Elliot v Family Court at Auckland [2022] NZCA 146 (28 April 2022)

Last Updated: 3 May 2022

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA762/2021 [2022] NZCA 146

	BETWEEN	TIMOTHY PAUL ELLIOT Appellant
	AND	THE FAMILY COURT AT AUCKLAND First Respondent
	AND	ANGELA JANE EVERSON Second Respondent

Counsel:	Appellant in person No appearance for First Respondent M J Flannagan for Second Respondent S P Jerebine as counsel to assist the Court
Judgment: (On the papers)	28 April 2022 at 11.00 am

JUDGMENT OF GODDARD J

1. Leave is granted to Mr Elliot to adduce as evidence on appeal:

(a) the report of the Lawyer for the Child dated 26 February 2020;

(b) the notes of evidence from the Family Court hearing on 9 and 10 July 2020;

(c) the application filed by Mr Elliot under r 194 of the Family Court Rules 2002; and

(d) the note of cross-examination questions that he wished to be put to Ms Everson in the Family Court.

2. The application for leave to adduce further evidence on appeal is otherwise declined.

100. Leave is granted to Mr Elliot to file a memorandum setting out amended grounds of appeal by Friday 6 May 2022.

4. The date by which Mr Elliot must comply with r 43(1) of the Court of Appeal (Civil) Rules 2005 is extended to Friday 3 June 2022.
5. There is no order as to costs.

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REASONS

Background

• [2] Mr Elliot has brought an appeal to this Court against a decision of the High Court in judicial review proceedings brought by him in respect of a number of decisions of the Family Court.^[1] He appeals from the part of the High Court judgment that relates to three decisions of Judge Adams in the Family Court delivered on 20 July 2020, 17 August 2020 and 29 October 2020.^[2]
• [3] In the High Court judgment Wylie J found that the Family Court Judge had made a reviewable error in applying s 95 of the Evidence Act 2006 at a hearing that took place on 9 and 10 July 2020. The Family Court should have required the lawyer appointed to cross-examine the respondent to ask the questions proposed by Mr Elliot, subject to judicial control over those questions. Instead, the lawyer was permitted to cross-examine as he saw fit, and did not put Mr Elliot’s questions to Ms Everson. However Wylie J declined to order relief in favour of Mr Elliot, in the exercise of the Court’s remedial discretion.^[3]

Mr Elliot’s interlocutory application

• [4] Mr Elliot has filed an interlocutory application seeking the following orders:

(a) leave to adduce further evidence on appeal;

(b) a direction to the High Court to transfer the High Court box file record to this Court;

(c) if the Court thinks that the interests of justice so require, a direction under s 145 of the Care of Children Act 2004 to hear the new evidence;

(d) timetabling directions for repleading the appeal in light of any new evidence; and

(e) an extension of time under r 43 of the Court of Appeal (Civil) Rules 2005 (Rules) to apply for the allocation of a hearing date and file the case on appeal.

• [5] The first respondent, the Family Court, abides the decision of the Court. The second respondent has advised the Court she has no view on these applications, and abides the decision of the Court. Ms Jerebine, who has been appointed as counsel to assist the Court, filed a helpful memorandum dated 29 March 2022 in relation to the application. That memorandum did not address Mr Elliot’s applications for leave to amend his grounds of appeal and for an extension of time under r 43 of the Rules. But she subsequently advised the Court that these requests seemed appropriate, if leave is granted to file any new evidence.
• [6] I deal with each of the orders sought in turn.

Leave to adduce further evidence

• [7] Rule 45 of the Rules provides for the Court to grant leave to admit further evidence on appeal. Further evidence will generally not be admitted on appeal unless it is fresh, credible and cogent. Evidence is fresh only if it could not, with reasonable diligence, have been adduced at trial. Evidence that is not fresh will only be admitted in exceptional and compelling circumstances.^[4] Evidence is cogent only if it may have a material bearing on the outcome of the appeal.

