KM v TL - [2013] NZHC 3000

NOTE: PURSUANT TO S 125 OF THE DOMESTIC VIOLENCE ACT 1995, ANY REPORT OF PROCEEDINGS UNDER THAT ACT 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-2013-485-003311 [2013] NZHC 3000

UNDER Part 1 of the Judicature Act 1972

IN THE MATTER OF An application for judicial review

BETWEEN KM Plaintiff

AND TL
First Defendant
FAMILY COURT AT LOWER HUTT Second Defendant

Hearing: 12 November 2013

Counsel: Plaintiff in person (via AVL)
J W Howell for First Defendant
S J Humphrey for Second Defendant

Judgment: 13 November 2013

JUDGMENT OF COLLINS J

Introduction

[1] Mr L applies for security for costs and an order that Ms M’s application for

judicial review be stayed until she pays any security for costs which I order.

M v L [2013] NZHC 3000 [13 November 2013]

Context

[2] On 29 July 2013 Ms M commenced an application to judicially review a decision of Judge Moss made in the form of a minute in the Family Court at Lower Hutt on 7 April 2008. In her minute Judge Moss barred Ms M from defending Mr L’s application for a protection order1 against her because of Ms M’s failure to comply with a timetable direction issued on 8 March 2008.

Background

[3] Ms M and Mr L were formerly in a relationship. Their relationship came to an end in 2006.

[4] On 27 November 2007 Mr L applied for a protection order against Ms M. That application was made without notice. A temporary protection order was issued.

[5] On 17 December 2007 Ms M filed a notice recording her intention to appear and a supporting affidavit. The case was set down for a defended hearing to take place on 5 March 2008.

[6] The fixture for 5 March 2008 was adjourned at Ms M’s request because she wished to instruct counsel and file further evidence. Judge Moss directed Ms M advise the Court by 5.00 pm on 14 March 2008 if she had appointed counsel. Judge Moss said that if Ms M failed to comply with this direction the Court would use its discretion to bar Ms M from advancing a defence. The relevant portion of Judge
Moss’s minute reads:2

Ms [M] be very clear. We expect you to conduct yourself in a business like way here. I am surprised if you have a new lawyer that we do not have a letter from your lawyer explaining the position and asking for the adjournment. That is the normal thing. Be very clear that if that confirmation is not with the Court by the end of next week, which is by
5.00pm 14 March 2008, then I will use my discretion under the Family Courts Rules to bar your defence to this application, because the risk of my adjourning today is that we are simply making this case extend out longer, which is a form of abusive behaviour,…

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 KM v TL

Details

AGLC: KM v TL [2013] NZHC 3000
Case: [2013] NZHC 3000
Decision Date: 13 November 2013

CaseChat Overview and Summary

KM v TL is a case in which Ms M, the plaintiff, sought judicial review of a decision by the Family Court to bar her from defending an application for a protection order made by Mr L, the first defendant. The Family Court at Lower Hutt had barred Ms M from defending the application due to her failure to comply with a timetable direction. The application for judicial review was made on 29 July 2013. The central legal issue in this case was whether the court should order Ms M to pay security for costs and stay her application for judicial review until such security is paid. The court had to consider whether there was reason to believe Ms M would be unable to pay Mr L’s costs if her application for judicial review failed and whether it was just to make such an order.

The court found that there was every reason to believe that Ms M would not be able to pay any order for costs if her application for judicial review failed. This was based on her current impecuniosity and her ongoing imprisonment for breaching the final protection order and damaging Mr L’s home. The court also noted that Ms M had not paid previous costs orders made in Mr L’s favour. However, the court held that it was not just to order security for costs and a stay of proceedings as this would effectively deny Ms M the opportunity to challenge the decision that barred her from defending the application for a protection order. The court assessed whether Ms M’s application for judicial review was incapable of succeeding but concluded that it was not appropriate to predetermine the merits of the case at that stage. The court found that Ms M’s application appeared to have some basis and it would be premature to conclude that it was entirely without merit.

In conclusion, the court dismissed the application for security for costs and a stay of proceedings. The court found that the interests of justice required Ms M to be given the opportunity to pursue her application for judicial review and that requiring her to pay security for costs would effectively bar her from doing so. The court made no order as to costs.

Orders