Pillay v Family Court
[2023] NZHC 3750
•20 December 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2022-404-245
[2023] NZHC 3750
UNDER Care of Children Act 2004 and Judicial Review Procedure Act 2016 IN THE MATTER OF
A judicial review of the decision of the Family Court Judge at Auckland on
25 January 2022
BETWEEN
MARK PILLAY
Plaintiff
AND
FAMILY COURT
First Defendant
RAVASHINEE MANDY PERUMAL
Second Defendant
Hearing: On the papers at Auckland Judgment:
20 December 2023
JUDGMENT (NO.2) OF POWELL J
[Application to stay enforcement of costs judgment]
This judgment was delivered by me on 20 December 2023 at 3.30 pm pursuant to
r 11.5 of the High Court Rules
…………………..
Registrar/Deputy Registrar
MARK PILLAY v FAMILY COURT [2023] NZHC 3750 [20 December 2023]
[1] These judicial review proceedings were brought by the plaintiff, Mark Pillay. From the time they were first filed in 2022 serious procedural defects were identified. Time was given to Mr Pillay to address these, and when they were not addressed, the issues were then explained to him in detail in a minute by Harvey J on 5 September 2022. Relevant to this judgment, Harvey J explained to Mr Pillay that neither the then second respondent, Patrick Kannemeyer, the lawyer for the child in the Family Court nor the Chief Executive of the Ministry of Business, Innovation and Employment (“MBIE”) were appropriately joined as respondents.
[2] As a result, Harvey J directed Mr Pillay to remove both Mr Kannemeyer and MBIE from the proceedings. He did not do so. I therefore struck out Mr Pillay’s claims against both (together with his claims against his former lawyers) in a minute dated 8 November 2022 (“the strike out decision”).
[3] In brief, Mr Kannemeyer was not a decision maker, while MBIE had been joined so as to include various decisions of Immigration New Zealand in the broader proceedings. As noted by Harvey J, this was inappropriate given the primary focus of Mr Pillay’s judicial review proceedings were matters arising out of decisions of the Family Court, and in particular relating to the Care of Children Act 2004. As a quite different legislative regime applies to judicial review of decisions of Immigration New Zealand, it followed that any challenge to decisions of Immigration New Zealand by Mr Pillay required separate proceedings.
[4] As a consequence of the strike-out decision, Mr Pillay was ordered to pay costs (“the costs judgment”):1
(a)In the sum of $6,931 in favour of Mr Kannemeyer; and
(b)In the sum of $3,585 in favour of MBIE.
[5] Mr Pillay has subsequently appealed both the strike out decision and the costs judgment and has sought a stay of enforcement of the costs judgment. Unfortunately, while the parties filed submissions as directed in relation to Mr Pillay’s application,
1 Pillay v Family Court [2023] NZHC 848.
the application was overlooked until it was recently brought to my attention. I therefore apologise for the delay in issuing this judgment.
The position of Mr Pillay
[6] Mr Pillay contends that the strike out decision was wrongly made, hence he has appealed. He claims that neither Mr Kannemeyer nor MBIE will be injuriously affected by a stay, he is otherwise impecunious and he has been the victim of:
…persistent conference stage court rule tactics and enforcement to dismiss, impoverish, and discourage a litigant at the preliminary stages of proceedings, to deny access to the expedient and cost-effective progress of any reasonable application for review or appeal.
Discussion
[7] There is no dispute that this Court has jurisdiction to grant the type of stay sought by Mr Pillay pursuant to rr 17.29 of the High Court Rules 2016 and/or 12(3) of the Court of Appeal Rules 2005.
[8] Counsel for both Mr Kannemeyer and MBIE have, by way of submission, dealt exhaustively with the criteria applicable under both rules such that it is clear that Mr Pillay has not made out any grounds for the type of stay he seeks.
[9] In respect of r 17.29 the factors were identified in Bay Cities Real Estate Ltd v Re/Max New Zealand Ltd, where White J identified six principles to which a court might have regard in considering the exercise of its discretion under the rule.2 Those principles, summarised by counsel, are:
(a)The onus is on an applicant for the stay to persuade the Court to exercise its discretion.
(b)The “substantial miscarriage of justice” that must be involved means something more than minor and it is not a substantial miscarriage of justice for a party that has had the use of another’s money to be required
2 See Bay Cities Real Estate Ltd v Re/Max New Zealand Ltd HC Napier CIV-2010-441-134, 8 June 2011 at [19].
to repay or for a creditor to take such steps as it sees fit to pursue recovery.
(c)A substantial miscarriage of justice must be “likely to result”, rather than there being a prospect of a miscarriage of justice.
(d)The Court must seek to do justice between the parties and exercise its discretion in a manner that will best serve the overall interests of justice. A balancing exercise is involved.
(e)A miscarriage of justice is unlikely to result if a payment must be made under a judgment while the liable party is free to pursue a counterclaim.
(f)Other relevant factors will include the apparent strength or weakness of the claim, the ability of the applicant for the stay to meet the judgment that is being enforced and the potential bankruptcy or liquidation of a party seeking to pursue an apparently strong claim.
[10] Under r 12(3) of the Court of Appeal Rules, the Court is required to balance the competing rights of the party who obtained the judgment appealed against the need to preserve an appellant’s position in the event of the appeal succeeding.3
[11] In this case having considered the submissions of all parties and the circumstances of this case there can be absolutely no doubt the balance of convenience overwhelmingly favours Mr Kannemeyer and MBIE.
[12]In addition I observe that:
(a)The costs judgment specifically took into account Mr Pillay’s unsubstantiated allegations of impecuniosity and no further information to substantiate his position has been provided to support the current application.
3 See Duncan v Osborne Buildings Ltd [1992] 6 PRNZ 85 (CA) at 87.
(b)It is difficult to conclude other than Mr Pillay’s appeal against the decision striking out his claims against Mr Kannemeyer and MBIE has no chance of success. His pursuit of the appeal (out of time) is also somewhat inconsistent with the position he took on costs in the High Court, given Mr Pillay contended that he (as opposed to the Court) had removed both respondents from his judicial review proceedings as directed by the Court. As noted above he did not in fact do so, thereby necessitating the order striking out his claims against both Mr Kannemeyer and MBIE.
Decision
[13]Mr Pillay’s application to stay enforcement of the costs judgment is dismissed.
[14] Both Mr Kannemeyer and MBIE are entitled to costs on a 2B basis. A calculation of the amounts claimed by each respectively is to be filed and served by 17 January 2024. Any submissions by Mr Pillay, solely with regard to the amount of costs claimed, are to be filed by 31 January 2024, following which I will determine the issue on the papers.
Powell J