Documents relevant to the Family Court proceedings

• [8] Mr Elliot’s application to adduce fresh evidence includes an application to adduce three documents that were before the Family Court, but were not before the High Court:

(a) page 3 of the report of the Lawyer for the Child dated 26 February 2020, which appears to have been omitted from the High Court record;

(b) the notes of evidence from the hearing before the Family Court on 9 and 10 July 2020; and

(c) an application made by Mr Elliot in the Family Court under r 194 of the Family Court Rules 2002.

• [9] The first two of these documents might in principle be relevant to the exercise of the discretion as to relief in judicial review proceedings. They are not fresh. But it is often helpful to have a more rather than less complete record of proceedings in the Family Court where judicial review is sought of a decision of that Court. I am prepared to grant leave to Mr Elliot to adduce these documents as evidence on appeal.
• [10] It is more difficult to see the relevance of the third document. But in the interests of having a more rather than less complete record from the Family Court, leave is also granted to adduce this document as evidence on appeal.

Evidence about omissions from materials before the High Court

• [11] Mr Elliot seeks leave to include in the evidence he wishes to adduce on appeal details of the steps he took to rectify the omission of page 3 of the report of the Lawyer for the Child, and what he describes as the failure to remedy the omission by the Family Court, counsel assisting the High Court, and the High Court registry.
• [12] Mr Elliot also seeks leave to adduce evidence in relation to the creation of the Family Court record that was before the High Court, and in relation to the way in which it came about that the notes of evidence were omitted from that record.
• [13] Because leave has been granted to adduce in evidence the report of the Lawyer for the Child and the notes of evidence from the Family Court hearing, those materials will be before this Court. The circumstances in which these materials were omitted from the record before the High Court can have no bearing on the determination of Mr Elliot’s appeal. So evidence about this is not cogent. Leave to adduce evidence on these issues is declined.

Evidence about cross-examination questions

• [14] Mr Elliot seeks to give evidence on appeal about the cross-examination questions that he wanted counsel appointed to cross-examine Ms Everson to put to her, but that were not asked. As the High Court held, the failure to ask those questions (subject to the control of the Judge) was inconsistent with s 95 of the Evidence Act.^[5] The list of proposed cross-examination questions that Mr Elliot had prepared was not included in evidence before the High Court. Before that Court, Mr Elliot said he had intended to hand the cross‑examination questions up at the hearing, but this was rendered difficult by the fact that the hearing took place using remote technology.
• [15] Mr Elliot applied for recall of the High Court judgment on a number of grounds, including his claimed inability to put his cross-examination questions before the High Court. The Judge declined to recall the High Court judgment.^[6] The Judge considered that Mr Elliot could have placed the questions before the Court despite the hearing proceeding remotely. To allow him to recall the judgment, where he had failed to place evidence before the Court, would be contrary to the principle of finality.^[7]
• [16] Mr Elliot now says that he did not place the questions before the High Court because he had adopted a “careful position” on relevance, based on the approach that was taken to the notes of evidence more generally. It appears he was also reluctant for those questions to be available to Ms Everson, in case the matter was referred back to the Family Court.
• [17] This evidence is not fresh: it could have been placed before the High Court. However I accept, by a fine margin, that there are exceptional and compelling circumstances to permit Mr Elliot to adduce this material on appeal. The High Court found that Mr Elliot’s inability to have these questions put to Ms Everson was inconsistent with s 95 of the Evidence Act. Mr Elliot should be permitted to pursue, on appeal before this Court, his argument that this error should have resulted in some form of relief. This Court will be better placed to make an informed assessment of that argument if it has before it the questions that Mr Elliot was denied the opportunity to put.

Post-hearing matters

• [18] Mr Elliot seeks leave to give evidence about discussions that occurred after the delivery of the High Court judgment between Mr Elliot and Ms Everson about care arrangements for their child. He also seeks to put in evidence information about his current financial position.
• [19] This evidence about matters that occurred after the High Court judgment was delivered cannot be relevant to an argument that that judgment was wrong when it was delivered. Still less can it be relevant to an assessment of whether judgments delivered by the Family Court in 2020 ought to be set aside. This material is not cogent. Leave to adduce evidence on these topics is declined.

