S (CA98/07) v W

[2007] NZCA 168

ANYPUBLICATION OF A REPORT OF THESE PROCEEDINGS MUST COMPLY WITH S 139 OF THE CARE OF CHILDREN ACT 2004.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA98/07 [2007] NZCA 168

BETWEEN  S(CA98/07) Applicant

ANDW Respondent

Hearing:         16 April 2007

Court:            O’Regan, Robertson and Wilson JJ Counsel:  Applicant in person

A J H Witten-Hannah for Respondent
G M Cameron representing the children

Judgment:      2 May 2007         at 3 pm

JUDGMENT OF THE COURT

A        The application for leave to appeal is declined.

BThe applicant must pay costs of $2,000 and usual disbursements to each of the respondent and the lawyer representing the children.

REASONS OF THE COURT

(Given by O’Regan J)

S(CA98/07) V W CA CA98/07  2 May 2007

Introduction

[1]      This is an application for leave to appeal to this Court against two aspects of a decision of Potter J dealing with interlocutory matters relating to the applicant’s appeal to the High Court in a custody matter: HC AK CIV-2006-404-002976 23

February 2007.

[2]      It raises issues of some complexity about appeal rights under the Care of Children Act 2004 and, more generally, about the amenability of interlocutory decisions of the High Court to appeal to this Court.

[3]      The first issue is whether the High Court decision is a decision for which leave to appeal is required.   The second is whether there is any right to appeal against the High Court decision at all.

Background

[4]      A comprehensive summary of the protracted procedural history to these proceedings appears in the judgment of Potter J at [5] – [15].   We will only summarise the most salient features here.

[5]      Since late 2000 the applicant has been seeking greater access to his children, who live with his ex-wife.   In November 2000 Mr Gray Cameron was appointed pursuant to s 30 of the Guardianship Act  1968  to  represent  the  children.    The applicant has objected to Mr Cameron’s appointment on a number of occasions.  The applicant’s objections were first dismissed on procedural grounds, but eventually a Family Court Judge, Judge Mather, dismissed them in substantive terms: FC WAIT

090/460/00 10 November 2004.  There was an appeal from that judgment which was dismissed by Harrison J in the High Court: that judgment is reported at [2005] NZFLR 538.  An appeal to this Court was allowed, but on the basis that the High Court had no jurisdiction to hear the appeal from Judge Mather’s judgment because leave to appeal was required but had not been sought: S(CA116/05) v C CA116/05

18 August 2005.  Declining leave to appeal from this Court’s decision, the Supreme

Court agreed that the High Court had decided the original appeal without jurisdiction: [2005] NZSC 70.

[6]      The Family Court decided the applicant’s application to have contact with his children on 1 May 2006: S v W FC WAIT FAM-2002-090001294.  In that decision Judge Walker considered that, as a result of this Court’s invalidation of the High Court’s dismissal of the appeal from Judge Mather’s judgment, that judgment remained in force: at [80].  Although she was not seised of the matter, Judge Walker remarked at [81] that “it is the view of the Court that [Mr Cameron] conducted himself in a fair and proper manner on behalf of the children”.

[7]      The  applicant  appealed  Judge  Walker’s  judgment.  On  14  July  2006

Winkelmann J confirmed Mr Cameron’s reappointment as counsel for the children in the face of the applicant’s opposition: HC AK CIV-2006-404-2976.  Winkelmann J directed that a fixture be allocated for the determination of the substantive appeal.

[8]      A number of interlocutory applications were then determined by Potter J. For the purposes of this application, two are relevant: the application to terminate Mr Cameron’s appointment as lawyer for the children, and the application to adduce new evidence on appeal.  Potter J indicated to counsel that as she had no jurisdiction to review the orders made by Winkelmann J, she would approach the matter of Mr Cameron’s appointment on a de novo basis.  All parties consented to that course. In an oral judgment of 15 February 2007 Potter J confirmed Mr Cameron’s appointment as lawyer for the children and declined leave to adduce new evidence. Written reasons followed on 23 February.  The applicant now seeks leave from this Court to appeal both determinations.

Application for leave: s 145(1)(b)

[9]      Leave is sought under s 145(1)(b) of the Care of Children Act 2004, which provides:

145     Appeal to Court of Appeal

An appeal lies to the Court of Appeal from an order or decision of the High

Court under this Act, but—

…

(b)      if the order or decision was made on appeal from a Family Court or a District Court, an appeal lies only with the leave of the Court of Appeal.

