Wilson v Wilson

[2013] NZHC 3557

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2013-419-000768 [2013] NZHC 3557

IN THE MATTER             of the Protection of Personal and Property

Rights Act 1988

BETWEEN  THOMAS WILSON Appellant

ANDJOAN WILSON Respondent

Hearing:                   16 December 2013

Counsel:                  EJ Hudson for Appellant

D Chambers QC for Respondent

Judgment:                20 December 2013

JUDGMENT OF ASHER J

This judgment was delivered by me on Friday, 20 December 2013 at 3.00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

Neverman Bennett, Hamilton.

EJ Hudson, Hamilton.

Dyer Whitechurch, Auckland. D Chambers QC, Auckland.

WILSON v WILSON [2013] NZHC 3557 [20 December 2013]

Introduction

[1]      Thomas Wilson has filed a notice of appeal dated 28 July 2013 in which he moves by way of appeal against the judgment of Judge D R Brown delivered on

5 July 2013.  The proceeding concerns an application for a protection order relating to Mr Wilson.  The decision appealed against is a decision making directions for the proceeding and declaring that it should move forward to a hearing.  Various grounds of  appeal  are  put  forward  including  an  assertion  that  the  test  for  threshold jurisdiction had not been met, and that the Judge’s determination amounted to a review of an earlier decision of 13 August 2012, and was made without jurisdiction.

[2]      In this proceeding I do not use the actual names of the parties, which have been changed to protect their identity.

[3]      The appellant Thomas Wilson is 86 years old.  The respondent Joan Wilson is his wife of 60  years.   Mrs Wilson has issued proceedings for orders under the Protection of Personal and Property Rights Act 1988 (the Act) for a protection order relating to Mr Wilson.   She seeks an order appointing a property manager for his affairs under s 31 of the Act. The application was filed on 30 July 2012.  Mrs Wilson lives in a retirement village.  She is 82 years old.  She alleges that Mr Wilson has fallen under the influence of a third party, and has paid her large and inappropriate sums of money.

[4]      When the proceeding was filed, there were only two affidavits filed, from Mrs Wilson and one of the Wilsons’ daughters.  The file was in due course placed before Judge Cocurullo.  The procedure set out in the Act is that under s 63 when an application is made, a copy is to be served on certain stated persons.  The Court may dispense with service.  Under s 65, a Court or the Registrar must appoint a barrister and solicitor to represent the person in respect of whom the application is made, unless the Court or Registrar is satisfied that the person has retained or will retain a barrister and solicitor.

Various minutes

[5]      Judge Cocurullo issued a minute on 13 August 2012 before service stating:

1.  Evidence tendered, does not reach required standard in order to conclude that jurisdiction is made out. Jurisdiction not made out at this time.

2.    Accordingly  unless  counsel  can  provide  a  basis  for  proceedings  to progress, there appears real difficulty in that required.

[6]      Following  this  minute  Mrs Wilson  filed  further  affidavits,  including  two affidavits from Dr Jane Casey, a consultant psychiatrist specialising in old age psychiatry.  There was also a comprehensive report prepared by Dr Alexander Srzich on behalf of Mr Wilson which has been annexed to an affidavit filed by Dr Srzich. Dr Srzich states a number of positive things about Mr Wilson, including that he is cognitively alert and attentive with no gross deficits evident.  However, it has been observed that Mr Wilson has a mild cognitive impairment and that he was “undoubtedly vulnerable to undue influence”.  Dr Srzich has concluded that in his view the current impairment does not reach the threshold of partial incompetency to manage his property.  The report is dated 6 March 2013.  Dr Casey emphasised these findings in her second affidavit.

[7]      Prior to the filing of Dr Srzich’s report and Dr Casey’s second affidavit, but after the filing of her first affidavit, the file again came before Judge Cocurullo. Counsel appeared for both parties.  Judge Cocurullo referred to his earlier minute. He noted that Mr Wilson’s counsel protested jurisdiction in respect of an application for a report on Mr Wilson under s 66 of the Act, and that this issue would have to be heard.  Following the conference Mr Wilson filed a number of affidavits.

