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Court of Appeal of New Zealand |
Last Updated: 30 March 2015
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IN THE COURT OF APPEAL OF NEW ZEALAND
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BETWEEN
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Applicant |
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AND
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Respondent |
JUDGMENT OF THE COURT
____________________________________________________________________
REASONS OF THE COURT
(Given by Wild J)
Introduction
[1] Three applications by Ms Mathiesen are for decision:
- (a) an application filed on 19 February 2015 seeking, pursuant to r 29A of the Court of Appeal (Civil) Rules 2005 (the Rules), an extension of time to appeal;
- (b) an application pursuant to r 45 of the Rules, contained in the same document, seeking leave to adduce further evidence in support of the appeal; and
- (c) an application, filed separately on 19 February, seeking leave to amend the grounds of appeal. This invokes r 34 of the Rules.
[2] On 18 February Ms Mathiesen also filed an “application for a Judge to determine whether appeal as of right filed within 20 working days”. We will deal with that as part of application (a) – for an extension of time to appeal.
Background
[3] On 5 August 2009, in a judgment dealing with relationship property, the Family Court ordered Ms Mathiesen to pay Mr Mathiesen $326,152.97.[1] What ensued is set out in the background section of this Court’s judgment of 22 May 2013 in GPM v JHM.[2] That judgment dismissed Ms Mathiesen’s appeal against a judgment of Chisholm J dismissing an application Ms Mathiesen had brought on 19 July 2012 for leave to appeal out of time against the judgment of the Family Court.[3] Subsequently, in a judgment delivered on 27 August 2013, the Supreme Court dismissed Ms Mathiesen’s application for leave to appeal against this Court’s judgment.[4]
[4] Ms Mathiesen did not satisfy the Family Court judgment.
[5] On 11 June 2013, on the application of Mr Mathiesen, Associate Judge Matthews adjudicated Ms Mathiesen bankrupt in the High Court at Timaru. There was no appearance by or for Ms Mathiesen.
[6] Ms Mathiesen was notified by her bank on 13 June that she had been adjudicated bankrupt. The following day, 14 June, she filed in the High Court at Timaru what she termed:
URGENT APPLICATION FOR AN INJUNCTION/STAY TO STOP THE SEALING AND PUBLICATION OF AN UNKNOWN JUDGE’S BANKRUPTCY ADJUDICATION AGAINST ME OF 11 JUNE 2013, NOTIFIED TO ME BY MY ANZ BANK 13 JUNE 2013, UNTIL A PROPER FAIR AND JUST HEARING OF THE ISSUE CAN BE CONDUCTED IN THE HIGH COURT TO PREVENT A GROSS MISCARRIAGE OF JUSTICE.
[7] That application was initially placed before Fogarty J, who referred it to Associate Judge Matthews. For reasons he explained in a minute dated 24 June 2013, Associate Judge Matthews held the High Court’s jurisdiction under s 416 of the Insolvency Act 2006 (suspension of adjudication pending an appeal) did not cover Ms Mathiesen’s situation.[5] The Judge confirmed the adjudication order was final and binding, unless set aside on appeal.
[8] The matter came again before the High Court at Timaru on 16 July 2013, this time before Associate Judge Osborne. Ms Mathiesen, self-represented, pressed her application for an injunction or a stay, but the Associate Judge explained (as had Associate Judge Matthews in his minute) that the Court lacked jurisdiction to deal with it. In a minute he issued that day, the Associate Judge recorded Ms Mathiesen advising the Court she had filed, on 9 July 2013, an application for leave to appeal to the Supreme Court.[6] In his judgment of 1 August 2013, the Judge recorded:[7]
[6] I have explained to Ms Mathiesen today that the challenge to the underlying judgment does not cut across the effectiveness of the adjudication order. That order having been made can only be affected for the time being by the sort of order identified in s 416 of the Act (or reversed or modified on appeal).
