have probably read an extract if the Respondents have referred to it in documentation but I doubt it;
19There was no application and no notice that the Respondents were restricting all applications and the Family Court has no jurisdiction to do so. I therefore appeal paragraph [104](1);
20If the Court wishes to regulate matters then all matters should be filed in the High Court and bypass the Family Court altogether hence there won’t be a problem.
Approach on appeal
[22] In advance of the hearing the appellant filed detailed handwritten submissions. Those submissions commenced by recording that an appeal against a Family Court judgment is an appeal against the exercise of a discretion, citing Kacem v Bashir8 and May v May.9 The submissions proceeded to recite the established four grounds on which the exercise of a discretion may be challenged.
[23] The appellant may well be correct that the decision to decline leave to bring an application to discharge or vary a protection order is a discretionary decision.
However, as the Supreme Court observed in Kacem v Bashir, the distinction between
8 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1.
9 May v May (1982) 1 NZFLR 165 (CA).
a general appeal and an appeal from a discretion is not altogether easy to describe in the abstract.10 The fact that the case involves factual evaluation and a value judgment does not of itself mean the decision is discretionary.
[24] I consider that it is more appropriate in this case, where the appellant is self-represented, to proceed on the footing (but without deciding the point) that the appeal is governed by the Austin Nichols & Co Inc v Stichting Lodestar approach and that the appeal court should consider the merits of the application afresh.11
[25] Mr Freeman for the respondents sought leave not to appear at the hearing which I granted.
Analysis
[26] In addition to her written submissions, the appellant made a reasonably extensive oral presentation in support of her appeal. Although her submissions reviewed features of the history of her various applications, including the hearings before Judge Moss,12 Justice Ronald Young,13 and Judge Druce14 (among others), it is fair to say that the focus of her argument was directed to the procedural directions made by Judge Ellis.15
[27] However, despite the fact that the appellant did not really engage with the refusal by Judge Ellis to grant leave to discharge the protection order or to vary the order by removing the second respondent as a protected person, it is necessary for me to first consider those aspects of the appeal.
Refusal of leave to apply to discharge order
[28] Approaching the matter afresh, I find myself confined by the same limitations as was the Judge who observed that, perhaps because the appellant was so focused
on a legalistic review of past processes, she did not offer any affidavit evidence of
10 Kacem v Bashir, above n 8 at [32].
11 Austin Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 41.
12 KM v TVL [2012] NZFC 571.
13 KM v TVL [2014] NZHC 945.
14 KM v TVL [2014] NZFC 10036.
the kind necessary to discharge the onus on her to satisfy the Court that a discharge of the order might be justified. As Judge Ellis said:
[50] KM offered no evidence to attempt to persuade the Court that the order was no longer necessary. She did not attempt to show that her current feelings or attitudes towards [TL] and his partner were such that there is no longer any risk of repetition of the kind of behaviours which have resulted in her numerous convictions for breach of the order. Rather, to the contrary, the further convictions she has acquired since the hearing before me in 2011, the seriousness of the sentences imposed, and the current list of charges faced, all indicate that the risks which were of concern to the Court continue at a seriously high level.
[29] The Judge concluded in the manner noted at [15] above. I too am of the view that there is nothing provided in the appellant’s leave application which demonstrates a proper basis for reaching a conclusion that the order should be discharged. It is not a proper case for the grant of leave.
Refusal to vary order
[30] So far as the appeal against the refusal to vary the order is concerned, again the appellant’s case on appeal suffers from the same fundamental flaw as at the hearing before Judge Ellis. With reference to the appellant’s obligation to satisfy the Court that the order was no longer necessary for TM’s protection, Judge Ellis observed:
[85] KM has not attempted to provide any evidence that could satisfy the Court on that score. She has not addressed the reasons for her antagonism towards TM (or “any partner” of TL) nor has she offered any assurance that her pattern of behaviour – including the serious damage done to the home of TL and TM in December 2012 – will not be repeated in ways which threaten the physical and/or emotional safety of TM in the future.
[31] In my view the Judge’s finding was the only proper conclusion that could be reached given the absence of material evidence to support the contention that the order should be varied.
Procedural directions
[32] In his judgment delivered on 16 August 201116 Judge Ellis imposed the condition set out at [7] above. However the imposition of that condition did not dissuade the appellant from seeking to revisit the grant of the protection order. Consequently as noted above17 at the hearing on 31 August 2015 counsel for the respondents requested Judge Ellis to reconsider his earlier direction in order to control the circumstances in which any future proceedings might be brought by the appellant in relation to the protection order.
