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Last Updated: 9 September 2016
NOTE: PURSUANT TO S 80 OF THE PROTECTION OF PERSONAL AND PROPERTY RIGHTS ACT 1988, 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/FAMILY-JUSTICE/ABOUT-US/ABOUT- THE-FAMILY-COURT/LEGISLATION/RESTRICTION-ON-PUBLISHING- JUDGMENTS.
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2016-485-409 [2016] NZHC 1690
IN THE MATTER
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of the Judicature Act 1908 and the High
Court Rules
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IN THE MATTER
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of the Protection of Personal and Property
Rights Act 1988
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BETWEEN
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A Applicant
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AND
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A
Subject person
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Hearing:
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On the papers
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Counsel:
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D W Hunt for Plaintiff
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Judgment:
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25 July 2016
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JUDGMENT OF ELLIS J
I direct that the delivery time of this judgment is
2.30 pm on the 25th day of July 2016
A v A [2016] NZHC 1690 [25 July 2016]
[1] Mr A has applied to the High Court for an order under the
Protection of Personal and Property Rights Act 1988 (the PPPRA)
appointing him
as the manager of the property belonging to his father, Mr A senior. His father
has dementia and is in high dependency
level residential care. Mr A already has
such an order from the Family Court, and he also has an order appointing
him as
his father’s welfare guardian.
[2] A difficulty has arisen because Mr A’s father owns property
in Fiji as well as in New Zealand. In order for him to
be able to manage his
father’s property in Fiji, Mr A needs to register a New Zealand property
manager order in the Fijian
High Court. He has applied to register the Family
Court order there, but was informed that the Fijian High Court requires an order
issued by a superior Court. It will not recognise an order from the Family
Court.
[3] Mr A therefore filed an originating application in this Court. He
has also filed an affidavit in support, which
includes a medical report
on his father’s condition, and affidavits from his mother and brother
supporting and consenting
to the application.
[4] On 22 June 2016, Simon France J made directions that:
(a) service on, and appearance by, Mr A’s father were excused; and
(b) counsel should file submissions on the jurisdiction of the High
Court to make the orders sought, at which point a decision
would be made as to
the nature of any hearing required.
[5] Those submissions have since been received and were referred to me
as Duty Judge. I largely agree with them. I consider
that the matter can be
determined on the papers, which I do below.
Analysis
[6] Notwithstanding my general agreement with the submissions
received, I
begin by recording that I am unable to concur with Mr Hunt that the PPPRA itself
confers originating jurisdiction on this Court. The definition of
“court” in s 2 of the PPPRA makes it clear that it
is the Family
Court alone which has that jurisdiction. I do not consider that r 19.2 of the
High Court Rules (which provides that
applications under the PPPRA may be
made by way of originating application) alters that position.
[7] Rather, the only way the High Court can have originating PPPRA jurisdiction is if proceedings under the Act are issued in the Family Court and are then transferred by the Family Court to this Court under s 14 of the Family Courts Act
1980.1 That has not happened here.
[8] But I do agree with Mr Hunt’s alternative submission that s 114 of the PPPRA is relevant and helpful. That section states: “Nothing in this Act shall limit the general jurisdiction of the High Court under section 17 of the Judicature Act
1908 or otherwise.”
[9] And s 17 of the Judicature Act 1908 provides:
17 Jurisdiction as to mentally disordered persons, etc
The Court shall also have within New Zealand all the jurisdiction
and control over the persons and estates of mentally
disordered persons and
persons of unsound mind, and over the managers of such persons and estates
respectively, as the Lord Chancellor
of England, or any Judge or Judges of Her
Majesty's High Court of Justice or of Her Majesty's Court of Appeal, so far as
the same
may be applicable to the circumstances of New Zealand, has or have in
England under the Sign-manual of Her Majesty or otherwise.
[10] As noted by Heath J in Keesing v Family Court at Manakau, the s 17 jurisdiction is wider than the PPPRA jurisdiction.2 Its operation was considered in
more detail the following day by the same Judge.3
Heath J said:
1 Section 14 provides:
Subject to the Act under which any proceedings are brought, a Family Court may, on the application of any party to the proceedings, or of its own motion, order that the proceedings be transferred to the High Court if it is satisfied that, because of the complexity of the proceedings or of any question in issue in the proceedings, it is expedient that the proceedings be dealt with by the High Court; and in any such case the High Court shall have the same power to adjudicate on the proceedings as the Family Court had.