[8]      On 16 November 2012 the file appears to have been placed before Judge

Cocurullo again.  He issued a minute stating:

1. All proceedings to be served forthwith.

2.    In  time  for  filing  defence  expiring,  Registrar  to  allocate  Judicial

Conference 15 minutes to progress.

[9]      On  5  July  2013  there  was  a  directions  hearing  before  Judge  Brown. Mr Hudson, counsel for Mr Wilson, had forecast a submission that there was no jurisdiction to set the matter down.  Both parties filed memoranda before the hearing. Counsel for Ms Wilson sought a three day hearing, while counsel for Mr Wilson

opposed that course arguing that there was no jurisdiction for the matter to go further. The submission for the appellant included the assertion:

The applicant did not appeal or review [Judge Cocurullo’s minute of 13

August 2012] and therefore follows in my submission that there is no extant application before the Court for the appointment of a property manager

which is capable of proceeding to a substantive hearing.

[10]     Judge  Brown  heard  counsel  and  gave  a  decision  on  5  July  2013.    He recorded:1

Threshold jurisdiction is a common phrase in this jurisdiction but has no statutory definition.   What is meant by that phrase is evidence which establishes that the test in the Act for the particular order sought could be available to the Court.  Put another way, it could be that it would be better said that there must be evidence before the Court which, if accepted, is capable of establishing the statutory test for the application made.  I stress that it is evidence that could lead to that test being satisfied rather than would necessarily lead to that test being satisfied.

The test is therefore a relatively low test, but it does exist.   It is normally satisfied  by  the  production  of  medical  evidence,  though  that  is  not necessarily required and it can be a combination of medical and ordinary evidence which in a given case will satisfy the test.

I have read the affidavits filed in these proceedings.   In my view there is sufficient  evidence  before  the  Court  now to  meet  the  test  for  threshold jurisdiction and therefore, the application should now move through its statutory course.

[11]     The Judge proceeded to direct a three day fixture and the filing of further affidavits.  Costs were reserved.  This is the decision against which the appeal has been filed.

Discussion

[12]     The fundamental submission in opposition to the appeal is that an appeal cannot proceed without leave, and no leave has been sought.  However, Mr Hudson for Mr Wilson appears to put his submission on a more fundamental basis, alleging that following Judge Cocurullo’s minute the proceeding had come to an end. Although any challenge on this basis would also require an appeal, I will deal briefly

with the no jurisdiction proposition on its merits.

1      [Wilson v Wilson] FC Hamilton FAM-2012-019-001180, 5 July 2013 at [2]–[4].

[13]     I have already set out the wording of this minute.2    The Judge stated that jurisdiction was not made out “at this time”.   In the second paragraph there is a typing error, but the meaning is clear; further evidence is required before the matter can progress.

[14]     Plainly the Judge has not declared the proceedings to be at an end.  This is indicated by the phrase “at this time”.  By clear inference further evidence could be filed, and in the meantime there was an extant proceeding.  The Judge was in effect telling the applicant that more evidence was required before Mr Wilson could have a reasonable prospect of success.

[15]     Mr Hudson advises that while there is no formal provision in the Act for a preliminary hearing, this sort of “sifting” of applications at an early stage is not uncommon.  It is certainly easy to see the practical good sense of Judges pointing out serious shortcomings in proceedings before making orders that will push them forward to a hearing.

[16]     Section 25 of Part 3 of the Act sets out the jurisdiction of the Court to make an order in relation to property.  Its provisions follow the same structure and adopt a similar structure to Part 2 relating to personal rights.   Under Part 3 of the Act the person must be domiciled or ordinarily resident in New Zealand and must be a person who, in the opinion of the Court, lacks wholly or partly the competence to

manage his or her own affairs in relation to his or her property.3   It is stated at s 25(4)

that a Court may have regard to the degree to which the person is subject or is liable to be subjected to undue influence in the management of his or her own affairs in relation to his or her property.

