Smith v Jones [2023] NZHC 3277 (22 November 2023)

Last Updated: 1 December 2023

NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE https://www.justice.govt.nz/family/about/restriction-on-publishing-judgments/

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CIV-2023-443-31 [2023] NZHC 3277

UNDER	the Property (Relationships) Act 1976
IN THE MATTER	of an appeal against the refusal to make an order
BETWEEN	ANDREW SMITH Appellant
AND	BELLA JONES Respondent

Hearing:	24 October 2023
Counsel:	K L Topham and S W Rollo for Appellant K T M Sadd-Peawini and R S P Lyttelton for Respondent and Litigation Guardian
Judgment:	22 November 2023

JUDGMENT OF GRICE J

Introduction

• [1] Mr Smith (the appellant) appeals against the dismissal of a without notice application for interim orders relating to occupation and insurance of a property in the name of Ms Jones (the respondent). Mr Smith was in a relationship with Ms Jones for some years and at the same time that he filed the without notice applications, he filed substantive applications in the Family Court seeking an interest in the property.

SMITH v JONES [2023] NZHC 3277 [22 November 2023]

• [2] The first interim order sought was pursuant to s 27 of the Property (Relationships) Act 1976 (the Act) for an occupation order in relation to a property registered in the name of the respondent. The second order was for an interim order under s 30(a) of the Act vesting the insurance policy for the relevant property in the appellant’s and the respondent’s joint names. The application was supported by an affidavit by Mr Smith.

• [3] The Family Court Judge received the without notice applications on what is described as the “E bench” platform. He dismissed it on the papers, directing that a notice of response be filed by the respondent and granting leave to file a new application for an injunction or restraining order if the respondent took any unilateral steps.

• [4] The appellant says the Judge made errors in refusing to make the interim occupancy order pursuant to s 27 of the Act, in treating the application as seeking orders under s 33 of the Act, and in determining that he could not make an ancillary order without there being orders made pursuant to s 28 of the Act. The Judge is also said to have erred in refusing to make an order under s 30(a) vesting the insurance policy in the parties’ joint names.

• [5] The respondent submits that this Court has no jurisdiction to hear the appeal and, secondly, the Judge did not err in reaching his decision. In addition, the respondent submits that this Court on appeal cannot make the orders sought by the appellant in view of the lack of any evidence by the respondent before this Court.

• [6] The respondent also points to the fact that the proceedings in the Family Court have now moved on and the substantive matters have been the subject of at least two case review hearings or judicial conferences and are about to be set down for a hearing of some factual and legal issues which require determination. These may resolve the claims without the need for a substantive hearing. These matters are: first, whether the relationship was a qualifying relationship under the Act such as to entitle the respondent to claim; second, if so, what was the date of the end of the relationship; and, third, whether the defendant was out of time to make an application under the Act. The appellant also advised the Court that a constructive trust or similar claim

would likely be pursued in addition to the claim under the Act. The full details of the claim are not before this Court.

Jurisdictional issue

Legal framework

• [7] The respondent submits that this Court has no jurisdiction to deal with an appeal from an interlocutory order. The appeal provision in the Act is as follows:

39 Right of appeal to High Court

(1) This subsection applies to a decision of the Family Court or the District Court, in proceedings under this Act, to—

(a) make or refuse to make an order; or

(b) dismiss the proceedings; or

(c) otherwise finally determine the proceedings.

(2) A party to proceedings in which there is made a decision to which subsection (1) applies, or any other person prejudicially affected by the decision, may appeal to the High Court against the decision.

(3) The High Court Rules 2016 and sections 126 to 130 of the District Court Act 2016, with all necessary modifications, apply to an appeal under subsection (2) as if it were an appeal under section 124 of that Act.

...

• [8] The appeal provisions under the District Court Act 2016 are as follows:

124 General right of appeal

(1) This Part applies to a decision of the Court, other than a decision of a kind in respect of which an enactment other than this Act—

(a) expressly confers a right of appeal; or

(b) expressly provides that there is no right of appeal.

(2) A party to a proceeding in the District Court may appeal to the High Court against the whole or a part of a decision made by the District Court in or in relation to the proceeding.

• [9] “Decision” is defined under s 123 District Court Act as including a judgment and an interim or a final order.

Does the Act allow an appeal from an interlocutory application?

• [10] There are conflicting authorities as to whether s 39 of the Act allows an appeal from an interlocutory decision.

