X v M

[2020] NZHC 2614

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2019-419-11

[2020] NZHC 2614

BETWEEN

X

Appellant

AND

M

Respondent

Hearing:	On the papers
Appearances:	Appellant in person Respondent in person
Judgment:	6 October 2020

JUDGMENT OF LANG J

[on application for leave to bring a second appeal]

This judgment was delivered by me on 6 October 2020 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

Copies to:
Appellant and Respondent

X v M [2020] NZHC 2614 [6 October 2020]

[1]                  On 18 June 2020 I issued a judgment in which I dismissed an appeal by Dr X against a decision of Judge R G Marshall in the District Court declining Dr X’s application to be appointed as his daughter’s litigation guardian for the purpose of bringing a proceeding against the respondent.1

[2]                  Dr X seeks leave to advance a second appeal to the Court of Appeal against my decision.

Background

[3]                  The facts underpinning the application are summarised in the introductory paragraphs of my judgment.2 In short, Dr X wishes to be appointed as his daughter’s litigation guardian so he can commence proceedings in the District Court seeking an order that will give him control over funds held in a bank account he alleges belongs to his daughter. He contends the respondent, his daughter’s mother, is currently operating the account and has misappropriated funds from the account for her own purposes.

[4]I dismissed the appeal for the following essential reasons:

(a)I did not consider Dr X was able to fairly and competently conduct the proceeding on his daughter’s behalf;3

(b)Dr X has interests that are adverse to those of his daughter;4

Relevant principles

[5]                  The jurisdiction to bring a second appeal is contained in s 60 of the Senior Courts Act 2016. The principles to be applied in determining such an application remain, however, those applied in relation to the predecessor to s 60, s 67 of the

1      X v M [2020] NZHC 1377.

2      At [1]-[5].

3      At [15]–[21].

4      At [25]-[28].

Judicature Act 1908. In Waller v Hider, the Court of Appeal confirmed that the function of the Court of Appeal on a second appeal is not for general correction of error.5 Rather, it is to clarify the law and determine whether it has been properly interpreted and applied by the courts below.6 In short, the proposed appeal must raise a question of law or fact that it is capable of bona fide and serious argument and involves some interest, public or private, of sufficient importance to outweigh the cost and delay of a further appeal. This threshold reflects the fact that the time and resources of the Court of Appeal should not be devoted to cases that are not worthy of its attention. In addition, the other party or parties to the proposed appeal should not be put to additional expense without good reason.

Decision

[6]                  Dr X has filed lengthy submissions in support of his application to bring a second appeal. I do not propose to traverse these because they all relate to alleged errors of fact. As such they fall outside the scope of second appeals to the Court of Appeal. Such appeals do not provide an appellant with a further opportunity to seek correction of factual error. In addition, I do not consider the proposed appeal raises any issue of general or public importance sufficient to warrant utilisation of the scarce resources of the Court of Appeal.

[7]                  Finally, Dr X plainly considers the proposed appeal raises issues that are of great importance to him. Ultimately, however, they relate to the proposed representation of his daughter in proceedings proposed in the District Court. It remains open to Dr X to find an alternative person who may be prepared to act as his daughter’s litigation guardian. Any such person would of course need to be demonstrably independent of the litigation between the parties to date. I therefore do not consider the proceeding raises any issue of private importance sufficient to justify a further appeal to the Court of Appeal.

5      Waller v Hider [1998] 1 NZLR 412 at 413.

6      At 413.

Result

[8]The application for leave to bring a second appeal is dismissed.

Lang J