[9] Associate Judge Osborne adjourned the matter, at Ms Mathiesen’s request, to 19 July to give her a final opportunity “to address the Court on any remaining concerns she has as to jurisdiction”.[8]
[10] On 17 July Ms Mathiesen sent to this Court the appeal to which the present applications relate. As we have said, this Court received the appeal on 18 July. It is entituled:
APPLICATION FOR AN APPEAL AGAINST HIGH COURT ASSOCIATE JUDGE MATTHEWS’ BANKRUPTCY ADJUDICATION AGAINST ME OF 11 JUNE 2013, IN CONFORMANCE WITH HIGH COURT ASSOCIATE JUDGE OSBORNE’S MINUTE OF 16 JULY 2013.
[11] The eight grounds of appeal set out in the 18 July application comprise a challenge to Ms Mathiesen’s adjudication as bankrupt, both substantively and procedurally. As to the former, the Notice of Appeal states “[a]t the time (of the adjudication) the basis of the bankruptcy was before the Court of Appeal” and “is now before the Supreme Court”. The procedural challenge referred to Ms Mathiesen seeking an injunction or a stay “until a proper, fair and just hearing of the matter could be conducted”.
[12] On 18 July 2013 Ms Mathiesen also filed an application for suspension of her adjudication. She filed this in the High Court at Timaru and sent it to this Court.
[13] Associate Judge Osborne conducted a further hearing on 19 July 2013, by telephone.
[14] All of this was set out by Associate Judge Osborne in a judgment he delivered on 1 August 2013.[9] In that judgment he explained that Ms Mathiesen had still not met the threshold requirement in s 416 for a suspension order. He pointed out that the appeal against her adjudication as bankrupt which Ms Mathiesen had filed in this Court was out of time: the appeal period expired on 9 July but the appeal was filed on 18 July. Consequently, the Associate Judge stated:[10]
There is no appeal at this point from the adjudication order. At the most, Ms Mathiesen appears to have filed an application for an extension of time to appeal.
[15] The Associate Judge then dismissed Ms Mathiesen’s injunction/stay application and adjourned to 10 September 2013 the suspension application she had filed on 18 July.
[16] The papers available to us do not record what happened to the suspension application; we assume it was also dismissed for want of jurisdiction.
Application to amend grounds of appeal
[17] Leave to amend the grounds of appeal under r 34(2) is only required after the Registrar has allocated a hearing date for an appeal or where an appeal can only be brought by leave.[11] Under s 414(2) of the Insolvency Act, appeal to this Court is as of right. Ms Mathiesen therefore does not require this Court’s leave to amend the grounds of the proposed appeal.
[18] We accordingly turn to Ms Mathiesen’s application for an extension of time to appeal, and deal with it on the basis of her proposed amended grounds of appeal.
Application for extension of time to appeal
[19] We deal first with the application Ms Mathiesen filed on 18 February inviting this Court to determine whether she needed an extension of time to appeal. In that document she suggests fewer than 20 working days elapsed from Associate Judge Matthews’ minute of 24 June and the filing of her appeal on 18 July 2013.
[20] The nub of Ms Mathiesen’s brief oral submissions was to reiterate her submission that the 20 working days she had to appeal her adjudication as bankrupt ran from 24 June 2013 and not from her adjudication on 11 June. The basis for that submission is that she claims not to have received the Court’s letter dated 5 February 2013 advising her of the date and time of the hearing. She had made that claim to Associate Judge Matthews who noted in his 24 June 2013 minute:[12]
However, on the file there is a letter from the Registry of the Court to Mrs Mathiesen dated 5 February 2013 advising of the date and time of the hearing ...
Ms Mathiesen confirmed to us she had throughout lived at the same address.
[21] The point is, Ms Mathiesen seeks leave to appeal, not against Judge Matthews’ minute of 24 June, but against the adjudication order the Court made on 11 June. As Associate Judge Osborne pointed out in his 1 August 2013 judgment, 20 working days from 11 June expired on 9 July 2013.[13] So Ms Mathiesen’s appeal was filed seven days out of time and she requires an extension of time to appeal.
[22] We would not dismiss this application because of that relatively short delay, or because of anything disqualifying in Ms Mathiesen’s conduct. Nor does the short delay prejudice Mr Mathiesen, who abides the Court’s decision.
