Holden v Nicholson and Macky as Executors and Trustees of the Estate of Richard Charles Holden HC Auckland CIV 2009-404-3668 [2010] NZHC 351 (24 March 2010)

Last Updated: 29 March 2010

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

_{CIV-2009-404-3668}

UNDER the Status of Children Act 1908 and the

Declaratory Judgments Act 1908

IN THE MATTER OF the Estate of Richard Charles Holden

(deceased)

AND IN THE MATTER of an application for a declaration as to

Paternity

BETWEEN GLEN MICHAEL HOLDEN Plaintiff/Applicant

AND STEPHEN PAUL NICHOLSON AND PETER WARWICK MACKY AS EXECUTORS AND TRUSTEES OF THE ESTATE OF RICHARD CHARLES HOLDEN

Defendants/Respondents

Hearing: 17 March 2010

Appearances: Mr P H Tomlinson for Plaintiff/Applicant

Mr C J Baird for Defendants/Respondents

Judgment: 24 March 2010 at 12 noon

_{JUDGMENT OF ASSOCIATE JUDGE DOOGUE}

This judgment was delivered by me on

24.03.10 at 12 noon, pursuant to

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date...............

Counsel

Mr P Tomlinson, 2 Durham Street East, Auckland – by email: [e-mail]

Mr C J Baird, P O Box 5444, Auckland – by email: [e-mail]

HOLDEN V NICHOLSON & ORS HC AK CIV-2009-404-3668 24 March 2010

Background

[1] The plaintiff has filed an application brought under the Status of Children Act

1969 for a declaration that the deceased Richard Holden, who died 25 August 2008,

is his natural father. The defendants are the trustees of the estate of the late Mr Holden.

[2] The defendant was born 14 January 1970. His mother is Phyllis May Green but the birth certificate for the plaintiff does not record who the father is. The plaintiff claims that during Richard Holden’s life he had a father/son relationship with Richard Holden. The deceased had two other natural children, Julie Harwood and Joseph Holden (“Julie” and “Joe”) who were born to different mothers in or about 1969. The plaintiff claims that he is the half-brother in each case of those two persons. The plaintiff is a sentenced prisoner. He found himself in jail after a long history of criminal stalking and various acts of dishonesty, intimidation and extortion. The deceased, in particular was the target of much unwelcome attention from the plaintiff. For his part, counsel for the plaintiff says that while many of the plaintiff’s actions were ill-judged, they were born from a sense of frustration at not being able to achieve clarity about whether or not the deceased was his father.

[3] In April 2009 the plaintiff filed an application pursuant to the Family Protection Act 1955 in the Family Court. As part of the proceeding he alleged, inter alia, that he was the natural child of the late Mr Richard Charles Holden. In his High Court proceedings he initially sought relief under the Status of Children Act as follows:

1. An Order that the Plaintiff and Julie Harwood and Joseph Holden take paternity or parentage tests to establish whether or not the Plaintiff is the son of the deceased Richard Holden.
   

Subsequently the plaintiff amended his application to seek an order that the Court make a recommendation that Julie and Joe undergo parentage testing. The form of DNA testing which the plaintiff seeks is the provision of buccal swab testing to take the sample and thereafter DNA analysis of the samples. I was informed by counsel that the samples can be collected simply by taking a swab from a person’s mouth and it is minimally invasive.

[4] At the same time he filed an interlocutory application on notice seeking the same items of relief which were in the prayer for relief in the substantive proceedings by way of interlocutory orders. On 10 September 2009 the plaintiff in the form of a memorandum, advised the Court that he intended to join Julie and Joe

as second defendants in the proceeding. He did not file an application in furtherance

of that intention. His counsel has today sought such orders. I allowed the plaintiff to proceed with an application to that effect although no written application had been made. I did so because Mr Baird, sensibly, did not oppose my dealing with the matter and, in anticipation that such an application would be heard, had filed a notice of opposition dated 17 March 2010.

[5] It had originally been intended that at the hearing on the 18 March a strike out application which the defendants had filed in September 2009 would be heard. That however did not proceed. The only application that went ahead before me was the application to join Joe and Julie as defendants. The question of whether the Court could make a recommendation that Julie and Joe take parentage tests, though, was closely tied up with the question of whether the plaintiff should be able to join them as second defendants. If the objective of obtaining the directions that the plaintiff sought about a recommendation for parentage tests could not succeed, then obviously there would be little point in the joinder application proceeding. But there were two other substantial grounds which the defendants put forward on which they based their opposition to the joinder application and I shall deal with those shortly. I should record that for the purposes of the present proceedings Mr Baird appeared for

both the existing defendants and the proposed second defendants, Joe and Julie.

The joinder application

Basis for application

[6] The application to join the second defendants was brought under r 4.56 which provides as follows:

Striking out and adding parties

(1) A Judge may, at any stage of a proceeding, order that -

(a) the name of a party be struck out as a plaintiff or defendant because the party was improperly or mistakenly joined; or

(b) the name of a person be added as a plaintiff or defendant because -

(i)	the person ought to have been joined; or
(ii)	the person's presence before the court may	be

necessary to adjudicate on and settle all questions involved in the proceeding.

