Hayes v Family Court [2014] NZCA 66 (12 March 2014)

Last Updated: 20 March 2014

IN THE COURT OF APPEAL OF NEW ZEALAND
CA604/2012 [2014] NZCA 66
BETWEEN	M HAYES Appellant
AND	FAMILY COURT First Respondent
AND	JUDITH GUERIN Second Respondent

Counsel:	Appellant in person J C Bunbury for Second Respondent
Judgment: (On the papers)	12 March 2014 at 10 am

JUDGMENT OF O’REGAN P
(Application for review of Registrar’s decision refusing to dispense with security for costs)

A The application for review is dismissed.

2. The appellant must pay $5,880 as security for costs within 20 working days of the date of this judgment.

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REASONS

[1] This appeal was accepted for filing on 12 September 2012. Security for costs was set at $11,760. Ms Hayes applied to have security dispensed with under r 35 of the Court of Appeal (Civil) Rules 2005. In a decision dated 31 October 2012, the Registrar declined the application to dispense with security for costs, but did reduce the amount of security to $5,880. That was because the first respondent abides the decision of the Court and does not intend to take an active role, and thus does not need protection against the incurring of costs in relation to the appeal.
[2] Ms Hayes applied on 16 November 2012 for postponement of security pending determination of legal aid. The Registrar informed her that this was not strictly necessary because r 36 of the Court of Appeal (Civil) Rules 2005 provides for postponement in those circumstances. However, Ms Hayes had delayed in filing her legal aid application, and the Registrar set a deadline for this to be done.
[3] On 10 December 2012, Ms Hayes made an application for review of the Registrar’s decision on security for costs. Her earlier communication received on 16 November 2012 had also indicated that she disputed the decision relating to security for costs. I will treat the 16 November 2012 letter as an application for review. On that basis the application was filed within time.
[4] In the meantime, Ms Hayes had applied for legal aid, and so the application for review was not dealt with. There seems to have been considerable delay in processing this application but, in any event, the Court has recently been notified that legal aid has been refused. Because of this, the security for costs issue needs to be dealt with and the matter has been referred to me for decision.
[5] The principal ground on which the application for review is based is that Ms Hayes has executed a document called a “Covenant Solemn Promise by Contract in this Deed to Refrain from a Specified Action”. Under the document, Ms Hayes declares, agrees, covenants and promises not to “take from [the second respondent] personally or [the second respondent’s] company R G Guerin Ltd, Gisborne, or her descendants the $96,000 reward she received from the Family Court in December 2008 or any interest she has earned on it”.
[6] Ms Hayes argues that as a result of her having executed this document, Mrs Guerin is now indemnified “from any imaginable direct or indirect harm from the proceedings between [Ms Hayes] and [the Family Court]”. On this basis she argues that there is no need for Mrs Guerin to take part in the proceedings and that she should not therefore have security for costs.
[7] Ms Hayes explains that her rationale in bringing the litigation is because she considers that the Family Court “gave away 105% of a deceased estate to a person the will maker intentionally disinherited”. She describes the decision as “irrational”.
[8] The decision under appeal is a decision by Dobson J dated 16 August 2012, in which he struck out Ms Hayes’ application for judicial review against the Family Court.^[1] Mrs Guerin was the second defendant in that action. The Family Court abided the decision and Mrs Guerin was represented by counsel. The Judge struck out the proceeding on the basis that the primary cause of action was untenable, as were other causes of action dependent on a positive finding in relation to the primary one.^[2] The primary cause of action alleged that the Family Court did not have jurisdiction to adjudicate a family protection claim relating to the estate of the mother of Ms Hayes and Mrs Guerin. He also found that, to the extent that some of the causes of action sought to advance criticisms of the substantive Family Court judgment independently of the challenge to the Family Court’s jurisdiction, they constituted an abuse of process.^[3]
[9] It is notable that the High Court Judge made this observation in the decision under appeal:^[4]

At an earlier stage in the proceedings [Ms Hayes] discontinued against Mr Bunbury [the second respondent’s counsel] and has subsequently attempted to discontinue against Mrs Guerin. Understandably, given the inevitability that any measure of relief granted in Ms Hayes’ favour would adversely affect her step-sister’s interests, Mrs Guerin opposed any initiative that would deprive her of standing to present contrary argument. By the time of the hearing, Ms Hayes wanted to confine her proceedings to the prospect of a declaration of illegality in relation to the Family Court decisions, and a right to pursue restitution from the Family Court.

At one point in her discursive submissions, Ms Hayes pleaded to be allowed to go on just for the sake of a declaration that the Family Court had decided the FPA application without jurisdiction. She promised that if she got that relief, she would “not do anything with it”. Mr Bunbury opposed the Court relying on any such assurances, implicitly reflecting on what has been a protracted and apparently somewhat bitter experience of dealings with Ms Hayes.

[10] I consider it to be clear that the document filed by Ms Hayes does not obviate the need for Mrs Guerin to take part in the hearing of the appeal, given the potential adverse effect on her interests of a ruling in favour of Ms Hayes. There is no reason why Mrs Guerin should not have the normal protection provided to parties to appeals before this Court by way of security for costs. There is nothing in the proceedings themselves that would suggest that a dispensation from this requirement ought to be granted. This proceeding is part of an ongoing series of proceedings between the appellant and the second respondent. The protracted history is detailed in the decision under appeal. No matter of significant legal principle or public interest arises, and there is nothing to suggest that the normal rule providing for security for costs should not apply.
[11] In the circumstances I am satisfied that the Registrar was correct to reduce the security for costs to $5,880, but not to dispense with security. I therefore dismiss the application for review.

Solicitors:
Egan & Kite, Gisborne for Second Respondent

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^[1] Hayes v Family Court [2012] NZHC 2088.

^[2] At [45] and [67].

^[3] At [67].

^[4] At [61]–[62].