• [11] The first, in time, was a decision of John Hansen J in E v E.¹ Under consideration in that decision was whether or not orders made for discovery in the course of proceedings under the Act, being interlocutory orders, were susceptible to appeal. His Honour concluded that there was some uncertainty as to whether the appeal provision in the Act extended to an interlocutory decision. The Judge followed an earlier decision of Chisholm J in Re McIlraith.² In that case the Court held that there was no appeal permitted from an interlocutory application. While the appeal provision in that case appeared in the Family Protection Act 1955, it was couched in the same terms as s 39 of the Act. Chisholm J had reasoned that the words “otherwise finally determine the proceedings” (which phrase also appears in s 39(1)(c)) made it clear that the right of appeal is confined to orders finally determining the proceedings, and did not include interlocutory orders.³ John Hansen J commented that he did not “disagree with Chisholm J’s interpretation” and applied it to s 39 of the Act.⁴ His Honour noted that the forerunner to s 39 – namely s 39(1) of the Matrimonial Property Act 1976 – had given an express right of appeal where a Family Court had made or had refused to make “an order in any proceedings under this Act, or has otherwise finally determined or has dismissed any proceedings under this Act”.

• [12] John Hansen J noted that Chisholm J had not gone on to consider the provisions relating to appeals in the legislation governing the general right of appeal from the District Court, although noted that was not surprising given that Chisholm J was dealing with the matter on the basis of memoranda as opposed to full argument.⁵

• [13] However, John Hansen J went on to find that, as no other right of appeal was provided and there was no express provision preventing a right of appeal, the

¹ E v E [2005] NZFLR 806 (HC).

² Re McIlraith HC Ōtepoti | Dunedin, CIV-2004-412-37, 1 Hune | June 2004.

³ At [4], cited in E v E, above n 1, at [28].

⁴ E v E, above n 1, at [31].

⁵ At [35].

predecessor of s 124 of the District Court Act 2016 – then s 72 of the District Courts Act 1947 – applied. The Judge noted that this may not have been the intent of Parliament, but it was the effect of the legislation. He said:

[41] .... Indeed, there may have been policy reasons why matters under this Act should confer an automatic right of appeal in interlocutory orders. That is because the jurisdiction of the Family Court under this is unlimited. If the limited jurisdiction of the District Court in civil proceedings entitles an appeal against interlocutory orders as of right, one would expect the same to follow in the Property (Relationships) Act. However, I accept there is a counter policy argument that such measures should not be bogged down (particularly at the financial lower end of the jurisdiction) with interlocutory appeals. I do not propose to take the policy argument any further because it has not been addressed by counsel. Suffice to say that there are policy arguments both ways in this Act, and the other Acts found in the 2002 amendment to the District Courts Act mentioned by Chisholm J in his decision.

• [14] The relevant provisions of the District Courts Act 1947, which for all material purposes are the same as the present s 124 of the District Court Act 2016, allowed a general right of appeal against an interlocutory decision.⁶ The Judge noted that the whole relationship between the District Courts Act and Acts was uncomfortable but noted that other pieces of legislation such as the Guardianship Act 1968,⁷ the Children, Young Persons, and Their Families Act 1989 and the Protection of Personal and Property Rights Act 1988 specifically limited interlocutory appeals by imposing statutory leave provisions.⁸

• [15] In contrast to those two earlier decisions, Brewer J in L v L concluded that s 39 of the Act did confer a general right of appeal.⁹ He said he could see no reason why s 39 should be interpreted as only governing appeals against final orders. He said the plain reading of the text did not require that interpretation.

• [16] His Honour said:

[19] The section confers a general right of appeal and s 39(1)(a) is phrased generally: “make or refuse to make an order”. There is nothing in the text to suggest that s 39(1)(a) cannot capture interlocutory orders. Justice John Hansen focused on the use of the phrase “otherwise finally determine the proceedings” in s 39(1)(c). He was of the view that this indicated the

⁶ At [40]–[41].

⁷ The predecessor to the Care of Children Act 2004.

⁸ At [42].

⁹ L v L [2017] NZHC 2529.

subsection’s scope was only intended to capture final orders. But this is the third limb in the subsection. There are two preceding limbs. I regard the term “otherwise” in s 39(1)(c) as relating to s 39(1)(b), which reads “dismiss the proceedings”. Section 39(1)(c), therefore, captures other types of decisions which determine proceedings, but do not dismiss them.

