Te Hei v Hawkins - [2023] NZHC 1707

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2022-485-032

[2023] NZHC 1707

UNDER the Prisoners’ and Victims’ Claims Act 2005

IN THE MATTER OF

an appeal from the Victims’ Special Claims Tribunal

BETWEEN

SAM TE HEI

Appellant

AND

IDA HAWKINS

Respondent

AND

ATTORNEY-GENERAL

Intervener

Hearing: 3 July 2023

Appearances:

A J Ellis for the Appellant

No appearance for the Respondent
No appearance for the Attorney-General

Minute:

4 July 2023

JUDGMENT OF PALMER J

Solicitors
A J Ellis, Barrister, Kawakawa & Wellington N M Pender, Barrister, Wellington
Nat Dunning Law, Wellington Crown Law Office, Wellington

TE HEI v HAWKINS [2023] NZHC 1707 [4 July 2023]

Previous decisions

[1] On 30 November 2022, I allowed an appeal by Mr Te Hei from a decision of the Victims’ Special Claims Tribunal (the Tribunal) under the Prisoners’ and Victims’ Claims Act 2005 (PVC Act).1 The Tribunal consists of a designated District Court Judge. Section 51 of the PVC Act provides that a party may appeal a Tribunal’s decision to the High Court on questions of law only.

[2] On 17 March 2023, by consent, I granted leave to Mrs Hawkins to appeal my decision, under s 60 of the Senior Courts Act 2016 (the Act).2 Section 60 provides for decisions of the High Court on appeal from the District Court to be final unless leave to appeal is obtained.

Application for recall

[3] Mr Te Hei applies for recall of my decision granting leave to appeal, to which he had consented. He does not object to the appeal proceeding. But his counsel, Dr Ellis, now considers appeal is available as of right under s 56(1)(a) of the Act, so leave was not required. He cites the case of Van Silfhout v Pathirannehelage, where the appeal was determined without a leave application.3

[4] Whether leave was required in this case has already been aired in the Court of Appeal. On 5 May 2023, Goddard J issued a minute extending time for Mrs Hawkins to appeal, if any extension was required. He also directed that Mr Te Hei may file a cross-appeal or support the decision on other grounds. He stated:

[3] In circumstances where it is common ground that Ms Hawkins should be permitted to pursue her appeal, whether or not leave was required, it seems wasteful and inefficient to devote resources to arguing about the precise basis on which it is brought. Rather, it is sensible to proceed on the basis that leave was not required under s 60 of the Senior Courts Act.

1      Te Hei v Hawkins [2022] NZHC 3170.
2      Te Hei v Hawkins [2023] NZHC 553.
3      Van Silfhout v Pathirannehelage [2023] NZCA 5.

Parties’ positions

[5] In today’s call of the application for recall in the Judge’s Chambers List, Ms Pender did not appear for Mrs Hawkins on the basis her client has no residual interest in Mr Te Hei’s recall application and did not…

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 Te Hei v Hawkins

Details

AGLC: Te Hei v Hawkins [2023] NZHC 1707
Case: [2023] NZHC 1707
Decision Date: 4 July 2023

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Te Hei v Hawkins involved an appeal from the Victims’ Special Claims Tribunal under the Prisoners’ and Victims’ Claims Act 2005. Sam Te Hei appealed the Tribunal’s decision, and subsequently, Ida Hawkins was granted leave to appeal the High Court’s decision on questions of law. Te Hei sought to recall the decision granting leave to Hawkins, arguing that appeal was available as of right under s 56(1)(a) of the Senior Courts Act 2016, negating the need for leave.

The legal issue before the court was whether the appeal from the Tribunal was available by way of leave or as of right, and whether the recall application was the appropriate procedure to clarify this issue. Te Hei’s counsel argued that the issue should be made clear for future litigants, but the court noted that both parties had proceeded on the basis that leave was not required and had agreed that the appeal should proceed. The Court of Appeal had previously indicated that devoting resources to argue the issue in these circumstances would be wasteful and inefficient.

Palmer J dismissed the application for recall, stating that the issue had already been sufficiently aired and that there were no good grounds to recall the decision of 17 March 2023. The court concluded that the concern of Te Hei and his counsel might be met by this judgment, which sufficiently put future litigants on notice of the potential jurisdictional issue. The court left it to Te Hei to decide whether to appeal the 17 March 2023 decision or the current decision, but noted that the Court of Appeal seemed disinclined to entertain arguments on a moot issue.

This judgment provides clarity on the availability of leave to appeal decisions of the Victims’ Special Claims Tribunal and the appropriate procedural steps for litigants to take in such circumstances.

Orders