Renshaw v Underhill

[2008] NZCA 308

IN THE COURT OF APPEAL OF NEW ZEALAND

CA188/2008
[2008] NZCA 308

BETWEENPETER ROGER RENSHAW

Applicant

ANDMARTINE CLARE UNDERHILL

Respondent

Hearing:12 August 2008

Court:Glazebrook, O'Regan and Robertson JJ

Counsel:Applicant in person (via video-link)

K M Tan for Respondent

Judgment:14 August 2008 at 4.00 pm

JUDGMENT OF THE COURT

A        The application for leave to appeal is dismissed.

BThe applicant must pay the respondent costs for a standard application on a band A basis and usual disbursements.

REASONS OF THE COURT

(Given by O’Regan J)

Introduction

[1]       Mr Renshaw seeks leave under s 93(1) of the Domestic Violence Act 1995 to appeal against a decision of the High Court.  The High Court upheld a decision of the Family Court pursuant to which a final protection order and a final occupation order was made in favour of the respondent against the applicant.  The applicant was also directed to attend an anger management programme.

[2]       The application was filed out of time.  The reason for this was that the applicant initially sought leave from the High Court.  It was only after the matter had been argued in the High Court that it was discovered that that Court had no jurisdiction, and that an application to this Court was required.  In those circumstances the late filing is understandable and we therefore extend the time for filing of the application to the date on which it was received by this Court.  The respondent was also late in filing her memorandum of opposition to the grant of leave and supporting affidavit (r 20 of the Court of Appeal (Civil) Rules 2005).  The reasons for this were adequately explained and we also extend the time for filing of the memorandum and affidavit until the date on which it was received by the Court.

[3]       The Family Court Judge, Judge McAloon found that the applicant had physically abused the respondent on two occasions, and had psychologically abused her on two other occasions.  Those were crucial findings on which the decision to grant a final protection order was based.  The applicant argued in the High Court that Judge McAloon had wrongly preferred the evidence of the respondent in relation to the incidents of alleged abuse (and, in the case of two incidents, third party witnesses) over that of the applicant.  In the High Court, Stevens J considered each of the factual findings made by the Family Court Judge and concluded that there was a proper evidential basis for them and no basis to interfere with them on appeal.

[4]       The application for leave filed in this Court by the applicant indicates that the applicant seeks to raise these factual issues again in this Court.  In short, his case is that the Family Court Judge incorrectly assessed the credibility of the witnesses before her, and should have preferred his evidence over that of the respondent and the third party witnesses.

[5]       Section 93(1) of the Domestic Violence Act provides that a party to an appeal of the High Court from a Family Court decision under the Domestic Violence Act may, with the leave of this Court, appeal to this Court against any determination of the High Court on a question of law arising in the High Court appeal.  It is well established that, to justify a second appeal, the question of law which an applicant seeks to raise on appeal must be capable of bona fide and serious argument and must involve some interest, private or public, of sufficient importance to outweigh the cost and delay involved in a further appeal.

[6]       In this case the applicant challenges concurrent factual findings made in the Family Court and the High Court.  The only issues which he seeks to raise are issues of fact.  No question of law arises, let alone a question of sufficient importance to justify a second appeal.  In those circumstances there is no basis on which leave to appeal can be granted and we therefore dismiss the application.

[7]       We award costs to the respondent for a standard application on a band A basis and usual disbursements.

Solicitors:
McCaw Lewis Chapman, Hamilton for Respondent