• [17] In SMG v EWG, Ronald Young J dealt with an appeal against a refusal of an interlocutory order granting a stay of execution.¹⁰ The application for stay pending appeal of the judgment had been refused in the Family Court. Ronald Young J, relying on the decision of John Hansen J in E v E, concluded that there was no jurisdiction to consider an appeal from a refusal to grant a stay of execution because it was an interlocutory matter from the Family Court. Brewer J in L v L referred to this decision but commented that he placed no weight on it, as the Judge had adopted the interpretation without analysis because the parties did not dispute it.¹¹

• [18] MacKenzie J in Dunsford v Shanly also concluded that interlocutory orders made in the Family Court were not included under the appeal provisions in s 39 of the Act. ¹² His Honour found that the appeal provisions only extended to orders or decisions of the Family Court which, in terms of s 39(1)(c), “otherwise finally determined the proceedings”. His Honour said this meant that interlocutory orders were not included.¹³

• [19] The respondent in this case also relied on C v H.¹⁴ That was a decision of Nation J, made on the papers, which concerned an appeal from the Family Court declining a without notice application for a protection order. The Judge reviewed the provisions of s 177 of the Family Violence Act 2018, which governs appeals to the High Court and is in similar terms to s 39 of the Act. He noted that without notice applications for protection orders could be challenged by way of judicial review.¹⁵ His Honour also referred to cases where the High Court had allowed an appeal to proceed on a without notice basis against such interlocutory decisions dealing with them in a “pragmatic way” to minimise the inconvenience and burden of an appeal on the parties

¹⁰ SMG v EWG [2007] NZFLR 27 (HC).

¹¹ L v L, above n 9, at [16].

¹² Dunsford v Shanly [2012] NZHC 257.

¹³ At [7].

¹⁴ C v H [2022] NZHC 3145.

¹⁵ At [6].

affected.¹⁶ In those cases the appeals were dismissed on their merits. Those decisions included Simeon v Simeon-Campbell.¹⁷ In that case there was no appearance by the respondent. Gendall J heard the appeal and dismissed it on the grounds that making a protection order without notice in the circumstances would have denied the respondent natural justice.¹⁸ He said it was reasonably arguable the respondent could have been reasonably located and been served, and, having regard to the delay after the application was filed, the allegations of family violence were not sufficiently immediate to require an order to be made on a without notice basis.¹⁹

• [20] Nation J in C v H decided in light of the purpose of the family violence legislation that the without notice dismissal of a protection order application should be allowed to proceed to be heard on a notified basis in the Family Court rather than by pursuing an appeal to the High Court. He said this was the most appropriate “swiftest, cheapest and simplest remedy available” consistent with justice.²⁰ His Honour went on to say that an appeal to the High Court against refusal of a temporary protection order on a without notice basis would likely have to proceed on an on notice basis, which would be contrary to the scheme and purpose of the family violence legislation.²¹ His Honour noted that the specialist nature of the family jurisdiction meant it was the appropriate place to deal with these matters,²² and while there was some potential for a justified without notice application “slipping through the cracks and being refused” that could be adequately protected against through the availability of judicial review.²³ His Honour concluded that the High Court could hear a judicial review in relation to the granting or dismissing of a without notice protection order, but that it was likely, however, that it would only be in a “truly exceptional case [that] the aggrieved applicant would obtain the relief they seek by way of judicial review.”²⁴ The more appropriate remedy was for the aggrieved applicant to proceed with the temporary protection application through the on notice proceedings that were already

¹⁶ At [7].

¹⁷ Simeon v Simeon-Campbell [2022] NZHC 2029.

¹⁸ At [22].

¹⁹ At [23]–[24].

²⁰ C v H, above n 14, at [16]–[17].

²¹ At [24].

²² At [25].

²³ At [26].

²⁴ At [33].

before the Family Court.²⁵ It appears that the Judge was not referred to the provisions of s 124 of the District Court Act.

• [21] In my view, the plain meaning of s 39 the Act accords with the interpretation given to it by Brewer J in L v L. As Brewer J reasoned, if the District Court Act governs the appeal, given the Family Court Act excludes the operation of ss 127 (appeals must be by way of rehearing) and 128 (powers of the High Court on appeal) of the District Court Act, the High Court could not properly dispose of the appeal. The appellant would be entitled to an appeal under s 124 of the District Court Act, but the Court would have no statutory powers to do anything about it.²⁶ As Brewer J noted:
  • [22] This interpretation is consistent also with the evident intent of the Family Court Act in its appeal provisions. The Family Court has a varied jurisdiction prescribed by a number of statutes. So, s 16(4) provides for a right of appeal to the High Court (because it prescribes the application of s 124 of the [District Court Act]) and leaves it to the statutes conferring jurisdiction to define the nature and scope of the appeal right. For the [Property (Relationships) Act], the section that does that is s 39. If s 39 were intended to limit appeals to final decisions then I would expect it to say so, and to block the truncated path of appeal under s 124 of the [District Court Act].

