Smith v Smith
[2013] NZHC 2536
•27 September 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 2536
IN THE MATTER OF the Family Proceedings Act 1980 BETWEEN
SMITH Appellant
AND
SMITH
First RespondentBROWN
Second Respondent
Hearing: 31 May 2013 Counsel:
Appellant in person
C Nicholls for the First Respondent
No appearance for the Second Respondent
P Cobcroft for the ChildJudgment:
27 September 2013
JUDGMENT OF MALLON J
Table of contents
Introduction ....................................................................................................................................... [1]
Background........................................................................................................................................ [4] Parentage tests ................................................................................................................................. [18] Effect of a recommendation............................................................................................................ [20] Jurisdiction ...................................................................................................................................... [28] Right to be heard ............................................................................................................................. [45]
Result ................................................................................................................................................ [49]
SMITH v SMITH [2013] NZHC 2536 [27 September 2013]
Introduction
[1] This appeal concerns a recommendation made by a Family Court judge that parentage tests be carried out on a child (“Sarah”) and a man who claims to be her father (“Mr Brown”).1 The recommendation was made by the Judge in response to Mr Brown’s application made without notice, to dispense with service of Mr Brown’s application for a paternity declaration on Sarah’s mother (“Mrs Smith”). The recommendation was made without hearing from any party. The appellant (“Mr Smith”), who was married to Sarah’s mother (“Mrs Smith”) at the time of Sarah’s birth and is named as the father on Sarah’s birth certificate, objects to the
recommendation. He seeks to appeal the recommendation. [2] The issues are:
(a) whether a recommendation that a parentage test be carried out is appealable; and
(b)whether Mr Smith was entitled to be heard before the recommendation was made.
[3] The child’s name and identifying particulars are subject to statutory
suppression.2 The names used in this judgment are therefore fictitious.
Background
[4] Sarah is now six years old. She does not live with her biological parents. She has a “Home for life” placement with caregivers with whom she has lived for most of her life to date. That situation arose because at the time of her birth Mr and Mrs Smith were both in prison. Mr Smith has remained in prison over the ensuing years.
[5] In September 2007, a few months after Sarah’s birth, Mr Smith was told by
Sarah’s Ministry of Social Development (MSD) social worker that Mr Brown
1 [Brown] v [Smith] FC Upper Hutt FAM-2012-092-1911, 8 February 2013 (Minute).
2 Family Proceedings Act, s 169; Family Courts Act 1980, ss 11B-D.
claimed to be Sarah’s father. Mr Smith says that at this time he asked Mrs Smith about Mr Brown’s claim and she said it was “rubbish”. He also made enquiries of a friend who told him that Mr Brown was a “druggie”, was untrustworthy and could be making claims to try and attain some sort of status amongst fellow prisoners. As a result of these enquiries, Mr Smith told MSD that anything Mr Brown said should be treated with the utmost caution.
[6] The claim made through the social worker was followed by a paternity application made by Mr Brown in October 2007. Mr Brown was a prisoner at this time. A note made by Sarah’s social worker in November 2007 recorded the following discussion with Mr Brown:
[Mr Brown] phoned from Rimutaka Prison to inform me the following: He wants to Flag the DNA test.
He wants to wipe his hands of it.
He is saying he is not the father of [Sarah].
He has spoken to his Lawyer to instruct him to retract the affidavit....
He stated he did not have sexual relations with [Mrs Smith] so could not possibly be the father of [Sarah].
He said he has not spoken to [Mrs Smith]for a long time
...
I repeated to [Mr Brown] what he had just told me, and [Mr Brown]
confirmed that he is saying he is not the father of [Sarah] and does not want to be tested for DNA to establish paternity.
[7] Mr Brown took no steps to pursue the application he had lodged. In early
2008 Mr Smith was told by MSD that Mr Brown had withdrawn his paternity claim.
[8] On 3 August 2012 Mr Brown filed a second paternity application in respect of Sarah. This was served on Mr Smith on 12 September 2012. On 13 September
2012 Mr Smith filed a Notice of Defence and Intention to Appear. In that document
Mr Smith asserted (amongst other things) that:
(a) Mr Brown was not the biological father of Sarah;
(b)Mr Brown had previously alleged to be the father of Sarah but then admitted to Sarah’s social worker that he was not the father and had not been in a sexual relationship with Mrs Smith.
