Smith v Smith
[2013] NZHC 3559
•19 December 2013
NOTE: PURSUANT TO S 169 OF THE FAMILY PROCEEDINGS ACT 1980, 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 WELLINGTON REGISTRY
CIV 2013-485-303 [2013] NZHC 3559
IN THE MATTER OF the Family Proceedings Act 1980
BETWEEN SMITH Appellant
AND SMITH
First Respondent
BROWN
Second Respondent
Hearing: 19 December 2013
Counsel: C Tennet for the Appellant
C Nicholls for the First Respondent
No appearance for the Second Respondent
P Cobcroft for the Child
Judgment: 19 December 2013
ORAL JUDGMENT OF MALLON J
Introduction
[1] Mr Smith applies for leave to appeal my judgment dated 27 September 2013 to the Court of Appeal.1 Mr Brown and counsel for the child, Sarah, oppose the
1 Smith v Smith [2013] NZHC 2536.
SMITH v SMITH [2013] NZHC 3559 [19 December 2013]
application for leave. Mrs Smith has been informed of today’s application but has
taken no steps in respect of it.2
[2] The background to my judgment is that Mr Smith sought to appeal a recommendation made by a Family Court Judge that parentage testing be carried out on Sarah and Mr Brown, who claims to be Sarah’s father. The recommendation was made by a Judge when Mr Brown made a without notice application to dispense with service of Mr Brown’s application for a paternity declaration on Sarah’s mother. The Judge did not hear from any party. Mr Smith, who was married to Sarah’s mother at the time of Sarah’s birth and is named as the father on Sarah’s birth certificate, objected to the recommendation and filed an appeal to the High Court.
Leave to appeal
[3] A decision of the High Court on an appeal from an inferior court is final unless a party obtains leave to appeal against the decision to the Court of Appeal.3
Leave to appeal may be granted if the appeal raises a question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost, both to the court system and the parties, and the delay involved in a further appeal.4
Appeal grounds
[4] As set out in the application and as developed in the submissions on Mr Smith’s behalf, Mr Smith applies for leave to appeal on the basis that I erred in fact and law by:
(a) not declaring the proceedings null and void;
(b)finding that Mr Smith would not be irretrievably adversely affected by the null and void steps taken by the Family Court;
2 As in my 27 September 2013 judgment the names used in this judgment are fictitious because
the child’s name and identifying particulars are subject to statutory suppression.
3 Judicature Act 1908, s 67(1)(a).
4 For the principles to be applied to determining whether leave should be granted, see Waller v
Hider [1998] 1 NZLR 412 (CA); Snee v Snee (1999) 13 PRNZ 609 (CA).
(c) applying the wrong test to the findings of law and fact;
(d) failing to apply the decision of Drew v Department of Corrections
rather than the test of “not being irretrievably affected”.5
[5] It is also said that my judgment concerned a routine decision made on a typical day in the Family Court, such that it will arise again and therefore has ongoing consequences.
[6] Counsel for Sarah, Ms Cobcroft, and counsel for Mr Brown oppose the application on the basis that Mr Smith does not meet the test for leave to appeal. Ms Cobcroft further submits that the issue of Sarah’s paternity is of fundamental importance and further delays in the determination of that issue are not in her interests.
My assessment
[7] Mr Smith was concerned that he had not been heard prior to the recommendation made by the Family Court Judge. His appeal raised an interesting question as to whether a recommendation was an interlocutory order that could be appealed. One of the arguments in favour of that position was that if it were not appealable, a judicial review application might be available. Whether able to be appealed or judicially reviewable, the consequences of the Family Court’s decision to make the recommendation are relevant to the appropriate response from the High Court. If an appeal is from an interlocutory decision, the Court may decline to hear the appeal in the exercise of its discretion. If the challenge to a recommendation proceeded by way of a judicial review application, the Court has the discretion to decline to award any relief. In either case if the relief will make no difference to Mr Smith’s position in the Family Court proceeding, that is relevant to whether it is appropriate to exercise the Court’s discretion.
[8] I found that Mr Smith will have the right to be heard in respect of whether a parentage test should be carried out when the Court considers the guardianship
5 Drew v Department of Corrections HC Auckland A34/02, 25 June 2002.
application. That guardianship application is for a specific purpose. It seeks to have the MSD appointed as agent for the purposes of consenting to the parentage test in respect of Sarah. This right to be heard meant that there was no point in quashing the recommendation that the Family Court judge had made, in order that Mr Smith first have the opportunity to be heard in respect of it. That same opportunity will arise in the context of the guardianship application.
[9] As I held:6
The points that Mr Smith wishes to advance are not without substance. They were worthy of consideration before a parentage test was recommended. However, whatever weight may have been given to them if raised prior to a recommendation, they will have the same weight in the context of an opposed guardianship application. It is therefore difficult to see that Mr Smith is in any worse position than if he had been heard before the recommendation was made.
