Power v White - [2022] NZCA 116

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA591/2021
[2022] NZCA 116

BETWEEN	BRETT WILLIAM POWER Appellant
AND	KATHERINE MARIE WHITE Respondent

Court:	Clifford and Goddard JJ
Counsel:	Appellant in person E S Butler for Respondent
Judgment: (On the papers)	7 April 2022 at 10.30 am

JUDGMENT OF THE COURT

AExtensions of time to file the application and notice of opposition are granted.
BThe application for leave to appeal is declined.

___________________________________________________________________

REASONS OF THE COURT

(Given by Clifford J)

Introduction

Mr Power seeks leave to appeal an interlocutory decision of the High Court, having been declined leave from that Court. That interlocutory decision declined Mr Power’s application for a transcript of a High Court hearing on 15 June 2021.[1]

Background

[1]We note both parties have required extensions of time: Mr Power to file the application for leave, having incorrectly filed it in the High Court, and Ms White to file her notice of opposition. In the circumstances, and pursuant to r 5(2) of the Court of Appeal (Civil) Rules 2005, we grant the required extensions.

Over the course of 2020 and 2021, Mr Power lodged six appeals from decisions made by the Family Court. Following a case management conference in February 2021, the High Court directed Mr Power to pay $7,060 by way of security for costs within 10 working days under r 20.13 of the High Court Rules 2016. The timely payment of security by Mr Power became an issue, which risked his appeal being deemed abandoned pursuant to s 126(3) of the District Courts Act 2016.
In April 2021, the High Court gave Mr Power an extension to lodge the required security by 20 May 2021. In granting that extension, and at two subsequent case management conferences, Mr Power was warned of the consequences of not paying the ordered security. Mr Power did not pay security, and accordingly Ms White applied for Mr Power’s appeals to be dismissed.
Having recorded by way of minute that Mr Power’s appeals had been deemed abandoned for his failure to pay security, at a hearing on 15 June 2021 Cooke J gave Mr Power the opportunity to respond to that issue. At that hearing, Mr Power argued, amongst other things, that hearing was null and void because of the lack of proper notice and that the High Court had not dealt with his appeals properly. Cooke J, having been satisfied that none of the matters Mr Power had raised demonstrated his appeals had not been abandoned, ordered that Mr Power’s appeals were to be treated as such.[2]
[2]Power v White HC New Plymouth CIV-2021-443-2, 15 June 2021 (Minute of Cooke J).
It is that hearing for which Mr Power applied for a transcript. On 1 July 2021, Cooke J declined that application. In doing so, he said:[3]
[2] Were this application for a document on the Court file it would call to be addressed under the Senior Courts (Access to Court Documents) Rules 2017.…

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 Power v White

Details

AGLC: Power v White [2022] NZCA 116
Case: [2022] NZCA 116
Decision Date: 7 April 2022 at 10.30 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal by Brett William Power against Katherine Marie White. Power sought leave to appeal an interlocutory decision by the High Court, which declined his application for a transcript of a hearing held on 15 June 2021. The dispute between Power and White arose from a series of appeals Power had lodged against Family Court decisions, which led to the High Court ordering Power to pay a security for costs. Power's failure to pay the required security led to the abandonment of his appeals, a decision upheld by Cooke J on 15 June 2021. Power's subsequent application for a transcript of that hearing was declined by Cooke J on 1 July 2021, a decision Power now appeals.

The primary legal issue before the Court of Appeal was whether Power's application for leave to appeal the High Court's decision met the threshold required under s 56(3) of the Senior Courts Act 2016. Specifically, the court had to determine if Power's application raised an arguable error of law or fact, and whether there was a good reason in the interests of justice to grant leave to appeal. The court also needed to consider the implications of providing transcripts of interlocutory hearings on judicial resources and the principles outlined in Siemer v Heron regarding the discretionary nature of such requests.

The Court of Appeal, in its judgment, held that Power's application did not meet the high threshold for leave to appeal. The court found that Power had no right to a transcript of the hearing and that there was no arguable error of law or fact in the High Court's decision. The Court of Appeal agreed with Cooke J's reasoning that there was no good reason in the interests of justice to create a transcript of the hearing. The abandonment of Power's appeals was a result of his failure to pay the ordered security for costs, and not due to any events that occurred during the hearing. Therefore, the application for leave to appeal was declined, and the Court of Appeal upheld the High Court's decision.

The final orders of the Court of Appeal were to grant extensions of time for both parties to file their respective documents and to decline Power's application for leave to appeal.

Orders