(c) Mrs Smith had not told Mr Brown nor Sarah’s social worker that
Mr Brown was the father.
[9] On 25 September 2012 Mr Smith served a Notice to Admit Facts on Mr Brown. Mr Brown responded to that notice by affidavit dated 31 October 2012. In that affidavit Mr Brown denied telling an MSD social worker that he was not the father of Sarah and was not in a sexual relationship with Mrs Smith when Sarah was conceived. He also said that Mrs Smith had told him that he was Sarah’s father, and that Sarah’s social worker told him that Mrs Smith had told MSD that he was Sarah’s father.
[10] The affidavit was filed in the Family Court on 8 November 2012. In a covering letter to the Registrar, which was copied to Mr Smith, Mr Brown’s counsel sought a two month adjournment. The letter advised that this was because Mr Brown had not been able to locate Mrs Smith in order to serve her and that the “reality is that this matter cannot be advanced until she can be found and served.” The letter also said the lawyer for the child was going to speak to the social worker
to try and locate Mrs Smith but he had not heard anything.3
[11] On 16 November 2012 Mr Brown applied without notice to dispense with service of the paternity application on Mrs Smith. The application set out the attempts to locate Mrs Smith. It referred to Mr Brown having heard that Mrs Smith “was back using methamphetamine”. It asserted that all reasonable efforts had been made to locate Mrs Smith and that it was likely that Mr Smith had brought the proceedings to Mrs Smith’s attention. It said:
Counsel has made enquiries with DNA Diagnostics and understands that it is possible to determine the child’s paternity without the mother by testing the child and possible father. Given that the Ministry of Social Development have custody of the child, the Ministry could potentially facilitate the child undergoing DNA tests and Mr [Brown] will also undergo DNA tests.
From my discussions with Mr [Smith] it would seem very unlikely that he will consent to undergo DNA testing, but testing of him may not be required for sufficient DNA evidence to be obtained for the court to decide the application.
3 There are other proceedings relating to the child and the lawyer for the child is appointed in those proceedings.
Mr [Smith] had already served a notice on Mr [Brown] to admit facts and Mr [Brown] has answered that by affidavit and Mr [Brown]’s affidavit is on the court file.
[12] The without notice application concluded with requesting an order that service of the proceedings on Mrs Smith be dispensed with. It said that the application dispensing with service was made without notice to Mr Smith because “whether or not [Mrs Smith] is served or not has no effect on him or his role in the proceedings and to require service on [Mr Smith] would unnecessarily complicate and delay progress in these proceedings.” It also said that the interests of the child require identification of her biological father as quickly as possible.
[13] On 23 November 2012 lawyer for the child sent an email to the MSD, copied to counsel for Mr Brown, asking if the MSD would consent to a guardianship order for the specific purpose of DNA testing Sarah. The MSD replied by email the same day saying that it “would accept being an agent for the purpose of consenting to the DNA test.” The MSD said that the question was who should make the application. It said that it was not, and should not be, a party to the paternity issue and that its only role was to act as an agent of the Crown. It said that, as neither parent was likely to consent to DNA being taken, either Mr Brown or lawyer for the child might ask for the order. It further said that “[g]uardianship for the specific purpose [of] consenting to taking DNA under [the Children, Young Persons, and Their Families] Act does not sit well. [Mr Smith] will oppose any such application and it requires a defended hearing.”
[14] On 8 February 2013 a minute was issued by Judge Johnston in the Upper Hutt Family Court. The minute appears to have been in response to the without notice application to dispense with service on Mrs Smith. The minute said:4
I consider it preferable that I recommend parentage tests be carried out on the child and the applicant and that a report of the results be compiled by a properly qualified person and submitted to the Court pursuant to s.54 Family Proceedings Act 1980.
The proceedings should be adjourned to a Registrars list in 6 weeks to monitor receipt of report and for issues of service to be considered further.
