Brown v Sinclair [2016] NZHC 3196 (22 December 2016)

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ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF PARTIES. ORDER PROHIBITING SEARCH, COPYING OR INSPECTION OF THE COURT FILES IN RESPECT OF WHICH THIS JUDGMENT HAS BEEN GIVEN WITHOUT LEAVE OF A JUDGE ON AN APPLICATION MADE ON NOTICE TO ALL PARTIES. THIS IS AN ANONYMISED VERSION OF A JUDGMENT AND MAY BE

BETWEEN	BARBARA BROWN Applicant
AND	AARON SINCLAIR AND ORS Respondents

Hearing:	31 October 2016
Counsel:	G C McArthur for Ms Brown E M Eggleston for Mr Sinclair No appearance on behalf of tenants M J McKillop for District Court, Family Court, Tenancy Tribunal S T Scott, amicus curiae
_Judgment:	_{22 December 2016}

The system fails [1] The applications [13] The proceedings in outline [20] The Brown v Sinclair proceedings

proceedings [26] (b) The Tenancy Tribunal decision [56] (c) Mr Sinclair’s application for “unless” orders [58] (d) The dissolution of marriage application [62] (e) Ms Brown’s applications for maintenance [64] (f) Mr Sinclair’s security for costs applications in the High Court [68] (g) The attachment order [70] (h) Review of Associate Judge Doogue’s orders [73] (i) Tenancy related proceedings in the High Court [74] Analysis

22 December 2011, 21 February 2012 and 30 May 2012 (ii) CIV 2013-470-424 and CIV 2013-470-485: Decisions

(iii) CIV 2013-470-419: Decision of 14 May 2013 [134] (iv) CIV 2013-470-495: Decision of 12 June 2013 [143] (v) CIV 2015-470-050: Decisions of 11 July 2014, [153]

(b) Costs [198] (c) Public distribution of judgment [201] Where to from here? [204]

[1] Two people have been married for less than three years. They separate. One files an application in the Family Court to determine their respective shares in relationship property. The other files an application for a protection order. Within six months the person against whom the relationship property application was brought is debarred from participating in that proceeding. Cross applications for protection orders are made. Almost six years later, the parties remain embroiled in litigation in the Family Court and in this Court.

[2] How did this happen? Courts exercising civil jurisdiction are designed to resolve specific disputes between people who cannot agree on the solution. The underlying assumption is that each party will be represented by competent counsel who will define the issues and put them before the Judge for resolution in a detached and well prepared way. Regrettably, in Family Court proceedings, that does not often occur.

[3] Why not? Primarily, disputes requiring resolution in the Family Court, whether involving children or property, have an emotional component that is not present in other civil cases. Two people are hurting from the breakup of a relationship, and all too often one is intent on causing financial or psychological harm to the other. Frequently, this is compounded by the inability of the parties to engage lawyers to present their cases in a dispassionate manner. Counsel’s detachment is the antidote for unpredictable or irrational behaviour from parties who are guided by emotional responses to an intense personal experience. In the absence of such assistance, it is difficult for Family Court Judges to perform their demanding functions, in resolving the domestic problems that they encounter.

[4] At the risk of over-simplification, there are, in general, three categories of people who represent themselves in Court. The first are those who cannot afford a

¹While strictly speaking the Family Courts Act 1980 permits publication of relationship property aspects of this judgment, issues involving domestic violence are arguably subject to prohibitions. Although the systemic problems that have arisen require public dissemination of this decision, I am not persuaded that the privacy interests of the parties should be compromised by its publication. That is the reason why the decision has been anonymised and references to information and citations that could otherwise identify the parties have been redacted.

lawyer because they do not qualify for legal aid. The second are those who think they can do a better job than a lawyer. The third comprises people who have become obsessed with a particular dispute, for whatever reason. Into whichever of those categories a particular litigant falls, it is likely that he or she will struggle to comply with detailed rules of Court. In particular, there will often be problems with the preparation and content of documents that he or she is required to file in accordance with those rules. Rules of evidence tend to be observed in the breach.

[5] Those problems are compounded in a case in which there are multiple applications involving different topics. In such cases, a plethora of documents will result, many of which may be unintelligible to the Court, or at least unhelpful to its adjudicative function. The most common reason for that is the inclusion of argumentative material as evidence that is irrelevant to the legal issues that the Judge has to determine. Those are not intended to be criticisms of the people involved, many of whom do their best to comply in difficult circumstances. But that is the reality for those who work in the Family Court on a daily basis.

[6] The way in which the litigants respond to those challenges has an impact on the ability of those involved in the Family Court registries to process the documents and ensure that they are presented to Judges in a complete state. Sometimes, circumstances will be such that documents do not comply with the relevant rules of Court, and are rejected as a result. While there are good reasons why rules of Court require documents to be prepared and filed in a particular way (and it is important for Registrars to enforce the rules) if, inadvertently, important information does not reach a Judge there is a risk that the quality of decision-making may be compromised.

[7] This case was a perfect storm. Because it involved a marriage of short duration, the property available for distribution was modest. Tensions existed between the spouses which resulted in multiple cross applications under the Domestic Violence Act. The need for such applications to be considered in tandem with relationship property proceedings meant that issues relevant to the latter became infected by factors relevant only to the protection order applications. On some applications, that led to views being formed about credibility without hearing a party

giving evidence and being cross-examined. Further, as one of the parties was overseas through much of the first year that the proceedings were on foot, a number of documents sent by the litigant in person to the Registry were not accepted for filing. That meant that some information relevant to particular applications was unavailable to the Judge.

[8] A series of judicial decisions led to the litigant who had been overseas being debarred from participating in the relationship property proceedings. The sense of injustice which that litigant held in consequence led to a proliferation of proceedings in the Family Court and the High Court. They became a side-show. The initial issues were straight forward and should have been capable of resolution in a timely fashion, once both parties were able to marshal relevant evidence and advocate their cause. Less haste, more speed.

[9] It is sad that this case has reached the point where I am required to determine nine applications for judicial review of decisions made in the Family Court as a result of difficulties of the type I have identified. Some blame for what happened must rest with the litigants, one of whom took an aggressive stance to early resolution and the other who, while attempting to engage in the Court process, ended up frustrating it. Some blame attaches to the processing of documents in the Registry. Some blame attaches to the way in which some of the decisions in issue

before me were reached.²But, in the end, the problem was systemic in nature. All

of the problems coalesced. Had that not happened, the present situation would not have arisen. Everyone involved did the best they could in difficult circumstances. All (litigants, Registry staff and Judges) endeavoured to act in a manner that they considered best promoted the interests of justice. While nobody should be criticised for doing that, the combination of events had disastrous consequences.

[10] While this is the worst example I have seen of problems of this type, others exist on a smaller scale. From my experience, the time may have come for those responsible for providing adequate resources for the Family Court to undertake the

_{many and difficult functions cast upon it to take stock of the present
position and to}

reflect on whether it is practicable for that Court to do everything that Parliament has entrusted to it with its present resources – both judicial and administrative.

[11] As a Judge, I am conscious that it is not my place to offer views on how Parliament should appropriate funding to meet important social objectives. Striking that balance is a political decision. My concern is to highlight some systemic problems that have come to light, so that those responsible for allocation of resources can consider whether (and, if so, how) improvements can be made. A civil justice system that facilitates the prompt resolution of disputes, with each side having (as near as practicable) equality of arms, should be an important part of New Zealand’s social fabric.

[12] I say no more about this topic. I will be sending a copy of this judgment to the Chief District Court Judge and the Principal Family Court Judge so that they can consider the issues I have raised.

[13] Ms Barbara Brown seeks judicial review of a number of orders made in the Family Court at Tauranga in the course of proceedings involving her former husband, Mr Aaron Sinclair. Her applications extend to orders made by the District Court and the Tenancy Tribunal. All applications have the same factual origins.

They stem from Ms Brown’s separation from Mr Sinclair in early 2011.³There are

[14] Ms Brown and Mr Sinclair met in 2008. There is a dispute about when they started to live together. One says it was at the end of 2008, while the other contends it was at the beginning of 2009. They were engaged on 7 January 2009, and married on 29 March 2009. Ms Brown and Mr Sinclair also disagree about the date of their separation. Ms Brown says it was between 8 and 13 March 2011, while Mr Sinclair says it was on or about 25 February 2011. The Family Court made an order

_{dissolving the marriage on 12 June 2013.}⁴_{The
judicial review applications represent}

the aftermath of a bitter dispute between Ms Brown and Mr Sinclair that has consumed their attention and energy for longer than their relationship subsisted.

