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Hemmes v Young CA54/02 [2002] NZCA 389 (7 November 2002)

Last Updated: 18 February 2019


IN THE COURT OF APPEAL OF NEW ZEALAND
CA54/02




BETWEEN
JOHN HEMMES


Appellant



AND
JOHN PATRICK YOUNG


Respondent




Hearing:
22 October 2002


Coram:
McGrath J
Chisholm J
Gendall J


Appearances:
C P Browne for Appellant
S W Hughes for Respondent


Judgment:
7 November 2002



JUDGMENT OF THE COURT DELIVERED BY GENDALL J


[1] This is an appeal against the judgment of the High Court in New Plymouth (M10/00, 3 December 2001, New Plymouth, Randerson J) dismissing an application for review of a Master’s decision which itself had dismissed an application by the appellant to have the proceedings struck out. The Judge, under Rule 426A of the High Court Rules, granted leave to continue the proceedings notwithstanding a breach of Rule 127 as they had not in fact been served within the required one year period. His Honour, acting under Rules 5 and 6 extended the time for service to the date on which service was in fact effected. Those rules enable the Court to allow amendments or make such orders as it thinks fit if there has been non-compliance with a rule, and to enlarge time as the Court thinks just.

Factual background

[2] The proceedings under the Status of Children Act 1969 are brought by the respondent (“Mr Young”) against the appellant (“Mr Hemmes”) in the High Court, New Plymouth by way of a statement of claim dated 3 April 2000. An order is sought that Mr Hemmes is the father of both Mr Young and his twin sister, Dale Irmonger, (now deceased). The claim alleges that Mr Hemmes met the mother of Mr Young and his sister in Wellington in 1952. Sexual intercourse occurred which led to the twins being conceived in February 1953, and born on 3 November 1953. As can be seen, over 46 years elapsed before the proceedings were brought. There is no limitation period governing the issue of proceedings under the Status of Children Act 1969.
[3] Mr Hemmes resides in Australia. On 12 April 2000 an order was made authorising service of the proceedings overseas. Attempts to serve him were unsuccessful, because he evaded service. An order for substituted service was made on 10 July 2000 authorising service on one of his staff at his business premises in Sydney. Actual service pursuant to the order for substituted service was not effected until 6 July 2001, a period of almost 12 months after the order for substituted service. Service was not, however, effected within 12 months of the date of issue of proceedings, as required by Rule 127 unless time is extended by the Court upon application made under Rule 128.
[4] The application under Rule 478 to dismiss the proceedings for want of prosecution was filed on 25 September 2001 but dismissed by the Master on 14 November 2001. Mr Hemmes in his statement of defence denies paternity but admits an association with the twins’ mother and that the relationship was intimate. Affidavits filed on behalf of Mr Young included one from his mother deposing as to her meeting Mr Hemmes in 1952, having had sexual intercourse with him at the relevant time and having not had sexual intercourse with any other man over the relevant period. She deposes that she advised Mr Hemmes of her pregnancy about three to four months prior to giving birth, and thereafter never saw nor heard from him again.

Judgment of Randerson J

[5] In the judgment under appeal Randerson J endorsed the well known approach, adopted by the Master, as set out in Lovie v Medical Assurance NZ Limited [1992] 2 NZLR 244, 253. There Eichelbaum CJ held that the applicable principles were:
  1. By itself, delay prior to the issue of proceedings cannot constitute inordinate and inexcusable delay for purposes of a striking out application.
  2. If such delay has occurred, further delay after issue of proceedings will be looked at more critically by the Court, and will be regarded more readily as inordinate and inexcusable than if the proceeding had been commenced earlier.
  3. The defendant must show prejudice caused by the post-issue delay. If, however, the defendant has suffered prejudice as a result of pre-issue delay, he will need to show only something more than minimal additional prejudice to justify striking out the proceeding.
  4. An overriding consideration is whether justice can be done despite the delay. As to that, all factors, including pre-issue prejudice and delay, have to be taken into account.