[15] Mr Smith received this minute from the Court under cover of a letter dated
14 February 2013. This was the first he had heard from counsel for Mr Brown or the
Court since receiving the letter dated 8 November 2012.
[16] In response to this minute, Mr Brown filed an application dated
25 February 2013 for Sarah to be placed under the guardianship of the Court for the purpose of enabling the recommended parentage testing to be carried out.
[17] Mr Smith then filed this appeal. The Court appointed Ms Cobcroft as lawyer for the child. She is lawyer for the child in other Family Court proceedings relating to Sarah. Mr Smith filed an appeal to the Court of Appeal in respect of that appointment and sought a stay. The stay was declined.5
Parentage tests
[18] Section 54(1) of the Family Proceedings Act 1980 (the FPA) provides:
54 Parentage tests
(1) In any civil proceedings (whether under this Act or not) in which the parentage of a child is in issue—
(a) the Court may, of its own motion or on the application of a party to the proceedings, recommend that parentage tests be carried out on—
(i) the child; and
(ii) any person who may be a natural parent of the child—
and that a report of the results be compiled, by a person who is qualified to compile such a report, and submitted to the Court; and
(b) whether or not the Court has made a recommendation under paragraph (a), the Court may, of its own motion or on the application of a party to the proceedings, adjourn the proceedings in order to allow time for such parentage tests to be carried out and for such a report to be compiled and submitted to the court.
(2) For the purposes of this section—
(a) parentage tests may be carried out by any person or persons who are qualified to do so, whether or not any of them is the person by whom the report is compiled; and
(b) the consent of a minor who has attained the age of 16 years to submit to parentage tests shall have the same effect as the
consent of a person of full age.
[19] The consequences of refusing a parentage test are set out in s 57 as follows:
57 Refusal of parentage tests
(1) In any civil proceedings in which the natural parentage of a child is in issue, whether or not the Court has recommended under section
54(1) of this Act that parentage tests should be carried out on a
person, evidence may be given to the Court as to the refusal of that person to consent (or, where the person is under 16 years of age, as to the refusal to consent to such parentage tests of the person who is competent to do so on that person's behalf).
(2) Subject to the right of the person who refuses to consent to the parentage tests to explain the reasons for that person's refusal, and to cross-examine witnesses and call evidence, the Court may draw such inferences (if any) from the fact of refusal as appear to it to be proper in the circumstances.
Effect of a recommendation
[20] Relevant to both issues raised in this appeal is the effect of a recommendation made under s 54 on Mr and Mrs Smith’s guardianship rights and the rights of the child. Counsel for Mr Brown and lawyer for the child submit that there is no effect, because the Court’s power is only to recommend and Mr Smith (and Mrs Smith if she is located) will have the opportunity at a later stage in the proceeding to explain why the recommendation was not followed. Mr Smith says that he is affected because he is forced to make a decision whether to consent or to allow an adverse inference to be drawn against him.
[21] Mr Smith is correct in a situation where, following a decision not to comply with a recommendation, the matter proceeds to the substantive determination of the paternity application without the paternity test taking place. Mr Smith would in that situation have the opportunity of making submissions as to why he did not follow the recommendation. However, if his submissions are not seen as having sufficient merit, the failure to follow the recommendation may result in an adverse inference being drawn. Whereas if he had the opportunity to make submissions prior to the
recommendation being made, he would know whether those submissions had merit in the view of the judge. If the judge did not accept that those submissions had sufficient merit, and a recommendation was made, Mr Smith could then decide whether to comply with the recommendation knowing that if he did not an adverse inference is likely to be drawn.
[22] In this case, however, there is an intermediate step. That is because this is not a situation where the mother says that someone is the father and that person denies it. Rather someone else claims to be the father and seeks to have that proven and the parents are resisting the application. Therefore it is not the parents’ DNA that is to be tested, but the person claiming to be the father (who consents) and the child (for whom the consent of the parents is required). As a result a guardianship application has been made so that the Court can consider whether consent to the testing of the child should be given. The parents have the opportunity to oppose that application. In opposing that application Mr Smith can provide submissions as to why the parentage test is not appropriate. The question then is whether Mr Smith’s opportunity to oppose the guardianship order will provide him with an opportunity to be heard comparable to that which he would have had if he was heard prior to the recommendation being made (assuming he had that right).