[15] It is fair to say that both Ms Brown and Mr Sinclair are emotionally and financially exhausted. Undoubtedly, these proceedings have had a significant impact on their health. By the time the present applications were heard, Ms Brown had been able to secure legal representation and Mr Sinclair, no doubt on advice, took a pragmatic stance to the way in which the applications should be resolved. He has lost any desire to incur unnecessary costs.

[16] Mr Eggleston, for Mr Sinclair, offered no opposition to the bulk of the applications. Mr McArthur, for Ms Brown, said everything that could be said responsibly to explain Ms Brown’s complaints and to support her applications. Mr Scott, who had been appointed as amicus provided helpful background material that put the issues into a proper perspective. Mr McKillop represented the Family Court, District Court and the Tenancy Tribunal. On almost all issues, those judicial

bodies, as is customary, abide the decision of this Court.⁵The one exception relates

to a claim for damages against the District Court for breaches of the New Zealand

[17] I express my appreciation to all counsel for their assistance, as well as to Ms Brown for affidavits and memoranda that she prepared. While she is a qualified lawyer and has done her best to comply with the rules when drafting documents, her emotional involvement has led to much material being provided that is argumentative in nature and irrelevant to issues in the proceedings. In fact, Ms Brown may have done herself a disservice on a number of occasions as some very good points are buried in information that is unhelpful to determination of the application in issue.

[18] In particular, I thank Mr McArthur for taking a difficult brief in order to assist the Court and all parties to reach a degree of finality, at least in respect of

_{proceedings in this Court. Notwithstanding that there was a significant
measure of}

⁵_{Generally, see Attorney-General v Maori Land Court
[1999] 1 NZLR 689 (CA) at 695.}

agreement as to outcome, I told counsel that I was not prepared to act on the basis of unopposed applications without first reviewing the circumstances giving rise to the individual claims for relief. To do so would be unfair to the judicial officers involved.

[19] This judgment deals with all nine extant applications, five from 2013 and four from 2015. Given the procedural quagmire into which these proceedings have fallen and the need to address all applications in this Court on a final basis, I intend to set out the relevant background in some detail. In saying that, I acknowledge that any attempt at a summary will necessarily be both incomplete and selective. As far as is practicable, I try to explain the background in chronological sequence.

[20] Mr Sinclair filed relationship property proceedings on 27 June 2011. Ms Brown was served with them on 19 July 2011. On 22 December 2011, just over five months after those proceedings were served, the Family Court made an order debarring Ms Brown from participating in them.⁷On 30 May 2012, without hearing from Ms Brown, the Family Court gave a final judgment on the relationship property application after a formal proof hearing on 6 March 2012.⁸

[21] On 21 July 2011, Ms Brown commenced Domestic Violence Act proceedings against Mr Sinclair. She sought a protection order. That application was discontinued on 10 November 2011.⁹Just over two months later, on 27 January

2012, Mr Sinclair applied for a protection order against Ms Brown. That was determined in his favour at a formal proof hearing on 30 March 2012, just over a year after the couple separated.¹⁰Ms Brown made a further application for a protection order on 29 February 2012. That too was discontinued, on 26 April

February 2013 and the other 3 January 2014. They remain pending in the Family Court, as does a separate application, dated 4 February 2013, by which Ms Brown seeks to discharge the protection order made in favour of Mr Sinclair on 30 March

2012. On 14 May 2013, the Family Court made an order staying all proceedings that

[23] Following separation, Ms Brown took steps to lease the family home in Tauranga to three tenants.¹³While that property was registered in the names of Mr Sinclair and Ms Brown, they held legal title in their capacity as trustees of the Aaron and Barbara Sinclair Family Trust (the Trust). The tenancy that Ms Brown negotiated began on 30 April 2011, and was to run until 30 April 2012. A dispute arose between the tenants and Ms Brown. The tenants alleged that, on 3 June 2011, they had been unlawfully evicted. That dispute was resolved by a decision of the

$860.44 to the tenants. In addition, the tenancy bond was to be re-paid to them.¹⁴

[24] In 2013, Ms Brown initiated judicial review proceedings in this Court to challenge a number of decisions made in the course of the various Family Court proceedings. Mr Sinclair applied for security for costs. A series of orders were made by Associate Judge Doogue.¹⁵Ms Brown applied to a High Court Judge to review those orders.¹⁶Her applications came before Duffy J, in 2014. Of the six

2014.¹⁷Four of the remaining five orders were set aside as a result of a judgment given by Duffy J on 30 June 2015.¹⁸

[25] One order for security for costs was upheld. That concerned Ms Brown’s substantive application for judicial review of the Family Court’s judgment of 12 June

¹⁶_{The orders in issue were made in CIV 2013-470-419, 424,
425, 485, 489 and 495.}

2013, by which an order dissolving the parties’ marriage was made.¹⁹While that proceeding remained stayed as a result of the Associate Judge’s order, at the hearing on 31 October 2016 (at my invitation) Mr Sinclair waived the benefit of the stay so that I could determine all applications at the same time.²⁰

[26] On 27 June 2011, following separation in February or March 2011, Mr Sinclair applied for orders under the Property (Relationships) Act 1976. At the same time he applied, without notice, for an abridgement of time for Ms Brown to file a notice of defence. To support his application for an abridgement of time, Mr Sinclair deposed:

(a) [Ms Brown] is receiving money for the rental of the [location redacted] property. The moneys from the rent have not been paid/or accounted to me or the Trust;

(c) [Ms Brown] has dumped my personal belongings outside at my brother’s house and has caused damage to my property – when I specifically asked her not to and at a time when I was overseas;

(d) [Ms Brown] has failed to provide me with access to the [location redacted] property to inspect and determine the status of my separate and our joint property and

(e) [Ms Brown] has started to sell chattels from the [location redacted] property in circumstances where my solicitors foreshadowed proceedings (my solicitor’s letter of 24 May

conversation that I had with ... the mother of one of the tenants. [She] said to me on or about 2 June 2011: “[Ms Brown] is trying to sell your property at the home. The TV has already gone. She has offered the fridge to my children cheaply with the option to buy back”.

[27] On 4 July 2011, a Deputy Registrar made an order abridging time. Although this order is not challenged in the present proceedings, I have to say that I have doubts that it ought to have been made based on the evidence of Mr Sinclair. In my view, nothing substantial was advanced to displace the presumptive rules about the time at which notices of defence are to be filed.

[28] In his affidavit of 27 June 2011, in support of both applications, Mr Sinclair deposed that he and Ms Brown had separated “on a final basis” on 26 February 2011. As a result, the relationship was one of “short duration”, for the purposes of that Act.²¹

[29] On 21 July 2011, Ms Brown filed a without notice application for protection and occupation orders under the Domestic Violence Act 1995, with an affidavit in support sworn on the same day. In her affidavit, Ms Brown deposed that she and Mr Sinclair had separated “on or about late February 2011”. Ms Brown alleged that Mr Sinclair had perpetrated domestic violence on her on 16 March 2011, 13 June

2011 and 13 July 2011. All of those alleged incidents occurred after the date on which Ms Brown deposed they separated.

[30] Ms Brown also exhibited to her affidavit a copy of a statement she had given to a police officer about an incident that occurred between 1.05pm and 1.10pm on 19

July 2011. In that statement, Ms Brown said that she had been “jogging along the grass verge of The Mall towards the Mount”. She added that Mr Sinclair “must have been hiding behind one of the palm trees and as [she] went by it he lunged out and tried to strike [her] and it looked like he had something in his hand”. Ms Brown reported that Mr Sinclair had not said anything to her.

[31] Temporary protection and occupation orders were made. The substantive application came before Judge Wills on 10 October 2011. By that time, Ms Brown was facing criminal charges in relation to the alleged provision of false evidence about the incident in Mt Maunganui that she had described.²²Ms Brown had also

_{published information on the Internet to identify Mr Sinclair. As to
the latter, the}

Family Court made an order by consent requiring Ms Brown to remove immediately information about Mr Sinclair posted on “the Google email forum”.²³Ms Brown withdrew her application at the next hearing, on 10 November 2011.²⁴

18 October 2011. Ms Brown was [occupation redacted]. At that time, she was [nature of employment redacted]. Although no narrative affidavit had been filed by Ms Brown, she was represented by counsel. The Court was told that she intended to return to New Zealand in early November. Judge Somerville said:²⁵

[6] There is a temporary protection order in place. That is to be defended and there is a hearing on 28 and 29 November for two days. The respondent has until 2 November to file documentation. The submission from counsel for the respondent is that if she is given the same amount of time to do that then that is going to be more practical for her to deal with it. I am concerned that the documentation has not been filed. I have suggested that the draft affidavit could be shown to counsel for the applicant so at least he knows what the narrative affidavit is all about, but I am told that this draft affidavit has only just been prepared, which means that in spite of the fact there have been very clear directions for some time now, there has only been a recent opportunity for the draft affidavit to be filed.