[6] Randerson J observed, however, that simply because there was no limitation period did not allow a plaintiff to stand back and delay issuing proceedings for a lengthy period, and then to indulge in further delay thereafter. He noted that solicitors had been instructed in the early 1990s, and that one of the affidavits of Mr Young’s mother was in fact dated in 1992. He held that there was no reason why service could not have been effected promptly after the order for substituted service.
[7] It is not altogether clear whether the Judge when speaking of “inordinate delay” was referring to lapse of time pre issue, post issue, or the cumulative delay. Whilst he refers to the explanation for delay prior to bringing the application, and being “satisfied that the proceedings could have been taken earlier”, his acceptance of the Lovie approach makes it clear that he was only looking at the overall “delay” so as to determine whether post issue delay was inordinate and inexcusable.
[8] The Judge concluded that although the delay was not excusable, the heart of the matter was whether Mr Hemmes had been prejudiced as a result of post issue delay. He concluded that Mr Hemmes was no worse off, in terms of his ability to challenge or defend the proceedings now, than he had been at the time of their commencement.
[9] In reviewing the overall justice of the case the Judge said that its determination after nearly 50 years was not “an attractive proposition”, but noted that the legislature permits this kind of claim to be brought long after the event. The Judge balanced the actions of both the parties and concluded that overall justice did not prevent Mr Young from proceeding.
[10] Because there had been a failure to serve the proceedings within 12 months of issue, with no application having been made to extend the time for service under Rule 128 before actual service, the Judge applied Rules 5 and 6 to deal with what he saw as an irregularity.
[11] Consequently the application to review the Master’s decision was dismissed and the time for service of the proceedings was extended until 6 July 2001 being the date upon which they were actually served, with leave being granted under Rule 426A to Mr Young to continue the proceedings.

Jurisdiction issue

[12] Leave to appeal the interlocutory decision of the Judge was required by the former Rule 61C(6). This provided:

Randerson J granted leave to appeal on 7 March 2002 in relation to the issue of whether Rules 5 and 6 were available to cure the breach of Rule 127 but refused leave in relation to the other ground concerning Rule 478.

[13] Rule 61C(6) was revoked as from 1 July 2002 following the filing of the appeal. This Court subsequently issued a memorandum stating that without leave of the High Court or of this Court argument beyond that for which the Judge granted leave to appeal would not be entertained. As a consequence, counsel for Mr Hemmes sought leave of this Court to advance on appeal the additional ground that leave under Rule 426A to continue the proceedings ought not have been granted, because the delay was inordinate and inexcusable and Mr Hemmes was prejudiced in his defence. The additional ground is said to relate:

...to the approach to applications under r478 of the High Court Rules which the Court should adopt in cases where there has been exceptional delay (in excess of the usual limitation period) prior to the commencement of proceedings.

[14] The Court’s memorandum reflects the view that although the Rule under which Randerson J gave leave to appeal has been revoked his judgment was the exercise of a power under repealed legislation which has continuing effect (Interpretation Act s18).
[15] Counsel for the appellant nevertheless contended that the appellant had a statutory right of appeal without requiring leave from the whole of Randerson J’s judgment. Alternatively he sought leave from this Court to appeal on the additional ground. After hearing argument on those matters, but without determining the questions of right of appeal or whether to grant leave, we permitted counsel to address the merits of the Rule 478 issue. The view we take of the merits of the appellant’s arguments means it is unnecessary to determine those procedural questions.

Applicant’s case

[16] The essential contentions of counsel for Mr Hemmes were that:

Basis for the proceedings – Status of Children Act 1969

[17] Pursuant to the Status of Children Act 1969 an application for the declaration of paternity can be made at any time. Section 10 provides:

may apply to the High Court for a declaration of paternity, and if it is proved to the satisfaction of the Court that the relationship exists the Court may make a declaration of paternity whether or not the father or the child or both of them are living or dead.