[23] Mr Smith says that if he had been heard in respect of the recommendation he would have submitted that he is fundamentally opposed to anyone’s bodily integrity and human dignity being affronted, through the state requiring that a bodily sample be supplied without that person’s informed consent and when it is not in their interests. Mr Smith refers to two decisions of the court where he has successfully contested his own DNA being held on the ESR DNA database.
[24] Mr Smith submits that the taking of bodily samples without consent is recognised as involving “an invasion of a [person’s] privacy and, in the absence of consent, would constitute as assault.”6 Because of this he says that a parentage test is not to be treated as routine and the first resort for a paternity application unless an evidential threshold is reached. He asks which parent would like to have their child
be asked to submit to a paternity test just because someone says they are the father.
6 R v L HC Auckland T277/97, 9 April 1998 at 21 cited in R v T [1999] 2 NZLR 602 (CA) at 611.
He says surely before a parent would consent to that they would want to know the basis on which the person claims to be the father and the reliability of that person.
[25] Mr Smith refers to C v J in support of his position.7 In that case the Judge said that the power to make a recommendation “is something to be used sparingly, and only when the evidence before the Court has reached a point at which there is, at the very least, a prima facie case established”.8 However in T v S the Court of Appeal, when considering an appeal from a guardianship order, said that it was not endorsing that view.9 Nevertheless, I accept that before recommendation is made the Judge may wish to consider relevant information, including information concerning the reliability of the person making the claims.
[26] Mr Smith submits that because he did not have an opportunity to be heard the Judge had an inaccurate picture of the reliability of Mr Brown. He says that the Judge was unaware that Mr Brown’s answers to the Notice to Admit Facts was false. He says that “to allow my daughter’s DNA to be taken on the uncorroborated word of a person who I consider completely lacking in credibility, and who can be shown to have lied in support of the current application, would mean I was failing in my duty to protect her interests and dignity.” He refers to an observation from a Family Court Judge in other proceedings relating to Sarah that “[a]s far as his present circumstances permit, [Mr Smith] has shown himself to be a dedicated and concerned parent”.
[27] 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 might 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
7 C v J (1991) 8 FRNZ 394 (HC).
8 At 398. In I v S HC Christchurch M305/9, 7 November 1997, Master Venning (as he was then) discussed Temm J’s comments on this issue in C v J. He did not find it necessary to determine whether or not a prima facie case was established but observed at 4 that “a party should not face the inference that can be drawn by the Court under s 57 ... unless the Court is satisfied there is both good reason and sufficient evidence to justify the recommendation in the first place”.
9 T v S (2004) 24 FRNZ 208 (CA) at [26].
than if he had been heard before the recommendation was made. With that in mind, I
turn now to consider the two issues raised in the appeal.
Jurisdiction
[28] The lawyer for the child submits that there is no jurisdiction to hear the appeal. This is on the basis that the appeal is brought pursuant to s 174 of the FPA. That provides:
174 Appeals from decisions of District Courts and Family Courts
(1AA) This subsection applies to a decision of a Family Court or District Court, in proceedings under this Act (other than criminal proceedings or proceedings under section 130), to—
(a) make or refuse to make an order; or
(b) dismiss the proceedings; or
(c) otherwise finally determine the proceedings.
(1) A party to proceedings in which there is made a decision to which subsection (1A) applies, or any other person prejudicially affected by the decision, may appeal to the High Court against the decision.
(1A) The High Court Rules and sections 74 to 78 of the District Courts Act 1947, with all necessary modifications, apply to an appeal under subsection (1) as if it were an appeal under section 72 of that Act.
[29] The submission is that the power under s 54 of the FPA is only to “recommend” parentage testing. It is said that a recommendation is not an order to which s 174 applies. In support of this submission reference is made to C v J where Temm J said that s 54 “does not authorise the making of an order directing the parties to [submit] to the blood sample procedure ...”.10 Reliance is also placed on I
v S.11 In that case the respondent submitted that ss 54 and 57 of the FPA had to be
considered in the context of the right to refuse to undergo medical treatment affirmed by s 11 of the New Zealand Bill of Rights Act 1990 (the NZBORA). The Court considered that s 54 of the FPA did not conflict with s 11 of the NZBORA because the Court under s 54 can only recommend that blood tests be undertaken.
