Power v White

[2021] NZHC 2291

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CIV-2021-443-000002 CIV-2021-443-000004 CIV-2021-443-000005 CIV-2021-443-000006 CIV-2020-443-000052

CIV-2020-443-000053 [2021] NZHC 2291

UNDER

the Property (Relationships) Act 1976

IN THE MATTER

of an appeal against the decision of the Family Court at Hawera

BETWEEN

BRETT WILLIAM POWER

Appellant

AND

KATHERINE MARIE WHITE

Respondent

Hearing:

On the papers

Appearances:

Applicant in person

E S Butler for Respondent

Judgment:

2 September 2021

JUDGMENT OF COOKE J

(Leave to appeal)

[1]    By application dated 29 July 2021 Mr Power seeks leave to appeal a decision of the Court made on 1 July 2021.  The application is supported by an affidavit of  Mr Power of the same date. The application is opposed by the respondent.

[2]    As a preliminary point I note that the only decision made by the Court on 1 July was a decision declining Mr Power a copy of a transcript from the earlier hearing of

POWER v WHITE [2021] NZHC 2291 [2 September 2021]

the Court on 15 June 2021.1 There is no reference to the decision made on 1 July in Mr Power’s documents in support of the application for leave, however. Rather he focuses on the outcome of the earlier hearing of the Court on 15 June 2021.2 I apprehend that this is the real focus of his application for leave, although I will briefly deal with the decision of 1 July 2021 as well.

Relevant decisions

[3]    As indicated, I held a hearing on 15 June and in my minute of that date recorded the relevant background. During 2020 and 2021 Mr Power lodged six appeals from decisions made by the Family Court. By minute dated 22 February 2021 Gendall J addressed the appeals at a case management conference. Gendall J directed that an amount of $7,060 be paid by way of security for costs within 10 working days under r 20.13 of the High Court Rules 2016.

[4]Section 126 of the District Courts Act 2016 provides:

126     Security for appeal

(1)An appellant under section 124 may be required under the High Court Rules 2016 to give the Registrar of the High Court security for costs.

(2)Subsection (1) does not apply if the appellant has been granted legal aid for the proceeding under the Legal Services Act 2011.

(3)If security for costs is not given within the time required by the High Court Rules 2016, the appeal is abandoned.

[5]    The payment of security by Mr Power became an issue.   By minute dated   21 April 2021 Doogue J altered the period of time for Mr Power to lodge security for costs ordered, so that they were now to be provided within 20 works days (that is by 20 May 2021). She also directed that if security was not paid that an application should be made for the appeals to be dismissed or deemed abandoned.  Doogue J warned  Mr Power of the consequences of not paying the security (at [18]). The warning was then repeated at a subsequent conference by Campbell J on 12 May. Then at a further conference on 24 May Gault J again reminded Mr Power of the consequence of not paying the ordered security again (albeit the time for paying security had then passed).

1      Power v White HC Wellington, 1 July 2021 (Minute No 2).

2      Power v White HC Wellington, 15 June 2021 (Minute).

[6]    Mr Power did not pay security. As required by the earlier direction of Doogue J the respondent then made an application that the appeals be dismissed.

[7]    It was these matters that came before me on 15 June. Mr Power had still not paid the security. Amongst Mr Power’s complaints advanced at this hearing was a suggestion that security had never been properly ordered in the first place because documents had been lost from the Court file (I believe the allegation was and is that each of the separate appeals the had filed had been lost) and he said he had referred that matter to the police. He did not stay for the full hearing and packed his things and left the courtroom shortly after counsel for the respondent sought to respond to his contentions.

[8]    As recorded in my minute issued after this conference it seemed to me that s 126 had automatic application. There was no dispute that security had been ordered, and that it had not been paid notwithstanding the warnings. Accordingly under s 126(3) the appeals were deemed to be abandoned.

Leave to appeal

[9]    Any appeal to the Court of Appeal is regulated by s 56 of the Senior Courts Act 2016. Section 56(3) provides:

(3)No appeal, except an appeal under subsection (4), lies from any order or decision of the High Court made on an interlocutory application in respect of any civil proceeding unless leave to appeal to the Court of Appeal is given by the High Court on application made within 20 working days after the date of that order or decision or within any further time that the High Court may allow.

[10]   I doubt whether this section applies to the outcome of the hearing on 15 June. I did not strike out the appeals on 15 June. Rather I gave Mr Power the right to be heard on the question whether his appeals were deemed to be abandoned as a consequence of s 126 and the prior directions of the Court. For that reason I do not apprehend there is a right of appeal to the Court of Appeal with leave from anything that happened on 15 June.

[11]   Mr Power had a right to seek leave to appeal the interlocutory decision made by Gendall J on 22 February 2021 setting the amount of security to be paid. He did not seek to appeal that decision at any stage. I also note that Gendall J recorded in his

minute that the directions he gave, including in relation to security, were “effectively by agreement between the parties”. Moreover, even at later points he could have paid the amount of security directed and then sought that the Court alter the period in which he was required to pay it retrospectively. This may have been a way of avoiding the impact of s 126(3) if the Court was prepared to make such an order. But he has still not paid the security directed, or sought such an order.

[12]   The authorities on the grant of leave under s 56(3) record that there is a reasonably high threshold to be satisfied, and that the leave requirement acts as a filtering mechanism.3 Even if I were to treat the relevant application for leave to appeal to be an application in relation to Gendall J’s original decision in February, this is not a case where leave to appeal would have been appropriate. The ultimate issue is simply an amount of $7,060 directed to be paid by way of security for costs. That amount arises from the number of appeals Mr Power has lodged, and the application of r 20.13 of the High Court Rules. Mr Power has simply refused to pay that amount notwithstanding warnings given by a number of High Court Judges. Even now he has not done so. He is entitled to exercise his rights of appeal to the High Court, but he must do so in accordance with the rules of court, and the directions of the Court, particularly when those directions are simply that he pay the security for costs required by the rules. A respondent is entitled to security under r 20.13.

[13]In my view this is plainly an inappropriate case for leave to be granted.

[14]   To the extent that the application is an application in relation to my subsequent decision, by minute dated 1 July, to deny Mr Power a copy of the transcript of the hearing on 15 June no leave is appropriate. Even if this is properly treated as a decision that can be appealed, declining the application to create a transcript was consistent with well-established principle.4

Cooke J

3      See Greendrake v District Court of New Zealand [2020] NZCA 122 at [6].

4      Siemer v Heron [2011] NZSC 116, [2012] 1 NZLR 293 at [9]; Dunstan v Neill [2021] NZHC 891 at [5].