W v W
[2024] NZHC 1315
•23 May 2024
NOTE: DISTRICT COURT ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF RESPONDENT REMAINS IN FORCE
FAMILY COURT ORDERS PROHIBITING THE PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF CERTAIM LEGAL ADVISERS OF THE PARTIES AND/OR TWO DECEASED PERSONS, AND HIGH COURT ORDERS PROHIBITING PUBLICATION OF THE NAMES AND IDENTIFYING PARTICULARS OF ALL THE PARTIES’ FORMER REPRESENTATIVES, PENDING FURTHER ORDER OF THIS COURT, REMAIN IN FORCE
IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY
I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE
CIV-2015-416-40
[2024] NZHC 1315
IN THE MATTER OF the Property (Relationships) Act 1976 BETWEEN
W
First Applicant
AND
MR W and MC TRUSTEES (NO 2)
LIMITED as trustees of the MR W TRUST Second Applicant
AND
W
Respondent
Hearing: 16 April 2024 Appearances:
First Applicant in person
J R Hosking for the Respondent K I Murray as Counsel assisting
Judgment:
23 May 2024
JUDGMENT OF PALMER J
Counsel/Solicitors
J R Hosking, Barrister, Rotorua Lance Lawson, Mt Maunganui
K I Murray, Barrister, Wellington
W v W [2024] NZHC 1315 [23 May 2024]
What happened?
[1] In 2006, Mr and Mrs W’s relationship ended and they reached a mediated agreement on the distribution of their relationship property (the 2006 Agreement). Their marriage was dissolved in 2008.
[2] In May 2009, Mrs W applied to set aside the 2006 Agreement, including on the basis that she had entered it under duress because of physical and sexual abuse she had suffered from Mr W throughout their relationship. One of the documents Mrs W adduced as evidence in support of her claim was an ACC report form, which she had altered.
[3] Mr W applied to strike out Mrs W’s application to set aside the 2006 Agreement, including on the basis that Mrs W had committed perjury in altering the ACC report form. In February 2011, before the strike-out application was heard, the parties entered a further mediation agreement (the 2011 Agreement). That led to Mrs W’s application being discontinued. Mr W has subsequently asserted that the advice he was given by his counsel in respect of the 2011 Agreement was wrong and negligent.
[4] In September 2011, Mr W applied out of time to the Family Court to set aside the 2011 Agreement and to vary the 2006 Agreement. He was advised by another counsel. His application to set aside the agreement included a claim that Mrs W’s alteration of the ACC form was a criminal offence and fraud. On 15 June 2015, in the Family Court, Judge Callinicos concluded the 2011 Agreement was unfair to Mr W, significantly due to inadequate advice he received and set aside the 2011 Agreement.1 The Judge found the 2006 Agreement was also unfair to Mr W and he set that aside too, made adverse findings against Mrs W, and referred the altered document to the Police for consideration of a perjury charge.2 Mr W now says his counsel at that time was responsible for false affidavit evidence being filed about his mental health at the time of the 2011 Agreement.
1 [W] v [W] [2015] NZFC 4905 at [296]–[298] and [312]–[320].
2 At [62], [344]–[358] and [371]–[372].
[5] After the 2015 Family Court hearing, Mrs W was charged with perjury, convicted in the District Court and sentenced to one year’s home detention.3 But, in a second appeal in 2020, the Court of Appeal overturned the conviction because the original was never put before the Court, some alterations were obvious, Mrs W acknowledged she had made alterations, and there was no evidence Mrs W had sworn the form to be a true copy.4
[6] Mrs W appealed the Family Court’s setting aside of the 2011 Agreement to the High Court. On 1 December 2023, Ellis J found that the Family Court Judge’s belief that Mrs W had committed perjury was a clear error because the Court of Appeal had determined she had not committed perjury, the alteration did not involve the creation of a false narrative, and Mrs W gave a rational explanation of her alterations.5 Ellis J held that:
[112] There can in my view be little doubt that it was the mistaken belief that Mrs W had committed perjury that was the primary cause of the unfairness; that belief pervaded and tainted the hearing.
[7] Ellis J set aside the judgment of the Family Court on the grounds that the hearing had been unfair and invited submissions on whether the parties’ wish for the appeal to be determined on its merits in the High Court was jurisdictionally possible.6
[8] On 20 February 2024, after receiving the further submissions, Ellis J concluded that, because the Family Court decision is a nullity, there no longer remains any decision capable of being appealed and she remitted the matter to the Family Court for a retrial.7 Mrs W has applied to the Family Court to transfer the proceedings to the High Court for a full hearing, under s 38A of the Property (Relationships) Act 1976.
[9] But Mr W now applies for leave to appeal the High Court’s decision to the Court of Appeal.