[23] Rather, it is the lack of any merit in the proposed appeal that is determinative.
[24] In her application Ms Mathiesen restates her two grounds of appeal thus:
(1) 9. ... first, that, under New Zealand law, one spouse cannot lawfully or validly apply to have the other spouse adjudicated bankrupt upon the claim that the latter has committed the act of bankruptcy under section 17 of the Insolvency Act 2006 (which is the act of bankruptcy claimed here) against the former – the applicant “creditor” spouse; and that no Registrar or Deputy Registrar of the High Court (or any other Court) can lawfully or validly accept any such creditor’s application for filing there; and no Judge can lawfully and validly adjudicate any such creditor’s application, and, where any such decision to bankrupt is made or recorded (as occurred here) or is adjudicated as the law requires (as did not occur here) it is void ab initio – a nullity from start to finish by reason of that aspect of the Royal Prerogative which still protects the institution the marriage, and, and additional aspect of this protection is that it may have also become a Treaty Right, under Article 3 of the Treaty of Waitangi, pursuant to the provisions of the Treaty of Waitangi Act 1975.
8. The applicant’s claim that any such judicial decisions to bankrupt, or adjudications bankrupt are necessarily “void ab initio – a nullity from start to finish” is both a consequence of, and a set of conjunction with other aspects of the Royal Prerogative, still relating to, and prescribing the attributes of Queen’s Courts, the Queen’s Judges, officers of the court, and servants of the court, too, with consequences for those officeholders, and others, too, notwithstanding varieties of statutory change altering, replacing, or abridging these two aspects of the Royal Prerogative, as a matter of legal history, and other aspects of the Royal Prerogative, and its case-law more generally.
(2) 9. The second ground for appeal is that since “bankruptcy” is wholly a creature of statute – with no common law aspect to it – there needs to be a specific statutory enactment passed since the Bankruptcy Act 1908 shown to extend the range of persons able to be lawfully and validly adjudicated bankrupt upon a particular creditor’s application permitted made, and accepted for filing, in the High Court, under section 13 of the Insolvency Act 2006 which would specifically permit one spouse to have the other spouse adjudicated bankrupt in the High Court of New Zealand, but there is no such enactment, - or should there ever be.
[25] In summary Ms Mathiesen wants to contend on appeal that the High Court lacked jurisdiction to adjudicate her bankrupt upon the application of her husband under s 13 of the Insolvency Act, based on an act of bankruptcy under s 17. That is untenable. Mr Mathiesen had a final judgment of the Family Court. He was entitled to enforce that against Ms Mathiesen in the High Court, including by applying to have Ms Mathiesen adjudicated bankrupt because she had committed an act of bankruptcy in not paying the judgment within the time specified in the bankruptcy notice. Accordingly, the proposed grounds of appeal are untenable in law.
[26] There is no point in extending time to enable Ms Mathiesen to bring a hopeless appeal. Her application for an extension of time is accordingly dismissed.
Application to adduce evidence
[27] Although our decision not to extend time to appeal makes it unnecessary to deal with this application, we comment on it briefly. Ms Mathiesen describes the evidence she seeks to adduce in this way:
3. Consequently, pursuant, to Rules 45 of the Court of Appeal Rules 2005 the applicant seeks that the Court of Appeal grant leave for the admission of further evidence on questions of fact, substantiating what has been stated above, and narrated, more informally below by, oral examination in Court, particularly where the applicant has sought affidavits in vain, pursuant to Rule 11 and High Court Rule 9.75; by affidavit; and seeks directions in respect the options for Jan Henrik Mathiesen giving evidence, or being put to answer, in Norway, or when he is in England, by way of depositions taken before an examiner or examiners in accordance with rules 369 to 376 of the High Court Rules, or by a Commission of Oaths, more generally, in England, and in Norway.
The underlining is Ms Mathiesen’s and refers to the preceding and following paragraphs of her application for an extension of time to appeal. Her application to adduce evidence is contained within that application for an extension of time.