[10] I therefore held that “if there is a right of appeal I should decline to entertain it”.7 I further held that “if there is a right to be heard in respect of a recommendation, that right can be given effect at the hearing of the guardianship application”.8
[11] Turning then to the grounds on which leave is sought, if a decision is made in breach of natural justice, the consequence is not that it is null and void. The Court had jurisdiction to make the recommendation. If that jurisdiction was exercised unlawfully because it was made in breach of natural justice, it does not follow that the decision to make the recommendation must be quashed and that there be a remission back for consideration, as was submitted on Mr Smith’s behalf. The Court
has a discretion as to what, if any, relief ought to be ordered.9
[12] As to the decision in Drew, on which Mr Smith relies, I accept the submissions for Mr Brown that the case is distinguishable. In Drew the decision
maker did not have the jurisdiction to make the order that it made at the time it was
6 Smith v Smith, above n 1, at [27].
7 At [44].
8 At [47].
9 Judicature Amendment Act 1972, s 4; Andrew Beck and others McGechan on Procedure (online looseleaf ed, Brookers) at [JA4.03]; Chiu v Minister of Immigration [1994] 2 NZLR 541 (CA) at
552.
made,10 whereas here the Judge did. I also note that in Drew the Judge made reference to another decision, Robinson v North Shore District Council where the Judge declined to quash the decision because the issue was by then academic.11
Drew is therefore a different situation but, even in that situation, relief is sometimes declined.12 The consequences of a decision made in breach of natural justice is not that it must be quashed.
[13] As to the relevance of whether Mr Smith’s interests are irretrievably adversely affected, I refer to the comments in De Smith’s Judicial Review where it is said:13
There are situations where the absence of procedural fairness before a decision is made can subsequently be adequately “cured”, for example on appeal. A prior hearing may be better than a subsequent hearing, but a subsequent hearing is better than no hearing at all; and in some cases the courts have held that statutory provisions for an administrative appeal or even full judicial review on the merits are sufficient to negative the existence of any implied duty to have a hearing before the original decision is made. This approach may be acceptable where the original decision does not cause significant detriment to the person affected, or where there is also a paramount need for prompt action, or where it is otherwise impracticable to afford antecedent hearings.
The question of whether a decision vitiated by a breach of the rules of fairness can be made good by a subsequent hearing does not admit of a single answer applicable to all situations in which the issue may rise. Whilst it is difficult to reconcile all the relevant cases, case law indicates that the courts are increasingly favouring an approach based in large part upon an assessment of whether, in all the circumstances of the hearing and appeal, the procedure as a whole satisfied the requirements of fairness ...
In general, it is increasingly the case that the courts will not intervene on grounds of procedural unfairness where the procedurally unfair decision is subject to correction by a procedure which has proper procedural safeguards
...
[14] I also refer to the decision in Department of Corrections v Taylor.14 In that case a prisoner was charged with an offence against prison discipline after a search
10 As the Court said the decision “was in excess of jurisdiction and thus invalid”: Drew v
Department of Corrections, above n 5, at [19].
11 Robinson v North Shore District Council [1997] 1 NZLR 64 (CA).
12 In Drew, the Judge distinguished Robinson because the case before him did have future consequences and those consequences concerned the liberty of the person who was the subject of the recall order.
13 Lord Woolf and others De Smith’s Judicial Review (7th ed, Sweet & Maxwell, London, 2013) at
[8-031]-[8-033].
14 Department of Corrections v Taylor [2009] NZCA 129, [2009] 3 NZLR 34.
of his cell revealed a mobile phone charger. The matter was brought before a hearing adjudicator who decided to refer the case to the visiting justice under s 134
Corrections Act 2004. The prisoner sought judicial review of the decision of the adjudicator to refer the case to the visiting justice. He claimed that his rights to natural justice had been breached because he had not had an opportunity to be heard by the adjudicator before he or she decided to refer the matter to the visiting justice. The High Court held that there had been a breach of natural justice but the Court of Appeal reversed that decision. In reversing that decision the Court of Appeal
noted:15
In any event, the nature of the decision is such that the position is not irretrievable. The matter can be corrected by the hearing before the Visiting Justice. While there is an impact on the possible penalty that can be imposed, by that stage the prisoner can make appropriate submissions and be heard on that matter. It is relevant in this regard that the Visiting Justice can refer the matter back to the hearing adjudicator if that is appropriate.
...
The power for a later decision maker to correct an error may not necessarily tell against a hearing right. But in this case it is relevant, in determining what procedural protection is necessary, that any disadvantage experienced by the prisoner can be remedied when the matter comes before the Visiting Justice.
[15] Although the passages from De Smith and Department of Corrections v Taylor are not dealing with exactly the same situation, behind them is the idea covered in my judgment that here, if there is a right to be heard in respect of the recommendation, that right can be given effect at the hearing of the guardianship application. Because of that it is not necessary to grant any relief at this stage.
[16] As to the submission that the decision may have relevance to others, I accept the submission made by counsel for Mr Brown that that is not a sufficient reason on which to grant leave to appeal my decision. The Family Court has my judgment, and the reasons and comments that I have set out in there are available to it when this issue arises again.
[17] Finally I accept the submission that Ms Cobcroft makes that Sarah has the right to know her parentage. It is not in her interests that there be further delay by
15 At [53]-[54].
granting leave to appeal my judgment, when Mr Smith will have the right to be heard in respect of the recommended parentage test in the context of the guardianship application. This does weigh in favour of leave not being granted.
Result
[18] I therefore consider that the appeal does not raise a question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost, both to the court system and the parties, and the delay that would be involved. I therefore decline to grant leave.
Mallon J
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