[10]     There is authority for the proposition that an interlocutory decision made in the course of, or preparatory to, the hearing of an appeal by the High Court against a decision of the Family Court is a “decision… made on appeal from the Family Court”: L v L (1990) 6 FRNZ 141 (CA).  That case concerned an almost identical provision, s 31 of the Guardianship Act 1968.  The Court was asked to give leave to appeal against the decision of a High Court Judge varying the terms of a stay of execution of a Family Court decision in a custody matter.  The Court dealt with the matter on the basis that leave to appeal was required.  Cooke P said at 142:

Counsel for the appellant … acknowledged that under s 31 Guardianship Act

1968 he requires leave to appeal to this Court on a question of law.   The matter was before the High Court on appeal from the Family Court and we

assume that to be correct.

[11]     It is not clear that the Court’s “assumption” is correct.  There is no discussion of the point and it is clear the matter was dealt with urgently.   We do not see this case as having value as a precedent and have considered the issue from first principles.

[12]     The  applicant  submitted  that,  as  the  two  applications  dealt  with  in  the judgment of Potter J were applications originating in the High Court in the context of a Family Court appeal, and not attempts at a second appeal against the Family Court decision, s 145(1)(b) is not engaged in the present case.  We agree with that analysis. In our view, there is a distinction between a judgment on the appeal itself, and a judgment dealing with an application made for the first time in the High Court.

[13]     We are satisfied that leave is not required or available in the present case and therefore dismiss the application for leave.

Is there a right of appeal?

[14]     The applicant suggested that, if s 145(1)(b) was not engaged in the present case, then he had a right of appeal under the general provision relating to appeals to this Court, s 66 of the Judicature Act 1908.  That section gives this Court jurisdiction to hear and determine appeals from any “judgment, decree or order” of the High Court.  However, as the decision to appoint a lawyer for the child is a decision made under the Care of Children Act itself, any right of appeal must lie under s 145(1), rather than s 66.  The matter is less clear in relation to the decision not to allow the calling of further evidence, as that is a decision made in the course of a proceeding under the Care of Children Act, but is not an order or decision of the High Court under the Care of Children Act.

[15]     Whether the right of appeal lies under s 145(1) (on the basis that it is an appeal from “an order or decision of the High Court”) or under s 66 of the Judicature Act (on the basis that it is an appeal from “any judgment, decree or order… of the High Court”), does not seem to us to make any real difference in practice.  There is no difference in reality between “an order or decision” and a “judgment, decree or order”, and that the rights of appeal conferred by the introductory paragraph of s 145(1) and those conferred by s 66 are essentially the same in nature.

[16]     The applicant submitted that the broad language of s 66 meant that any decision of a High Court Judge given on an application made for the first time in the High Court is subject to appeal.  Such decisions can be distinguished from decisions made on appeal from a lower court, where leave to appeal to the Court of Appeal is required under s 67 of the Judicature Act.  The policy reason for that is that these are effectively second appeals, because there is a decision of the inferior court and then a decision on appeal by the High Court, so that a person wishing to come to the Court of Appeal is seeking to have the matter looked at for the third time by a New Zealand Court.  The same argument applies in relation to s 145, given the distinction between the introductory wording of s 145(1) and that of s 145(1)(b), which has the same substantial purpose as s 67 although it is not entirely the same in its drafting.

[17]     However, that argument overlooks the decisions of this Court which have made it clear that the broad wording of s 66 is limited in the case of interlocutory matters.   That is clear from Winstone Pulp International Ltd v Attorney General (1999) 13 PRNZ 593 and Association of Dispensing Opticians of New Zealand Inc v Opticians Board [2000] 1 NZLR 158. In Winstone, at [18] this Court said that interlocutory decisions fell into three categories, namely:

(a)       Those determining rights or liabilities that are in issue, that is the merits;

(b)      Those deciding the shape of the substantive proceedings; and

(c)       Those  which  are  ancillary  but  important  rulings  on  times  and procedures.

[18]     In Winstone, the Court indicated that decisions in category (a) above would be appealable, while those in categories (b) and (c) would not be, unless there were exceptional circumstances that meant that substantive rights and liabilities were affected by the ruling.