[7] I have asked counsel about the costs issue. I consider that this is an issue for costs. I am going to make an order for costs today. Costs are to be

deal with by the respondent not engaging in this process as per directions. That is to be paid by the respondent within seven days after her return, date to be advised to the Court.

[33] On 10 November 2011, both the relationship property and domestic violence proceedings came before the then Principal Family Court Judge, for a case management conference. Both parties were represented. In her memorandum for the conference, Ms Brown’s counsel explained the steps that Ms Brown was taking in the United States to have an affidavit prepared. The memorandum stated:

4. [Ms Brown] [redacted] ... is not of means and could not afford to travel or to pay a notary public to swear her affidavit. [Ms Brown] has recently [acquired funds from work in the United States] ... She is now able to have her affidavit witnessed.

5. [Ms Brown] has made an appointment to attend at the UK Consulate in Las Vegas on 25 November 2011 to have her affidavit witnessed, this being the only opportunity she has having regarding to her dependency on third parties for travel.

6. [Ms Brown] is seeking leave for an extension of time in which to file her affidavit within 2 weeks of 25 November 2011 to accommodate the time required to post the original affidavit to New Zealand.

[34] Notwithstanding that explanation, Judge Boshier asked counsel to obtain specific instructions as to the precise date by which Ms Brown would return to New Zealand, so that the November 2011 date could be used for the purpose of relationship property, rather than domestic violence proceedings.

[35] Having taken instructions, counsel advised the Court that Ms Brown would be returning on 6 March 2012. Judge Boshier was unimpressed. He said:²⁶

[10] [Counsel for Ms Brown] knows that her client’s conduct and her credibility is now sufficiently worrying that she, as counsel, must herself be concerned. At the beginning of the conference I am told one date and at the end of it a quite different date. The Court’s conduct of proceedings cannot be compromised in this way.

[11] For [Mr Sinclair], he brought his proceedings in June of this year and the law requires that they be determined “economically and expeditiously”. I am not willing to permit [Ms Brown] to, it appears, intentionally delay the resolution of this case.

[12] Mr Eggleston seeks an order wherein [Ms Brown] is now debarred from participating in the proceedings. The Rules permit that but I would want to be careful and considered before I make such an order. If I am of the view that the law permits it, and it is fair and just, having regard to all of the circumstances, I will make such an order.

[36] Having recorded that counsel for Mr Sinclair had claimed indemnity costs of

$15,000 in relation to discontinuance of the application under the Domestic Violence

(a) In relation to the domestic violence proceedings, on [Ms Brown’s] application to discontinue, the temporary orders are discharged and the substantive applications are struck out.

(b) [Mr Sinclair] is entitled to costs and I direct counsel for the father to file a submission within 10 days, setting out the basis upon which costs is sought, having regard to the District Court Rules 1992 and scale and that [Ms Brown] file any response she wishes to within 10 days. The registrar shall immediately refer the file to me in chambers and I will make a decision on the documents then before me.

(c) On the property relationship proceedings, I find that [Ms Brown] is in continuing breach of an order to file documents. [Mr Sinclair] wishes to have an order made debarring her from further participating in the proceedings. In the submission that Mr Eggleston is to file within 10 days as to costs, he shall also include a second part to his submission and that relates to jurisdiction and basis upon which the order should be sought.

(d) In the response within 10 days of that, that I have already invited [counsel for Ms Brown] to file in relation to the domestic violence proceedings, she may reply to the issue of costs. I shall then decide that issue in Chambers on the basis of the papers then available to me.

(e) Any other interlocutory direction which is sought as to, for instance access to property or chattels, or any other matter relevant to preparation for trial and resolution in these proceedings, may be made to me by counsel by memorandum through the registrar. I will consider what each counsel has to say and make a direction on the papers.

(f) The form of hearing shall be determined by me after I have considered counsel’s submissions and on taking a view of what the Rules permit. A hearing, and depending on its format, will however occur before 6 March 2012.

(g) Costs generally on today are reserved but I shall fix costs as they relate to the domestic violence proceedings when I deal with that issue and property costs can be dealt with separately.

(h) The costs made by Judge Somerville on 18 October, wherein the wife pay $500 upon her return to New Zealand, is varied to provide for an order that the sum of $500 is paid forthwith, that is, within seven days.

(i) Pursuant to the placement of material onto the Internet by [Ms Brown] and referred to in paragraph 7 of Judge Wills’ judgment of 10 October, [Ms Brown] is required to advise the Court, by memorandum filed through her counsel, within seven days, of the current position and in particular whether the material has been removed.

[37] On 22 December 2011, Judge Wills considered an application by Mr Sinclair to debar Ms Brown from participating in the proceeding and another to enable him to

access the former family home to take an inventory of chattels, and to assess any damage. [As at 10 November 2011], Ms Brown had not paid the costs of $500 previously ordered.

[38] It is customary for a formal application to be made to a Court when a party seeks an extreme remedy, such as debarring another party from bringing or defending a proceeding. No such application was filed. Instead, the question whether Ms Brown should be debarred from participating evolved from a series of events that had occurred before the decision to debar that was made on 22 December

(a) In a memorandum dated 17 October 2011, Mr Eggleston advised the Court that despite “nearly 3 months passing since service ... [Ms Brown] still has not filed any narrative affidavit material”. He observed that in her notice of defence orders were sought under ss 15A and 32 of the Property (Relationships) Act. Mr Eggleston added that it was “likely that an application will be made to summarily dismiss [Ms Brown’s application] given on face it appears without merit”. He added that a decision on that could not be made without her narrative affidavit. Having made those observations, Mr Eggleston set out a series of directions that he sought. One of them sought that Ms Brown’s “application be struck out for want of prosecution”.

(b) On 18 October 2011, Judge Somerville indicated that unless a narrative affidavit was filed, “there will be a consideration of not allowing [Ms Brown] to attend any Court hearing and prosecuting her case”.²⁸

(c) On 9 November 2011, in advance of the conference over which Judge Boshier presided on 10 November 2011, Mr Eggleston filed a memorandum in which he addressed this issue. Mr Eggleston pointed

[redacted] that [Ms Brown] had [later given information that] she was travelling directly from the United States to [another country] to [nature of work redacted] in the first week of December 2011. In relation to Ms Brown’s Domestic Violence Act application, he said that unless Ms Brown “agrees to withdraw the proceedings” an order was sought that they be dismissed under r 195 of the Family Courts

proceeding that because Ms Brown had not paid the costs ordered by Judge Somerville, that proceeding should be set down for hearing by way of formal proof.

(d) Judge Boshier put the issue more emphatically. In the context of a conference dealing with both the relationship property and Domestic Violence Act proceedings he observed that “Mr Eggleston seeks an order wherein [Ms Brown] is now debarred from participating in the proceedings”.³⁰I can only assume that Mr Eggleston had developed this point orally at the conference before the Judge.

[39] By the time the relationship property proceeding came before Judge Wills on

22 December 2011, those comments or observations had metamorphosed into an application to debar with which she then dealt. The Judge made an order debarring Ms Brown from participating in the proceeding.³¹She also made an order enabling Mr Sinclair to access the former family home to take an inventory of chattels and to assess any damage to it. By this time, Ms Brown had not paid the costs of $500 previously ordered by Judge Somerville.

[40] On 21 February 2012, Judge Wills issued a Minute in response to an application from Ms Brown to file evidence in opposition out of time. She declined to grant leave on the grounds that Ms Brown had already been debarred from defending. The Judge confirmed that a formal proof hearing would take place on 6

³¹[citation redacted]. The reasons given by Judge Wills are summarised at paras [103]–[104]

[41] On 21 February 2012, Judge Wills also dealt with an application by Mr Sinclair for costs on Ms Brown’s unsuccessful first Domestic Violence Act application.³²Indemnity costs were sought. This application followed Judge Boshier’s decision to discharge temporary protection orders granted in Ms Brown’s favour, and to strike out her substantive application.

[42] Mr Sinclair claimed costs totalling $15,721. Judge Wills awarded costs in the sum of $9,600, together with reasonable disbursements. The Judge described the factual background against which the order was made as follows:³³

$15,721 and in the alternative uplift costs in the amount of $13,783. As a further alternative costs are sought pursuant to Schedule 2C, District Courts

attached to the submissions or on a 2B basis in the amount of $7,195 also quantified in the schedule.

[7] The brief history of the matter is that [Ms Brown] raised serious allegations against [Mr Sinclair] in her affidavit of 21 July 2011 including assault, stalking, kidnapping, death threats and threats with a knife. [Ms Brown] asserted that she had made a Police complaint in relation to events on 19 July 2011. [Mr Sinclair] opposed the making of an order and filed affidavit evidence from six deponents including a Police officer who confirmed that [Ms Brown] had been charged with making a false statement in relation to the events of 19 July 2011.