[18] Clearly a child or mother of a child can make such application. So can a grandchild in relation to a father/child relationship of his/her grandfather to his/her mother whether or not the grandfather and mother are alive. An example can be found in Re an Application by Tamasese [1999] NZFLR 43 where an application for the declaration of paternity under the Act was made 70 years after the birth of the child in 1928. The plaintiff sought (and was granted) a declaration that her long since deceased grandfather, born in 1880, was the father of her 70 year old mother. Clearly the legislation envisages applications being made after death of the father and/or child and mother. Time barriers for applications do not exist and as the statute makes clear, a child, grandchild or remoter issue may apply at any time.
[19] The Act, being “An Act to remove the disabilities of children born out of wedlock” was designed to remove the stigma of illegitimacy from children. It was a significant piece of social legislation passed in conjunction with the Domestic Proceedings Act 1968, both Acts having come into force on 1 January 1970. The legislation in force when the twins were born was the Destitute Persons Act 1910 which provided for the making of Affiliation Orders against a father of an “illegitimate” child. The mother, or other “reputable person”, could bring proceedings but it was necessary to show that the defendant was not only the father but that he had failed or intended to fail to provide for the child’s maintenance. An order to pay maintenance could be made as part of the Affiliation Order. Corroboration of the mother’s evidence was required. No “complaint” could be made unless the child was under 16 or had died under that age. A six year limitation period applied.
[20] The Domestic Proceedings Act 1968 replaced the Destitute Persons Act 1910. Although it enabled declarations as to paternity to be made, the scope of the proceedings remained very limited. “Affiliation orders” became “Paternity orders”. Only a mother of a child, or a “Child Welfare Officer”, or a person having custody of the mother (if under 16), or any other person authorised by the Court, could apply.. A “declaration” could be sought that a man was the father of a child born to a woman to whom he was not married and had never been married. A declaration could not be made after six years had elapsed from the birth of the child (with some exceptions, in calculating time). Corroboration of the mother’s evidence was required. Once a Paternity Order was made, a maintenance application by mother, child welfare or other (usually) custodian could follow.
[21] It was at that same time that the Status of Children Act 1969 came into force. Clearly it was designed to provide for situations unrelated to maintenance matters or actions necessarily “against” a putative father. One of the purposes of this Act is to enable persons with a proper interest – (children, grandchildren, mothers, and the father – to seek declarations as to status and the proceedings are deemed to be Declaratory Judgment applications (s.10(3)). While a time limit of six years was set for paternity applications under the Domestic Proceedings Act 1968, there is no corresponding requirement for applications under the Status of Children Act 1969. Clearly, Parliament intended that proceedings under the latter Act could be brought at any time.
[22] The Family Proceedings Act 1980 then replaced the Domestic Proceedings Act 1968, on 1 October 1981. It provided for paternity orders to be made only by the Family Court in respect of a child against a male who is not married to the mother, and has never been married (or whose marriage is dissolved before conception of the child). Applications can only be made by the mother; the person having custody of the child, or if the mother is dead or had abandoned the child, by a social worker, grandparent, guardian, or other person with leave of the Court. The limitation period of six years from the birth of the child remained with some certain exceptions. Corroboration of the mother’s evidence was not required and maintenance orders in respect of the child could follow after the making of the paternity order under that Act. Section 50 provided that jurisdiction of the High Court to determine paternity under any other enactment or rule of law (obviously a reference to the Status of Children Act 1969) was not limited.
[23] It is abundantly clear that legislature has provided two paths of “paternity” action. First, one at the suit of the mother, guardian or someone on her behalf for paternity and maintenance orders in respect of the child through the Family Court which is subject to a limitation period. Secondly, since the 1969 Act came into force the mother, child, or those who have a proper interest in the result have been able to seek a declaration from the High Court as to the status of a “father” and child.
Against that background the principles to be applied where there is an application under Rule 478 in a situation such as this can be considered.

As to the principles adopted in Rule 478 applications

[25] It has to be kept in mind that Rule 478 in its terms only applies after a “proceeding” is issued and there has been a failure to prosecute it. If there has been such a failure the Court may make such order as may be just. When summarising the adopted principles (set out in para [5] above) in Lovie the former Chief Justice applied two decisions of the House of Lords, Birkett v James [1978] AC 297; and Department of Transport v Chris Smaller (Transport) Limited [1989] AC 1197. Counsel for the appellant contends that that line of authority ought not be followed, where, as here, no limitation period is prescribed because otherwise litigants would have an uncontrolled right to delay no matter how inordinate or inexcusable. He contended the proper approach in such cases is that of the English Court of Appeal in Biss (supra). Brief analysis of those apparently conflicting decisions is required.
[26] In Birkett v James (supra) Lord Diplock said, at p 320:

Crucial to the question whether an action ought to be dismissed for want of prosecution before the expiry of the limitation period is the answer to a question that lies beyond it, viz., whether a plaintiff whose action has been so dismissed may issue a fresh writ for the same cause of action. If he does so within the limitation period, the effect of dismissing the previous action can only be to prolong the time which must elapse before the trial can take place beyond the date when it could have been held if the previous action had remained on foot. Upon issuing his new writ the plaintiff would have the benefit of additional time for repeating such procedural steps as he had already completed before the action was dismissed. This can only aggravate; it can never mitigate the prejudice to the defendant from delay.

