K v TVL [2014] NZHC 945 (9 May 2014)

Last Updated: 26 May 2014

NOTE: PURSUANT TO S 125 OF THE DOMESTIC VIOLENCE ACT 1995, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO

11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE HTTP://WWW.JUSTICE.GOVT.NZ/COURTS/FAMILY- COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2013-485-3311 [2014] NZHC 945

UNDER	the Judicature Amendment Act 1972
IN THE MATTER	of an application for judicial review
BETWEEN	K M Plaintiff
AND	T V L First Defendant
AND	FAMILY COURT AT HUTT VALLEY Second Defendant

Hearing:	6 May 2014
Counsel:	Self represented C F Rieger for First Defendant Second Defendant excused
Judgment:	9 May 2014

_{JUDGMENT OF RONALD YOUNG J}

Introduction

[1] In November 2007 T V L obtained a without notice protection order against K M. K M subsequently filed an objection to the protection order being made final. The case was to be heard in the Family Court on 5 March 2008. At Court on

_{5 March 2008 K M sought an adjournment from the presiding Family Court Judge.}

K M v T V L [2014] NZHC 945 [9 May 2014]

She said she wanted to file further evidence and wanted a lawyer to appear for her. The Family Court Judge granted the adjournment but on the basis that if K M did not advise the Court who would be representing her by 14 March 2008, then the Judge would bar her defence to the application.

[2] As it turned out, although there were letters from lawyers to the Court who might have represented K M, no such confirmation was received by the Court. On

7 April 2008 the Family Court Judge issued a minute barring K M “from advancing a defence”. The fixture that had been allocated for the case was vacated and the Judge directed a formal proof hearing take place. At the formal proof hearing on

24 April 2008, another Family Court Judge made a final protection order.

[3] In these judicial review proceedings K M seeks to review the decision of the Family Court Judge who, in her decision of 7 April 2008, barred K M from advancing a defence to the application for a final protection order. K M seeks orders because the decision was “unfair and procedurally wrong and that it be quashed and that the matter be remitted to the Family Court for a hearing de novo on the merits of the notice of intention to defend the application for the final protection order”.

Background

Case chronology

[4] The chronology of the events both before and after the granting of the protection order are important in this case. A summarised chronology is set out below:

(a) 7 November 2007 – without notice application for protection order heard and temporary order granted;

(b) 12 December 2007 – K M filed notice of intention to appear and supporting affidavit;

(c) 5 March 2008 – adjournment and directions issued by the Court;

(d) 7 April 2008 – Court barred K M from advancing a defence;

(e) 24 April 2008 – formal proof hearing where the temporary protection order was made final.

[5] Since the making of the protection order there have been 14 breaches; one in

2007, three in 2009, four in 2010, five in 2012 and one in February 2013.

[6] Some of these convictions have resulted in sentences of imprisonment for K M. The most recent, a sentence of two years and one month’s imprisonment for breaching a protection order and a threatening act, arose from a 2 December 2012 incident. The sentencing was on 10 September 2013 and K M is currently in prison. K M has been charged with three alleged breaches in November and December 2013. She has pleaded not guilty to those charges and is awaiting the case review hearing.

[7] In addition, K M has challenged the protection order in a number of ways in the Courts. She has applied to vary the protection order and discharge the final protection order. She has also applied for a protection order in her favour against T V L. She has pursued her complaints on appeal to the High Court and Court of Appeal.

[8] The Family Court has ordered that further applications to discharge the protection order may only be filed with the leave of the Court. K M has made an application for leave apply to discharge the protection order. That application was dismissed. She appealed, and the appeals were dismissed in the High Court. Subsequently, applications to extend time for appealing and for leave to appeal were filed in the Court of Appeal. Subsequently there have been further applications for leave to apply to discharge the final protection order.

[9] The Family Court has now imposed a special condition that no further applications for leave should be brought before 18 February 2015. That decision was unsuccessfully appealed to the High Court and subsequently to the Court of Appeal.

The 5 March 2008 decision

[10] When the application by T V L for a final protection order came before the Family Court on 5 March 2008, as I have noted, K M (who appeared on her own behalf) applied for an adjournment. K M had already given notice to the Court she intended to oppose the application and had filed an affidavit in response.