[8] The evidence considered by [Mr Sinclair’s] counsel included video footage from the local café where [Mr Sinclair] dined on 10 July 2011 and the 111 call of [Ms Brown]. An interlocutory application had to be made to obtain Police records. Counsel for [Mr Sinclair] submits that this was a case where a much greater amount of time was spent preparing the case for trial than might normally be the case.

[43] Following a formal proof hearing on the relationship property application on

6 March 2012, Judge Wills delivered a reserved judgment on 30 May 2012. After analysing the legal position and setting out the nature and value of relationship property assets, the Judge concluded:³⁴

[35] The parties’ respective contributions to the relationship are clearly disproportionate. The relationship property assets should be divided on the basis of 70% to [Mr Sinclair] and 30% to [Ms Brown] as determined earlier in this decision.

[36] That has the entitlement of [Ms Brown] fixed at $32,402. Given that she has in her possession $15,565.00 worth of property, the sum of

(a) The chattels in the possession of [Mr Sinclair] shall be his sole and separate property.

(d) [Mr Sinclair] will take as his separate property the one share of [Ms Brown] in [Mr Sinclair’s company]. To give effect to that order [Ms Brown] shall within 21 days from the date of these orders sign any documents necessary to transfer her one share to [Mr Sinclair].

(e) In the event that [Ms Brown] fails to sign the share transfer and provide it to [Mr Sinclair], the registrar of the Family Court is authorised to sign the transfer on [Ms Brown’s] behalf.

(g) [Mr Sinclair] shall take as his separate property all assets in his name, possession or control.

(h) [Ms Brown] shall take as her separate property all assets in her name, possession and control.

$16,837.00. From that sum may be deducted any costs awarded in this or any other proceeding in which these parties have been involved.

[38] This is a case where costs should be awarded in favour of [Mr Sinclair]. [Ms Brown] failed to comply with timetabling directions and has been debarred from defending. [Mr Sinclair] has been put to significant effort and cost as a result of [Ms Brown’s] failure to properly engage in these proceedings and costs should be awarded. Leave is reserved to [Mr Sinclair] to file a memorandum as to costs.

[44] On 17 December 2012, Judge Wills dealt with questions of costs on the relationship property application. While refusing to make an order for indemnity

costs in favour of Mr Sinclair, she took the view that costs at the highest level of the

[8] It would be fair to say that even if [Ms Brown] had engaged in the proceedings and filed documents in a timely way that costs would still have been incurred by [Mr Sinclair]. There is, in my view, no basis for the granting of indemnity costs despite the cavalier approach of [Ms Brown] in the proceedings. I am however satisfied that the costs of the expert’s report should be met in full by [Ms Brown] for whose benefit it was obtained. I am also satisfied that costs should be awarded in accordance with Band C of the schedule to the District Courts Rules.

[45] The decisions of 30 May 2012 and 17 December 2012 effectively resolved the relationship property proceeding in favour of Mr Sinclair.

[46] Having explained the way in which the relationship property proceedings came to be determined, I return to the various protection order applications.

[47] On 26 January 2012, Mr Sinclair applied on a without notice basis for a protection order. At this time, Ms Brown remained overseas, [occupation and nature of work redacted]. In his affidavit, of that date, Mr Sinclair deposed:

(a) On 1 January 2012 the locks were changed at my home [location redacted], ... locking me out of my home without my knowledge and consent. I maintain for the reasons I give below that [Ms Brown] instigated this.

(b) On 6 January 2012 my parents, aunty and cousin arrived at the [location redacted] Property to find the locks had been changed. I was in Auckland at the time. I was telephoned by my mother ... who said: “[Aaron] the locks on the house have been changed”. I said: “Contact the Police”.

(c) On 7 January 2012 I spoke to Constable Plowman who said “We have contacted [a family friend]. He said locks have been changed and that tenants would be moving back to the property in a few days time”.

(d) On 9 January 2012 my mother contacted [a locksmith] who told her that [Ms Brown] had phoned from overseas asking him to change the locks. [The locksmith] also advised that the locks had been changed on New Years Day. I refer to her Affidavit in this respect. I have subsequently received an email and the invoice from the Locksmith confirming the

(e) On 15 January 2012 [a family friend] arrived at the back door, out of view of the road, leaving my father ... feeling shaken. My father telephoned me and said with words to the effect: “[The family friend] has just come to the home to try and get access to inspect the property”. My heart immediately began to beat faster and I felt very stressed by the visit. I am very concerned about what [Ms Brown] and her associates may do to the home and my belongings if no one is present at home. I refer to my father’s Affidavit in this respect.

[48] Mr Sinclair added that he had arranged with his father to stay with him, but he could not do so longer than 31 January 2012. He expressed concern that Ms Brown may attempt (or have one of her intermediaries attempt) to return to the property to change locks and secure sole access. As a result, Mr Sinclair said that he was taking important documents and his laptop computer to work every day. The alarm system at the property had been reactivated and was being monitored. He identified a new email address used by Ms Brown: [email address redacted; the words used in the email address were disparaging of Mr Sinclair, suggesting that he was a liar].

[49] Mr Sinclair’s application was referred to Judge Wills. She directed that it should be heard on five days’ notice. No temporary order was made. Ms Brown was to be served by email, as was her “legal advisor in USA”. Personal service was also directed on [the family friend] of Ms Brown and Mr Sinclair, to whom Mr Sinclair had referred in his affidavit in support of the application.³⁶I am aware that he subsequently protested the fact that he was regarded as a person on whom service could be effected to give notice to Ms Brown. She was overseas at this time.

[50] On 8 February 2012, Ms Brown purported to file a second application for a protection order. That document was not accepted for filing. A new originating document was filed on 29 February 2012, on a without notice basis. That application came before Judge MacKenzie on 29 February 2012. She ruled that the application

³⁶See para [4](c) and (e) of Mr Sinclair’s affidavit, set out at para [47] above.

differences evident from evidence in earlier parts of the proceeding should be determined after cross-examination. As one of her reasons for holding that the threshold test for without notice orders had not been met, she said:

(d) I have been provided with recent judgments of Judge Boshier and Judge Wills which contain adverse credibility findings in relation to [Ms Brown] and thus, as I have already indicated the evidence will need to be tested before consideration of orders.

[51] Mr Sinclair’s application for a protection order was set down for formal proof on 30 March 2012. Counsel appeared for Ms Brown and sought leave to file a notice of defence and affidavit in support. That application was opposed. At the time of this hearing, Ms Brown was overseas, so if the application were granted the hearing would necessarily have been adjourned. Judge Coyle rejected her application, notwithstanding that a draft notice of defence and affidavit were before him and he had been told that Ms Brown had been granted legal aid about three weeks beforehand.

[52] Judge Coyle did not consider that Ms Brown had given any “satisfactory explanation ... as to why [she] has now filed at the Court door”.³⁷In particular, he was influenced by what he described as a “multitude of breaches” by Ms Brown in relation to Court orders, both in relation to domestic violence and relationship property proceedings.³⁸The Judge concluded that he was “not satisfied that it [was] in the interests of justice to allow Ms Brown to be heard”. He left open the possibility of an application to have any order discharged, but put that on the basis that it would need to be on “new evidence” that was “not available for this hearing”.³⁹

basis of the affidavits Mr Sinclair had filed. One was the affidavit of 26 January

_{2012 on the basis of which Judge Wills had required the application to
be heard on}

notice. The other was filed on 29 March 2012, the day before the hearing. Ms Brown would not have had an opportunity to respond to the latter. Judge Coyle did not require Mr Sinclair to be cross-examined on his affidavits.⁴⁰On the basis of his evidence, Judge Coyle made a final protection order as sought, and directed Ms Brown to attend “a stopping violence programme”.⁴¹Costs were reserved.⁴²

[54] On 26 April 2012, Ms Brown discontinued her February 2012 application under the Domestic Violence Act. On the same day, Judge Coyle minuted that the application had been discontinued.⁴³

[55] The question of costs arising out of the hearings on 30 March 2012 was dealt with in chambers, on the basis of a memorandum from counsel for Mr Sinclair. Ms Brown had had the opportunity to file submissions in response, but had not done so. On 21 May 2012, Judge Coyle ordered:⁴⁴

[27] ... I make an order that [Ms Brown] pay [Mr Sinclair’s] costs in the sum of $2290 for the period following the commencement of the domestic violence proceedings up to 4 March 2012.

[28] I make an order pursuant to s 45(2) that there are exceptional circumstances to justify a cost award in the sum of $1800 being made against [Ms Brown], and that would have been the cost award I make against her personally but for the fact that she was in receipt of civil legal aid.