(2) An order does not require an application and may be made on terms the court considers just.

(3) Despite subclause (1)(b), no person may be added as a plaintiff without that person's consent.

[7] Mr Baird, though, also referred me to rules 4.1 and 4.3 which provide as follows:

4.1 Limit on parties

The number of persons named or joined as parties to a proceeding must be limited, as far as practicable, to—

(a) persons whose presence before the court is necessary to justly determine the issues arising; and

(b) persons who ought to be bound by any judgment given.

4.3 Defendants

(1) Persons may be joined jointly, individually, or in the alternative as defendants against whom it is alleged there is a right to relief in respect of, or arising out of, the same transaction, matter, event, instrument, document, series of documents, enactment, or bylaw.

(2) It is not necessary for every defendant to be interested in all relief claimed or every cause of action.

(3) The court may make an order preventing a defendant from being embarrassed or put to expense by being required to attend part of a proceeding in which the defendant has no interest.

(4) A plaintiff who is in doubt as to the person or persons against whom the plaintiff is entitled to relief may join 2 or more persons as defendants with a view to the proceeding determining -

(a) which (if any) of the defendants is liable; and

(b) to what extent.

[8] Neazor J considered the scope of rule 4.1 (a) in his judgment in Johnston v Johnston [1991] 2 NZLR 608,614 where Neazor J applied the passage in the judgment of Devlin J in Amon v Raphael Tuck & Sons Ltd [1956] 1 QB 357 at 380 concerning the meaning of the word “necessary”:

The court might often think it convenient or desirable that some of such person should be heard so that the court could be sure that it had found the complete answer, but no one would suggest that it is necessary to hear them for that purpose. The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action, and the question to be settled therefore must be a question in the action which cannot be effectually and completely settled unless he is a party.

[9] Mr Baird also drew my attention to the requirement in r 4.3 that there must be

an allegation of right to relief against the person proposed to be joined. In this case, paternity if established by the plaintiff would lead to his obtaining a declaration against the putative father.

Discussion

[10] The question of why Julie and Joe need to be bound by the result of the substantive proceeding is the central matter in issue in the proceedings. The issue in the proceedings is not whether the plaintiff is the half-brother of Julie or Joe. Therefore in my view, based upon the rules, the application to join those two persons must, subject to other matters which I mention next, fail.

Other Grounds for joinder

Plaintiff’s wish to obtain recommendation under Family Proceedings Act that Julie and Joe undergo parentage testing as ground for joinder application

[11] This ground was based on s 54 of the Family Proceedings Act 1980 which

provides:

54 [Parentage] tests

(1) In any civil proceedings (whether under this Act or not) in which the parentage of a child is in issue -

(a) The Court may, of its own motion or on the application of a party to the proceedings,

recommend that [parentage] tests be carried out on—

(i) The child; and

(ii) Any person who may be a natural parent of the child -

and that a report of the results be compiled, by a person who is qualified to compile such a report, and submitted to the Court; and

(b) Whether or not the Court has made a recommendation under paragraph (a) of this subsection, the Court may, of its own motion or on the application of a party to the proceedings, adjourn the proceedings in order to allow time for such [parentage] tests to be carried out and for such a report to be compiled and submitted to the Court.

(2) For the purposes of this section—

(a) [parentage] tests may be carried out by any person or persons who are qualified to do so, whether or not any of them is the person by whom the report is compiled; and

(b) The consent of a minor who has attained the age of

16 years to submit to [parentage] tests shall have the same effect as the consent of a person of full age.

[12] Section 54 then envisages a case where an order is made which is cumulative

in effect and which directs the carrying of tests on the child and the person who may

be a natural parent of the child. It is accepted on both sides that this section does not apply because the tests are not sought on the late Mr Holden. Section 54 does not provide statutory authority authorising an order “recommending” that the persons in the position of the half-brother and sister provide DNA samples.

[13] Mr Tomlinson for the plaintiff conceded, as in my view he was bound to, that the procedure under s 54 did not apply. But it is clear to me that s 54 only applies to either a child or a parent. The wording of the section does not contemplate recommendations that half-siblings undergo parentage testing.

[14] Reference was also made in argument to s 57 of the same Act which provides

as follows:

57 Refusal of [parentage] tests

(1) In any civil proceedings in which the natural parentage of a child is in issue, whether or not the Court has recommended under section 54(1) of this Act that [parentage] tests should be carried out on a person, evidence may be given to the Court as to the refusal of that person to consent (or, where the person is under 16 years of age, as to the refusal to consent to such [parentage] tests of the person who is competent to do so on that person's behalf).

(2) Subject to the right of the person who refuses to consent to the [parentage] tests to explain the reasons for that person's refusal, and to cross-examine witnesses and call evidence, the Court may draw such inferences (if any) from the fact of refusal as appear to it to be proper in the circumstances.