[33] Counsel submitted that the Court had authority to put in place what was described as a “triage” process whereby any future application or pleading by the appellant in relation to the protection order would be referred to a designated judge to consider whether the application or pleading disclosed a reasonable basis for proceeding. Reliance was placed on rr 193 and 194 of the Family Court Rules 2002 which state:
Striking out pleading
193(1) The Court may order that all or part of an application or defence or other pleading be struck out if the pleading or part of it–
(a) discloses no reasonable basis for the application or defence or other pleading; or
(b) is likely to cause prejudice, embarrassment, or delay in the proceedings; or
(c) is otherwise an abuse of the Court’s process.
(2) An order under subclause (1) may be made by the Court–
(a) on its own initiative or on an interlocutory application for the purpose:
(b) at any stage of the proceedings: (c) on any terms it thinks fit.
16 KM v TVL FC Lower Hutt FAM-2007-032-944, 16 August 2011.
Stay or dismissal
194 The Court may order that proceedings be stayed or dismissed, either generally or in relation to a particular application by which an order or declaration is sought, if the Court considers, in relation to the proceedings or to the application, that–
(a) there is no reasonable basis for the proceedings or application; or
(b) the proceedings are frivolous or vexatious; or
(c) the proceedings are an abuse of the Court’s process.
[34] The Judge explained the perceived advantage of such a triage process in this way:
[91] Such a process would not prevent KM bringing any legitimate application, but could prevent groundless applications, or those with no reasonable prospect of success, from going ahead in circumstances which would be perceived by the respondents as an oppressive means of communication with them and an unwarranted imposition of the stress and expense of fruitless litigation.
Such an approach is reflected in the third direction made by the Judge at [104].18
[35] Although the appellant challenged all three directions at [104], I consider that there is nothing objectionable about the third direction which, as the Court of Appeal observed in Hirstich, is merely a form of case management.19 The Court there said:
[27] At the heart of the argument of Ms Hirstich is the proposition that the Family Court cannot use its inherent powers to create a backdoor method of denying a litigant access to the courts without first giving that person the opportunity to be heard. We accept that it would be wrong for the Family Court to attempt to exercise its inherent powers in a manner that is inconsistent with its statutory powers. In the present case, however, we agree with Cooper J’s assessment that the direction did not remove or restrict Ms Hirstich’s right to have access to the courts. In particular, it did not prevent her from filing proceedings in the Family Court in the future, nor did it require her to obtain the leave of the Court before doing so. Instead, the direction rendered any proceeding that she might file in the future subject to judicial oversight from an early stage. In effect, the direction was a form of case management procedure designed to enable a Judge to make an initial assessment as to whether the new proceeding might potentially attract the exercise of the Court’s powers under r 194.
18 Above at [19].
[Footnote omitted]
[36] Orders of the other two variants referred to in Hirstich had previously been made in the context of the appellant’s attempts to discharge the protection order. As noted above Judge Ellis had introduced the leave requirement in August 201120 and Judge Johnston had imposed the two year prohibition which expired on
18 February 2015.21
[37] In his analysis leading to the directions at [104] Judge Ellis commented upon those earlier orders as follows:
[99] It is also highly relevant to note that, while the Court of Appeal was cautious in relation to leave being required before an applicant might bring an application to the Court, that step has already been taken in the present proceedings and has been expressly upheld in the High Court judgment of Dobson J of 24 September 2013.
[100] Neither the High Court nor the Court of Appeal have reversed the direction which I made (in August 2011) requiring leave or which Judge Johnston subsequently made stipulating a period of 2 years before leave could be sought. In fairness to KM, that direction by Judge Johnston appears to have been limited to a particular period of 2 years which expired on 18 February 2015.
[38] It is apparent that the fact that the prohibition on proceedings imposed by Judge Johnston would terminate on 18 February 2015 was a factor taken into account in the Court of Appeal’s decision to dismiss the appellant’s application for leave to appeal from the decision of Dobson J.22 The Court of Appeal noted the reality that, between the date of its decision of 3 June 2014 and the expiry in February 2015 of the Family Court order barring the appellant from filing an application for leave, it was unlikely that the appellant would obtain leave and
equally unlikely that the order would be discharged.23
20 At [7] above.
21 At [9] above.
22 KM v TL, above n 2.
23 KM v TVL, above n 4 at [19].
[39] However the Court of Appeal’s judgment concluded in this way:
[21] … Although she has been unsuccessful, KM’s application raises issues which the Court should consider at some point. Certainly, we do not consider the question of the Family Court’s power to make an order such as it did in this case is clear cut. …
That comment was noted by the Court of Appeal in Hirstich.24 The appellant relied heavily on those comments of the Court of Appeal in both cases.