• [22] Interlocutory orders under that Act can have significant consequences for the parties. For instance in relation to interim occupation and insurance applications in urgent situations it is appropriate there is a clear appeal pathway rather than relying on judicial review which is more focused on the process by which the decision was made. The appeal pathway using s 124 of the District Court Act is awkward. That path leaves the Court without the operation of the provisions which would allow it to dispose of the appeal effectively. That interpretation is also consistent with one of the principles of the Act as set out at s 1N(d):

(d) the principle that questions arising under this Act about relationship property should be resolved as inexpensively, simply, and speedily as is consistent with justice.

• [23] I conclude that s 39(1)(a) of the Act provides for an appeal against the making or refusal of an interlocutory order under the Act.

²⁵ At [33].

²⁶ L v L, above n 9, at [20].

• [24] I am wrong about that and there is no right of appeal under s 39 of the Act, s 124 of the District Court Act 2016 would allow a right of general appeal. It provides for a general right of appeal against a “decision made by the District Court in or in relation to the proceeding”, other than for Acts which expressly confer a right of appeal or expressly provide that there is no right of appeal. As “decision”, as defined in the previous interpretation section (s 123), includes “an interim or final order”, this includes a decision to dismiss an application, which is itself an interim order. The commentary in District Courts Practice (Civil) (NZ) notes that an appeal may be brought against any “decision” so long as it is an exercise of the civil jurisdiction of the Court.²⁷ The distinction between decisions and orders for final orders and interim orders is irrelevant under that provision. The authors note that the Supreme Court has rejected an attempt to distinguish between various types of interlocutory orders, such as case management rulings and rulings made in the course of the hearing, in the face of the provisions of s 66 of the Judicature Act 1908 (now repealed and replaced by the Senior Courts Act 2016, which has a similar provision to that of s 66 of the Judicature Act).²⁸

• [25] Therefore, in the absence of an express provision that there is no right of appeal, it appears there is a right of appeal from any type of interlocutory decisions from the District Court (which for present purposes includes the Family Court). The commentators also noted that instead of appealing, it is possible to judicially review a District Court decision,²⁹ but that such power should be exercised sparingly and reserved for “rare cases involving clear errors of law of a jurisdictional nature where the intervention of the High Court is imperative.”³⁰ The commentary noted the observation of Katz J in NR v District Court of Auckland that a reviewing court examines the correctness of the decision-making process, whereas an appeal court examines the correctness of the decision itself.³¹

²⁷ District Courts Practice (Civil) NZ (online looseleaf ed, LexisNexis) at [DCA2016.124.1]. ²⁸ At [DCA2016.124.1], citing Siemer v Heron [2011] NZSC 133, [2012] 1 NZLR 309 at [31]. ²⁹ At [DCA2016.124.11].

³⁰ At [DCA2016.124.11], quoting NR v District Court of Auckland [2014] NZHC 1919 at [8], citing

Auckland District Court v Attorney General [1992] NZCA 239; [1993] 2 NZLR 129 (CA) at 136.

³¹ At [DCA2016.124.11], quoting NR v District Court of Auckland, above n 30, at [7].

• [26] On this alternative pathway for appeal, the general right of appeal provided for in s 124 of the District Court Act is not excluded by s 16(4) of the Family Court Act. However, s 16(4) of the Family Court Act excludes the operation of ss 125–130 of the District Court Act in relation to the Family Court or the business of the Family Court. Under this pathway, therefore, the ordinary principles for appeals under the High Court Rules would apply.³²

Appeal Principles

• [27] In any case, however, I proceed on the basis that a right of general appeal lies against the decision to dismiss the without notice applications under s 39 of the Act. Such appeal is “by way of rehearing”. This means that the appeal court considers the issues that had to be determined in the proceeding below on the basis of the evidence appearing in the lower court’s record, but applies the law as it is when the appeal is heard.³³ “By way of rehearing” does not mean there is to be a complete rehearing of the evidence, as in a new trial.