3 Dawson v Keesing HC Auckland PPR 2003-092-2669, 25 May 2004.
[16] The jurisdiction conferred on this Court by s17 of the Judicature
Act 1908 can be viewed, in general terms as one to be
exercised to protect the
vulnerable: see, generally, Pallin v Department of Social Welfare [1983]
NZLR 266 (CA) at 272 per Cooke J, M v M [1983] NZLR 502 (CA) at 506 and
re an Unborn Child [2003] 1 NZLR 115 at 128.
[17] Although, in Re Morahan (1993) 6 PRNZ 637, Williams J took the view that this Court "now has a purely appellate role except in exceptional cases where it might exercise its inherent jurisdiction" (at 639) His Honour's attention does not appear to have been drawn to s114 of the Act, nor to what might occur if an entire proceeding under the Act were transferred to this Court by a Family Court.
[18] In those circumstances I prefer, and adopt, the
observations of Neazor J in Re W [1994] 3 NZLR 600 at 603-604. In that
case, Neazor J dealt with a submission that, in mental health cases, this
Court's jurisdiction
under s17 of the Judicature Act 1908 no longer existed as
follows:
The challenge to that jurisdiction is based primarily on doubts expressed by
His Honour Judge Inglis QC in the Family Court in Re H [1993] NZFLR 225
at pp 228 and 229. The decision was made on an application for appointment of a
welfare guardian for an intellectually
disabled person under the Protection of
Personal and Property Rights Act 1988 and for directions to consent to a
termination of her
pregnancy and for sterilisation. ...
With respect, I do not believe there is any doubt about the
jurisdiction of this Court. It was held in Re P in 1961 to exist
notwithstanding that the jurisdiction was conferred in New Zealand by reference
to a jurisdiction which had once
existed in the United Kingdom but had been
withdrawn from the High Court there. The source of jurisdiction in New Zealand
was s 17
of the Judicature Act, not the continued existence of the English
jurisdiction, and the extent of the jurisdiction must be taken
in my view to
have been what existed in the United Kingdom when the jurisdiction was
conferred. It was so held by the Court of Appeal
in Re R where McCarthy P
said at p 401 ". . . New Zealand Judges continue to have the inherent powers
which the appointed English Judges had
prior to 1959." The New Zealand
jurisdiction would of course be subject to any changes effected by statute in
New Zealand, but not
to changes made by statute or other action in the United
Kingdom.
[11] And although there has subsequently been a little controversy as to whether s 117 permits the High Court merely to fill jurisdictional “gaps” or to act more widely, that controversy is of no moment here.4 That is because I agree that in the unusual circumstances of this case it is necessary for the High Court to exercise its inherent jurisdiction to protect the property interests of Mr A’s father, who is a vulnerable person. An order under the PPPRA made by the Family Court is unable
to do that or, at least, is unable to do that completely.
4 Carrington v Carrington [2014] NZHC 869, [2014] NZFLR 571.
[12] Two ancillary matters then arise.
[13] First, had the Court’s jurisdiction existed as a result of a
transfer under s 14, the requirement in s 31(8) of the
PPPRA that property
management orders are to include a specified date, within three years of the
date of the order, by which the
manager is required to apply to the Court for a
review would apply.5 Where the inherent jurisdiction preserved by
s 17 is engaged the requirement for such a review would appear to be a
matter of
discretion. But such a mechanism does seem
desirable.
[14] Secondly, the making by this Court of an order appointing Mr A
as the manager of all property belonging to his father
raises the issue of
potential confusion while a seemingly identical parallel order made by the
Family Court remains extant.
[15] I am unwilling to make an order discharging the Family Court order. That appears to me to be a matter that is properly for the Family Court, in light of this judgment. Accordingly it seems to me that the appropriate course is for me to make a property management order on terms that it will not come into force unless and until the Family Court discharges the property management order dated 1 February
2013. A memorandum will need to be filed confirming that that has occurred
before this order can be sealed.
[16] The following additional points are to be noted:
(a) the order is made in the exercise of the Court’s inherent
jurisdiction, not under the PPPRA;
(b) notwithstanding the jurisdictional basis for the order, the manager is to have powers identical to those specified in the Family Court order
dated 1 February 2013;
5 This can be extended to five years if there is no dispute that an order will continue: CRG v RJM
FC Tauranga FAM-2005-070-965, 28 May 2009.
(c) the manager is to apply to this Court for a review of this order no
later than three years from the date on which this order
comes into force. If
he does not do so the order will lapse.
[17] Leave is reserved to apply further if any difficulties
arise.
Solicitors: Rainey Collins, Wellington, for Plaintiff
“Rebecca Ellis J”
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