3 R v [W] [2018] NZDC 2543; R v [W] [2018] NZDC 22589.
4 W (CA641/2019) v R [2020] NZCA 286 at [13], [26]–[29], [41]
5 W v W [2023] NZHC 3491 [First High Court Decision] at [71]–[75].
6 At [116]–[119].
7 W v W [2024] NZHC 236 [Second High Court Decision] at [9]–[11].
Submissions
[10] Mr W accepts that the 2015 Family Court hearing is to be regarded as a nullity. But he submits that the two High Court orders following that finding are a miscarriage of justice. That is because they did not take into account crucial evidence that supports Mr W’s allegation that Mrs W did commit perjury and did not take into account his allegations of misconduct and perversion of the course of justice by his previous counsel. He says the Court of Appeal told him in two hearings that the High Court would review all the new evidence he had submitted but it did not. It is contrary to the interests of justice for the matter to be remitted to the Family Court. Ellis J should have found that the 2011 Agreement was seriously unjust and used her ancillary powers to make orders on that basis. He seeks leave to provide further documents to the Court. Mr W also objects to being left without redress for the significant costs he has incurred since 2011. And he objects to points in Mr Murray’s memoranda of July 2023.
[11] Ms Hosking, for Mrs W, says that Mrs W agrees that aspects of his former counsel’s affidavit in relation to the 2011 mediation are misleading and aspects of his other counsel’s advice are very troubling. But these issues do not relate to the conduct of the Family Court Judge which was the subject of the appeal to the High Court. The conduct of the Family Court Judge would have to be the subject of any proposed appeal. The Court of Appeal did not preclude Ellis J from dealing with the issues the way she has. The retrial will allow Mr W to call witnesses and the Court to address the issues he raises regarding the advice he received and his mental state during the 2011 mediation, which will be a significant focus of the retrial. The conduct of his other former counsel is now irrelevant. The application for leave to appeal should be declined.
[12] Mr Murray, as counsel assisting the Court, submits that Mr W seems realistically to acknowledge that any attempt to appeal the High Court’s judgment of 1 December 2023 is very unlikely to be successful. An appeal of the second judgment of 20 February 2024 might succeed in relation to whether the High Court has jurisdiction to determine the relationship property. But it would most likely ultimately fail because the High Court cannot determine those issues on the basis of the Family
Court record, which is so contaminated that it is not in the interest of either party to advance relationship property arguments on its basis. So the parties would most likely be back to where they stand today. It is in the interests of both parties for Mr W’s application for leave to appeal to be dismissed.
Should leave to appeal be granted?
[13] Under s 60 of the Senior Courts Act 2016, a decision of the High Court on appeal from the Family Court is final unless leave is obtained to appeal to the Court of Appeal. Leave must first be sought from the High Court. If the High Court declines an application to appeal, an application to appeal can then be made to the Court of Appeal itself. For leave to be granted, the appeal must raise some question of fact or law capable of bona fide and serious argument involving sufficient public or private interest to outweigh the cost and delay of the further appeal to the parties and the court system.8
[14] Mr Murray makes the point that the application for leave to appeal against the 1 December 2023 judgment of Ellis is well out of time. However, the orders consequent on the findings in that judgment were only made in the second judgment, of 20 February 2024 and the application to appeal that judgment is within time. Because of the integral connection between the two, I grant leave for the application for leave to be considered out of time. But I decline the application to adduce further evidence, the content of which does not affect my decision.
[15] The High Court’s decision addresses the conduct of the Family Court Judge and whether it meant the trial before him was unfair. It does not evaluate the claims raised within the Family Court trial or issues related to the 2006 or 2011 Agreements. It could not examine afresh whether Mrs W had committed perjury because the High Court was bound by the Court of Appeal’s decision in that regard. Mr W applies for a second appeal in order to have the Court address his allegations of perjury against Mrs W and against his former counsel. But, in an appeal of the High Court judgment, the Court of Appeal would be restricted to the issue of the conduct of the Family Court
8 G v L [2016] NZCA 571, [2017] NZFLR 31 at [8] citing Waller v Hider [1998] 1 NZLR 412 (CA) at 413–414; and Snee v Snee (1999) 13 PRNZ 609 (CA).
Judge that was considered by the High Court. The issues that are the reason for Mr W’s application for an appeal would not be dealt with. He does not take issue with the High Court’s decision regarding the conduct of the Family Court Judge. He does not raise issues that can be properly addressed by the Court of Appeal in the proposed appeal. The concerns he raises will be best dealt with by a rehearing in the Family Court, and/or by other means, rather than by a second appeal.
[16] Accordingly, the proposed appeal does not raise a question of fact or law capable of bona fide and serious argument involving sufficient public or private interest to outweigh its cost and delay. I recognise these proceedings have been overly lengthy. But the shortest route to their effective resolution lies in the Family Court retrial that has been ordered.
[17]I decline the application for leave to appeal to the Court of Appeal.
Palmer J
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