• [28] The leading decision on the approach of the appeal court to general appeals is Austin, Nichols & Co Inc v Stichting Lodestar.³⁴ The appellant bears the onus of satisfying the appeal court that it should differ from the decision under appeal.³⁵ In discharging that onus, the appellant must identify the respects in which the judgment under appeal is said to be in error.³⁶

• [29] The appeal court has the responsibility of arriving at its own assessment of the merits of the case.³⁷ The extent of the consideration the appeal court gives to the decision appealed from is a matter for its judgement.³⁸ Where the Court below had a particular advantage (such as technical expertise or the opportunity to assess the credibility of witnesses), the appeal court may rightly hesitate to conclude that findings

³² Rule 20.1(1) of the High Court Rules provides that Part 20 of the High Court Rules, dealing with appeals, applies to appeals to the High Court under any enactment other than the Criminal Procedure Act 2011, the Arbitration Act 1996 and the Bail Act 2000.

³³ Pratt v Wanganui Education Board [1977] 1 NZLR 476 (SC) at 490.

³⁴ Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

³⁵ At [4].

³⁶ Green v Green [2016] NZCA 486, [2017] 2 NZLR 321 at [30].

³⁷ Austin, Nichols, above n 34, at [5].

³⁸ At [5].

of fact are wrong.³⁹ This is particularly so where the case depends largely on disputed oral evidence, even where no issue of credibility arises.⁴⁰

• [30] In Austin, Nichols, Elias CJ, writing for the Court, said at [16]:

[16] Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ ...

Application to adduce further evidence on appeal

• [31] A party to an appeal may adduce further evidence only with leave of the Court.⁴¹

• [32] The Court may grant leave if there are special reasons for hearing the evidence.⁴² The power is to be exercised sparingly and the Court typically enquires whether the evidence is fresh, cogent and material.⁴³

• [33] In rare circumstances, evidence that was reasonably available for the hearing at first instance may be admitted.⁴⁴

• [34] The evidence will require a de novo assessment and consideration of how it affects the correctness of the decision under appeal.⁴⁵

• [35] The appellant seeks to adduce further evidence on appeal. The proposed evidence was a copy of an email from the appellant’s lawyer to the respondent’s lawyer. It outlined a proposed set of undertakings. No response was annexed nor do I have any evidence of the discussions between counsel on this issue.

³⁹ At [5].

40. Fonterra Co-operative Group Ltd v McIntyre and Williamson Partnership [2016] NZCA 538 at [156]–[159].

⁴¹ High Court Rules 2016, r 20.16(2).

⁴² Rule 20.16(3).

⁴³ Comalco New Zealand Ltd v Television New Zealand Ltd [1996] NZHC 1090; (1996) 10 PRNZ 573 (HC) at 579.

44. Complaints Committee No 1 of the Auckland District Law Society v P [2007] NZHC 1438; (2007) 18 PRNZ 760 (HC) at [21].

⁴⁵ Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [31].

• [36] The appellant says the email concerning the undertakings was pursuant to the prompted by Churchman J, in an appeal management conference, suggesting the parties might resolve the appeal by the use of undertakings. There was no direction to this effect by the Judge.

• [37] While that evidence may be fresh, in that it has come into existence since the refusal of the without notice application, it is not cogent or material. The email was not before the Family Court Judge when he dealt with the without notice application. An appeal generally proceeds on the basis of the material before the decision-maker. In addition, the evidence does not go to the decision on appeal.

• [38] There are no special reasons for hearing the evidence. The application to adduce further evidence is dismissed.

Merits of the appeal

• [39] The reasons for the refusal of the without notice application are set out in a document headed “Memorandum of Judge”. In the heading there is a reference to the memorandum being from a person I understand to be the case officer. A reference to the Act is made and in the line below the Act appears the following:⁴⁶

Application Type: S33 Ancillary Order Without Notice.

...

Judge,

Without Notice s33 Application for Orders regarding Relationship Property filed alongside On Notice s23 Application.

For your consideration.

DIRECTIONS

This application should proceed on notice. It is unclear as to what orders are being sought. The Court can’t make an ancillary order pursuant to section 33 without there being orders pursuant to sections 23 to 32 being made apart from limited exceptions. None have been made as yet. I direct a NOR be filed in 10 days. Leave is granted to a new application for an injunction or restraining order if the respondent takes any unilateral steps. There appears to be no threat to the applicant being removed from the property. IF the respondent fails to provide the information sought it will be available by discovery. I direct the case be set down for a 15 minute JC in 3 to 4 weeks.

⁴⁶ Sic.

• [40] There is no reference to s 33 of the Act in the without notice application. Section 33 is a reference to ancillary orders. Insofar as relevant it provides as follows:

33 Ancillary powers of court

(1) The court may make all such other orders and give such directions as may be necessary or expedient to give effect, or better effect, to any order made under any of the provisions of sections 25 to 32.