[17]    Section 28(a) states that a primary objective of the Court in exercising jurisdiction under that part of the Act is to make the least restrictive intervention possible in the management of the affairs of the person in respect of whom the application is made, having regard to the degree of that person’s lack of competence.

Section 29 sets out the course to be followed by the Court, and s 29(1) states that in

2 See [4].

3      Protection of Personal and Property Rights Act 1988, s 25(1).

considering an application for the exercise of its jurisdiction, a Court shall determine whether or not the person in respect of whom the application is made is a person in relation to whom it has jurisdiction under s 25, and if so whether or not to make an order under s 31 having regard to the primary objectives specified in s 28.  I have no doubt that Judge Cocurullo had these factors in mind when he issued his minute.

[18]     What is clear is that the Act makes no specific provision for the Courts of their own volition to make a jurisdictional ruling that could effectively bring proceedings to an end or stay proceedings on an initial assessment of the file.  Even if it did, Judge Cocurullo did not do that.   He was bringing a deficiency in the material filed in support at that point to the attention of counsel.

[19]     The word “jurisdiction” has many different meanings, turning on context. When the Judge was referring to jurisdiction he was not referring to the jurisdiction of the Court to make the type of protection of property order sought.  The type of application filed fell under the Act, and the Court undoubtedly had the power, the “jurisdiction”, to hear such an application.  The Judge rightly assumed there were valid proceedings in train.   His reference to jurisdiction was not to the Court’s underlying jurisdiction, but to whether the criteria in the Act would be made out at a hearing, given the limited material in the affidavits.

[20]     Mr Hudson argued that there was a threshold power vested in the Court to direct that there was no jurisdiction to proceed after the filing of the initial application.   He appeared to submit that this jurisdiction could be exercised unilaterally by a Judge without a full hearing.  Such a power could not be exercised without the applicant having a chance to be heard.

[21]     Moreover, there was no strike out or summary judgment jurisdiction that could have been applied.  Proceedings under the Act must take place in the Family Court by virtue of s 2 and Part 1.  Rule 5A of the Family Court Rules provides that the District Courts Rules 2009 do not apply to proceedings in a Family Court unless that rule is specifically applied by the Family Court Rules.  There is no provision in the Family Court Rules for summary judgment or strike out.   There is, however,

provision in r 413 of the Family Court Rules for a Judge to hold a pre-hearing conference following a request under s 66(1) of the Act.

[22]     It was emphasised for Mr Wilson that the authorities refer to a three staged approach under s 25 of the Act where first the issue of competence is examined, and then second, if incapacity is established the nature of the decisions in question is examined, and third, the issue of whether the Court in its discretion should make an order under s 31 is determined.  A number of authorities were referred to in support

of this approach.4   However, the reference to a staged approach in those cases was in

the context of a hearing where the evidence is being heard.  Any suggestion that the first jurisdictional stage can be carried out unilaterally by a Judge on that Judge’s own volition without notice and prior to the filing of all evidence is  incorrect. Neither Judge Cocurullo or Judge Brown made an attempt to engage in such a two staged analysis, and clearly were not in a position to do so.

[23]     Thus:

(a)      There was no jurisdiction for any order staying or striking out the proceeding;

(b)Judge Cocurullo’s minute did not purport to do either, and was no more than an  observation that the jurisdictional threshold that the applicant would have to satisfy at the hearing was on the papers at that point far short from being met.

Leave to appeal Judge Brown’s decision

[24]     Section 83(1) and (2) provide:

83   Right of appeal to High Court

(1)   If, on an application for the exercise of the Court's jurisdiction under this Act, the Court makes or refuses to make an order, or dismisses or otherwise finally determines the proceedings, a party to the proceedings or the person in respect of whom the application was made may appeal to the High Court against the order or other decision of the Court.

4      Re Tony (1990) 5 NZFLR 609 (FC); Re RMS (1993) 10 FRNZ 387 (FC) at 391–392; and CMS v

Public Trust (2008) NZFLR 640 (HC).

(2)   If the Court makes an interlocutory or interim order, a party to the proceedings or the person in respect of whom the application was made may, with the leave of the Court, appeal to the High Court against the order.