[11] In her minute summarising the application and her decision to adjourn the hearing, the Judge said that K M had told her that she had a lawyer ready to help her with the matter but that lawyer could not act because of a conflict of interest.

[12] The Judge noted that K M then told her that she had another lawyer but that the lawyer was not available that day. The Judge noted that the lawyer had not filed any form of notice of intention to appear or an address for service nor had the lawyer sought any adjournment.

[13] The Judge said that K M had further evidence she wished to file although the case management hearing had not provided for further evidence to be filed ahead of the 5 March 2008 hearing.

[14] The Judge said that she could not be certain about K M’s desire to have a lawyer and so the Judge considered the correct approach was to adjourn the hearing although that would be a considerable inconvenience to T V L.

[15] The Judge then said:

[7] K M be very clear. We expect you to conduct yourself in a business like way here. I am surprised if you have a new lawyer that we do not have a letter from your lawyer explaining the position and asking for the adjournment. That is the normal thing. Be very clear that if that confirmation is not with the Court by the end of the week, which is by

5.00pm 14 March 2008, then I will use my discretion under the Family Court Rules to bar your defence to this application, because the risk of my adjourning today is that we are simply making this case extend out longer, which is a form of abusive behaviour, which we do see, and I am not saying that you are engaging in it, but you need to be a responsible litigant here.

[16] On 12 March 2008 a lawyer wrote to the registrar of the Family Court advising that she had been consulted by K M and that she had assisted K M to apply for legal aid. The lawyer advised that she would tell the Court whether aid had been granted. A few weeks later on 2 April 2008 the lawyer advised that legal aid had been declined for K M.

[17] Presumably that letter was referred to the Family Court Judge because in a minute dated 7 April 2008, the Judge said:

I note the two letters from Ms Jamieson (the lawyer). K M has not complied with the time frame set on 5 March 2008. She is barred from advancing a defence. That being the case, the fixture is vacated. Formal proof hearing to be allocated, 15 minutes in Judge’s List is adequate.

[18] As the Judge had directed, the case was set down for formal proof on

24 April 2008. On that date both counsel for T V L and K M attended. The Judge noted there was a direction debarring K M from advancing her defence and so the matter was formal proof only, although the Judge noted he had read the affidavits filed by both T V L and K M. The Judge was satisfied the preconditions to a final protection order were present. He made a final protection order although he did not refer K M to a counselling programme because she had already been attending such a programme.

The plaintiff ’s case

[19] K M’s case for judicial review is based on the following propositions:

(a) that Judge Moss acted “ultra vires” of her statutory power of decision when she barred K M from defending the final protection order application;

(b) the Judge was unfair and unreasonable in refusing to allow a substantive hearing with cross-examination before a final order was made;

(c) no objective view of the evidence could be taken by the Court in support of the application for a protection order because it was untested;

(d) there was a breach of the plaintiff’s natural justice rights in that an

impartial court had not decided on the merits of K M’S defence.

[20] Given those errors K M says that the protection order should be quashed and the matter referred back to the Family Court for rehearing and a new decision.

Discussion

[21] It is common ground that the decision by the Judge on 7 April 2008 is susceptible to review, being the exercise of a statutory power of decision making. Given the minute of 5 March 2008 anticipated the possibility of barring K M’s defence and gave reasons, the minutes of 5 March 2008 and 7 April 2008 must be read together.

[22] Three procedural rules are of particular relevance to the order made by the Judge. They are rr 3, 16 and 193 of the Family Court Rules 2002 which I set out below.

[23] Rule 3 provides relevant background to the interpretation of the Family Court

Rules 2002. It states:

3 Purpose of these rules

(1) The purpose of these rules is to make it possible for proceedings in

Family Courts to be dealt with —

(a) as fairly, inexpensively, simply, and speedily as is consistent with justice; and

(b) in such a way as to avoid unnecessary formality; and

(c) in harmony with the purpose and spirit of the family law Acts under which the proceedings arise.

(2) These rules must be read in the light of their purpose.

[24] Rule 16 provides:

16 Judges may give directions to regulate Court’s business

(1) The Judge presiding over a Court may, at any time, give any

directions he or she thinks proper for regulating the Court’s business.

