Zhang v Fang HC Auckland CIV 2010-404-1424

[2010] NZHC 1929

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-1424

BETWEEN  MANDEL ZHANG (AKA MINGDAO ZHANG)

Appellant

AND  FEI FEI FANG Respondent

Hearing:         2 November 2010

Appearances: Appellant in Person

G P Curry and G A Lowery-Drumm for Respondent

Judgment:      2 November 2010

JUDGMENT OF COOPER J

ON APPELLANT’S INTERLOCUTORY APPLICATIONS

This judgment was delivered by Justice Cooper on

2 November 2010 at 3.30 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

Russell McVeagh, PO Box 8, Auckland

Copy to:

G P Curry, PO Box 106 586, Auckland

M Zhang, 8B Oban Road, Browns Bay, Auckland ([email protected])

ZHANG V FANG HC AK CIV-2010-404-1424  2 November 2010

[1]      Mr  Zhang  has  made  two  interlocutory  applications  which  need  to  be determined  prior  to  the  hearing  of  the  appeal  currently  scheduled  to  occur  on

30 November and 1 December 2010.  They are:

a)        an application for specific discovery;  and

b)        an application for leave to file new evidence. Both applications are opposed by the respondent.

[2]      The applications were called in the appeals call-over list this morning when, as it turned out, there was time for them to be heard.  Mr Zhang complained that he had not expected that to occur because the applications had been listed for mention only.   When I inquired of him as to what further time he needed to advance the applications he simply expressed the preference for the applications to proceed on the date fixed for the commencement of the substantive appeal, with that to be adjourned to a date in the new year.   He also referred to his desire to have the services of an interpreter.  However, I decided that the applications should be dealt with  this  morning given  the fact  that  the hearing date  for  the  appeal  has  been established since 6 May 2010, an earlier hearing date that I had set on 30 April 2010 for 13 July had been vacated because of the unavailability of counsel then acting for Mr Zhang, and because deferral would inevitably mean that the substantive hearing date would need to be vacated.

[3]      I concluded that it would not be in the interests of justice for the appeal to be further  delayed,  especially  when  it  appeared  that  Mr Zhang  was  sufficiently proficient in the English language for him to be able to argue the applications.

Application for specific discovery

[4]      The application for specific discovery was not filed until 5 October 2010.  It sought an order that statutory declarations made by the respondent as to her relationship status to various authorities in the period from June 2004 to June 2007 should be discovered.   Mr Zhang maintained that these documents were necessary

because the appellant’s relationship status was at issue in the proceedings.  He made it plain that he did not seek anything covered in the statutory declarations that was not relevant to the issue of the status of the relationship.

[5]      The  application  was  opposed  on  the  basis  that  the same  documents  had initially been sought in the Family Court, but as recorded in a minute issued by Judge Ryan on 18 December 2009, the application was withdrawn by counsel then acting for Mr Zhang on that day.  The minute records that the Judge had declined an application made by the respondent for an adjournment of the hearing on account of Mr Curry’s unavailability because if the matter had been adjourned the Court would have been unable to allocate a further hearing date before June 2010.   Mr Zhang submitted this morning that the only reason the application for discovery had been withdrawn was to preserve the fixture date but it does not appear from the minute that the application relating to the documents was influential in the Judge’s reasons for declining the adjournment application.  That application had been advanced not by Mr Zhang, but by the respondent.

[6]      In the circumstances that there was previously an application for discovery in respect of the documents now sought, but that application was withdrawn in the Family Court, there is no proper basis on which the documents should now be the subject of an order.   Mr Curry advises that the respondent is in fact attempting to obtain the documents from the government agencies to which the declarations were presented, but is unsure whether or not she will be able to obtain them in time for the hearing.   In any event, Mr Curry points out that the documents made statements which  it  is  accepted  were  false,  but  maintains  that  she  did  so  at  Mr Zhang’s direction.

[7]      If the relevant documents can be provided then it may be that the Judge dealing with the appeal will agree to read them by consent.   However, I am not prepared to order their production given the time that elapsed before the application was made, uncertainty about whether they can be provided in time for the fixture and the desirability of ensuring that the fixture proceed on the date currently scheduled.

Application for leave to file new evidence

[8]      Mr Zhang has filed a detailed affidavit in support of the application he has made for leave to adduce further evidence, made on 18 October 2010.   Mr Zhang relies on the evidence referred to in the affidavit to show that, in various respects, evidence given by the respondent in the Family Court proceedings was false.  For example, he alleges that her denial that her fingerprint was on a certain document can be shown to be wrong because of investigations he has caused to be carried out since the Family Court hearing and there is much other evidence which he says will show that she had given false evidence to the Court as a result of the investigations that he has subsequently made.  He also wants to produce documents that he has had formally translated since the hearing, and an affidavit from his mother, in which she discusses various events relevant to the relationship of the parties.  It is said that she was unwell in the period leading up to the Family Court hearing and could not provide the evidence to that Court for that reason.

[9]      The application is opposed by the respondent on the basis that the proposed new evidence does not satisfy the test in r 20.16(3) of the High Court Rules because all  of  the  evidence  could,  with  reasonable  diligence,  have  been  obtained  and provided to the Family Court.

[10]     Rule 20.16(3) provides that the Court may grant leave for further evidence to be adduced at the hearing of an appeal “only if there are special reasons for hearing the  evidence”.    The  rule  provides  (although  not  by  way  of  limitation)  that  an example of a special reason is that the evidence relates to matters that have arisen after the date of the decision appealed against and that are or may be relevant to the determination of the appeal.   Assuming in Mr Zhang’s favour that the evidence might be relevant, the difficulty is that none of the evidence appears to be fresh in the sense that it is dealing with matters that have arisen since the hearing in the Family Court.   Mr Zhang pointed out that he had obtained the evidence after the Family Court hearing, and by implication he has done so so as to deal in the main with determinations, adverse to his interests, that were made by the Family Court. However, his argument misconceives the intent of r 20.13 which is to limit the calling of new evidence on an appeal to situations where there is some “special

reason” for hearing the evidence.  A desire to disprove factual determinations made by the Court of first instance is not such a “special reason”.  None of the arguments advanced by Mr Zhang persuaded me that there was any “special reason” and I am satisfied that the present application should not be granted.

Result

[11]     Both   applications   are   dismissed   and   the   fixture   must   proceed   on

30 November and 1 December.