Pearce v Pearce HC Auckland CIV 2011-404-006550 [2011] NZHC 1960 (6 December 2011)

Last Updated: 6 February 2012

NOTE: PURSUANT TO THE FAMILY PROTECTION ACT 1955, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION PLEASE SEE WWW.JUSTICE.GOVT.NZ/FAMILY/LEGISLATION/RESTRICTIONS.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CIV 2011-404-006550}

BETWEEN RONALD FREDERICK PEARCE Appellant

AND MAXWELL ARTHUR PEARCE First Respondent

AND BARRIE ARTHUR YOUNG Second Respondent

Hearing: 25 November 2011

Counsel: Mr R F Pearce (In Person)

W K Willoughby for First Respondent

K Young for Second Respondent

Judgment: 6 December 2011

_{JUDGMENT OF FOGARTY J}

The judgment was delivered on 6 December 2011 at 12 noon pursuant to

Rule 11.5 of the High Court Rules.

[1] The appellant seeks leave to appeal out of time a decision of the District Court Judge, Judge Hikaka, which was delivered on 19 April of this year, as an oral decision. Unfortunately, the decision was not reduced to writing until October.

[2] Mr Pearce has demonstrated, both before the District Court, and in this Court, that he is not familiar in any way at all with the legal procedures and, regrettably, has

_{his own strong views as to his procedural rights. These strong views are completely}

PEARCE V PEARCE HC AK CIV 2011-404-006550 6 December 2011

inconsistent with the law. For example, one of his arguments is that because he was described as administrator of his father’s estate the various proceedings are of no effect. He was named as the trustee and executor of his father’s will and after some difficulties was also appointed administrator of the estate under the Administration Act 1969. He has in the past challenged the authority of Judge Hikaka and questioned whether it was his signature on the judgment.

[3] The procedural law simply pays no regard to this type of argument, and particularly not in an application for leave to appeal. I advised him at the outset of the hearing that his application for leave to appeal would depend significantly on whether or not he had a merit argument.

[4] It is important to understand that this appeal arises out of a decision made by the District Court that the second respondent was his half brother, being the son of his father, Frederick Pearce. The context of it is that the appellant’s brother, Maxwell, the first respondent, has made an application for relief under the Family Protection Act. Maxwell named Barrie as one of his brothers and so Barrie was joined in those proceedings.

[5] Mr Pearce argues that the proceedings in the District Court under the Family Protection Act 1955 will have no effect against his grant of probate from the High Court as the administrator of the estate according to the will of his father.

[6] Parliament has provided under the Family Protection Act for applications to be made by persons who are not beneficiaries under the will to be granted relief. These applications are not thwarted by a grant of probate.

[7] I turn now to examine whether the appeal has any merit.

[8] The appellant’s argument essentially is that his father had a brother, William Pearce, and that when Barrie Young approached the appellant at his home to enquire about the whereabouts of Frederick Pearce, Barrie mentioned the word “William”.

[9] It is the appellant’s belief that Barrie Young is the son of William Pearce and is deliberately taking advantage of William’s death by drowning to pursue a claim under the Family Protection Act as being the son of Frederick Pearce.

[10] Barrie Young also approached the first respondent, Maxwell Pearce.

[11] When Maxwell decided to challenge the will of his father by way of application under the Family Protection Act (most of the estate is given to the appellant) he advised his instructing solicitor of all the children of his father. As well as listing his two sisters (another procedural grievance of the appellant) he also included the second respondent, Barrie Young. Obviously, he believes Barrie Young is the son of his father. He confirmed that in Court before me.

[12] Through a combination of hearing directly from Maxwell Pearce and his lawyer the situation is that the deceased, Frederick Pearce, was commonly called Frank and did use Williams as an alternative surname. So he was sometimes called Frank Williams.

[13] Judge Hikaka had before him two DNA analyses. The first was conducted on samples provided by Barrie Young, his mother, Dorothy Hall-Smith, and Maxwell, the first respondent. The first analysis showed a Y chromosome DNA sequence of Barrie Young and Maxwell Arthur Pearce to be identical which indicated that they had a male ancestry in common and the conclusion from that analysis strongly supported the proposition that they were half siblings with their biological father in common.

