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, which we do see, and I am not saying that you are engaging in it, but you need to be a responsible litigant here.

1      Issued pursuant to the Domestic Violence Act 1995, s 14.

2      L v M FC Lower Hutt FAM-2007-032-944, 5 March 2008 at [7].

[7]      On 7 April 2008 the matter came back before Judge Moss who issued the following minute:3

... Ms [M] has not complied with the timeframe set on 5 March 2008.  She is barred from advancing a defence.  That being the case, the fixture is vacated. Formal proof hearing to be allocated, 15 minutes in Judge’s List is adequate.

[8]      On 24 April 2008 Judge Grace heard Mr L’s application for a final protection order.  Ms M appeared in person.  Judge Grace:

(1)      noted Ms M was barred from advancing her defence;

(2)recorded he had read both Mr L and Ms M’s affidavits.  He noted Ms M’s affidavit had been filed in anticipation of her defending the application;

(3)concluded Ms M had inflicted domestic violence as defined in s 3 of the Domestic Violence Act 1995 (the Act);

(4)      concluded a final protection order was necessary;  and

(5)issued a final protection order but directed Ms M not have to attend a counselling  programme  because  she  was  already  receiving counselling.

[9]      The protection order remains in force until it is discharged.4    Ms M did not appeal the protection order because she thought her only “remedy” was to apply to discharge the final protection order.

[10]     Ms M has now been convicted of breaching the final protection order on ten occasions.5   On the last occasion Ms M was sentenced to 25 months’ imprisonment

for two breaches of the final protection order and causing intentional damage to

3      L v M FC Lower Hutt FAM-2007-032-944, 7 April 2008 at [1].

4      Domestic Violence Act 1995, ss 45(2) and 47.

5      20 May 2008; 31 July 2009; Twice on 10 November 2009; Twice on 2 February 2010; 29 June

2010; 2 July 2012; and Twice on 10 September 2012.

Mr L’s home.  Ms M’s appeal against that sentence was heard by the Court of Appeal on 11 November 2013.

[11]     There have also been hearings to vary and discharge the final protection order:

(1)On 13 May 2010, the final protection order was varied to include a requirement that Ms M was not to go within 200 metres of Mr L’s residence, and included Mr L’s partner as a protected person.

(2)       On 23 November 2010, Ms M applied to vary the protection order.

That application was dismissed.

(3)On 5 July 2011 Ms M filed an application to discharge the final protection order.  That application was dismissed on 16 August 2011 by Judge Ellis.   A further order was made at that time staying any further  discharge  proceedings  by  Ms  M  without  the  leave  of  the Court.

(4)On  15  September  2011,  Ms  M  filed  an  application  for  a  new protection order in her favour against Mr L.  Judge Moss dismissed the application on 30 January 2012, and ordered that Ms M could not commence further proceedings for a protection order against Mr L without leave.   An appeal against that decision was partially successful, as the High Court quashed the condition that barred Ms M

from making a further application for a protection order.6

(5)      On 30 August 2012, Ms M filed a further application for leave to apply to discharge the protection order.   That application was dismissed by Judge Johnston on 18 February 2013.  Judge Johnston

made a further special condition barring Ms M from applying for

6      KM v TVL [2013] NZHC 1156.

leave to discharge the final protection order until 18 February 2015. Ms M unsuccessfully appealed Judge Johnston’s decision.7

[12]     It is against that background that Ms L has applied for orders that Ms M pays

$10,000  by way of security for costs  and  an  order that  Ms  M  be barred  from pursuing her claim for judicial review until that security is paid.

[13]     Mr L explains that he has so far incurred legal fees of $40,0008  and he is concerned that because Ms M is impecunious he has no realistic prospects of recovering any costs from Ms M if her application for judicial review fails.

[14]     Mr L also points out that two costs orders against Ms M made in his favour have not been paid.  One of the orders was made on 30 January 2012 in the sum of

$300 and the other on 18 February 2013 for $500.

[15]     Ms M fully accepts that she is impecunious.  She is an inmate at Auckland Women’s Prison.   She has liabilities that total $57,905.33 and no assets of any consequence.

Grounds for ordering security for costs

[16]     Rule 5.45 of the High Court Rules explains that security for costs may be ordered where:

(1)There is reason to believe the party against whom an order is sought will be unable to pay the other party’s costs if they are unsuccessful in the proceeding;  and

(2)       If an order for costs is just in all the circumstances.

7      KM v TL [2013] NZHC 2479.

8 Affidavit TVL, 2 October 2013 at [4].

Analysis

Is there reason to believe Ms M may not be able to pay Mr L’s costs?