[30] In my view neither case particularly assists with whether a recommendation made under s 54 is appealable. Neither case was concerned with that issue. Each
10 C v J, above n 7, at 396.
11 I v S HC Christchurch M305/9, 7 November 1997.
case merely makes the point that the power is to make a recommendation, not to compel someone to submit to parentage testing. The question is whether, in making the recommendation, the Court has made an “order” as that term is used in s
174(1AA)(a) of the FPA. Counsel have not provided any authority that is directly on point.
[31] The appeal right in respect of relationship property proceedings under the Property (Relationships) Act 1976 (the PRA) is identically worded. In respect of that right, “order” has been interpreted as excluding interlocutory orders. The reason for that interpretation is:12
That section confers a right of appeal in respect of orders finally determining proceedings under the Act. While paragraph (a) is not, on the words of that paragraph, limited to orders which finally determine some substantive right of the parties, the use of the word “otherwise” in paragraph (c) makes it clear that paragraph (a) extends only to the making of an order, or the refusal to make an order, which has the effect of finally determining the proceedings. Interlocutory orders are not included.
[32] I am not so sure that the words do exclude interlocutory orders. Such orders can affect rights or interests in a material way.13 Where they do not, as is the case where the order is overtaken by the substantive hearing or for some other reason the party is not prejudiced by postponing any appeal until after the substantive hearing, a Court can decline to hear the appeal in the exercise of its discretion.14 If rights or interests are affected in a material way and there is no right of appeal, the affected party might instead seek judicial review. Mr Smith said he would be forced to do that if “order” was construed narrowly as lawyer for the children contended. He said that “order” should be construed in a broad way so as to encompass the exercise of the Court’s authority that impacts upon a person’s rights and avoids the unnecessary
complication of that party having to bring a judicial review application.
12 Dunsford v Shanly [2012] NZHC 257 at [7].
13 For example it was well established in the Court of Appeal that interlocutory decisions which had a substantive effect on rights and liabilities were appealable under s 66 of the Judicature Act
1908. The issue was whether interlocutory decisions falling outside that category were
appealable: see for example Association of Dispensing Opticians of New Zealand Inc v Opticians Board [2000] 1 NZLR 158 (CA) at [36]; Hannay v Mount [2011] NZCA 530 at [17]. The Supreme Court took the view in Siemer v Heron [2011] NZSC 133, [2012] 1 NZLR 309 that all interlocutory decisions were appealable pursuant to s 66 of the Judicature Act 1908.
14 Siemer v Heron, above n 13, at [33].
[33] Concerns of that kind have led some judges to find that the right of appeal from Family Court interlocutory decisions arises under s 72 of the District Courts Act 1947.15 That section provides:
72 General right of appeal
(1) This subsection applies to every decision made by a District Court other than a decision of a kind in respect of which an enactment other than this Act—
(a) expressly confers a right of appeal; or
(b) provides expressly that there is no right of appeal.
(2) A party to proceedings in a District Court may appeal to the High Court against the whole or any part of any decision to which subsection (1) applies made by the District Court in or in relation to the proceedings.
[34] If s 174 does not confer a right of appeal for an interlocutory order then it is said that s 72 does. That is because an interlocutory decision is not then a “decision of a kind” in respect of which the FPA (or the PRA) expressly confers a right of appeal, and nor does that Act expressly provide that there is no right of appeal against decisions of that kind.
[35] However, I tend to the view that the appeal right is conferred by s 174 rather than s 72. Section 174 is the provision which deals directly with appeals under the FPA (similarly s 39 in respect of appeals under the PRA). The words “otherwise” in s 174(1AA)(c) need not be read as limiting s 174(1AA)(a).16 The appeal right can be construed as extending to decisions making or refusing orders, decisions dismissing the proceedings, and any other decision that may not be an order or a refusal to make
an order, nor a decision that dismisses the proceeding, but which does in some other way finally determine the proceeding. It can also be said that, if interlocutory decisions were not to be the subject of an appeal, this could have been more directly expressed.
