PB v BJB
[2017] NZHC 715
•12 April 2017
NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE
THE-FAMILY-COURT/LEGISLATION/RESTRICTION-ON-PUBLISHING- JUDGMENTS.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2016-404-1892 [2017] NZHC 715
UNDER the Property (Relationships) Act 1976 BETWEEN
P B Appellant
AND
B J B
First RespondentA B and S B
Second Respondents
Hearing: 28 February 2017
(Further submissions filed by First Respondent on 16 March
2017 and by Appellant on 20 March 2017)Counsel:
Appellant in person
D Chambers QC for First RespondentJudgment:
12 April 2017
JUDGMENT OF BREWER J
This judgment was delivered by me on 12 April 2017 at 10:30 am pursuant to Rule 11.5 High Court Rules.
Registrar/Deputy Registrar
Solicitors: Peter McCutcheon (Auckland) for First Respondent
Counsel: Lady Deborah Chambers QC (Copy to Appellant in person)
P B v B J B [2017] NZHC 715 [12 April 2017]
Introduction
[1] Mr B and Mrs B separated in 2011 after 20 years of marriage. After six years of interlocutory skirmishing, the substantive hearing to determine the parties’ relationship property entitlements was heard in the Family Court on 7 February
2017. The Court’s decision was reserved and I am advised that it was delivered on
15 March 2017.1
[2] Notwithstanding this, Mr B wishes to pursue his appeals against three rulings of Judge IA McHardy, set out in the Judge’s Minute of 4 August 2016.2
[3] In that Minute, Judge McHardy:
(a) Extended a maintenance order in favour of Mrs B until delivery of the
Family Court’s decision in the substantive proceedings;
(b)Authorised an interim distribution to Mrs B of $109,412.68 (to pay outstanding legal fees);
(c) Ordered that the parties’ daughters be joined as parties to the
substantive proceedings.
[4] The essence of Mr B’s appeal is that he was denied his right to be heard on these matters. In Mr B’s submission, regardless of the merits, the denial of this right mandates the overturning of Judge McHardy’s rulings.
[5] Mr B submits also that the rulings were wrong. [6] Mr B represents himself.
Jurisdiction
[7] An appeal from a decision of the Family Court to this Court proceeds by way of rehearing.3 That means that I must make my own evaluation of the matters that
1 BJB v PB [2017] NZFC 1817.
2 BJB v PB FC Auckland FAM-2011-004-002022, 4 August 2016 (minute).
3 K v B [2010] NZSC 112, [2011] 2 NZLR 1 at [31].
led Judge McHardy to make his rulings. If I conclude that Judge McHardy was wrong in any of his rulings, I can substitute that decision with the decision that I decide should have been made. I would quash a ruling and direct that the Judge reconsider it only if I had insufficient material before me to make my own decision.
Background
[8] On 23 May 2014 the Family Court made a final maintenance order in favour of Mrs B.4 Maintenance was to be paid until the last Friday of May 2016 because, by that time, it was expected that the substantive proceeding would be completed. The Judge reserved leave to either party to apply to vary or discharge the order should the property issues be resolved prior to that date, or the circumstances substantially change.
[9] The substantive relationship property hearing was due to commence on
30 November 2015. However, Mr B obtained an adjournment on 26 November 2015 due to his ill-health.5 Eventually, a new hearing date of 6 September 2016 was ordered. It was apparent that the maintenance order would expire before the substantive hearing.
[10] On 17 May 2016, Mrs B filed an application seeking an order varying the final maintenance order to provide for maintenance to continue until delivery of the Court’s decision in the substantive proceedings. On the same day, Mrs B applied also for orders for interim distribution (to pay outstanding legal fees) and for joinder of the daughters as parties to the substantive proceeding.
[11] Mr B filed a notice of defence on 13 July 2016 and applied for an adjournment.
[12] Judge McHardy took responsibility for this matter after the trial Judge became ill. The hearing date of 6 September 2016 could not be maintained and a
new trial date had to be set. Judge McHardy directed that a telephone conference be
4 BJB v PB [2014] NZFC 3293.
5 PB v BJB FC Auckland FAM-2011-004-002022/24, 26 November 2015 (minute).
convened on 2 August 2016 to deal with the outstanding matters (Mrs B had formally sought urgency, which Mr B was also opposing).
[13] Mr B, on 29 July 2016, applied twice for the telephone conference to be adjourned. There was no response by the Judge to any of Mr B’s applications for adjournment.
[14] Judge McHardy convened the telephone conference as scheduled on 2 August
2016. Mr B did not participate. He told me that he was too ill to do so. Lady Chambers QC represented Mrs B and Mr Foote participated as lawyer appointed to assist.
[15] Judge McHardy vacated the September 2016 fixture and gave directions so that a new date could be allocated.6
[16] Judge McHardy gave his decisions on the matters now under appeal two days after the telephone conference in his Minute of 4 August 2016.7 In his Minute he did not refer to Mr B’s applications for adjournment but noted that Mr B did not attend although he had notice of the conference. Lady Chambers advised me from the Bar that, during the telephone conference, the adjournment applications were discussed. Lady Chambers said that the conference lasted only about 10 minutes and it was a necessary conference because of the need to vacate the scheduled fixture.
Issues
[17] There are two issues I have to determine:
(a) Should Judge McHardy have adjourned the part of the telephone conference that dealt with the matters upon which his rulings are now appealed?
(b) Are the rulings correct in law?
6 The date allocated for the substantive fixture was 7 February 2017. At the hearing, I was advised that Mr B participated for a short time, but then left claiming illness. Judge Burns refused to adjourn and the trial continued in Mr B’s absence.