[29] I make an order that [Ms Brown] pay [Mr Sinclair’s] costs in the sum of $862.50 in relation to her unmeritorious application for a protection order against [Mr Sinclair].

[56] On 16 August 2011, the tenants of the family home filed an application in the Tenancy Tribunal in which relief was sought against Ms Brown, as “landlord”. The tenancy agreement had been signed on 18 April 2011, with a commencement date of

30 April 2011. The lease was for a fixed term of 12 months. In total, the tenants

_{paid a bond of $1,400. The tenants alleged that they were unlawfully
evicted on 3}

$350. In addition, the Bond Centre was directed to pay the bond of $1050 to the tenants.⁴⁶

[58] On 18 February 2013, Ms Brown filed a third application for a protection order. Mr Sinclair applied to the Family Court for security for costs and an ‘unless” order. His applications were opposed by Ms Brown. They were heard on 8 May

[59] An “unless” order customarily operates to prevent a party from pursuing a particular application unless they take a specified step by a particular time.⁴⁸On this occasion, Mr Sinclair sought an order “preventing Ms Brown from taking any further steps in respect of any of her applications before the [Family] Court unless”⁴⁹she paid costs outstanding to Mr Sinclair in the sum of $12,478, pursuant to earlier Court orders.⁵⁰In addition, Mr Sinclair sought an order for security for costs in relation to her third Domestic Violence Act application.

[60] Judge Geoghegan considered the background in detail. Having done so, he made orders:

⁴⁵_{This summary is taken from the Tenancy Tribunal’s
decision: [citation redacted].}

⁴⁶_{The reasons for the Tenancy Tribunal’s decision are
set out at paras [173]–[176] below.}

⁴⁸Generally, see SM v LFDB [2014] 3 NZLR 494 (CA). The Supreme Court gave leave to appeal:

LFDB v SM [2014] NZSC 131 but leave was subsequently revoked because the applicant had made a further default in relation to payment of a costs award: LFDB v SM [2014] NZSC 197; (2014) 22 PRNZ 262 (SC). That being so, the Supreme Court expressed no views on the approach that commended itself to the Court of Appeal. See further, paras [111]–[91] below.

of [Mr Sinclair] in the sum of $10,000. In assessing the amount of security for costs I note that Mr Eggleston sought the sum of $15,000 based on [Ms Brown’s] assertion that she would wish to call 20 witnesses. I have estimated the amount of security for costs on the basis of a three day hearing.

(2) I make an order staying all applications by [Ms Brown] before the Court unless and until [Ms Brown] has met all outstanding costs awards payable to [Mr Sinclair]. I include in these costs awards any costs awards which may be imposed by the Court in respect of applications for costs currently before the Court for consideration.

[65] I can indicate that in respect of the applications being determined in this case I do not consider an award of costs appropriate despite [Mr Sinclair’s] success. The application by [Mr Sinclair] involved difficult issues of the balancing of the rights and obligations of both parties and despite the fact that [Ms Brown] has been unsuccessful it could not be said that her defence of these applications had insufficient merit as to warrant an award of costs as being appropriate.

[61] As a result of that decision, all proceedings filed in the Family Court to that date remain stayed.

[62] Mr Sinclair applied for an order dissolving his marriage to Ms Brown. His application was opposed. Ms Brown has never suggested that a dissolution order should not have been made. Rather, she disagrees with the separation date put forward by Mr Sinclair.⁵¹

[63] At the end of a hearing on 12 June 2013, at which both Mr Sinclair and Ms Brown gave evidence, Judge Geoghegan gave an oral judgment in which he found that the parties separated on 25 February 2011, the date for which Mr Sinclair had

⁵²[citation redacted]. Judge Geoghegan’s reasons are set out at para [146] below.

[64] Ms Brown filed an application for interim and lump sum maintenance in the Family Court at Auckland on 20 August 2013. On 2 September 2013, Judge McHardy abridged the time for Mr Sinclair to file a defence to five days. A further direction was made by Judge Druce on 13 November 2013 for Mr Sinclair to file and serve an affidavit in reply. Mr Sinclair applied to transfer the application to the Family Court at Tauranga. On 9 January 2014, Judge Adams made an order to that effect. It appears that direction was made without hearing from Ms Brown.

2014. No further steps were taken at that time. On 18 March 2014, a case management conference was held before Judge Geoghegan.⁵³Mr Sinclair sought an order extending the “unless” order made by Judge Geoghegan on 14 May 2013 to the spousal maintenance application. Judge Geoghegan agreed that Mr Sinclair’s application should be considered first. He made timetabling directions for that to occur, leaving Ms Brown’s application in limbo meantime.⁵⁴

[66] On 19 September 2014, a further directions conference was held. Judge Twaddle observed that Mr Sinclair had made an application to vary Judge Geoghegan’s order of 14 May 2013 so that it applied “to all applications including future applications filed by Ms Brown”.⁵⁵His Honour concluded that none of the proceedings before the Court ought to be heard further until “Mr Sinclair’s application to vary the stay order” had been addressed. His Honour noted that that could not be done until after proceedings in this Court had been resolved.⁵⁶As a result, no further steps have been taken on that application.

[67] I observe that there is no basis on which an order could have been made extending the “unless” order to any proceedings Ms Brown may file in the future. Even where a person has been declared a vexatious litigant, proceedings may be

_{brought by leave of the High Court.}⁵⁷_{An order
of the type sought would have had}

more draconian consequences than a declaration that she was a vexatious litigant. That application was doomed to fail and ought not to have been made.

[68] In the period between Judge Geoghegan making an “unless” order on 14 May

2013 and Ms Brown filing her maintenance application on 20 August 2013, Ms Brown filed six judicial review applications in this Court to challenge various orders for security for costs that had been made. Mr Sinclair sought security for costs in respect of each of those proceedings. The decisions before this Court were summarised by Associate Judge Doogue, in his judgment of 6 November 2013, on the security for costs applications before him:⁵⁸

[3] [Ms Brown] is dissatisfied with the outcome of a number of the Family Court hearings and has filed the following proceedings in the High Court to obtain judicial review.

[150] The application for security for costs is granted and [Ms Brown] is ordered to pay security for costs to the Registrar of the High Court at Tauranga in the sum of $34,666.00. That sum is to be held by the Registrar as security for costs against orders that might be made in any of the six judicial review proceedings which [Ms Brown] has filed.

[151] The terms of the order that I make are such that while the security for costs figure has been calculated in respect of one of the several judicial review proceedings, the security for costs some will be available for the applicant, [Mr Sinclair], to apply in reduction of any costs order made in any of the judicial review proceedings.

[153] There will be an order staying the judicial review proceedings until the first instalment of the security for costs is made. There will also be stay orders in the event that any succeeding instalment is not paid on time.

[70] On 30 May 2014, Mr Sinclair made an application for an attachment order in respect of the various costs orders that had been made against Ms Brown in his favour. As at that date, the outstanding Court-ordered costs totalled $12,972.50, made up as follows:

(a) $9,820, as a result of an order made on 21 February 2012. (b) $2,290, as a result of an order made on 21 May 2012.

[71] In his application for an attachment order to compel payment of those costs, Mr Sinclair said:

You can claim some of your costs from trying to enforce the judgment or court order. Enter the judgment debt, and costs you want to claim, in the table below.

[72] On 19 June 2014, the District Court made an attachment order reflecting the outstanding claim of $14,442.50.

Associate Judge Doogue were determined by Duffy J in two judgments, delivered on

5 September 2014 and 30 June 2015 respectively. Ms Brown was successful on all but her challenge to the order made in respect of the dissolution proceeding.⁶¹Ms Brown applied to recall that aspect of the judgment. Her application was dismissed by Duffy J, after having heard from both Ms Brown and Mr Sinclair in person, on 17

[74] Separate proceedings were issued by Mr Sinclair in the High Court to claim moneys allegedly owed by Ms Brown and the trustees of the Trust arising out of the tenancy of the family home, which was owned by the Trust. Brewer J gave

⁶³A summary of the salient aspects of that decision are set out at paras [168]–[170] below.

[75] My task is to determine whether each of the decisions that Ms Brown challenges is susceptible to judicial review and, if so, what relief should be granted. In doing so, I shall:

(a) Explain the nature of each of the individual judicial review applications and the specific orders that each challenges;

[76] I have already provided a summary of the circumstances that led to the decisions now under challenge.⁶⁴From the judicial perspective, it is impossible to read the numerous decisions given by Family Court Judges in the course of proceedings between Ms Brown and Mr Sinclair without appreciating the evident sense of frustration under which each of them laboured. That frustration seems to have been borne of what the Judges perceived to be unwarranted delays, on the part of Ms Brown, in the resolution in a timely way of what ought to have been relatively simple relationship property and domestic violence issues. There were also apparent

concerns about their need to consider repetitious and (sometimes) ill conceived applications for protection orders. My sense is that the Judges regarded Ms Brown as someone who was deliberately flouting the process and orders of the Court.