[14] There was a second test, this one considering samples again donated by Barrie Young, his mother, Maxwell, but with the addition of Ronald and his sister, Elizabeth. So the sample was larger. The conclusion in the second report was:

... however, the fact that this value is below 1 provides more support for the cousin relatedness than the half sibling relatedness.

[15] The Judge accepted that the reports did not clearly resolve whether Barrie Young was a half sibling or a cousin. The Judge went on then to consider the evidence of Dorothy Hall-Smith. She gave affidavit evidence. The appellant in

these proceedings disputes that he was served with this evidence. But he clearly was. It was placed before him in Court. He certainly had every opportunity to reply to it. She gives very clear evidence of being married, having a child, having difficulties with the marriage, having a relationship with the appellant’s father, Frederick Pearce, and having a child.

[16] Dorothy Hall-Smith, Barrie’s mother, said she knew Frederick Pearce initially as Frank Williams. At the time she thought he was a single man. She has absolutely no doubt that he is the father of her son, Barrie. She said that after Barrie’s birth he met with the baby only once although he did see Barrie on a couple of occasions later in Barrie’s life, but essentially never assumed the role of being a father.

[17] Barrie Young filed an affidavit confirming that he met him on three occasions when he was growing up, that his mother never really told him until much later that he was his father.

[18] He says that in 1991 in a meeting initiated by him with his father which lasted no more than 30 minutes he, Barrie, learned that Frank had two sons, one of whom lived in Galvan Avenue in Pakarunga which ran off Serrita Avenue, upon which he lived. He said:

In 2007 I called at Ron Pearce’s house and asked him if the son of Frank Williams lived there. .. Ron said he did not. Two or three days later I called on Ron again and asked if his father had been a railway engine driver, which he confirmed and I told him who I was.

Shortly after that meeting he phoned Max and introduced himself. He said neither of the brothers seemed surprised at his assertion that he was another son of their father.

[19] The appellant, Ronald Pearce, argues that because his father was not named in the birth certificate as the father of Barrie that that is effectively conclusive. That is plainly not the law.

[20] It is noticeable that although Mr Ronald Pearce has spent $84,000 on legal fees, which inevitably addressed the chances of Barrie Young being considered for

relief under the Family Protection Act, the bulk of his arguments in this Court have been procedural. Only on the 11th page of a 12 page argument does he get to the merit issue of whether or not Barrie Young is his cousin or his brother.

[21] Judge Hikaka regarded the evidence of the mother as critical and resolving the only remaining issue, cousin or brother.

[22] This was very much a trial issue. The issue was clearly on the table at the trial. I do not think there has been any procedural error at the trial and in that sense no possible miscarriage of justice. It was an issue that the Judge had to resolve on the evidence. It is quite plain that on the evidence before him that the only decision he could come on the probabilities was that Barrie had established that he was the son of Frederick Pearce.

[23] Accordingly, this appeal is without any significant merit. It is grossly out of time. It is designed in part to prevent the fixture going ahead tomorrow,

7 December, under the Family Protection Act.

[24] Standing back, I have to make a judgment as to whether or not there should be an appeal. I have closely examined the issues. No further evidence can be lead. For these reasons I think there is little prospect of success on appeal. The appeal is grossly out of time. The main points being advanced are procedural and are clearly wrong. Accordingly, the application for leave to appeal is dismissed.

[25] I record that I have read the memorandum filed by the appellant after the hearing on 25 November which was about to conclude when there was a fire alarm. The main point in the urgent memorandum is the appellant disputing that he was served with Ms Dorothy Hall-Smith’s affidavit. He clearly was. It was placed on the table at a Family Court conference before Judge Clarkson beside him. The fact that he did not pick it up and the fact that he left the Courtroom is irrelevant. The document also reiterates his argument that the probate trumps all these proceedings. It does not. It also argues that the family protection claim is vexatious and that the sisters do not want to be involved. That is by the point and it revisits a protest about

the provision of a $200,000 bond to remain as administrator of the estate. Again, that is irrelevant.

Solicitors:

Hesketh Henry, Auckland for First Respondent

Young & Caulfield, Browns Bay, for Second Respondent

cc: Mr R F Pearce