(2) ...

• [41] The Judge dealt with the application as if it were an ancillary order application under s 33 which was understandable as in the internal court memorandum was headed up with that section reference. He did not refer to the without notice application concerning the insurance at all and in relation to the application for possession said that there appeared to be no threat to the applicant being removed from the property.

• [42] It is apparent that dealing with the application under the incorrect section is an error. The without notice applications were not seeking ancillary orders. Therefore, the restriction on obtaining orders, there being no orders under ss 23–32, does not apply.

• [43] There is jurisdiction under s 27 of the Act to make occupation orders and under s 30 to make orders in relation to insurance policies. Either of those applications can be made on an interim without notice application.

• [44] I now consider the merits of the application itself. The grounds for the without notice application were set out in Mr Smith’s supporting affidavit as follows:

Grounds for without notice applications

23. I seek that the interim occupancy and interim life insurance orders are made on a “without notice” basis for the following reasons:

(a) I have tried engaging with [Ms Jones], but she is either unable or unwilling to engage with me;

(b) Our house was largely destroyed by fire and there is an insurance claim that is being managed without any consultation or regard for my interests in the property and the claim;

(c) I am really concerned that if decisions are made against my interests there will be no way for me to remedy matters;

(d) I am concerned that at my age, any compromises or agreements to settle with the insurance company would cause

me irreparable harm, potentially leaving me homeless. [Ms Jones] has not engaged with my attempts to reach an agreement to date, and I am concerned that a delay will impact on my ability to have input into the insurance claim, and that decisions will be made without my consent. This application is being made without notice because the delay that would be caused by proceeding on notice would or might entail irreparable injury to me.

• [45] In my view, there was insufficient material before the Judge in order to make the orders sought on a without notice basis on was arrested 20 together like that I will go. It was not a situation in which delay in dealing with the application would cause the appellant irreparable damage.⁴⁷ In addition, the appellant’s lawyers had been in communication with the respondent’s lawyers concerning Mr Smith’s claim, and he had lodged a notice of claim on the title to the property. The respondent was in a mental health facility and the appellant did not suggest that she posed a threat. At best, there was a possible threat in his comment that he was “fearful that [Ms Jones’s] family may seek to have me removed”. That is insufficient to establish the prerequisites for a without notice application. The application should have been made one on notice.

• [46] As the Judge stated, if a credible threat emerged, a further application could be made.

• [47] Similarly, the insurance issue was not a matter which warranted a without notice application. The appellant could have equally well progressed this matter on a notified basis, which is now what has occurred.

• [48] As Fisher J said in Martin v Ryan, “in all but the rarest of cases civil litigation should be conducted on an inter partes basis.”⁴⁸ As his Honour stated:⁴⁹

There must be very few cases where it will not be practicable to give 24 hours’ notice (or some authorised lesser period) to an opponent ... As was said by Megarry J in Bates v Lord Hailsham of St Marylebone [1972] 3 All ER 1019, 1025: “Ex parte injunctions are for cases of real urgency, where there has been a true impossibility of giving notice of motion.” There may be cases where an ex parte application is unavoidable but as Ormrod LJ said in Ansah at p 143:

⁴⁷ Martin v Ryan [1990] NZHC 151; [1990] 2 NZLR 209 (HC).

⁴⁸ At 233.

⁴⁹ At 227.

“Such cases should be extremely rare, since any urgent application can be heard inter partes on two days’ notice to the other side ... Circumstances, of course, may arise when prior notice cannot be given to the other side; for example, cases where one parent has disappeared with the children, or a spouse, usually the wife, is so frightened of the other spouse that some protection must be provided against a violent response to service of proceedings, but the court must be fully satisfied that such protection is necessary.”

• [49] The applications are now effectively being dealt with on a notified basis together with the substantive applications.

• [50] I dismiss the without notice application on its merits. It is not necessary to put the application on notice, as that application is now being timetabled for hearing. Therefore, I make no further directions in relation to the without notice application.

• [51] This decision can be reported as the appellant’s and respondent’s names have been anonymised.

• [52] I direct a copy of this judgment (the anonymised version) be provided to the Family Court.

Costs

• [53] Any application for costs is to be made within five days of the date of this judgment. Any response shall be filed and served within a further five days and any reply within a further three days.

Grice J

Solicitors:

Legal Solutions, New Plymouth for Appellant Govett Quilliam, New Plymouth for Respondent