Newman v Lee [2004] NZCA 192 (20 August 2004)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA93/04

BETWEEN PHILLIP CHARLES ROSS NEWMAN
Applicant

AND TRUDIE ELIZABETH LEE
Respondent

Hearing: 16 August 2004

Coram: McGrath J Hammond J Chambers J

Appearances: Applicant in person
A G Whitcombe for Respondent

Judgment: 20 August 2004

JUDGMENT OF THE COURT DELIVERED BY McGRATH J

[1] This is an application for leave to appeal against a judgment of the High Court dismissing an appeal against a decision of the Family Court concerning the duration of the de facto relationship between two persons and whether particular properties were relationship property. The applicant, Mr Newman, appealed to the High Court against the decision of Judge Callaghan which had determined that a property at Blacks Point was a family home at the date on which the applicant and the respondent, Ms Lee, had finally separated. The appeal was heard by Fogarty J who delivered a reserved judgment on 23 March 2004 in which he dismissed the appeal. The applicant, now appearing in person, seeks the leave of this Court to appeal against the High Court’s judgment, his former counsel having failed to persuade Fogarty J to give him leave to appeal.
[2] The appeal to this Court is by leave under s39B of the Property (Relationships) Act 1976, which provides that the Judicature Act provisions apply. Section 67 of the Judicature Act provides:

The determination of the High Court on appeals from inferior Courts shall be final unless leave to appeal from the same to the Court of Appeal is given by the High Court or, where such leave is refused by that Court, then by the Court of Appeal.

[3] The general policy of the law in relation to giving leave is that litigation should conclude on the determination of an appeal against a first instance decision of the Courts. This policy reflects the public interest in bringing litigation to an end by treating a dispute as finally determined following the judgment of an appellate court which has reviewed the outcome of the initial judicial decision. Accordingly, an applicant who seeks leave pursuant to a statute to bring a second appeal must generally show that there is a question of law or fact which involves a sufficiently important public or private interest to outweigh the considerations that support the general policy confining second appeals. These considerations are the additional cost to the parties and the inevitable delay in the resolution of their dispute which will result from permitting a second appeal: Waller v Hider [1998] 1 NZLR 412, 413. This is the approach we must apply to the application for leave to appeal in this case.
[4] In his judgment Fogarty J held that the Family Court Judge’s decision, that the family home of the parties when their relationship ended was the Blacks Point property, had not been shown to be plainly wrong. Fogarty J saw no error of principle in the approach of the Family Court, nor in the way in which the Judge had taken account of the relevant factors. It was open to the Judge to put the greatest weight on the fact that there had been a 12 month occupancy of the property concerned, as a family home, for a period which concluded with the date of separation. Fogarty J accepted that it had been arguable that of three possible properties another, at Sinnamon Street, should be recognised as being the family home at the time of separation. However their recent occupancy, and the fact that there were other family reasons that the parties had for living at the Blacks Point Road property, had prevailed with Judge Callaghan and on appeal the High Court Judge saw no reason for disturbing that conclusion.
[5] The applicant, both in his application to this Court for leave, and his written submissions, raised a number of criticisms of the judgments in the two other Courts. We must principally focus on that of Fogarty J against which the further appeal would be brought. The applicant’s points and his oral arguments to us come down to disagreement first with the upholding of the findings of the Family Court Judge, especially about his credibility findings concerning the respondent’s evidence, and secondly over that Judge’s view as to the weight given to certain particular factors, such as the duration of the marriage and the history of family ownership of the property. According to the applicant these should have been given more weight in the Family Court’s decision than they were. He takes issue with the High Court Judge’s conclusion that these findings have not been shown to be wrong.
[6] In his oral submissions the applicant put greatest weight on his allegations that the respondent had been untruthful in giving her evidence. Mr Whitcombe for the respondent accepted that this point was one that had been raised in the applicant’s notice of appeal to the High Court, but he told us that the applicant’s then counsel gave it little emphasis, preferring to focus in the High Court on other matters. The applicant accepted that was the case. The point cannot, however, properly be raised in this Court, as an error in the High Court’s judgment for which leave to bring another appeal should be given, where it was not a matter fully put to that Court.
[7] By and large, all the applicant’s complaints concerning the High Court’s judgment in the appeal concern matters of evidence which the Family Court Judge was in the best position to assess, or differences over the policy of the 1976 Act in respect of the family home being relationship property, neither of which are matters we can address on appeal. There is little prospect of any of the applicant’s points being successful if we were to permit another appeal. In those circumstances we have concluded that none of the points put to us by the applicant reach the threshold of amounting to an error of law or fact of sufficient importance to outweigh the cost and further delay in completing this litigation that would follow if we gave leave.
[8] In those circumstances the application for leave to appeal must be dismissed with costs to the respondent of $2,500 together with reasonable disbursements, (including the travelling and accommodation costs of counsel where appropriate) to be agreed by counsel and the applicant or failing agreement to be fixed by the Registrar.

Solicitors:
A G Whitcombe, Greymouth for respondent