W v W

Case [2023] NZHC 3491 1 December 2023

No judgment structure available for this case.

Type to search within this case.

NOTE: DISTRICT COURT ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANT REMAINS IN FORCE: SEE [2018] NZDC 23200

NOTE: FAMILY COURT ORDERS PROHIBITING THE PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF CERTAIN OF THE PARTIES’ LEGAL ADVISERS AND OF TWO DECEASED PERSONS (SEE [2015] NZFC 7137) 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

[2023] NZHC 3491

BETWEEN
W

Appellant

AND

W

First Respondent

AND

MR W & MC TRUSTEES (NO.2)

LIMITED as trustees of the MR W TRUST

Hearing:
31 July 2023–1 August 2023, further material received 4 and 8

August 2023, 4 and 8 September 2023

Counsel:

J Hosking and S Brown for Appellant First Respondent in Person

K I Murray as counsel assisting

Judgment:

1 December 2023

JUDGMENT OF ELLIS J

W v W [2023] NZHC 3491 [1 December 2023]

Table of Contents

Paragraph No

Preliminary matters............................................................................................. [5]

New material[7]

Suppression[10]

The relationship.................................................................................................. [15]

The 2006 Agreement and Mrs W’s application to set it aside[21]

The “perjured” ACC evidence[25]

The 2011 Agreement and Mr W’s application to set it aside[36]
The decision to attack Mrs W’s credibility[40]

The unfair trial appeal...................................................................................... [49] Unfair trials: the legal context...................................................................................... [51]

The Bangalore Principles[51]

The decision in Serafin[60]

The hearing in the Family Court..................................................................... [66]

General matters[67]

The perjury question[68]
The conduct of the hearing[75]

The 2015 decision[108]

Unfairness is the inescapable conclusion here[110]

What happens next?........................................................................................ [114]

Last word[119]

[1] Mr and Mrs W are embroiled in a long-standing relationship property dispute. So far, the dispute has cost Mrs W dearly. As well as having had two relationship property settlement agreements set aside in favour of Mr W by the Family Court,1 Mrs W has had her home searched at least twice by Police at Mr W’s behest, been prosecuted for assault,2 been convicted of and served a sentence of 12 months’ home detention for perjury (only to have the conviction later overturned on a second appeal),3 had a quarter of a million dollars in costs awarded against her by the Family Court,4 and has—effectively on Mr W’s petition—been adjudicated bankrupt.

[2] On the heels of the quashing of the perjury conviction the previous year, in 2022 the Court of Appeal granted Mrs W leave to appeal the Family Court’s 2015 relationship property decision out of time.5

[3] Mrs W’s appeal is advanced on two separate—albeit intertwined—grounds: that the decision was wrong on the merits, but also that the hearing before Judge Callinicos was so unfair that the resulting decision is effectively a nullity. It was agreed that the question of unfairness should be determined first.

[4] The appeal is therefore a sensitive and important one. The finding Mrs W asks this Court to make—a finding of unfair conduct by a judge—carries a particular obligation to consider it with great care. For that reason, and also because Mr W was self-represented on the appeal, the Court appointed…

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 W v W

Details

AGLC: W v W [2023] NZHC 3491
Case: [2023] NZHC 3491
Decision Date: 1 December 2023

CaseChat Overview and Summary

The case of W v W, [2023] NZHC 3491, concerns a long-standing relationship property dispute between Mr and Mrs W. The dispute has resulted in significant personal and financial consequences for Mrs W, including the setting aside of two relationship property settlement agreements, criminal charges and a conviction for perjury, and a bankruptcy order. Mrs W's appeal against the Family Court's 2015 decision is based on two grounds: the decision was wrong on the merits, and the hearing before Judge Callinicos was so unfair that the resulting decision is effectively a nullity. The Court of Appeal granted leave to appeal out of time, and the appeal was advanced on the ground of unfairness first.

The appeal focuses on the conduct of the Family Court hearing, which took place over eight days in 2014 and 2015. The hearing was private, and the opportunity for public scrutiny to operate as a check on judicial conduct was limited. The main applications before the Court were made by Mr W, and Mrs W was largely the respondent. Both parties had raised issues about their mental health being exacerbated by the stress of the relationship property dispute. Mrs W was considered a vulnerable person, and there was a power imbalance between the parties.

The Court found that the Judge's view that Mrs W had committed perjury, and the evidential weight he attached to the altered ACC form, were central to his assessment of Mrs W's credibility, his approach to her evidence, and the trial overall. The Court of Appeal had previously determined that the elements of a charge of perjury were not made out on the facts, and that the altered ACC form had less probative value than the Judge had attributed to it. The mistaken belief that Mrs W had committed perjury led to unfair questioning and interventions by the Judge, which, combined with the absence of intervention in the face of unfair questioning by counsel, rendered the hearing unfair.

The Court found that the number and nature of the Judge's interventions, and the absence of intervention in the face of unfair questioning by counsel, were indicative of him "entering the fray" and making obvious his profound disbelief in the validity of Mrs W's case. The mistaken belief that Mrs W had committed perjury also made it too easy to jump to the conclusion that other minor inconsistencies in her evidence were lies, and to reject those parts of her evidence where she was confused, could not remember, or was otherwise reluctant to answer certain personal questions.

The Court set aside the Family Court's 2015 decision and the associated costs judgment, effectively returning the parties to square one. The parties preferred for the appeal to be determined on its merits by the High Court, but the Court was uncertain whether this was jurisdictionally possible. The Court encouraged the parties to try again to settle their relationship property issues out of Court. The Court also noted that it was not making a positive finding that abuse did occur, as such a finding would be beyond the ambit of the judgment. The Court encouraged the parties to leave the focus on whether abuse occurred behind, as it was only of peripheral relevance to the proceedings going forward.

Orders