TGD v ASL

[2014] NZHC 1613

NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, 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 AUCKLAND REGISTRY

CIV-2014-404-000826 [2014] NZHC 1613

BETWEEN

TGD

Appellant

AND

ASL Respondent

Hearing:	2 July2014
Appearances:	Appellant in Person Carly Linton for the Respondent
Judgment:	10 July 2014

RESERVED JUDGMENT OF MOORE J

This judgment was delivered by  on 10 July 2014 at 1:00pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

TGD v ASL [2014] NZHC 1613 [10 July 2014]

Introduction

[1]      The appellant appeals a Family Court decision which determined the custody arrangements of her children. She appeals two aspects of this decision.   First she appeals the order that the father of her children should have unsupervised access and secondly, she appeals the order that she and the children reside with her parents.

[2]      In the hearing before me, the appellant conceded that while the residential order presently imposes no difficulties and she has no intention of moving in the short term she is concerned that should her circumstances change, the order may become unduly restrictive.  With the assistance of Ms Linton for the respondent, I referred the appellant to s 56 of the Care of Children Act 2004 which gives the Family Court on application the power to vary or discharge such orders.  Should the appellant’s domestic circumstances change such that the present orders require variation an application under s 56 may be made.   The appellant accordingly abandoned this ground of her appeal.

[3]      An issue was signalled at the beginning of the hearing which bore on whether the Court has jurisdiction to hear the appeal.   Notwithstanding, I decided to hear from the parties on the merits of the appeal subject to the determination of the jurisdictional question.  At the end of the hearing I gave leave to the parties to file further submissions on certain issues which arose in the course of argument.  I made timetabling orders.

[4]      The appellant has filed further extensive submissions and I record the Court’s gratitude to her.  Ms Linton is yet to file and serve such submissions as she may wish by 5:00pm on Monday, 14 July 2014.

[5]      For reasons more fully set out below, I have determined that this appeal is deemed to have been abandoned. As a consequence, I do not have power to consider it on its merits.  Ms Linton is thus relieved of the need to file further submissions. My reasons for not being able to consider the merits of this appeal follow.

Jurisdiction

[6]      At  the  commencement  of  the  hearing  before  me  on  2  July  2014  a jurisdictional issue arose relating to unpaid security for costs. The issue was whether the appeal was deemed to have been abandoned under s 74 of the District Courts Act

1947 by reason of the appellant’s failure to pay security for costs. Section 74 states:

(1)       Unless  granted  legal  aid under  the  Legal  Services Act  2000,  an appellant under section 72 may be required by the High Court Rules to give the Registrar of the High Court security for costs.

(2)       If any security required is not given within the time required by the High Court Rules, the appellant's appeal must be treated as having been abandoned.

[7]      The provision governing security for costs for appeals is to be found in r 20.13 of the High Court Rules which provides:

(1)       This rule applies to an appeal other than an appeal for which the appellant has been granted legal aid under the Legal Services Act 2000.

(2)       The  Judge  must  fix  security  for  costs  at  the  case  management conference relating to the appeal, unless the Judge considers that in the interests of justice no security is required.

…

(4)       Security must be paid to the Registrar at the registry of the court no later than 10 working days after the case management conference, unless the Judge otherwise directs.

(5)       Except in the case of an appeal under the District Courts Act 1947 (where non-compliance with the security order results in a deemed abandonment of the appeal under section 74), if the security is not paid within the time specified under subclause (4), the respondent may apply for an order dismissing the appeal.

(6)       The Judge must defer the fixing of security until the application for legal aid has been determined if—

(a)      an  appellant  has  applied  for  legal  aid  under  the  Legal

Services Act 2000; and

(b)      at   the  time   of   the   case   management   conference,   the application has not been determined.

[8]      In a telephone conference on the 20 May 2014 the appellant was ordered to pay security for costs of $995 by 17 June 2014. She was expressly advised that if she

did not pay by that date her appeal would be deemed to be abandoned without further call in the Court.1

[9]      On 17 June 2014 the appellant advised the Registry via email that she would notify the Registrar as soon as her application for legal aid was granted. It would appear from that correspondence she was of the view that in accordance with s 36(3) of the Court of Appeal (Civil) Rules 2005 if her legal aid application was pending she was not required to pay security for costs. Section 36(3), which was reproduced in full in her email, states that:

An appellant whose application for legal aid has not been determined at the time the appeal is brought does not need to pay security for the respondent’s costs in the Court while that application is pending.

[10]     The funds were not paid by the due date.

[11]     At the hearing the appellant indicated she had  applied for legal  aid,  the application was pending and thus s 36(3) was engaged with the effect she was not required to pay security for costs until her application has been determined.

[12]     However, on being pressed, it became apparent the appellant, while intending to apply for legal aid, had not yet done so.

[13]     Section 36 does not govern this situation.   It relates to proceedings in the Court of Appeal.  The relevant provision in the High Court Rules is r 20.3, which does not have a directly equivalent provision to 36(3). Secondly, even if the High Court Rules did contain such a provision, the appellant’s failure to apply for legal aid would mean the provision is not engaged.

[14]     As noted earlier, notwithstanding the procedural difficulties signalled at the beginning of the hearing, I decided to hear the appeal pending a closer examination of the relevant provisions.  However, given the appellant still has exercisable appeal

rights, I have not made any decision on the merits.

1 District Courts Act 1947, s 74 and Care of Children Act 2004, s 143(4).

Decision

[15]     As a result of the appellant’s failure to pay the security for costs as previously ordered by this Court this appeal must be treated as having been abandoned under s 74. The appellant is not prevented from seeking to bring a fresh appeal but this will require the payment of further filing fees and will require her to make an application

for leave to appeal out of time.

Moore J

Solicitors:

C Linton, Winter Woods Lawyers, Palmerston North

Copy to:

The Appellant