[40] I recognise that the appellant has previously made applications for leave and, as the Court of Appeal noted,25 argued before it against a ban for a specified period of time “because Judge Ellis has already put in place adequate protection” for the respondent. However I do not consider that she is thereby estopped from challenging the leave requirement in the October 2015 decision. It is open to a party to raise an issue of jurisdiction at any time.26
[41] The appellant’s argument invokes the following analysis in Hirstich:
[24] The present case brings into focus the relationship between the Family Court’s inherent power to control its own processes and its statutory powers to limit or control the extent to which vexatious litigants may be permitted to have access to the Court’s process. The existence of the latter recognises Parliament’s concern that vexatious litigants are a drain on the Court’s resources, as well as placing unnecessary burdens on the opposite party. It may therefore sometimes be necessary to restrict their ability to have access to the Court.
[25] Section 163 of the Act provides an obvious means of controlling the extent to which a vexatious litigant may tie up the Family Court’s resources. It prevents such persons from commencing new proceedings without the leave of the Court. It is similar to s 88B of the Judicature Act 1908, which permits the High Court to prohibit vexatious litigants from filing new proceedings without first obtaining leave to do so. Importantly, however, an order cannot be made under either s 88B or s 163 unless the person against whom the order is sought has had an opportunity to be heard in relation to it. Similar provisions may be found in the Care of Children Act 2004, the Child Support Act 1991 and the Children, Young Persons, and Their Families Act
1989.
[Footnote omitted]
24 Hirstich, above n 7, at fn 12.
25 KM v TVL, above n 4.
26 New Zealand Apple & Pear Marketing Board v Apple Fields Ltd [1985] 3 NZLR 158 (CA) at
166 per Richardson J.
[42] The appellant submits, correctly, that the Domestic Violence Act does not contain any provision equivalent to s 163 of the Family Proceedings Act or the other statutes noted in para [25] of Hirstich. The legislative history of such provisions is informative.
[43] A vexatious proceedings provision first appeared in the context of family proceedings in the Domestic Proceedings Act 1968:
113. Vexatious proceedings –
(1) The Court may dismiss any proceedings under this Act if it is satisfied that they are frivolous or vexatious or an abuse of the procedure of the Court.
(2) The Court, if it is satisfied that any person has persistently instituted vexatious proceedings under this Act or any former Act, whether against the same person or against different persons, may, after giving the first-mentioned person an opportunity of being heard, order that no proceedings under this Act, or no such proceedings of any specified kind or against any specified person, shall be commenced by him without the leave of the Court.
[44] A provision in essentially similar terms was included as: (a) Family Proceedings Act 1980, s 163;
(b) Children, Young Persons and Their Families Act 1989, s 207; and
(c) Child Support Act 1991, s 227.
However no such power was contained in the Guardianship Act 1968.27
[45] In the Care of Children Act 2004 the powers in relation to proceedings before the Court and future proceedings were divided into discrete sections, namely:
(a) power to dismiss proceedings, s 140; and
(b) power to restrict commencement of proceedings, s 141.
27 Discussed in D v H [2000] 2 NZLR 242 (HC).
[46] The Family Court Proceedings Reform Bill introduced in 2013 implemented the Government’s decisions resulting from a review of the Family Court conducted by the Ministry of Justice. One of the changes in the Bill was described in the Explanatory Note as:
requiring parties to obtain the court’s leave to commence proceedings if it is
less than 2 years since a judgment on similar proceedings.
[47] This resulted in the inclusion in the Care of Children Act of new s 139A:28
139ALeave required in certain cases to commence substantially similar proceedings
(1) A proceeding (a new proceeding) may not be commenced under section 46R, 48, or 56 without the leave of the court if that new proceeding–
(a) is substantially similar to a proceeding previously filed in a
Family Court by any person (a previous proceeding); and
(b) is to be commenced less than 2 years after the final direction or order was given in the previous proceeding.
