Z v F HC Auckland CIV-2010-404-001424

[2011] NZHC 621

NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980.  FOR FURTHER INFORMATION PLEASE SEE THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-001424

BETWEEN  Z Appellant

ANDF Respondent

Hearing:         9 March 2011

Counsel:         Appellant in person

G P Curry and A G R Campbell

Judgment:      9 March 2011

ORAL JUDGMENT OF RODNEY HANSEN J

Solicitors:           Russell McVeagh, P O Box 8, Auckland 1140 for Respondent

Copies to:           G P Curry, P O Box 106586, Auckland 1143 ([email protected]) M Zhang, 8B Oban Road, Browns Bay, Auckland ([email protected])

Z V F HC AK CIV-2010-404-001424 9 March 2011

Introduction

[1]      Mr Z applies for leave to appeal to the Court of Appeal against my judgment of 10 December 2010 in which I dismissed his appeal against Judge  Ryan’s decision in the Family Court at North Shore that he and the respondent lived in a de facto relationship from 1 June 2004 until 17 October 2007.  In his submissions, Mr Z also seeks leave to appeal against a decision of Cooper J, given on 2 November 2010, refusing applications for specific discovery and for leave to file new evidence for the purpose of the appeal.

District Court Judge’s decision

[2]      In his judgment in the Family Court, Judge Ryan carefully reviewed the evidence by reference to the factors which are required by s 2D(2) of the Property (Relationships) Act 1976 (the Act) to be taken into account in determining whether two persons have lived  together as a couple.   For that purpose, the Judge was required to make numerous findings on disputed factual issues.  Having made those findings, which required an assessment of the credibility of the parties, he evaluated the evidence by reference to the factors set out in s 2D(2) and concluded that the parties lived together after divorcing in June 2004 until they finally separated on 17

October 2007.

Judgment on appeal

[3]      On  appeal  Mr  Z  attacked  many  of  the  Judge’s  findings  of  facts  as unsupported or inconsistent with the evidence.  He argued that the Judge’s finding that the parties lived together as a couple over the period could not be sustained, having regard to the relevant criteria and the evidence.

[4]      In my judgment, I found the Judge’s approach to his fact-finding role had been impeccable.   I came to the clear view that there was ample support in the evidence for his findings and that there were no grounds for disturbing his factual

findings.  For this purpose, I also took into account some limited further evidence which had become available since the hearing and which was admitted by consent for the purpose of the appeal.

[5]      In accordance with the principles in Austin, Nichols & Co Inc v Stichting Lodestar[1]  I then examined whether, having regard to the factual findings, the Judge was right to determine the parties lived together during the period.  Having carefully considered his judgment, I was left in no doubt that, having regard to the relevant factors, the Judge was right to conclude that the parties had lived together as a couple over the period under review.

Application for leave to appeal

[1] Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141 (SCNZ).

[6]      Mr Z has criticised the way in which I reviewed the Judge’s factual findings and assessed the new evidence.   He submits that I failed to discharge my error correction role adequately and to correctly apply the law to the factual findings.  He submits that there were errors of law in my failure to correctly apply the legal principles to the facts; in failing to properly evaluate the evidence, including paying insufficient regard to documentary evidence and the new evidence introduced for the purpose of the appeal; and that I gave excessive weight to the finding that a sexual relationship existed.

[7]      As Mr Curry has pointed out in his written submissions, the application for leave to appeal is itself deficient in failing to state the grounds justifying the relief sought as required by r 7.19 of the High Court rules.   However, there are more substantial obstacles to the grant of leave.  The established test for the grant of leave is articulated in Waller v Hider:[2]

The appeal must raise some question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of the further appeal.

[2] Waller v Hider [1998] 1 NZLR 412 at 413

[8]      I accept Mr Curry’s submission that there are insurmountable hurdles to the grant of leave.  First, Mr Z has failed to satisfy me that there is any question of law or fact capable of bona fide and serious argument. There were concurrent findings of fact in the Family Court and this Court.  In both courts the required statutory factors were weighed and applied in accordance with the approach sanctioned in numerous authorities.  Notwithstanding the careful arguments of Mr Z, I am not persuaded that there has been any error of fact or law shown to have been made.  Furthermore, such errors as are argued to have been made do not involve an interest of a public or private nature of sufficient importance to outweigh the cost and delay of a further appeal.  It is high time that the parties proceeded to have the remaining substantive issues raised by the proceeding heard and determined in the Family Court.

Judgment of Cooper J

[9]      Mr Z had previously attempted to appeal the decision of Cooper J.   In the

Court of Appeal, Arnold J made the following direction:

This should not be accepted for filing.  If the substantive appeal to the High

Court fails, the appellant can raise these issues on any appeal to this Court.

[10]     Arnold J’s minute was not, of course, intended to convey that there was a right to appeal the judgment.  It would still be necessary for grounds to be made out to challenge the substantive appeal.  The point was made as follows by Richardson P in Murphy v Murphy,[3] referred to me by Mr Curry in his submissions:

It would be extraordinary if, while an appeal to this Court on the issues arising on the substantive appeal may be brought only with leave, an appeal on an incident of the hearing itself could be brought as of right. And it is not to be assumed that the legislature would ever have contemplated a sequence of appeals to this Court from a matter appealed from the District Court to the High Court.  The better view is that any matters ancillary to the hearing of the appeal in the High Court ... are not subject to separate appeal to this Court.

[3] Murphy v Murphy [1989] 1 NZLR 204 at 206.

[11]     I agree with Mr Curry that decisions such as those made by Cooper J are not amenable  to  appeal  unless  there  are  exceptional  circumstances  that  affect  the

substantive rights and liabilities of the parties.  His ruling was not a judgment, decree

or order within s 66 of the Judicature Act 1908.   It did not affect the substantive rights and liabilities of the parties. They were ancillary and not open to appeal.

Result

[12]     The application for leave to appeal both judgments is accordingly dismissed. Mr Z must pay the costs of the application on a Category 2 Band B basis.