7 BJB v PB, above n 2.
Discussion
Should there have been an adjournment?
[18] The Family Court may adjourn a hearing in the interests of justice on such terms as it thinks fit.8 Mr B predominantly argues that an adjournment was necessary because otherwise his right to be heard would be (and subsequently was) infringed.
[19] The right to natural justice is set out in s 27(1) of the New Zealand Bill of Rights Act 1990. A fundamental component of that right involves the right to be heard, also called the audi alteram partem rule. This essentially encapsulates the idea that “there is a duty to hear both sides of a dispute before making a decision”.9
[20] However, the Court of Appeal has accepted that “[t]he requirements of natural justice vary with the power which is exercised and the circumstances.”10
Whether the right to be heard is infringed is thus contextual.
[21] The ground for the repeated applications for adjournment was Mr B’s continuing ill-health. He provided a medical certificate dated 11 July 2016, which stated that he was not well enough to “prepare and respond” to “an upcoming hearing and a response to an interim application”. The period of incapacity was “for the next four weeks, or until I deem him fit”.
[22] There is no question that Mr B had serious cardiac problems which required surgery on 29 March 2016. Mr B’s repeated applications for adjournment were based on the debilitating effects he continued to suffer and his desire to represent himself.
[23] I accept that Judge McHardy should have referred to Mr B’s applications for adjournment in his Minute and he should have explained why he proceeded with the telephone conference in Mr B’s absence. But the Judge’s omissions in this regard
will cause me to allow Mr B’s appeal only if injustice resulted.
8 Family Court Rules 2002, r 192.
9 Richard Zhao Lawyers Ltd v Family Court at Auckland [2015] NZHC 983 at [26].
10 Daganayasi v Minister of Immigration [1980] 2 NZLR 130 (CA) at 141.
[24] Judge McHardy convened a telephone conference which Mr B did not attend. There was nothing in the medical certificate which would lead him to suspect that Mr B was unable to pick up a telephone and converse with the Judge. Nor had Mr B arranged for some other person to speak on his behalf. Mr B had shown his capacity for interaction with the Court by repeatedly filing documents advancing his interests.
[25] As I will come to, the interlocutory applications which were before Judge McHardy were simple and the answers to them were obvious. In these circumstances, I do not consider that Judge McHardy should have adjourned the telephone conference. It is true that Mr B did not participate in the telephone conference, but he was not entitled to assume that there would be an adjournment and, again as I will come to, I do not consider his participation would have affected the Judge’s decisions. Mr B was aware of the hearing. He had been given notice and had all the relevant information. He had the opportunity to respond effectively and he did so via his notice of defence on 13 July 2016. The adjournment applications were discussed. Therefore, his response was considered. I do not find that Mr B’s right to be heard was breached.
Are the rulings correct in law?
The extension of the final maintenance order
[26] Judge McHardy accepted on the papers that there had been no significant changes in the spousal maintenance situation which should change its quantum. He simply extended the final maintenance order until the Family Court delivered its decision on the division of relationship property.
[27] Mr B filed submissions dated 18 November 2016, 27 February 2017 and, pursuant to leave I gave him at the appeal hearing, 20 March 2017. Mostly, he attacks the basis for the original spousal maintenance order. He does allege changes in circumstances due to a daughter, S, no longer living with Mrs B and Mrs B no longer having to pay rent. However, there is no evidence that, in the overall circumstances, these allegations related to substantial changes.
[28] I have no doubt that Judge McHardy was correct to extend the final maintenance order for the limited period he did. I note that Judge Burns has further extended the maintenance payments until the winding up and distribution of a particular ANZ bank account (found to be relationship property).
Interim distribution
[29] Mrs B sought a distribution totalling $109,412.68 to pay outstanding legal fees. Judge McHardy noted that the Family Court had ordered that Mrs B was to receive an interim distribution of one-half of the net sale proceeds of the parties’ former family home. Mr Foote’s law firm held $636,897.64 relating to Mrs B’s half- share. The Judge accepted that, inevitably, Mrs B will receive this money as her property following the substantive hearing. Accordingly, there was no credible argument as to why she should not get the distribution sought.
[30] Mr B’s opposition to the interim distribution simply does not make sense. Further, the interim distribution has been made and dispersed. The outstanding legal fees have been paid. Not only do I find myself in agreement with Judge McHardy’s ruling, but there is nothing I could do to reverse it if I disagreed.
Joinder of parties
[31] The application to join the parties’ daughters was made on the basis that they have an interest in the property which would be affected by orders sought in the application then before the Family Court. One of the issues was an application by Mrs B that a partnership in Germany be dissolved.
[32] Mr B has many arguments as to why the daughters should not have been joined. Many of them revolve around the status of the partnership at German law. However, Judge McHardy’s decision to join the daughters as parties was simply to give them the right to come to the Court to put their position forward if they
wished.11 Contrary to Mr B’s arguments, whether or not the daughters were joined
11 Section 37(1) of the Property (Relationships) Act 1976 applies: (1) Before any order is made under this Act, such notice as the court directs shall be given to any person having an interest in the property which would be affected by the order, and any such person shall be entitled to appear and to be heard in the matter as a party to the application.
as parties did not affect the jurisdiction of the Family Court to consider Mrs B’s
application in relation to the German partnership.
Conclusion
[33] I have found that, in the circumstances, Mr B’s right to be heard was not infringed by Judge McHardy when the Judge failed to adjourn the telephone conference. I have found also that the decisions made by Judge McHardy on the three interlocutory applications were unexceptional and inevitable.
[34] The appeal is dismissed. Mr B must pay costs on a 2B basis.
Brewer J
3
1
1