[25]     Section 83(2) is explicit.  An interlocutory order made under the Act cannot be appealed without leave of the Family Court.   However, it was Mr Hudson’s submission that Judge Brown had not made an interlocutory or interim order, but rather a final order.   He relied on a statement of the Supreme Court in Siemer v Heron5  that s 66 of the Judicature Act 1908 gives an appeal as a right against interlocutory decisions of all kinds made in the High Court to the Court of Appeal unless the Act itself or a rule or order made pursuant to the Act created a restriction.6

[26]     This decision does not, however, assist in relation to s 83 of the Act which is worded in a very different way from s 66.  In s 66 there is no express reference in the primary provision to “… otherwise finally determines the proceedings”, and there is no reference to an appeal from an interlocutory or interim order being only with leave. These words in s 83 must be given meaning.

[27]     A similar provision to s 83(1) was considered by the High Court in Foley v Foley.7   It was held that the use of the words “or has otherwise finally determined or has dismissed any proceedings” clearly indicated that the right of appeal referred to was only in relation to final decisions and not interlocutory decisions.

[28]     In  Waterhouse  v  Contractors  Bonding  Ltd8   the  Court  of Appeal  had  to consider the right to appeal an application for summary judgment from the High Court to the Court of Appeal.  Section 24G of the Judicature Act provided that there should  be  no  appeal  from  an  interlocutory  decision  of  the  High  Court  in  a commercial  list  proceeding  without  leave.     It  was  held  that  an  interlocutory

decision:9

5      Siemer v Heron [2011] NZSC 133, [2012] 1 NZLR 309 at [15].

6      At [31] and [34].

7      Foley v Foley [1986] 2 NZLR 400 (HC) at 403.

8      Waterhouse v Contractors Bonding Ltd [2013] NZCA 151, [2013] 3 NZLR 361.

… is ordinarily understood to be a decision made in the course of a proceeding leading to or facilitating the hearing of the claim and its ultimate disposition following the hearing.

[29]     There can be no doubt it was this sort of decision that was made by Judge Brown on 5 July 2013.   His decision was to the effect that there was “threshold jurisdiction” and he proceeded to make directions.  That remark was in response to the submission that the threshold was not crossed.  There had been no application to stop the proceedings, and in any event there was no jurisdiction to strike them out. The Judge was making an observation.

[30]     He made no decision which determined the rights of the parties and brought the proceeding to an end.  His decision was not a final decision.  It was not in the words of Waterhouse v Contractors Bonding Ltd:10

A decision determining the rights of the parties and bringing a proceeding or

claim to an end, in whole or in part…

[31]     It is not possible to contend that Judge Brown’s decision was dispositive of the proceeding.   The proceedings properly continue and indeed are awaiting a substantive hearing, the setting down of which I understand has been postponed pending the outcome of this appeal.  That is unfortunate.  It cannot be in the parties’ interests for there to be ongoing delays in this awkward and undoubtedly damaging family dispute.

[32]     Mr  Hudson  submitted  that  had  the  determination  been  in  favour  of Mr Wilson, then Ms Wilson would have surely argued that she had the right of appeal.   That might be so, but in such a situation the decision would have been dispositive of the proceeding, and the rights of the parties finally determined.

[33]     I conclude that Judge Brown’s decision was an interlocutory decision.   No leave from the Family Court has been sought to file this appeal.  No leave has been granted. There is therefore no jurisdiction to hear this appeal.

[34]     The appeal has not been properly brought under s 83 of the Act, and the appropriate response is, as is proposed by the respondent, to strike it out.

[35]     I accept the submission for the respondent that it is in all parties interests for the case to be set down for a hearing as soon as possible, particularly given the delay that has followed the filing of this appeal, and it is to be hoped that a fixture can be allocated without further delay.

Result

[36]     The appeal is struck out.

Costs

[37]     The respondent is entitled to costs, but I have been asked to reserve the question of costs for submissions.  The appellant is to file submissions by 31 January

2014 and the respondent by 7 February 2014.

……………………………..

Asher J