[28] What Ms Mathiesen appears to be seeking is at least an opportunity in this Court to cross-examine Mr Mathiesen. That could only be in relation to matters that resulted in the judgment of the Family Court, non-payment of which led to Ms Mathiesen’s adjudication as bankrupt. Ms Mathiesen’s opportunity to question Mr Mathiesen about their disputed relationship property was in the Family Court when it heard the case. Accordingly, had it extended Ms Mathiesen’s time for appeal, this Court would not have granted Ms Mathiesen’s misconceived application to adduce further evidence.
Result
[29] Ms Mathiesen’s application for an extension of time to appeal is dismissed.
[30] Ms Mathiesen’s application to adduce further evidence on her proposed appeal becomes redundant, and is formally dismissed.
[31] The respondent’s solicitor filed memorandums on 24 July and 7 August 2013 outlining for this Court what was happening in the High Court at the time and indicating its intention to oppose the appellant’s application for an extension of time to appeal, on the basis it did not state “a basis upon which the bankruptcy adjudication might be set aside”. Ultimately, in an email to the Court on 23 October 2014, the respondent’s solicitor confirmed her advice earlier that month that, although he opposed the application for “leave to appeal”, the respondent “will abide by the decision of the Court in this matter”.
[32] In those circumstances, we allow the respondent costs of $500 on the applications we are dismissing.
Postscript
[33] On 23 March, after this judgment had been approved by all three members of the Court, the Registry referred Mr McNab’s email of 19 March to the Court. We deal with the two points raised in this email:
- (a) Mr McNab indicates Ms Mathiesen would have sought recusal of Wild and French JJ had she known they were members of the Court:
...in view of their involvement in CA553/2012 where the Trustees of the Sweet Pea Trust were denied a right of audience, and right to be heard which they now claim – because that decision was an irregular proceeding, and the fact that there were three parties to the Family Court relationship property ...
Even if Wild and French JJ had been involved in GPM v JHM [2013] NZCA 166 (CA553/2012), that would not be a proper ground to seek their recusal from hearing the present application. But neither Justice Wild nor Justice French were members of that Court. Wild J was involved at a very early stage, in deciding on 13 December 2012 to reduce the security for costs that Ms Mathiesen was ordered to give from $5,880 to $2,500.
(b) Mr McNab complains:
Mrs Mathiesen was moreover, on Monday, 16th March 20 denied her 5 minutes to sum up and reply, in the absence of David Neilsen, and Stuart Jeck’s barrister, Elliot Hudson, and Assignee Fildes, in respect of the interesting range of questions put by the Judges ...
As Mr McNab notes, and this judgment records, neither the respondent nor the Official Assignee was represented, both having indicated they abided the Court’s decision. A right of reply is just what it says – a right to reply, in this case to the submissions made by the respondent and/or the Official Assignee. As neither made any submissions there was nothing to reply to. That is why the Court did not give Ms Mathiesen an opportunity to reply.
[34] The Court declines Ms Mathiesen’s request to re-convene to deal with the concerns we have addressed in this Postscript.
Solicitors:
Nielsen Law, Hamilton for
Respondent
[1] JHM v GPM FC Timaru FAM-2006-019-1475, 5 August 2009.
[2] GPM v JHM [2013] NZCA 166, (2013) 29 FRNZ 248 at [2]–[13].
[3] GPM v JHM [2012] NZHC 1776.
[4] GPM v JHM [2013] NZSC 84.
[5] GPM v JHM HC Timaru CIV-2011-476-295, 24 June 2013.
[6] GPM v JHM HC Timaru CIV-2011-476-295, 16 July 2013 at [2]. This is the application dismissed by the Supreme Court in its judgment of 27 August 2013, referred to in [3] above.
[7] GPM v JHM [2013] NZHC 1925.
[8] At [8].
[9] GPM v JHM, above n 7.
[10] At [19].
[11] Andrew Beck and others (eds) McGechan on Procedure (online looseleaf ed, Westlaw NZ) at [CR34.01].
[12] Mathiesen v Mathiesen HC Timaru, CIV-2011-476-295, 24 June 2013 at [8].
[13] GPM v JHM, above n 7, at [14].
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