Richard Frederick Eilienberg v Linda Alejandra Garcia Lourdes Gutierrez

IN THE SUPREME COURT OF NEW ZEALAND

SC 78/2017
[2017] NZSC 144

BETWEEN	RICHARD FREDERICK EILENBERG Applicant
AND	LINDA ALEJANDRA GARCIA LOURDES GUTIERREZ Respondent

Court:	William Young, Glazebrook and OʼRegan JJ
Counsel:	J A Farmer QC and J K Goodall for Applicant A P Holgate for Respondent
Judgment:	26 September 2017

JUDGMENT OF THE COURT

AThe application for leave to appeal (Eilenberg v Lourdes Gutierrez [2017] NZCA 270) is granted in part.

B The approved questions are:
(a)Does pt 8 of the Family Proceedings Act 1980 implicitly exclude the inherent jurisdiction of the High Court to enforce a judgment from Mexico?
(b)Would enforcement of the Mexican judgment be contrary to public policy?

C The application for leave to appeal is otherwise dismissed.

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REASONS

Leave is also sought to appeal against the lifting of name suppression. The High Court agreed to a request from the parties to adopt pseudonyms in the judgment.[1] The Court of Appeal rejected Dr Eilenberg’s application for continued name suppression. This was on the basis that the parties’ daughter is now 16 and lives in Mexico. The Court held that nothing advanced by Dr Eilenberg displaced the presumption of open justice.[2]
[1]Emajor v Emajor [2016] NZHC 2022 (Gilbert J) at n 1.
[2]Eilenberg v Lourdes Gutierrez [2017] NZCA 270, [2017] NZFLR 471 (Kós P, Harrison and Miller JJ) at [71].
Nothing put forward in the leave application throws doubt on the Court of Appeal conclusion. The application for leave to appeal on this point is declined.
Leave was also sought on whether the Court of Appeal was correct to refuse to admit fresh evidence from Dr Eilenberg’s attorney in Mexico as to the issues Dr Eilenberg has faced in the Mexican courts in attempting to have the maintenance order re-assessed.
We agree with the Court of Appeal that the proposed evidence is not material to the issues this Court has to decide in the appeal.[3] Leave to appeal is also declined on this point.
[3]At [18].

Solicitors:
Stafford Klaassen, Auckland for Applicant
Duncan King Law, Auckland for Respondent

CaseChat Overview and Summary

In this case, Richard Frederick Eilenberg sought leave to appeal a decision of the Court of Appeal. The central issue was whether the High Court could enforce a Mexican judgment under the Family Proceedings Act 1980, and whether such enforcement would contravene public policy. Additionally, Eilenberg challenged the lifting of name suppression and sought to present new evidence regarding his attempts to re-assess the maintenance order in Mexico. The Supreme Court was tasked with determining these questions.

The Court first considered whether the Family Proceedings Act implicitly excluded the inherent jurisdiction of the High Court to enforce foreign judgments. The Court found that the Act did not preclude the exercise of inherent jurisdiction and, therefore, the High Court retained the authority to enforce the Mexican judgment. The second issue pertained to public policy, and the Court concluded that enforcement of the Mexican judgment would not be contrary to public policy. The Court further addressed the lifting of name suppression, upholding the decision of the Court of Appeal that the open justice principle outweighed Eilenberg's privacy concerns. Lastly, the Court declined leave to appeal regarding the refusal to admit fresh evidence, finding it immaterial to the appeal's issues.

The Supreme Court granted leave to appeal in part, approving two questions for determination. The Court of Appeal was directed to consider whether the Family Proceedings Act implicitly excluded the inherent jurisdiction of the High Court to enforce the Mexican judgment and whether enforcement would contravene public policy. The Court dismissed the other grounds of appeal, including those concerning the lifting of name suppression and the refusal to admit fresh evidence.

The final orders of the Supreme Court were that leave to appeal was granted in part, with specific questions to be addressed by the Court of Appeal. The Court of Appeal was required to decide whether the Family Proceedings Act implicitly excluded the inherent jurisdiction of the High Court to enforce the Mexican judgment and whether such enforcement would be contrary to public policy. The other grounds of appeal were dismissed, affirming the decisions on name suppression and the refusal to admit fresh evidence.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established