PARKINSON V MINSTRY OF SOCIAL DEVELOPMENT HC AK CIV-2008-404-6888 [2009] NZHC 116 (12 February 2009)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                                  CIV-2008-404-6888



                BETWEEN                      JEANINE FRANCES PARKINSON
                                             Appellant

                AND                          MINSTRY OF SOCIAL DEVELOPMENT
                                             Respondent


Hearing:        12 February 2009

Appearances: E Orlov and TC Wu for Appellant
             EJ Child for Respondent
          
  C Townsend, Counsel for the Child

Judgment:       12 February 2009


                              JUDGMENT OF ASHER J




Solicitors:
Equity Law, PO Box 8333, Auckland 1150
Crown Law, PO BOX 2858, Wellington 6140
C Townsend, Unity Chambers, 44 College Hill, Ponsonby,
Auckland




PARKINSON V MINSTRY OF SOCIAL DEVELOPMENT HC AK CIV-2008-404-6888 12 February 2009

[1]    This is an appeal against
a decision of the Family Court delivered on
27 August 2008.


[2]    At the outset Mr Orlov for the appellant presented a memorandum,
which he
asked me to accept, which attached some permanent policy documents relating to
children in care of the Child Youth & Family
Service. Mr Orlov argued that these
were not evidence but rather a form of delegated legislation. I do not accept that
submission.
While the documents may be derived from the exercise of statutory
powers they have no statutory force. To have them adduced before
the Court it is
necessary for them to be presented as evidence in the usual way. I have therefore
treated Mr Orlov's position as
being an application to admit further evidence.


[3]    In support of his position Mr Orlov submits that the documents are highly
relevant to the matters at issue. He submits that they have been hard to get, and that
it will not inconvenience the other parties
if they are accepted as evidence.
Mr Child, as counsel for the respondent, and Ms Townsend, counsel for the child,
oppose the adducing
of further evidence.


[4]    Given that this issue is delaying the appeal I will set out my reasons shortly.
The principles to be
applied are contained in r 20.16 of the High Court Rules.
Further evidence can be adduced only with leave of the Court. The general
test is
that the evidence could not have been reasonably discovered at the time of the
original hearing, and that the evidence must
be cogent and likely to be material.
Although Mr Orlov has described the information as hard to get, I have no doubt that
this information
could have been reasonably discovered prior to the original hearing.
This document was obtained by the use of the Official Information
Act. It was in
existence at the time of the hearing and it could have been obtained before then.
Mr Orlov was not counsel at that
earlier hearing. There is no explanation as to why
the evidence was not obtained and presented then.


[5]    Further, I am far from
satisfied that this material could be cogent or important
evidence in the appeal, which is directed at the correctness of Judge Burns'
decision.

The inquiry cannot be widened now under some general consideration of the
Service's policies.


[6]    Also relevant
to the exercise of my discretion is that this document has been
in the possession of the appellant for at least a week. Until this
morning no notice
was given of the intention to seek to adduce the material. The respondent and
counsel for the child would accordingly
be disadvantaged if the appeal proceeded
today and this evidence was before the Court. They would have no opportunity to
fully consider
it and to prepare a response. It may well be that they would have
wished to adduce further evidence in reply. The effect of allowing
the evidence
would be to require the respondent and counsel for the child to proceed at a
disadvantage, or for the appeal to be adjourned.
Neither is in the interests of justice.
The appeal has been set down for one day today and it is clearly in the interests of
the
child that it proceed without delay.


[7]    For all these reasons I decline to accept the further evidence proffered this
morning by the appellant.




                                                             ...............................
                               
                                                  Asher J