[19]     Winstone was a case involving leave to appeal from a decision in commercial list proceedings, and thus dealt with s 24G of the Judicature Act, rather than s 66. However, the decision in Dispensing Opticians, which was delivered a few days after that in Winstone, did deal with s 66, and applied essentially the same analysis to s 66.   In Dispensing Opticians, the Court undertook a full review of the earlier authorities and concluded as follows at [34]-[36]:

[34]     Clearly s 66 could not be intended to confer jurisdiction to appeal every decision made by the High Court in relation to the proceeding and before delivery of the substantive judgment. As noted in Winstone at para [19] there are numerous rulings which are simply procedural or administrative, not affecting rights or liabilities as such and where the rights immediately in issue will remain for substantive determination. Such rulings may be made in the pretrial case management process or at trial. Next, rulings on matters of evidence and the scope of the hearing arise broadly in two ways: as a pretrial determination of the shape of the hearing and as decisions in the course of the hearing. Decisions in that second situation in the course of the hearing could not sensibly for policy and practical reasons have been intended to be subject to instant appeal before the completion of

the hearing. Equally, interlocutory applications which, as pretrial determinations as to pleadings, discovery, evidence and the like, may substantially affect the shape of the hearing,  are  separate from the  trial process and fit squarely and comfortably within s 66.

[35]      The real difficulty is to resolve in a principled way how to determine what  decisions  or  rulings  are  sensibly  intended  to  come  within  the description of judgment, decree or order for the purposes of s 66 and so where and how to draw the line.

[36]     We  are  inclined  to  the  view  that  the  broad  classification  of “decision” suggested in Winstone reflecting as it does similar considerations of the scheme and object of the relevant provisions and underlying policy and sound practice may be a helpful starting point. In that regard rulings made either in the course of the hearing of the proceeding (using that term in a broad sense, including for example an adjournment application), or as part of the trial conduct or management process would not ordinarily be susceptible to interlocutory appeal. On the other hand rulings which have some substantive effect on rights and liabilities in issue would be. Obviously the boundary lines will  not  be  cut  and  dried and,  as  seen in  Winstone, particular cases may fall into an exceptional category but that classification may be helpful at least as a matter of general approach.

[20]     We are satisfied that this analysis applies to appeals under s 145(1) in the same way that it apples to appeals under s 66.  In our view, the policy reasons for limiting  rights  of  appeal  in  relation  to  interlocutory  matters  under  s  66  are compelling and are equally relevant to appeals under s 145(1).  As Richardson P said in Murphy v Murphy [1989] 1 NZLR 204 at 206 (CA):

It would be extraordinary if, while an appeal to this Court on the issues arising on the substantive appeal may be brought only with leave, an appeal on an incident of the hearing itself could be brought as of right.  And it is not to be assumed that the legislature would ever have contemplated a sequence of appeals to this Court from a matter appealed from the District Court to the High Court.  The better view is that any matters ancillary to the hearing of the appeal in the High Court…are not subject to separate appeal to this Court.

[21]     In this case that the decision of Potter J on the appointment of counsel for the child is an interlocutory decision which does not have a substantive impact on the conduct of the appeal or on the determination of rights and obligations arising from the appeal.  On the test established by Dispensing Opticians, it is not amenable to appeal under s 145 (1).   For the same reason, we find there is no right of appeal under s 66 in relation to the decision of the High Court Judge on  the application to adduce further evidence.

[22]     In those circumstances, we are satisfied that the Court has no jurisdiction to hear the present appeals.

Leave would not have been appropriate

[23]     We record that, even if we had concluded that the judgment of Potter J was a judgment to which s 145(1)(b) applied, we would have refused leave.  In the case of the decision relating to the appointment of counsel for the child, the attempt by the applicant to relitigate this issue which has already been the subject of substantive consideration on numerous occasions at virtually all levels of the judicial system, would   have   been   inappropriate.      The   applicant’s   intemperate   criticisms   of Mr Cameron  have  been  rejected  every  time  they  have  been  the  subject  of consideration by a Judge, and the applicant’s constant reiteration of them does not give them any greater credibility.  In addition, we are satisfied that the application to adduce evidence has no merit, and does not raise any point of importance which would justify the granting of leave to appeal.

Result

[24]     For the reasons given above we decline leave to appeal and rule that no right of appeal exists in relation to the decisions of Potter J to which the application relates.

Costs

[25]     Mr Witten-Hannah asked for indemnity costs.  We are not satisfied that that would be appropriate, but we agree that, given the protracted history of this matter and the applicant’s attempts to relitigate the same issues, the costs award should be greater than that normally applying to cases of this kind.

Solicitors:

Witten-Hannah Howard, Auckland for Respondent