[15] Mr Tomlinson suggested that that section somehow expanded jurisdiction to recommend the provision of tests. But in my view Mr Baird is right when he says that s 57 refers back to and is limited by the terms of s 54. That is, any inference to

be drawn from the refusal of parentage tests is limited to those required of a child or

a parent and not a wider group of persons. It is correct that s 57 recognises that a request may be made other than by the Court. For example, s57 would seem to extend to a request made by one party to another in a paternity dispute. But the recognition in s 57 of the possibility of adverse inferences being drawn in that circumstance as well as where a s 54 recommendation has been made, does not logically lead to a conclusion that the Court is also empowered to make a recommendation in cases other than those involving parent and child.

[16] I am satisfied that there is no power under s 54 to make the directions sought. I consider that s 54 does not apply as between a claimant child and the half siblings. Therefore it is my view that the possibility of a direction under s 54 would not justify the joinder of the second defendants. In any case I do not accpt that joinder could be justified solely on the basis that it was for the purpose of making the intended defendant amenable to a recommendation under s 54.

Inherent jurisdiction to recommend parentage testing?

[17] Mr Tomlinson for the plaintiff alternatively submitted that it would be possible for the Court, relying on its inherent jurisdiction, to recommend that parentage testing occur.

[18] Mr Baird cited a decision of Priestley J in Atkins v Jones HC Auckland M474-SD02, 19 August 2002 as being relevant to the argument as to inherent powers. In that case, as here, there was before the Court an application under s 10

of the Status of Children Act in which the plaintiff sought a declaration of paternity. The plaintiff sought to persuade the Court that it had inherent jurisdiction to direct the ESR, which held a blood sample taken from a deceased person, to enable the blood sample to be subjected to DNA testing. The Judge said at [3]:

Having regard to the provisions of s 54 of the Family Proceedings Act 1980

it is highly doubtful whether this Court could make such an order. The

Court’s power in respect of a living putative father is merely to make a recommendation that blood tests be carried out. I doubt whether any greater power should be exercised in respect of remaining body parts or blood samples of a deceased person. Given that Parliament has legislated in this field, an argument that the Court retains some inherent jurisdiction is at best tenuous.

[19] That decision (inter alia) was considered further in a Court of Appeal judgment in T v S and W [2005] NZFLR 466. There, the Court had before it an application for an order placing a child under the guardianship of the Court pursuant

to Section 10B of the Guardianship Act 1968 in order to the circumvent the refusal

of the mother of the child to allow DNA testing. It was not therefore a case where the inherent jurisdiction of the Court was under examination. As it happened, the Court considered that having regard to the best interests of the child and the adoption

by New Zealand of the United Nations Convention on the Rights of the Child (“UNCROC”) amongst other considerations, it was a proper exercise of the guardianship jurisdiction to make the order sought so that the Director General would consent on behalf of the child to the taking of the DNA sample. The Court was influenced by the fact that, in disputes about guardianship matters, the fact that the mother might be opposed to the taking of DNA samples was not the matter of prime importance: what was of the greatest weight was the best interests of the child. It was in the interests of the child to know who its father was. As well, the making

of a paternity order (if indeed it was made in favour of the father) would by means of access orders and the like enable the child to build its relationship with its father. In summary, the decision in T v S and W was a case about which the Court could make arrangements so that consent could be given on behalf of a minor to DNA testing which was in its interests where, given the absence of ability of the child to consent, some other person needed to. It involved the taking of a DNA sample restricted to the child. The case of T v S and W is therefore quite a different one from the present case. The present case does not concern the consent of a minor to DNA testing and it is not one which is restricted to recommendations of testing by either the child or the parent. It does not therefore, in my view, throw any light upon the question of whether the Court has inherent jurisdiction to make an order of the kind which the plaintiff seeks.

[20] I consider that the process of reasoning which Priestley J adopted in Atkins v Jones is, with respect, correct. As parliament in legislating in this area restricted itself to recommendations that either a child or a parent should be the subject of recommendations, I do not see how the Court could, in exercising its inherent jurisdiction, extend that process to a wider group of persons – namely siblings.

[21] In any event, I do not understand the utility of the proposed orders. If a recommendation is made but not followed, the effect is essentially an evidential one. That is, the Court may draw such inferences, if any, from the fact of refusal as appear to be proper in the circumstances: s 57 Family Proceedings Act 1980. But this brings us back full circle to the fact that in this case, the declaration of paternity is, and only could be, sought against the late Richard Charles Holden. A refusal by Joe or Julie to submit to testing notwithstanding the making of the recommendation by the Court, could logically only give rise to inferences being drawn against them. But if such inferences are of no evidential value as against the defendant to the proceedings, it is difficult to see what use there would be in recommending DNA testing in the first place.

[22] My view is that there is no inherent jurisdiction to make the orders that the plaintiff seeks against Joe and Julie. Even if there had been, I am not persuaded that

that is a proper basis upon which they should be joined as defendants in the proceedings.

[23] In my view, the application to join them as defendants must fail.

Costs

[24] The parties should attempt to agree on the matter of costs. If they cannot then I will hear them at 9 a.m on a convenient date.

Progress with proceeding from this point

[25] Counsel should confer on what steps are now required to progress this proceeding and if possible submit a consent memorandum. As a backstop, the

_{Registrar is to allocate a further case management conference.}

J.P. Doogue

Associate Judge