(2) This rule is subject to rule 13(1).

[25] Rule 16 does not authorise the order made by the Judge in this case. Its concern is to regulate the Court’s business. An order preventing a litigant from participating in contested litigation before the Court is well beyond an order which simply regulates the Court’s business.

[26] Rule 193 specifically entitles a Judge to strike out a pleading. It provides:

193 Striking out pleading

(1) The Court may order that all or part of an application or defence or other pleading be struck out if the pleading or part of it —

(a) discloses no reasonable basis for the application or defence or other pleading; or

(b) is likely to cause prejudice, embarrassment, or delay in the proceedings; or

(c) is otherwise an abuse of the Court’s process.

(2) An order under subclause (1) may be made by the Court —

(a) on its own initiative or on an interlocutory application for the purpose:

(b) at any stage of the proceedings: (c) on any terms it thinks fit.

[27] I accept that the effect of the order of 7 April 2008 was to prevent K M from arguing against the making of a protection order. That is, the order effectively struck out K M’s opposition to the protection order being made final and prevented her from participating in the case. The hearing proceeded as a formal proof hearing without opposition. I am satisfied that the Judge considered this rule justified her minute of 7 April, although none was identified in the minute.

[28] To prevent a litigant participating in contested litigation is a serious and substantial step. To justify such an order the conduct of the litigant must be so egregious that he/she has foregone his/her right to participate in litigation which directly affects him/her. This approach illustrates the significance of such an order and underlines why it is a rare order.

[29] There appear to be two possible grounds under r 193 that the Judge relied upon in making the order: likelihood of delay or abuse of the Court’s process.

[30] I am satisfied that neither ground existed and that the Judge made an error of law in banning K M from defending the application for the final protection order.

[31] On 5 March 2008 when the matter was called, an application for adjournment was made by K M on two grounds: to file further evidence; and so that K M could obtain the presence of counsel whom she said she had instructed.

[32] The Judge noted in her decision of 5 March 2008 that there was a possibility that the adjournment she had granted for K M to obtain counsel would simply delay the case. She said that that was a form of abusive behaviour. The Judge then told K M that unless there was confirmation that she had a lawyer by 14 March 2008 (nine days later), the Judge would “bar [her] defence to this application”.

[33] The Judge, however, granted the adjournment. At that stage the delay had occurred. The adjournment was to allow K M to obtain the services of a lawyer. It is clear from the subsequent correspondence that K M attempted to obtain the

services of a lawyer. The first lawyer she contacted had a conflict of interest. The second lawyer contacted was prepared to appear for K M but only on the basis that she obtain legal aid. Unfortunately legal aid was not granted.

[34] When the matter then came before the Judge on 7 April 2008, a fixture could then have been allocated. After all K M was entitled to defend the matter herself without the services of a lawyer.

[35] Rule 193 is not designed as a way of disciplining litigants who do not do what they say. As I have noted, the adjournment was granted on 5 March 2008. There was no reason to suppose that there would be further delay after that time even though K M was not able to obtain the services of counsel. She had attempted unsuccessfully to do so. There was no evidence to suggest her claim about instructing a lawyer to act was untrue. Rather, the facts point to the contrary conclusion. Thus, neither of the relevant grounds for a striking out of K M’s defence had been established. What delay there was had already occurred by 7 April 2008 and no further delay was necessary. There was no abuse of the Court’s process. K M had genuinely tried to obtain a lawyer.

[36] I am satisfied, therefore, that the Judge made a reviewable error of law in her decision of 7 April 2008 preventing K M from defending the substantive application for a protection order.

Discretion

[37] In the exercise of my discretion I am not prepared to quash the final protection order. My reasons are as follows. First, K M has waited over five years to make this application. The delay is of significance for reasons that follow. In the meantime K M has brought many proceedings challenging the original decision. And so the essence of the justification for the protection order has been before the Courts of New Zealand in many different guises. Those courts who have confirmed that there were proper grounds for the order.

[38] Secondly, while the existence of a right of appeal does not prevent review, it is a factor to be taken into account in the exercise of my discretion to grant a

remedy.¹ Here, as I have noted, K M has (unsuccessfully) appealed the decision to grant a protection order and has regularly sought to review the order.