[77] So far as relationship property is concerned, the marriage was one of short duration. The financial value of the property in dispute was modest.⁶⁵The legal

_{issues arising out of the property dispute were not complex. In the
absence of the}

tangential disputes that enveloped the proceeding, all property issues were capable of resolution relatively quickly and comparatively inexpensively.

[78] So far as the protection order applications are concerned, there were multiple proceedings. At least one was based on a false allegation.⁶⁶Others seem to have been based on unreasonable perception rather than reality. Ms Brown believed that Mr Sinclair was persistently harassing her; Mr Sinclair believed the opposite was true. Both beliefs were, I am sure, genuinely held.

[79] I have no doubt that this sense of frustration influenced the outcome of many of the decisions now in issue. While those frustrations are understandable, in human terms, a Judge must remove himself or herself from the arena, put aside idiosyncratic behaviour of the parties, and determine the issues in a detached and dispassionate manner.

[80] I accept that is easier said than done. From personal experience at both first instance and appellate levels, I can say unequivocally that it is a much easier task at the second stage. On appeal or review, this Court has the benefit of a greater degree of detachment, as well as an ability to see and to understand the consequences of a series of independent decisions made by different Judges. The likely consequences of the collective group of decisions is less likely to have been appreciated at the time each was made.

[81] Ms Brown’s fundamental complaint is that she was shut out of the decision- making process, either through the Court dealing with an application on a without notice basis, or by being debarred from participating in a proceeding. A sense of injustice inevitably affects a person who believes he or she had been denied a say in legal proceedings that may affect them adversely. For that reason, a Court must always bring a sense of proportion to decision-making that involves the potential (or actual) debarring of a person from bringing or defending proceedings.

[82] Peremptory orders of that ilk will typically provoke the litigant concerned to respond by engaging in a procedural war within the litigation, thereby extending the

nature of the issues that truly require determination, unduly prolonging the proceeding, and throwing unnecessary cost on other parties. Experience demonstrates that type of reaction is often due to an intense sense of injustice, as opposed to an act of spite.

[83] Those considerations explain why the law has developed in a way that requires Judges to hesitate before making orders that may deny a litigant the right to be heard on a particular issue, or worse, the right to pursue or defend a claim. Very rarely will it be appropriate for a Court to prevent a party from participating in a meaningful way in a proceeding at a relatively early stage of its progression through the judicial system. Properly, “unless” orders and those that immediately operate to debar a party from participating in a legal proceeding should be regarded as remedies

[84] The applications that Ms Brown has brought are not appeals against the decisions in issue. Rather, they ask this Court to exercise its supervisory jurisdiction over public decision-making. It is important to distinguish between the powers that may be exercised by this Court on an appeal (on the one hand) and on a judicial review application (on the other). Save for cases in which appeals will lie only on questions of law, an appellate court will generally reconsider the merits of the

original decision afresh.⁶⁸As Elias CJ said, for the Supreme Court, in Austin Nichols

& Co Inc v Stichting Lodestar: “Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court”.⁶⁹By contrast, the judicial review jurisdiction is primarily directed at questions of process, and does not involve this Court pronouncing on the merits of a particular application or proceeding.

[85] Ordinarily, judicial review will lie where a decision-maker has taken into account irrelevant considerations, failed to take account of relevant considerations,

⁶⁷_{See SM v LFDB [2014] 3 NZLR 494 (CA) at para
[31](a), set out at para [117] below.}

⁶⁸See Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103; [2008] 2 NZLR 141 and Kacem v Bashir

made an error of law, or was plainly wrong. The remedy is also available where it can be said that a decision is “unreasonable”, in a commonly understood administrative law sense.⁷⁰The approach to “unreasonableness” that I apply in this case, is to ask whether the decision in issue was “beyond the limits of reason”.⁷¹

[86] The supervisory jurisdiction is based on the fundamental premise that powers conferred on statutory bodies or tribunals can be validly exercised only within their true limits. As the High Court is a Court of unlimited jurisdiction,⁷²it has power to determine those limits, and uses the process of judicial review for that purpose. The nature of the jurisdiction was summarised succinctly by Arnold J, for Elias CJ and himself, in Ririnui v Landcorp Farming Ltd:⁷³

[1] ... Judicial review is a supervisory jurisdiction which enables the courts to ensure that public powers are exercised lawfully. In principle, all exercises of public power are reviewable, whether the relevant power is derived from statute, the prerogative or any other source. The courts acknowledge limits, however. These limits are reflected primarily in the notions that the case must involve the exercise of a public power, that even if the court has jurisdiction, the exercise of power must be one that is appropriate for review and that relief is, in any event, discretionary. ....

[87] For the purposes of this proceeding, the High Court has jurisdiction to review decisions of a District Court, a Family Court and the Tenancy Tribunal. They each are judicial authorities of “limited jurisdiction”.⁷⁴

[88] The High Court’s powers of review are constitutional in nature. They are designed to promote the rule of law, and provide a means by which a remedy can be granted for a proved public law wrong. Every person whose own “rights, obligations, or interests protected or recognised by law” may have been adversely

_{affected by a determination of a “tribunal or other public
authority” has the right to}

⁷⁰This concept has its origins in Associated Provincial Picture Houses Ltd v Wednesbury

⁷¹Webster v Auckland Harbour Board [1987] NZCA 80; [1987] 2 NZLR 129 (CA) at 131 (Cooke J), applied by

⁷³_{Ririnui v Landcorp Farming Ltd [2016] 1 NZLR 1056
(SC); [2016] NZSC 62, at para [1].}

⁷⁴Sometimes (but not pejoratively) called “inferior Courts”. Generally, see Auckland District Court v Attorney-General [1993] 2 NZLR 129 (CA) at 133, citing R v Chancellor of St Edmundsbury and Ipswich Diocese [1948] 1 KB 195 (CA) and R v Cripps, ex parte Muldoon [1984] QB 68 (CA) at 87.

seek judicial review of that determination. That right is expressly recognised by s 27(2) of the Bill of Rights.

[89] The judicial review applications raise two issues of fundamental importance:

(a) The first is access to justice. That value concerns the right of every person to have access to the Courts to obtain redress for any wrong done to him or her. The importance of the value is underscored by s 3 of the Legal Services Act 2011. It states that an object of that Act is “to promote access to justice by establishing a system that” both “provides legal services to people of insufficient means” and “delivers

(b) The second is a core principle of natural justice; namely, the need for a court or tribunal that is seized of a dispute to hear from both parties before making a decision. It is the existence of this principle that explains why rules of court generally prescribe strict limits within which orders may be made on a without notice basis.⁷⁶

[90] Most of the judicial review applications raise one (or both) of those issues. For example, Ms Brown asserts that:

(a) A number of the Family Court Judges exercised jurisdiction to prevent her from being heard on substantive applications.

(b) A number of orders were made without giving her an opportunity to be adequately heard. That led, Ms Brown submits, to the exercise of

⁷⁵_{More generally, see Marteley v The Legal Services
Commissioner [2016] 1 NZLR 633 (SC).}

⁷⁶See Martin v Ryan [1990] NZHC 151; [1990] 2 NZLR 209 (HC) at 229 and Skelton v Family Court at Hamilton

[91] The first issue raised by Ms Brown concerns the decision made by Judge Wills on 10 October 2011.⁷⁷This was made in the context of a Domestic Violence Act application. The Judge made an order removing information published about Mr Sinclair and the proceedings brought by Ms Brown “in the Google email forum”. The clear inference from the terms of the order is that Ms Brown was expected to undertake whatever steps were required to comply.⁷⁸

[92] Ms Brown makes three complaints about this order. The first is that she was not given notice of the hearing. The second is that counsel recorded as appearing on her behalf did not have her instructions to consent to the order. The third is that she could not have complied with the order without involving “Google” in the process. That, she suggests, would have required her to take steps at an “international” level.

[94] Whatever may be the position in relation to personal notice of the hearing being given to Ms Brown, her counsel did appear at the hearing. From a legal point of view, that meant that Ms Brown had an opportunity to be heard. To the extent that Ms Brown complains that her counsel did not have instructions to consent to any orders, she must fail, as a matter of law.