It is an attractive argument that if a court has power to dismiss an action already started because it considers that the time which the plaintiff has allowed to elapse since his cause of action first accrued has resulted in a substantial risk that justice may not be done to the defendant at the trial, the court by parity of reasoning should also have power to prevent a fresh action being started. But this begs the very question that your Lordships must decide. It assumes that the court has power to treat as amounting to inordinate and inexcusable delay in proceeding with an action a period shorter than that within which Parliament by a Limitation Act has manifested its intention that a plaintiff should have a legal right to commence proceeding with his action. No one has been bold enough to argue that if the plaintiff has not issued a previous writ he could be deprived of that right at the discretion of a judge because the judge thought that in the circumstances of the particular case the statutory limitation period was too long. So in such a case, at any rate, time elapsed before issue of the writ which does not extend beyond the limitation period cannot be treated as inordinate delay; the statute itself permits it.

and further (at p 321):

But, such exceptional cases apart, where all that the plaintiff has done has been to let the previous action go to sleep, the court in my opinion would have no power to prevent him starting a fresh action within the limitation period and proceeding with it with all proper diligence notwithstanding that his previous action had been dismissed for want of prosecution.

If this be so, it follows that to dismiss an action for want of prosecution before the limitation period has expired does not, save in the exceptional kind of case to which I have referred, benefit the defendant or improve his chances of obtaining a fair trial; it has the opposite tendency.

[27] In Biss the English Court of Appeal distinguished Birkett v James but that was a case where the writ was issued after the limitation period had expired (leave having earlier been granted to issue out of time). Both Lord Denning MR and Geoffrey Lane LJ referred to Birkett v James principles applying only to actions commenced within the “old” or “normal” periods of limitation and in such circumstances no difficulty arose in applying those principles. For that reason, counsel says that in the present case where no “normal” limitation period applies (whatever that may mean), or rather none are provided at all, then the line of authority of Birkett v James is not applicable.
[28] But the whole point of Birkett v James, as observed by the Chief Justice in Lovie, is that striking out because of pre issue delay will be pointless because the litigant may simply reissue proceedings if still within any limitation period set by statute (which was not the case in Biss). In Lovie (supra) His Honour said, at p 251:

Delay before the issue of proceeding cannot in itself constitute inordinate and inexcusable delay since that would be rewriting the limitation period set by Parliament. And the same considerations must apply to prejudice: to rely solely on prejudice caused by pre-issue delay would impinge upon the plaintiff’s statutory rights. I am not unmindful of the consideration that from the point of view of the efficiency of the administration of the Court system it would be beneficial to be able to take into account delay from the moment the cause of action arose; but to go further than did Lord Diplock and Lord Griffiths would be to negate Parliament’s intentions in laying down limitation periods of the length presently prescribed.

[29] In Department of Transport v Chris Smaller (Transport) Limited (HL) (supra), Lord Griffiths said, at p 1207:

The courts must respect the limitation periods set by Parliament; if they are too long then it is for Parliament to reduce them. I therefore commence my assessment of the present regime by concluding that the plaintiff cannot be penalised for any delay that occurs between the accrual of the cause of action and the issue of the writ provided it is issued within the limitation period.

and further at p 1207-1208:

... I have not been persuaded that a case has been made out to abandon the need to show that the post writ delay will either make a fair trial impossible or prejudice the defendant. Furthermore, it should not be forgotten that long delay before issue of the writ will have the effect of any post writ delay being looked at critically by the court and more readily being regarded as inordinate and inexcusable than would be the case if the action had been commenced soon after the accrual of the cause of action. And that if the defendant has suffered prejudice as a result of such delay before issue of the writ he will only have to show something more than minimal additional prejudice as a result of the post writ delay to justify striking out the action.

As was said by the Chief Justice in Lovie (supra) the logic of this view is “irresistible”.