[36] In any event, whether the appeal right in respect of decisions making or refusing interlocutory orders is under s 174 of the FPA or s 72 of the District Courts
Act, I consider that decisions making or refusing interlocutory orders are appealable.
15 E v E (2005) 24 FRNZ 325 (HC) at [40]; SMC v EWC (2006) 26 FRNZ 162 (HC) at [12].
16 This was the view taken in SM v LB HC Auckland CIV-2010-404-2320, 22 October 2010 at [20].
(Though the appeal might not be entertained in the exercise of the Court’s discretion.)17 The question then is whether a recommendation under s 54 is an “order”.
[37] I accept Mr Smith’s submission that a decision of the court need not be described as an order, in order to qualify as an order. A court decision may, for instance, make a “direction” or a “declaration”. This is specifically recognised in the definition of “interlocutory order” in the High Court Rules which begins by defining that as “an order or a direction of the court” that concerns a matter of procedure or grants some relief ancillary to that claimed in a pleading.18 The nature of the decision, rather than how it is described, should be the focus.
[38] The lawyer for the child submits that a recommendation is not an order because it does not compel a person to submit to a parentage test or to consent to a test being carried out on a child. It is also the case that a person who is subject to a recommendation under s 54 has opportunities to persuade the Court that no adverse inference should be drawn. In the present case this can be done in response to the guardianship application. It can also be done in the substantive hearing determining whether to make the paternity order. The lawyer for the child suggested that Mr Smith’s interests were also not irretrievably affected because he might make an
application for a rehearing of the decision to recommend parentage tests.19
[39] These opportunities mean a recommendation does not have any final effect. However a recommendation does require a response from the person to whom the recommendation concerns. That is because failure to act in accordance with the recommendation has consequences. Evidence can be given, in proceedings in which the natural parentage of a child is in issue, of the refusal to consent to the test and the
Court may draw such inferences as may be proper in the circumstances.20
17 See Siemer v Heron, above n 13, at [32].
18 High Court Rules, r 1.3.
19 Section 173 of the Family Proceedings Act 1980 provides that where an “order” has been made
or refused on any application (other than under Part 4 which is not relevant here), the Court may grant a rehearing. The ability to seek a rehearing is also therefore dependent on a recommendation under s 54 qualifying as an order. The party seeking a rehearing must show that there has been a miscarriage of justice: Family Courts Rules 2002, r 209; Campbell v Pickles [1982] 1 NZLR 477 at 479.
20 Family Proceedings Act 1980, s 57.
[40] Although this is also the case where no recommendation has been made, the person who is the subject of a recommendation properly might expect that an adverse inference may more readily be drawn where a recommendation has been made. As it was put in I v S ss 54 and 57 are “such that if a recommendation is made and the blood tests are not undertaken by the Respondent then inevitably there will need to be further submissions as to what, if any, inference should be drawn under
s 57.”21
[41] In this case there is the further consequence that Mr Smith is faced with responding to the application to place Sarah in the guardianship of the Court for the purpose of obtaining consent to the paternity test. In that context Mr Smith would also need to explain why, in his view, it was not appropriate for the Court to recommend the parentage test and why he did not consent to it. However, as noted, he will be able to raise the same matters in opposition to this application that he would have raised before the recommendation was made.
[42] That a recommendation may qualify as an appealable “order” (because it is capable of affecting rights) is supported by the approach that is taken in the judicial review context where a “statutory power of decision” may be reviewed.22 That term is defined as including a power to make a decision “affecting” the rights of any person.23 The courts have considered whether this includes a statutory power to make a recommendation. For example:
(a) Hot Holdings Pty Ltd v Creasy:24 the applicant for judicial review sought to review a preliminary assessment and recommendation to the Minister on the granting of mining exploration licences. The High Court of Australia held that it was reviewable. That was because, although the recommendation did not bind the Minister, it was a relevant consideration that the Minister was bound to have regard to
either as a matter of statute or good administrative practice.