[39] Thirdly, there is overwhelming evidence that since the protection order was made in late April 2008 K M’s conduct has been such that a protection order would inevitably be made based on her conduct. I have set out in detail the substantial number of breaches of protection orders, many of which are for serious criminal conduct.²

[40] In his sentencing remarks of 10 September 2013, Judge Becroft (sentencing on charges of intentional damage and breach of a protection order) said:

[3] As to the facts in this case you had been in a short relationship with the victim in this matter. He is a now 60 year old accountant. You have been separated for seven years. The victim obtained a protection order against you on 24 April 2008. The victim, your former partner, is named in the protection order as the protected person. The protection order has now been in force for over five years.

[4] At 10.30 pm on 2 December last year you called the victim’s cellphone and left two abusive voice messages, swearing and blaming him for the protection order – there had been protection orders in force against you for five years.

[5] Later that same night, about an hour later at 11.27 in the evening, you went to the victim’s address in suburban Lower Hutt. You took a tyre iron with you. At that house were the victim, the victim’s new partner and three visiting friends.

[6] You walked around outside of the house and smashed most of the accessible windows with the tyre iron. You smashed the laundry window, three windows to the kitchen. You then proceeded to the dining room where you smashed two windows. You then smashed off two outside lights from the garage before moving to the front door. Outside the front door you smashed a large glass panel next to the front door and you then entered the house through the broken glass. You did not have permission to enter the house. It was contrary to the protection order.

¹ _{Judicature Amendment Act 1972, s 4(1).}

² See above at [5] and [6].

[7] You stood for a short time in the hallway, yelling for the victim in a threatening manner. You swore at, and abused, the occupants. One of the victim’s friends told you the victim was not at home. You then walked out of the house. You hit the letterbox with the tyre iron. You sat down, you dropped the tyre iron. You waited for the police to arrive. When they did they arrested you. You were said to be uncooperative and did not offer an explanation.

[41] And in relation to K M’s conduct (in part) in relation to breaches of

protection orders, the Judge said:³

[28] Should I uplift that starting point because of personal aggravating features? Here, you offended while on bail, the bail being imposed for breaching the same protection order. That is an aggravating feature. Ms Bishop also invites me to significantly uplift the sentence because of your significant number of previous convictions and with no disrespect to you, there are 14 pages of them, 26 previous occasions of assault, nine or 10 breaches of the protection order, many offences, up to seven, of wilful damage. That said, Courts are urged not to impose significant uplifts. But what has been pointed out in this case, in my view, means the sentence should be uplifted to two years eight months’ imprisonment.

[42] K M submitted that the facts of these breaches do not illustrate sufficiently serious conduct by her to justify a protection order. Judge Becroft’s remarks illustrate otherwise. In addition, even before Judge Becroft imposed a significant prison sentence of two years and one month, K M had been imprisoned for various forms of breaches of the protection orders. These sentences also illustrate the seriousness of K M’s conduct.

[43] Since the order was made in 2008 there have been at least five applications by K M to vary or discharge the protection order, or for leave to challenge the protection order, all of which have essentially been unsuccessful. A number of these decisions have been appealed to the High Court and leave sought to appeal to the

_{Court of Appeal.}

³ At [28].

[44] This illustrates K M’s extensive knowledge of her right to challenge decisions of the Court she does not agree with and her preparedness to do so. It also illustrates that the protection order has already been challenged multiple times without success. Further, the refusals to discharge the protection order illustrate the Family Court is understandably convinced there is a continuing need for such an order.

[45] The substantial delay in bringing this application, the existence of appeal rights from the final protection order made, the exercise of those appeal rights and other review rights and the applicant’s conduct since 2008 (easily justifying the issue of a protection order) all convince me that I should decline to quash the protection order. It is sufficient and appropriate in this case for me to declare the decision by the Judge of 7 April 2008 banning K M from defending the protection order was based on an error of law. The application for review is therefore dismissed.

Costs

_{[46] In the circumstances no order for costs is appropriate.}

Solicitors:

Thomas Dewar Sziranyi Letts, Lower Hutt

Ronald Young J