[95] In Carrell v Carrell⁷⁹a similar issue arose. A wife, in proceedings under the Domestic Proceedings Act 1968, applied to set aside a consent order made by a Magistrate after hearing from her counsel. Although one distinguishing feature of

_{that case is that the wife was present in Court when consent was given,
the principle}

underlying the Court’s decision is of more general application. This Court held that

I think that, in normal circumstances, if counsel appears for a party and informs the Court on behalf of that party that he consents to a certain order, the Court is entitled to rely on the authority of counsel - as, indeed, is the other party. Normally that is so even if the client on whose behalf counsel gives consent is not present in Court. A fortiori it is so if the client is personally present and makes no demur. If counsel is exceeding his actual authority, that is normally a matter between him and his client (or his instructing solicitor) and does not affect his apparent or ostensible authority in the eyes of the Court or the other party. I think that those normal principles must apply under s 120 of the Domestic Proceedings Act. Particularly if the client is not personally present, it may at times be prudent to inquire further; but that is a matter of discretion and does not, as I see it, go to jurisdiction.

[96] Although Cooke J observed that “conceivably” circumstances could arise in which the Court had reason to doubt whether counsel was acting within the scope of his or her authority, he held that it was for the Judge to raise any question, as a matter of discretion, if he or she considered an inquiry ought to be made.⁸¹Accordingly, there being no apparent reason why the Judge would need to inquire in this particular case, Ms Brown was bound by the consent given by her counsel.

[97] The second involves the issue being moot. I do not need to inquire into whether Ms Brown was able to comply with the order. The information was removed, and no further issues have arisen.

[98] The Court does not generally embark on inquiries where resolution of the issue will not determine a real controversy between the parties. The principle, from which the Court may depart in cases involving public interest, was set out by McGrath J, giving the judgment of the Supreme Court in R v Gordon-Smith (on appeal from R v King).⁸²While the authorities tend to be concerned with appeals, the same principles must apply on an application for judicial review. In Gordon- Smith, McGrath J said:

_{courts will not hear an appeal “where the substratum of the . . .
litigation}

⁸²R v Gordon-Smith (on appeal from R v King) [2008] NZSC 56; [2009] 1 NZLR 721 (SC).

between the parties has gone and there is no matter remaining in actual controversy and requiring decision”. This approach was followed in accordance with a principle referred to in Sun Life Assurance Co of Canada v Jervis, where Lord Simon LC said:

“. . . it is an essential quality of an appeal fit to be disposed of by this House that there should exist between the parties a matter in actual controversy which the House undertakes to decide as a living issue.”

[99] Following Judge Boshier’s adjournment of the “application” to debar,⁸³Judge Wills considered it on 22 December 2011. In doing so, she referred to those provisions of the Family Courts Rules 2002 that empower the Family Court to dismiss proceedings if one party fails to prosecute his or her claim or defence.⁸⁴

(b) all or part of a respondent's defence, if the respondent has failed to prosecute the defence or part of it.

(2) If the respondent fails to comply with an order made, or a direction given, by the Judge under rule 175, the Court may order that the respondent be allowed to appear at the hearing and defend the application only on terms that the Court directs.

⁸⁵[citation redacted]. The Judge applied one of my decisions, in Roulston v Roulston HC Auckland CIV-2004-404-7120, 9 August 2005 at para [8], in which I had adopted a dictum of Eichelbaum CJ in Lovie v Medical Assurance Society Ltd [1992] 2 NZLR 244 (HC) at 253. Roulston was a case in which matrimonial property proceedings had been on foot for 14 years.

(c) An order for costs could not properly address the prejudice caused to Mr Sinclair, because of the limited asset pool and Ms Brown’s limited means.⁸⁷

[102] The Judge made no specific finding of “serious prejudice”; I infer that she intended to use the word “prejudice” to encompass that concept. The Judge was concerned that there was “a risk that the value of assets may in the end be less than the costs that have been incurred”.⁸⁸

[103] Judge Wills also considered reasons given by Ms Brown for failing to prosecute her defence. She said:⁸⁹

[21] [Ms Brown] travelled to America in September 2011 to [occupation and nature of work redacted]. Her counsel’s memorandum indicates that she had been dependent on [payments from a third party] to survive and [nature of employment redacted]. There has throughout been an indication that [Ms Brown] would have difficulty in arranging for her affidavits to be sworn but that this could be done.

[22] Counsel also indicated that there was difficulty in communication as a result of [Ms Brown’s] intermittent access to internet and telephone. Despite that, a clear indication was given that affidavits could be sworn by [Ms Brown] and returned to New Zealand. Although [Ms Brown] is no

longer represented the notice of change of representation and address for service was not filed until 25 November 2011.

[23] The reasons proffered by [Ms Brown] for her non-compliance do not provide a reasonable excuse.

(a) [Ms Brown] is debarred from further participation in the substantive relationship property proceedings.

(b) The proceedings are set down for a formal proof hearing of two hours duration.

(c) [Ms Brown] shall forthwith provide to [Mr Sinclair] with the keys to the property at [address redacted] Tauranga and [Mr Sinclair] may enter the property and make a list of relationship property chattels located there.

[105] Ms Brown challenges that decision. It had the effect of debarring Ms Brown from participating in the relationship property proceeding a mere six months after the relationship property proceeding was issued by Mr Sinclair, on 27 June 2011, and just over five months after it was served on 19 July 2011.⁹¹This challenge is fundamental to those judicial review applications that attack relationship property decisions. This application raises important questions of access to justice, and

requires a review of authorities dealing with the circumstances in which either an “unless” order, or one debarring a party from participating in a proceeding, may be made.⁹²

[106] Ms Brown asserts that she had no notice that the question of debarment would be considered on 22 December 2011. Yet, on that day Judge Wills made her decision to debar Ms Brown from participating in the proceeding. No formal application to debar was ever filed.⁹³Accordingly, Ms Brown’s position is that she was shut out of the proceeding without a formal application having been made, or

[107] Given my conclusions on the merits of the decision to debar, I do not need to deal with alleged procedural deficiencies. It is enough to say that when the effect of a decision will be to prevent a party from participating in a proceeding, a formal application should be filed with supporting evidence to which that other party can respond. In that way, the Judge hearing such an application has the ability to take account of all relevant factors before taking the draconian step of allowing one party to proceed in the absence of the other. Also, it will rarely be appropriate to make an order debarring participation without first giving the opportunity to a party to

[108] In her judgment of 22 December 2011, Judge Wills referred to a number of facts on which Mr Sinclair relied to obtain an order debarring Ms Brown from defending the relationship property application. In particular, she recorded:

(b) A notice of defence was filed on 11 August 2011. That signalled the possibility of orders being sought under s 15A and 32 of the Property (Relationships) Act.⁹⁶The former concerns economic disparity. The latter involves spousal maintenance.

(d) On 18 October 2011, Mr Sinclair had sought to have Ms Brown’s notice of defence struck out, her applications struck out for want of prosecution and for the allocation of a formal proof hearing. At that time, Ms Brown was still [occupation and nature of work redacted] in

of costs by Ms Brown in the sum of $500 and directed that the narrative affidavit be filed by 2 November 2011.

(e) Judge Somerville added that unless the narrative affidavit was filed by that date, “there will be a consideration of not allowing [Ms Brown] to attend any Court hearing and prosecuting her case”. She directed that the costs of $500 be paid within seven days of Ms Brown’s return from overseas. The Judge had been told that Ms Brown intended to return to New Zealand in early November 2011.

(f) On 10 November 2011, Judge Boshier had recorded that Ms Brown was in continuing breach of the order requiring her to file her narrative affidavit by 2 November 2011.⁹⁸Mr Sinclair renewed his (oral) application to have Ms Brown “debarred from further participating in the proceedings”.⁹⁹Judge Boshier extended the time for payment of the order for costs made by Judge Somerville to 17

(g) Judge Boshier had directed that counsel for Mr Sinclair file submissions on jurisdiction in relation to the application to debar Ms Brown from participating in the proceeding. Ms Brown’s submissions were due by 26 November 2011.¹⁰¹None were filed by her.¹⁰²

(h) The order for costs made by Judge Somerville in the sum of $500 had not been paid.¹⁰³

¹⁰¹While I believe that Judge Boshier did intend to give Ms Brown an opportunity to file submissions in reply on the application to debar, I have some doubt as to whether that was made sufficiently clear in the orders that he made. A specific order directed counsel for Mr Sinclair to file submissions in relation to the jurisdiction to debar and the basis on which an order should be sought. But, as to a response, the Judge appeared to limit submissions to the Domestic Violence

Act proceedings and costs: see [citation redacted] set out at para [36] above. Such an

interpretation is also consistent with the Judge’s earlier observation that: “If I am of the view that the law permits [an order debarring] it, and it is fair and just, having regard to all the circumstances, I will make such an order”: ..., set out at para [35] above.