21 I v S, above n 11, at 7.
22 Judicature Amendment Act 1972, s 4.
23 Section 3.
24 Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149.
(b)Zhao v New Zealand Law Society:25 a barrister, seeking to practise as a solicitor on his own account, sought to review an adverse recommendation by an interview panel of the Law Society as to his fitness to practise. The High Court held that the recommendation was reviewable because of its influence in the determination of his fitness to practise.
[43] As Mr Smith submits, a party can make an application under s 54 for a recommendation to be made. In response to the application the Court decides whether or not to grant the application. That is a decision of the Court whether to exercise a statutory power. The exercise of that power is capable of affecting the rights of those to whom the recommendation relates. In the absence of a sufficiently compelling explanation for not following the recommendation, an adverse inference may be drawn. That is to say that it will be a relevant factor in the Court’s assessment as to whether a paternity declaration should be made. These factors suggest a recommendation would be reviewable.
[44] For these reasons I am inclined to the view that there may be a right of appeal in respect of a recommendation made under s 54. However in this case it is not necessary to reach a concluded view. That is because here the recommendation has no irretrievable effect on Mr Smith’s and the child’s rights. Mr Smith will have an opportunity to submit on why he refused parentage testing in the context of the guardianship application. If those reasons are compelling, the guardianship order will not be made. I therefore consider that if there is a right of appeal I should to
decline to entertain it.26 The appeal will be overtaken by the next stages of the
proceeding.
Right to be heard
[45] Mr Smith submits that he had the right to be heard before the Court exercised its power to make a recommendation.
25 Zhao v New Zealand Law Society [2012] NZHC 2169.
26 Siemer v Heron, above n 13.
[46] Counsel for Mr Brown submits that there is no right to be heard because the power under s 54 can be exercised on the Court’s own motion. It does not require an application. In my view that submission is not persuasive. A person who exercises a statutory power of decision has an obligation to act in accordance with the principles of natural justice.27 The power of a Court to make an order on its own motion (rather than following an application) is about the mechanism by which a power is exercised, not whether the exercise of the power requires natural justice to be observed.
[47] Natural justice may require that a party be given adequate notice of a decision that could potentially affect their interests and that they be given an opportunity to be heard in respect of the decision to be made.28 But what natural justice requires in any particular case depends on “the nature of the power being exercised, the effect which the decision may have on persons affected by it, and the circumstances of the particular case.”29 In the present case, 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 order.
[48] I am concerned about the circumstances in which the recommendation came about. The communication to Mr Smith (through being copied on the letter to the Registrar from Mr Brown’s counsel), that nothing further would happen until Mrs Smith was located, became misleading when the ex parte application to dispense with service on Mrs Smith was made. In that application Mr Brown’s counsel raised the possibility of DNA tests for Mr Brown and Sarah. It was unfortunate that the application was ex parte because Mr Smith was in a position to provide information both in respect of whether a s 54 recommendation should be made and potentially as to Mrs Smith’s whereabouts. An ex parte application is fraught with dangers. An application should only be made ex parte where it really is necessary or where no
other party is affected. That was not the case here.
27 Philip A Joseph Constitutional & Administrative Law in New Zealand (3rd ed, Brookers, Wellington, 2007.
28 Combined Beneficiaries Union v Auckland City COGS Committee [2008] NZCA 423, [2009] 2
NZLR 56 at [11].
29 Birss v Secretary for Justice [1984] 1 NZLR 513 (CA) at 516. Mr Smith also refers to s 27(1) of the NZBORA which provides that every person has the right to the observance of the principles of natural justice by a public authority “which has the power to make a determination in respect of that person’s rights, powers, obligations, or interests protected or recognised by law.
Result
[49] The appeal is dismissed. Mr Smith will have the opportunity to voice his concerns about the parentage tests when he opposes the application for the guardianship order. I can see no difference in the points Mr Smith would have raised if he had the opportunity to be heard prior to the recommendation being made, and the points he can raise at this stage in the proceedings. Therefore I consider that Mr Smith has not been irretrievably adversely affected by the failure to be heard prior to the recommendation being made. Costs are reserved.
Mallon J
5
0