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…

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.

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Details

Case: [2013] NZHC 3557
Decision Date: 20 December 2013

CaseChat Overview and Summary

In Wilson v Wilson, Thomas Wilson appealed against a decision of Judge Brown, who directed that the application by his wife, Joan Wilson, under the Protection of Personal and Property Rights Act 1988 should proceed to a substantive hearing. The primary issue was whether Judge Brown’s decision constituted an interlocutory order that required leave to appeal, or if it was a final order allowing an appeal as of right. Thomas argued that Judge Cocurullo's earlier minute, indicating that the application did not meet the threshold for jurisdiction at that time, effectively terminated the proceedings. The Court considered whether Judge Cocurullo's minute amounted to a final determination or if it was a preliminary observation that more evidence was needed.

The Court held that Judge Cocurullo’s minute did not end the proceedings but merely highlighted that more evidence was required to meet the threshold for jurisdiction. This was not a final decision and did not deprive the Court of jurisdiction to hear the application. The Court further determined that Judge Brown’s decision was interlocutory, as it did not finally determine the rights of the parties or end the proceedings. Since no leave to appeal was sought or granted, the appeal was deemed improperly brought. Consequently, the appeal was struck out. The Court ordered the respondent to be awarded costs, with submissions on the quantum to be filed by specified dates.

Orders