Date by which evidence is to be filed

• [20] Mr Elliott must file any affidavit pursuant to the leave granted no later than Friday 6 May 2022.

Direction to High Court to transfer record to Court of Appeal

• [21] Mr Elliot seeks a direction that the High Court box file record be transferred to this Court because he believes that this will establish irregularities and omissions that were prejudicial to him. Those irregularities and omissions relate to the omission from the record of page 3 of the report of the Lawyer for the Child, and the notes of evidence.
• [22] Leave has been granted for that material to be placed before this Court. The circumstances in which it came to be excluded from the High Court record are not relevant to the appeal, as already explained. The direction sought is not necessary, and is declined.

Direction under s 145 of the Care of Children Act

• [23] Mr Elliot seeks a direction that the new evidence be heard under s 145 of the Care of Children Act, if the interests of justice so require.
• [24] Leave has already been granted to adduce further evidence on appeal under r 45 of the Rules. A direction under s 145 of the Care of Children Act is not required. Nor does s 145 apply here: this is an appeal from a High Court judicial review decision, not an appeal from a decision of the High Court under the Care of Children Act.

Leave to amend grounds of appeal

• [25] Mr Elliot says he may wish to amend his grounds of appeal in light of the additional material to be placed before this Court. The focus of this possible amendment appears to be “discovery upon inspection” of the High Court box file. However, the way in which any material came to be omitted from the High Court record is not material to the determination of the lawfulness of the Family Court decisions. I have made directions to address the omissions identified by Mr Elliot. No amendment is necessary, or permitted, in relation to the question of how those omissions came about.
• [26] However in case Mr Elliot wishes to amend his grounds of appeal in light of the directions I have made granting leave to adduce certain further evidence, I grant him leave to file a memorandum setting out amended grounds of appeal. That memorandum must be filed and served by Friday 6 May 2022.

Extension of time under r 43

• [27] It is appropriate for an extension of time to be granted for Mr Elliot to apply for a fixture and file the case on appeal, in light of the orders I have made. He should have a further 20 working days to do so after the date on which any amended grounds of appeal are filed.
• [28] I therefore extend time under r 43(2) of the Rules to Friday 3 June 2022. Mr Elliot must apply for a fixture, and file the case on appeal, before that date.

Result

• [29] Leave is granted to Mr Elliot to adduce as evidence on appeal:

(a) the report of the Lawyer for the Child dated 26 February 2020;

(b) the notes of evidence from the Family Court hearing on 9 and 10 July 2020;

(c) the application filed by Mr Elliot under r 194 of the Family Court Rules; and

(d) the note of cross-examination questions that he wished to be put to Ms Everson in the Family Court.

• [30] The application for leave to adduce further evidence on appeal is otherwise declined.
• [31] Leave is granted to Mr Elliot to file a memorandum setting out amended grounds of appeal by Friday 6 May 2022.
• [32] The date within which Mr Elliot must comply with r 43(1) of the Rules is extended to Friday 3 June 2022.
• [33] There is no order as to costs.

Solicitors:
Go Legal, Auckland for Second Respondent

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^[1] Ross v Family Court at Auckland [2021] NZHC 3204 [High Court judgment].

^[2] Everson v Elliot [2020] NZFC 5684; Everson v Elliot [2020] NZFC 6911; and Everson v Elliot [2020] NZFC 9436.

^[3] High Court judgment, above n 1, at [84]–[85] and [87].

^[4] Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190 (CA) at 192–193; Paper Reclaim Ltd v Aotearoa International Ltd (Further Evidence) (No 1) [2006] NZSC 59, [2007] 2 NZLR 1 at [6], n 1; and Wylie v Wylie [2021] NZCA 521 at [24].

^[5] High Court judgment, above n 1, at [85].

^[6] Ross v Family Court at Auckland [2021] NZHC 3518 at [18].

^[7] At [14].