[30] Crucial to the decision in Biss was the fact that there was long delay in issuing a writ after expiration of the limitation period.
[31] The appellant’s argument that where there is no limitation period provided then a plaintiff has to proceed without inordinate delay or risk his proceeding being struck out under Rule 478 is conceptually difficult to apply to proceedings such as envisaged under the Status of Children Act 1969. They are not proceedings based on a “cause of action” under which one can say a litigant (and the party is strictly only an applicant) has time running. From when does it run? Against whom? What is the cause of action? Is it the birth of a child? Or the conception? Or when the applicant ought reasonably have discovered the existence of facts which entitled him/her to apply? If so, what is the position with the children who are minors, until age 20? Or later grandchildren? Or others who have a proper interest in the outcome such as the present infant son of Mr Young. The reality is that circumstances prompting such an application may not arise until many years have elapsed since the birth of a person to whom the application relates. The absence of a limitation period reflects this factor. Indeed in this case the Act did not come into force until 1 January 1970 so no one could have brought an application before then. Only the mother could have brought proceedings under the 1910 Act. Given that the legislature allows orders to be made under the Act notwithstanding the deaths of either or both father and child, it clearly is Parliament’s intention not to place any time limits on an applicant, or restrict applicants to father/mother/child.
[32] The appellant’s argument relies upon the concept of “delay” by an applicant, which is a concept resting more easily with the enforcement of rights. Furthermore there will be different times at which delay could be said to commence, depending on who the applicant may be, but in any event it is not possible in any case to say with precision when a period of delay might commence. Passage of time prior to issue of an application is not irrelevant but only to the extent set out in Lovie (supra). The correct approach remains that, in assessing whether prejudice has arisen to a respondent, regard has to be had to prejudice since the issue of proceedings, despite “delay” or “passage of time” prior to issue. The fact that Mr Young could, if his proceedings were struck out or deemed to be discontinued, immediately have filed a new application has to be a relevant factor. So too is the fact that his mother, or his child or the children of his sister could issue proceedings seeking the same declaration. These matters simply highlight the fact that proceedings or applications, under this Act are not to be regarded in the same light as litigants in civil actions where civil causes of action arise.
[33] It does not mean that no remedy can ever exist for pre issue delay where no limitation period exists. The Court retains its supervisory jurisdiction to strike out if, after issue, there is want of prosecution in terms of Rule 478, and it also has its inherent jurisdiction to prevent abuse of its process, as Randerson J observed. It also retains a discretion whether or not to make any order. In Hunter v Chief Constable of the West Midlands Police [1981] UKHL 13; [1982] AC 529 (HL), Lord Diplock made it clear that the circumstances in which such inherent jurisdiction may be exercised are never closed. He said, at p 536:

[this case] .... concerns the inherent power which any Court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, could nevertheless be manifestly unfair to a party to litigation before it, or could otherwise bring the administration of justice into disrepute among right-thinking people. The circumstances in which abuse of process can arise are very varied .... It would, in my view, be most unwise if this House were to use this occasion to say anything that might be taken as limiting to fixed categories the kinds of circumstances in which the court has a duty (I disavow the word discretion) to exercise this salutary power.

[34] As to prejudice, we agree with the Judge. No realistic prejudice arises to Mr Hemmes from any post issue delay. Counsel contends that it is the passage of time from pre issue delay that gives rise to substantial prejudice because of dimming of memories and loss of witnesses. But in this case both mother and Mr Hemmes are alive and both acknowledge sexual intercourse. Other witnesses have been located by Mr Young, and the actual issue is proof of parentage. With modern scientific methods available, it seems likely the parties will be able to overcome loss of memory or witnesses. It is very much a different situation to a case where eyewitness accounts or credibility as to acts of intercourse between the twins’ mother and Mr Hemmes are crucial.
[35] Turning to the issue of the use by the Judge of Rules 5 and 6. Beyond doubt Rule 128 enables a Court to do justice if reasonable attempts had been made to effect service or “for other good reason” the period of service should be extended. The words “for other good reason” do not necessarily relate to matters of excuse but are wide enough to encompass the broad interests of justice. But it is clear that Rule 128 cannot apply in this case because in fact service had been effected albeit too late. If the documents had not been served an application under Rule 128 could have been made. It is illogical to say, therefore, that no remedy is available. Resort to Rules 5 and 6 was available to the Judge. In terms of Rule 6 he could order an enlargement of time notwithstanding that time had expired pursuant to his unfettered discretion. Non-compliance with the Rule 127 requiring prompt service entitled the Judge to treat the matter as an irregularity under Rule 5 and not a discontinuance against the defendant, and the deemed discontinuance provision in Rule 127(2) does not apply if service is made “within such further time as a Court may allow”. The Court may allow an extension of time for service in terms of Rule 6, as the Judge did, in order to achieve justice.
[36] On appeal it is not appropriate for this Court to interfere with that discretion. In our view it was correctly exercised.

Conclusion

[37] In disposing of the appeal we reiterate our view that the well established principles analysed in Lovie (supra) remain appropriate to strike out applications for delay. That applies whether or not any limitation periods are fixed by statute for the particular proceedings under consideration. There is no logical basis for the proposition that the Birkett v James line of authority does not apply in situations where Parliament has allowed an applicant to bring an application at any time. The Courts inherent jurisdiction, of course, remains. In terms of the Declaratory Judgments Act 1908 (which applies to these applications) the Court has a discretion to make an order and may refuse to do so on any grounds which it deems sufficient. However, there is no basis for this court to refine or revisit the law in relation to Rule 478 applications as it has been consistently applied in New Zealand since Lovie.
[38] The appeal is dismissed. Mr Young is entitled to costs which we fix in the sum of $5,000 together with counsel’s reasonable travel and accommodation disbursements.

Solicitors:
Wilson Harle, Auckland, for Appellant
Govett Quilliam, New Plymouth, for Respondent

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