RKW v GET - [2014] NZHC 1747

NOTE: PURSUANT TO S 125 OF THE DOMESTIC VIOLENCE ACT 1995, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO
11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2014-470-52 [2014] NZHC 1747

IN THE MATTER of the Domestic Violence Act 1995

BETWEEN

RKW Appellant

AND

GET Respondent

Hearing: 24 July 2014

Appearances:

Appellant in person
No appearance by or on behalf of Respondent (not served)

Judgment:

25 July 2014

JUDGMENT OF BREWER J

This judgment was delivered by me on 25 July 2014 at 4:30 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Copies to: Appellant
Respondent

RKW v GET [2014] NZHC 1747 [25 July 2014]

Introduction

[1] The appellant seeks special leave to extend the time for him to appeal from a decision of Judge SJ Coyle dated 20 April 2011. However, he has not served the respondent with notice of the appeal.1 Given the history of this matter, I told the appellant that I would strike out the application unless he could establish that it has merit. The appellant then put his argument to me in full.

Background

[2] On 2 November 1999 following a defended hearing his Honour Judge Neal confirmed a protection order and an occupation order that had been previously made on an application without notice.

[3] The following year the appellant made application to have the order discharged but the application was dismissed by Judge Neal on 4 July 2000. A further application to discharge the orders was dismissed by Judge Sommerville on
20 November 2002. The appellant filed a notice of appeal against that decision which was dismissed by Chambers J.

[4] On 20 July 2010 the appellant filed a further application to discharge the orders made on 2 November 1999. That application was considered and dismissed by Judge Coyle on 20 April 2011 in the judgment which the appellant now seeks to appeal.

[5] It appears that the appellant took no steps in relation to that decision until filing the current application for leave to appeal out of time on 9 April 2014.

Applicable principles

[6] There is a right of appeal to the High Court under s 91 of the Domestic
Violence Act 1995 (“the Act”) against a decision declining to discharge a protection order. As no time for appeal is specified in the Act, the time for appealing is that

1 The appellant told me he could not do so because it would breach the protection order. But, of course, he could have engaged a process server.

specified in High Court r 20.4(2)(b), namely within 20 working days after the decision appealed from.

[7] High Court r 20.4(3) provides for the making of applications for special leave to appeal out of time. It provides:

(3) By special leave, the court may extend the time prescribed for appealing if the enactment that confers the right of appeal—

(a) permits the extension; or

(b)…

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 RKW v GET

Details

AGLC: RKW v GET [2014] NZHC 1747
Case: [2014] NZHC 1747
Decision Date: 25 July 2014

CaseChat Overview and Summary

The appellant, RKW, sought special leave to extend the time for appealing from a decision of Judge SJ Coyle dated 20 April 2011, which declined to discharge a protection order made in 1999. The respondent, GET, did not appear in court, nor was there any representation on their behalf. The appellant, who appeared in person, argued that the application had merit due to the respondent's fraudulent intentions and the Family Court's failure to apply principles of equity. The court had to decide whether to grant special leave to appeal out of time, considering the significant delay and the reasons provided.

The legal issues revolved around the statutory right of appeal under the Domestic Violence Act 1995, the time limitations set by High Court rules, and the discretion of the court to grant special leave for an out-of-time appeal. The court had to assess the appellant's explanation for the almost three-year delay, the reasons provided for the appeal, and whether the appeal had any merit or public importance. The court also had to consider the appellant's conduct during the proceedings.

The court found that the appellant's contentions did not adequately explain the delay, and ignorance of the law was not an acceptable excuse. The appellant had not acted diligently, failing to provide necessary documentation and being unavailable for case management conferences. The court concluded that the intended appeal had no merit and did not raise any issues of public importance. Consequently, the application for special leave to appeal out of time was struck out.

The court ordered that the application for leave to appeal out of time was dismissed. This decision was made based on the significant delay, the lack of satisfactory explanation for the delay, and the conclusion that the appeal had no merit or public importance. The respondent's non-appearance did not affect the court's ability to proceed with the dismissal of the application.

Orders