[17]     There is every reason to believe Ms M will not be in any position to pay any order for costs that may be made against her if her application for judicial review fails.  Ms M’s current assets and liabilities are clear evidence of her impecuniosity. In  addition,  she  is  almost  half  way through  a  25  month  term  of  imprisonment imposed  upon  her  for  convictions  relating  to  her  damaging  Mr L’s  home  and breaching the final protection order.   It is therefore unlikely Ms M will be in a position to earn an income for some time.

Is it just that an order for security for costs be made?

[18]     The answer to this question is finely balanced.  On one side of the equation is my obvious concern for Mr L who has incurred significant expense in seeking and varying the final protection order and defending Ms M’s applications to discharge the final protection order.

[19]     On  the  other  hand,  ordering  security for  costs  and  ordering  a  stay until security is paid will effectively deny Ms M the opportunity she seeks to challenge the validity of the order that barred her from defending the application for a final protection order.

[20]     In deciding whether or not I should effectively prevent Ms M from pursuing her claim for judicial review I have assessed whether or not her application for judicial review is incapable of succeeding.   While it is not appropriate for me to predetermine the merits of Ms M’s case, or form more than an “impression”, if Ms M’s claim is clearly unarguable, then she is more likely to have security for costs ordered against her.9   In taking this approach I have applied by analogy, the criteria that govern a strike-out application.

[21]     Judge Moss relied on the Family Courts Rules 2002 when she barred Ms M

from defending the application for a final protection order.   Those rules include r

9      AS McLachlan Ltd v MEL Network Ltd (2002) 16 PRNZ 747 at [21];  Highgate on Broadway

Ltd v Devine [2012] NZHC 2288 at [22].

16(1) which enable a Family Court Judge to give any directions that are proper for

regulating the Court’s business.

[22]     In this case Judge Moss appears to have barred Ms M from defending the application for a final protection order because she failed to confirm to the Court by

5.00 pm on 14 March 2013 that she had appointed counsel.  Instead, Ms M appeared in the Family Court on 24 April 2013 intending to represent herself.  It would have been possible at that stage for Judge Grace to have decided whether the interests of justice required Ms M to be heard.10     However, it appears Judge Grace accepted Ms M should not be heard because of the orders made by Judge Moss on 7 April

2013.   The effect of the Family Court’s decisions were that Ms M was prevented from representing herself.

[23]     Although I can only form an impression of the case at this stage, it is easy to understand why Ms M feels aggrieved that she was barred from representing herself.

[24]     Barring a litigant from representing themselves is prima facie inconsistent with r 80 of the Family Courts Rules 2002 which provides that, subject to certain provisions that are not relevant, “a party need not have a lawyer to act for the party in proceedings ...”.

[25]     Depriving Ms M of the right to defend herself may also have breached her common law right to self-representation.11

[26]     Mr Howell, quite properly acknowledged that there may be some difficulties with the course of action Judge Moss took in 2008.   However he also strongly submitted that Ms M’s application for judicial review was bound to fail because her conduct since the final protection order was made demonstrate the necessity of that order.  He submits “... there would be no utility in submitting the matter back to the

Family Court as the protection order is necessary for [Mr L’s] protection ...”.

10     Family Court Rules 2002, r 42(2).

11     See generally R v Cumming [2006] 2 NZLR 597 (CA); overturned in Cumming v R [2008] NZSC 39, [2010] 2 NZLR 433 on a different point.

[27]     Mr Howell may be correct.   All I can say at this juncture is that Ms M appears to have a basis for pursuing her application for judicial review.  Ultimately, her application may not succeed, but it would be premature for me to conclude that her application was entirely without merit.

[28]     In these circumstances I believe the interests of justice require Ms M to be given the opportunity to pursue her application for judicial review and that she should not be effectively barred from pursuing her claim by requiring her to pay security for costs.12

[29]     I appreciate this conclusion is totally unsatisfactory from Mr L’s perspective. However,  ultimately,  it  is  in  everyone’s  interests  for  Ms  M’s  concerns  to  be ventilated through judicial proceedings.

Conclusion

[30]     The application for security for costs and stay is dismissed.

[31]     I make no order as to costs.

D B Collins J

Solicitors:

Thomas Dewar Sziranyi Letts, Lower Hutt for First Defendant

Crown Law Office, Wellington for Second Defendant

12     AS McLachlan Ltd v MEL Network Ltd, above n 9, at [15]:  access to the Courts for a genuine plaintiff is not lightly to be denied.