Newton v Leckie - [2023] NZHC 3550

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IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2023-409-517

[2023] NZHC 3550

BETWEEN
NEWTON

Appellant

AND

LECKIE

Respondent

Hearing: On the papers

Appearances:

Appellant self-represented R A Allison for Respondent

Judgment:

7 December 2023

JUDGMENT OF EATON J

(application for leave to appeal)

This judgment was delivered by me on …….. at ……… pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

NEWTON v LECKIE [2023] NZHC 3550 [7 December 2023]

Introduction

[1] On 14 September 2023, Judge Duggan, sitting in the Family Court at Christchurch, made a guardianship order under s 46R of the Care of Children Act 2004 (COCA) that the child of the parties be immunised in accordance with Ministry of Health guidelines.1

[2] On 20 September 2023, Mr Newton filed a notice of appeal against that decision. He was unaware that s 143(2) of COCA provides that an order under s 46R requires leave to appeal. Mr Newton filed an affidavit in support of the appeal.

[3] Ms Allison, for Ms Leckie, was served with the notice of appeal on 12 October 2023 and, the following day, filed a memorandum highlighting that leave to appeal was required. The memorandum observed that Mr Newton was out of time to seek leave to appeal but responsibly confirmed the respondent would abide the decision of the Court if an application was made to extend the time for filing an application for leave.

[4] On 16 October 2023, Dunningham J made directions timetabling the filing and service of an application for leave to appeal and for opposition to that application. Dunningham J directed that the appellant’s affidavit of 11 October be removed from the Court file and indicated that, upon receipt of the application and opposition, the application for leave would be determined on the papers.

[5] On 30 October 2023, the appellant filed an interlocutory application for leave to appeal out of time together with a further affidavit. That affidavit attached, among other things, submissions filed in the Family Court and the appellant’s comments in response to the decision under appeal.

[6] On 20 November 2023, Ms Allison filed a notice of opposition to the application for leave to appeal out of time, treating that application as incorporating an application for leave. In a supporting memorandum, Ms Allison referred to the

1 Newton v Leckie [2023] NZFC 10492. The names of the parties have been anonymised pursuant to s 139 of the Care of Children Act 2004.

relevant principles the Court will apply in considering an application for leave to appeal an order made under s 46R of COCA.

Extension of time

[7] Mr Newton is self-represented. He had filed a notice of appeal…

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 Newton v Leckie

Details

AGLC: Newton v Leckie [2023] NZHC 3550
Case: [2023] NZHC 3550
Decision Date: 7 December 2023

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Newton v Leckie involved a dispute over a guardianship order made under the Care of Children Act 2004, which mandated the immunisation of the child according to Ministry of Health guidelines. Mr Newton, the father, appealed the Family Court decision, unaware that an appeal from such an order required leave from the High Court. He filed a notice of appeal and an affidavit, but Ms Leckie, the mother, pointed out the need for leave to appeal. The court then directed the filing and service of an application for leave to appeal.

The legal issues in this case centered on whether Mr Newton was entitled to leave to appeal the Family Court's decision out of time and, if so, whether there were grounds for the appeal. The court noted that while Mr Newton had not properly engaged with the principles for leave to appeal, the paramount consideration was the welfare and best interests of the child. The court also had to determine if there was a seriously arguable material error of law or fact that warranted granting leave.

In its reasoning, the court acknowledged the significance of immunisation to Mr Newton, who had presented a lengthy report and various documents to support his position. However, the court found that the proposed grounds for appeal, such as alleged false statements, factual errors, and bias, did not appear strong. The court did find, however, that the Family Court had not fully considered the specific evidence Mr Newton claimed was relevant to the child's risk from immunisation. The court concluded that granting leave was in the best interests of the child and justice generally, as it would address unresolved issues and promote finality.

Ultimately, the court granted leave to Mr Newton to appeal the Family Court decision, emphasizing that the appeal would focus on the specific evidence related to the child's individual circumstances. The court will issue a separate minute to address the progression of the appeal.

Orders