(2) The leave of the court may only be given under subsection (1) if, since the final direction or order was given in the previous proceeding, there has been a material change in the circumstances of–
(a) any part to the previous proceeding:
(b) any child who was the subject of the previous proceeding.
(3) In this section, a new proceeding is substantially similar to a previous proceeding if–
(a) the party commencing the new proceeding was a party to the previous proceeding; and
(b) a child who is the subject of the new proceeding was the subject of the previous proceeding; and
(c) the new proceeding–
(i) is commenced under the same provision of this Act as the previous proceeding; or
(ii) is for an order varying the order made in the previous proceeding; or
28 The heading to s 141 was amended to read “Power to restrict commencement of proceedings if
vexatious proceedings previously instituted”.
(iii) is for an order discharging the order made in the previous proceeding.
(4) This section does not apply if every party to the new proceeding consents to its commencement.
[48] A similar provision was inserted as s 206A into the Children, Young Persons and Their Families Act. Section 206B was also added to that Act, it being the equivalent of s 140 of the Care of Children Act. As a consequence, ss 206B(b) and
207(1) appear to duplicate each other.
[49] However the Domestic Violence Act, which was the subject of several amendments arising from the Family Court Proceedings Reform Bill, contains no provision relating to vexatious proceedings or equivalent to s 139A of the Care of Children Act.
[50] It would seem that the omission from the Domestic Violence Act of a vexatious proceedings provision may have been a consequence of a legislative oversight at the time that the Domestic Protection Act 1982 was passed. Described as an Act to mitigate the effects of domestic violence and to confer protection from molestation in the domestic sphere, that statute repealed ss 176 to 179 of the Family Proceedings Act 1980.
[51] Up until 1 December 1982 s 163 would have applied to applications for orders under those repealed sections. However the Domestic Protection Act 1982 did not contain a provision equivalent to s 163. When it was repealed and replaced by the Domestic Violence Act 1995 the omission of a vexatious proceedings provision was perpetuated.
[52] The question therefore is, in the exercise of jurisdiction under the Domestic Violence Act, what inherent power does a District Court or Family Court have in respect of vexatious proceedings? The substantive powers of both the District Court and the Family Court are entirely statutory. Consequently, as the Supreme Court explained in Zaoui v Attorney-General, any inherent power to control vexatious
proceedings would have to be an inherent or implied procedural power:29
29 Zaoui v Attorney-General [2005] 1 NZLR 577 (SC).
[35] Some confusion may arise because the term “inherent jurisdiction” is applied both to substantive and procedural powers. The ancillary inherent powers of Courts to regulate their own procedure arise equally in relation to their statutory and common law substantive jurisdictions. Courts which do not possess an inherent substantive jurisdiction (as is the case where their substantive powers are entirely statutory) nevertheless have inherent or implied procedural powers necessary to enable them to give effect to their statutory substantive jurisdiction.
[53] I consider that the District Court and the Family Court have an inherent or implied power to dismiss a proceeding before the court that the Judge considers frivolous or vexatious or an abuse of the procedure of the Court. In the statutes referred to at [44] and [45] above that power is specifically provided.
[54] However I do not consider that there is an inherent power in the District Court and the Family Court to make orders in respect of proceedings which are yet to be commenced, whether by the imposition of a leave requirement or a prohibition on the commencement of a proceeding for a specified period of time.
[55] The jurisdiction to deprive an alleged vexatious litigant of the right to commence proceedings is properly regarded as an “exceptional step”.30 As Staughton LJ observed in Attorney-General v Jones, the power to restrain someone from commencing or continuing legal proceedings is a drastic restriction of his civil rights and is still a restriction if it is subject to the grant of leave.31
[56] In my view such a significant power, in relation to prospective proceedings of which a District Court or Family Court is not yet seized, is not one which can fairly be viewed as an inherent or implied procedural power. It is not ancillary to the exercise of procedural powers in relation to a dispute of which the Court is seized.
[57] My view is consistent with the approach of Fell J in Stewart v Auckland Transport Board32 and the High Court of Australia in Commonwealth Trading Bank v Inglis,33 both of which viewed the inherent power of the Court to deal with abuse
of process as confined to the context of cases pending in the Court. Both those
30 Harley v McDonald [2001] UKPC 18, [2002] 1 NZLR 1 at [67] per Lord Hope.
31 Attorney-General v Jones [1990] 1 WLR 859 (CA) at 865.
32 Stewart v Auckland Transport Board [1951] NZLR 576 (SC).
33 Commonwealth Trading Bank v Inglis (1974) 131 CLR 311 (HCA).
authorities were noted in D v H34 where Robertson J also referred to the fact that Lord Wilberforce and Lord Bridge of Harwich held in Raymond v Honey35 that every citizen has the right to unimpeded access to a Court unless that right is abrogated by statute.
