Pearce v Pearce

[2012] NZHC 110

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-006550 [2012] NZHC 110

BETWEEN  RONALD FREDERICK PEARCE Appellant

ANDMAXWELL ARTHUR PEARCE First Respondent

ANDBARRIE ARTHUR YOUNG Second Respondent

Hearing:         8 February 2012 (by telephone) Counsel:        R F Pearce (In Person)

K Young for First and Second Respondents

Judgment:      10 February 2012

JUDGMENT OF FOGARTY J

This judgment was delivered by Justice Fogarty on

10 February 2012 at 3.00 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

Hesketh Henry, Private Bag 92093, Auckland
Young & Caulfield, DX BP 62020, Browns Bay, Auckland

Copy to:

Ronald Frederick Pearce, 1/23 Galvan Avenue, Pakuranga, Auckland 2010

PEARCE V PEARCE HC AK CIV-2011-404-006550 10 February 2012

[1]      By  judgment  of  6  December  2011,  I  dismissed  Mr  Ronald  Pearce’s application for leave to appeal a decision of the District Court, Judge Hikaka, delivered on 19 April 2011 finding that the second respondent was the brother of Ronald and Maxwell.

[2]      Mr Ronald Pearce has lodged an interlocutory application for leave to appeal my decision to the Court of Appeal.  It is opposed on the grounds that this Court has no  jurisdiction  to  entertain  the application.    Parliament  has  a policy that  limits appeals from the District Court.  Where the High Court has heard an appeal from the District  Court  that  decision  is  final  unless  a  party  obtains  leave  to  appeal  that decision to the Court of Appeal:  see s 67(1) of the Judicature Act 1908:

67       Appeals against decisions of High Court on appeal

(1)The decision of the High Court on appeal from an inferior court is final, unless a party, on application, obtains leave to appeal against that decision—

(a)       to the Court of Appeal; or

(b)directly to the Supreme Court (in exceptional circumstances as provided for in section 14 of the Supreme Court Act 2003).

[3]      My decision of 6 December does consider in some detail the merits of the decision of the District Court.  But it was not a hearing on appeal from the District Court.   It was considering the application by Mr Ronald Pearce to seek leave to appeal out of time.  It was because I found that the proposed appeal was without any significant merit (at[23]), and so had little prospect of success on appeal (at [24]), that the application for leave to appeal was dismissed.

[4]     Accordingly, this Court has no jurisdiction to entertain an interlocutory application seeking leave to appeal the decision of 6 December to the Court of Appeal.

[5]      There is also an application by Mr Pearce for a stay of execution of the judgments  of  6 December  of  the  High  Court  pending  resolution  of  the  appeal

applications.   The decision of Judge Hikaka was as to the status of the second respondent as a sibling.   The relevance of the issue was as to whether or not the second respondent could be considered for a benefit under a Family Protection claim pending in the District Court. Yesterday the District Court, Judge McHardy, released a reserved decision in which the first and second respondents were both awarded

$250,000 out of the estate of their father.

[6]      Mr Pearce intends to appeal that decision.   Any question of stay can be considered associated with that application.   I see no basis for entertaining an application for stay of execution of the High Court judgment of 6 December.

[7]      I note that the appellant has made two applications seeking leave to appeal to the Court of Appeal, one on 22 December and one on 20 January 2012.  The latter seeks  a  stay  as  well.    I  am  finding  I  have  no  jurisdiction  to  consider  either application.

[8]      The  first  respondent  has  been  put  to  the  expense  of  filing  a  notice  of opposition and a memorandum of counsel.  The second respondent has been put to the expense of having counsel appear in a telephone conference.  Both the first and second respondents are entitled to costs.  The award for costs for each will reflect their respective contributions.   I anticipate agreeing to a sum which would be equivalent  to  one  solicitor  preparing  a  notice  of  opposition,  a  memorandum  of counsel and appearing at the conference.  It is to be split between the first and second respondent.  I invite the first and second respondents, if they wish to take up their entitlement to costs, to prepare a joint memorandum which would be served on Mr Pearce.  Leave is reserved for a final order to be made by myself.

[9]      Finally, I note that in support of these applications Mr Pearce lodged a 28 page memorandum covering numerous points which are irrelevant and secondly, filed an affidavit, again covering material which is irrelevant to the issue.  I have not considered the merit of these points because Mr Pearce does not reach the threshold issue of engaging this Court’s jurisdiction.