[58] Robertson J proceeded to identify the issue before him as whether repeated custody or access applications can be described as being “related to existing proceedings”. If that decision is said to be authority for the proposition that the Family Court has inherent power to make directions equivalent to the first and second directions in the present case, I have struggled to discern where. The discussion at [33] proceeds on the basis of an assumption that the power exists:
[33] If there is a power for a Family Court to make such orders under the Guardianship Act 1968 in the Court’s inherent power to control its own processes I think it would be very odd if the power permitted the Court to do what it is not permitted to do under the statutory provisions (even if the statutory provisions relate to other Acts). There can be no doubt that preventing or inhibiting access to the Court must always be treated as an unusual step, justifiable only in extraordinary circumstances and permissible only where there is a properly established evidential basis for doing so after a fair and open hearing on the point.
[34] The person against whom the order is to be made must be given the opportunity to be heard and his behaviour in instituting the proceeding or lodging the present application must constitute an abuse of process in itself before such an impediment is imposed.
[35] Even the most liberal reading of the open texture of s 23 of the Guardianship Act 1968, which makes the welfare of the child paramount in any proceedings relating to the custody of or access to the child, could not justify the restriction of access to the Court unless the Court’s procedures are being abused by the applicant. In any case the power to make such an order would only arise if that was occurring. The reason for allowing a custody or access order to be revisited is for the welfare of the child. It is recognition that family circumstances change.
[59] In fact his Honour ruled that there was no evidence that the appellant there had abused the processes of the Court and an order was made quashing the direction
that no further proceedings (other than to enforce the orders) could be brought for
34 D v H, above n 27, at [20]–[21].
35 Raymond v Honey [1983] 1 AC 1 (HL).
two years. Hence the recognition of an inherent power could not be said to be the
ratio of the decision.
[60] Like Robertson J I have considered whether the jurisdiction to make the proposed direction might be found in the relevant rules. In my view no assistance can be derived from r 6 of the Domestic Violence Rules 1996 which relates to cases not provided for. It appears to be confined to cases already before the Court and hence is a power limited in the way recognised in Stewart and Inglis.
[61] Rule 7 states that the provisions of the District Court Rules set out in the Second Schedule do not apply to proceedings under the Domestic Violence Act. The list in the Second Schedule of those rules in the District Court Rules 1992 which do not apply to proceedings under the Act does not include r 481 (the equivalent of then r 477 of the High Court Rules) which inter alia empowered the Court to dismiss a proceeding which was frivolous or vexatious or an abuse of the process of the Court. Therefore the equivalent of r 481, r 15.1 in the District Court Rules 2014, applies to proceedings under the Domestic Violence Act.
[62] However such a rule was never regarded as sufficient support for an order requiring leave to be obtained in respect of a proceeding which was yet to be brought. That power is conferred on the High Court by s 88B of the Judicature Act
1908.
[63] Consequently I am confirmed in the view that neither the District Court nor the Family Court has an inherent or implied power in relation to proceedings under the Domestic Violence Act to make directions of the nature of the first and second directions in the present case. It is for the reason that no such power can be implied that provisions such as ss 139A and 141 are now included in the Care of Children Act.
Conclusion
[64] The present case serves to demonstrate the existence of a very real need for the inclusion in the Domestic Violence Act of provisions similar to ss 139A and 141 of the Care of Children Act. The appellant frankly disclosed that, because she does
not have the resources to meet security for costs on appeal, she cannot pursue a right of appeal to the Court of Appeal. Hence her only resort is to make a still further application directed to the protection order. And so the process will continue.
[65] Regrettable as it may be however, the District Court and the Family Court do not have an inherent power under the Domestic Violence Act to make orders of the nature provided for in ss 139A and 141 of the Care of Children Act. Accordingly, the appellant’s appeal against the first and second directions at [104] is allowed and those two directions are quashed.
[66] The appellant is self-represented and the respondents did not appear. There will be no order as to costs.
Brown J
2
5
0