[109] Judge Wills analysed the jurisdictional basis for making an order debarring a party from participating in a proceeding for non-compliance with Court orders or directions.¹⁰⁴The Judge identified the factors to consider, before standing back to determine where the overall interests of justice lay.¹⁰⁵

[110] Judge Wills was not prepared to excuse Ms Brown’s failure to act in a timely manner in respect of the proceeding.¹⁰⁶She considered that, in the context of a case where time to file a notice of defence had been abridged to 10 days, the delay “must be seen as inordinate”.¹⁰⁷Further, because of “the very limited pool of relationship property assets” and the inability of an order for costs to address prejudice caused to Mr Sinclair an order debarring Ms Brown “from further participation in the substantive relationship property proceedings” was made, and the proceeding set down for a formal proof hearing.¹⁰⁸

[111] I consider that the applicable legal principles on a decision to debar Ms Brown from participating in the relationship property proceeding are analogous to cases where an “unless” order is made. Judge Wills gave her decision without the benefit of the later judgment of the Court of Appeal, in SM v LFDB, in which it had pronounced on this topic.¹⁰⁹In that case, the Court of Appeal was concerned with an “unless” order which, through non-compliance, had the effect of debarring a party from participating in the proceeding as a result of its self-executing nature. The Court observed that it was the first occasion on which it had been asked to give

guidance on the circumstances in which an “unless” order might be made in a relationship property case.¹¹⁰As I have already said, it is usual for an “unless” order to precede an order debarring because it signals the final opportunity for a party to comply with a Court imposed requirement.

[112] SM v LFDB is a good illustration of the circumstances in which an “unless”

_{order should be made. A relationship property proceeding had been
commenced in}

Australia. The Australian Court declined jurisdiction on forum non conveniens grounds. A proceeding was issued in the Family Court in March 2009. Various applications were filed in the context of that proceeding. Contested applications were heard and determined on issues such as occupation of the family home, the sale of two relationship properties, discovery and removal of a notice of claim.

[113] The Family Court Judge transferred the proceeding to the High Court in October 2011, observing that some 23 interlocutory applications had been made, 53 affidavits filed and seven Court judgments or directions given in respect of which appeals or applications had been made to the High Court.¹¹¹By the time the proceeding came to the High Court, a number of orders for costs had been made. An “unless” order was made in respect of them. The costs were paid on the last day for compliance.

[114] Another costs order was later made in the High Court. Failure to pay led to a further “unless” order and, ultimately, an order debarring the party from participating in the hearing. The debarring order was made on 14 October 2013, some four and a half years after the proceeding had first been brought.

[115] The Court of Appeal dismissed the appeal, holding that the order was appropriate. The Supreme Court gave leave to appeal.¹¹²Ironically, in the context of a grant of leave to enable a party to argue that an order debarring him from participating in the proceeding ought not to have been made, leave was subsequently revoked because the applicant had made a further default in relation to an additional order for costs.¹¹³As a result, the Supreme Court did not express a view on the correctness or otherwise of the approach that commended itself to the Court of Appeal.

[116] In SM v LFDB,¹¹⁴the Court of Appeal approached the correctness of the

“unless” and “debarring” orders made by the High Court by reference to case

_{management principles set out in the High Court Rules. Relevant
factors drawn}

[26] The starting point is the objective in r 1.2 of the High Court Rules (the Rules) “to secure the just, speedy and inexpensive determination of any proceeding or interlocutory application”. The case management regime now included (since 2008) in Part 7 of the Rules is designed to achieve that objective by isolating the issues and trying them fairly, swiftly and efficiently, with regard to what is at stake.

[27] Case management plainly matters to the immediate parties in any given case. It matters to litigants in other cases too, because it affects the time their cases will take to come to trial and influences their expectations of the Court; expectations matter because they influence the settlements in which the majority of civil proceedings end. And it matters to potential litigants – the public at large – because they should feel confident that the Court can try cases fairly, quickly and efficiently. From the perspective of a judge dealing with any given case, all these interests are relevant; all form part of the interests of justice.

[28] Obedience is the foundation upon which the Rules operate. From time to time the Court encounters a party who chooses not to obey, seeking perhaps to avoid accountability to the other party or to secure an unfair settlement. In such a case the interests of justice require that the Court do whatever is necessary to enforce obedience to its orders.

[29] Enforcement powers are found in r 7.48, which empowers a judge to respond to breach of a procedural order by making any order the judge thinks just. Rule 7.48(2) sets out examples of orders the judge may make. Although an “unless” order is not listed, it is now well-established that r 7.48 permits a judge to make one. As the name suggests, an unless order is peremptory; it decrees that unless the specified action is taken by the specified time, the stated sanction will result. An unless order takes effect automatically if it is not complied with. In other words, a party need not apply to enforce the order. Any confusion (and there appears still to be some) as to the automatic effect of an unless order should now be resolved, in light of Marcan Shipping [[2007] 1 WLR 1864 (CA) at para [13]]. It follows that the appellant in this case need not have applied to Ellis J to enforce the second unless order.

[117] In articulating relevant principles, Stevens J made a number of observations relevant to the present case. He said:

(a) As an unless order is an order of last resort, it is properly made only where there is a history of failure to comply with earlier orders.

(d) Justice may require that the party in default be relieved of the consequences of the unless order where the Court is satisfied that the breach resulted from something for which that party should not be held responsible. The party should not assume that belated compliance will suffice.

(f) In deciding whether or not to excuse breach of an unless order the question for the Judge is: what does justice demand in the circumstances of this case? Considerations in answering that question include:

(i) The public interest in ensuring that justice is administered without unnecessary delays and costs.

(ii) The interests of the injured party, in particular in terms of delay and wasted cost.

(iii) Any injustice to the defaulting party, although that consideration is likely to carry much less weight in the circumstances than considerations (i) and (ii).

[118] In EBR Holdings Ltd (in liq) v van Duyn,¹¹⁶I made the point that the Court of Appeal was “not laying down immutable rules” as to when an “unless” order would be justified. EBR was a civil proceeding that was issued in 2009. I made an “unless” order in 2016, over the opposition of counsel for the defendants, after it proved necessary to abort a lengthy trial due to their conduct. I said:

[58] ..., read as a whole, I do not understand the judgment in SM v LFDB to limit the circumstances in which an “unless” order can be made to those where “there is a history of failure to comply with earlier orders”. While in the vast majority of cases that will be so, it seems to me that such an order is justifiable if there has been egregious conduct on the part of a party which has caused significant expense to another, with a lengthy adjournment being required in consequence.

[119] However the test is crafted, the short point is that a Court must take care to ensure that parties are given an adequate opportunity to engage, and be heard, on applications that have the potential to produce a result that will act adversely on the

_{interests of a particular litigant. More so, care should be taken
before orders are}

made that deny a person access to the Courts.¹¹⁷The guiding principle is a determination of where the justice of the case lies.¹¹⁸

December 2011 to make an order debarring Ms Brown from participating in the relationship property proceedings. It was made in undue haste. In my view, the decision can be characterised as “unreasonable” in the administrative law sense.¹¹⁹

Even in circumstances where there has been an abridgement of time to file a notice of defence,¹²⁰it is difficult to see how it can be said that a period of about six months from the date of issue of the proceedings can justify a finding that a respondent to a proceeding is guilty of “inordinate delay”. All of the authorities dealing with the question of debarment in similar circumstances involve cases that have been

2011 [occupation and nature of work redacted] ought to have been given much greater weight in assessing whether the delay was inordinate. For a person who is working overseas and has limited means, the ability to comply with orders of the type in issue is much more difficult than the various judgments seem to acknowledge. In my view, too much criticism was made of Ms Brown’s inability to

¹²⁰See my reservations about the appropriateness of the order abridging time, expressed at para [27]

(d) There was no serious prejudice to Mr Sinclair, let alone a prejudice that could justify an order debarring Ms Brown from participating in the proceeding. As Ms Brown was out of the jurisdiction, Mr Sinclair had control of items of relationship property. To the extent that he was complaining about Ms Brown leasing the family home from April

(e) In any event, the family home was held in trust. Separate proceedings were brought in this Court in relation to the need to account for rent received. They were determined by Brewer J on 26 June 2015.¹²²If there were difficulties as at the time the application to debar was pursued, they could have been dealt with through the type of accounting proceeding used in this Court. The parties chose the

ownership model for the family home. No complaint can be made about the inconvenience of High Court proceedings in that context.

(f) The decision to debar participation in the relationship property proceeding seems to have been unduly influenced by the way which Ms Brown had previously made allegations of domestic violence. This had put her credibility in issue with the Family Court Judges.

(g) Standing back, the interests of justice did not demand that Ms Brown be debarred from participating. She was entitled to be heard on questions relating to the “just division” of relationship property. While it may have been necessary to defer a hearing for longer than the Family Court might have liked, the lack of any real prejudice to

(h) To the extent that it may have been necessary to do so, Mr Sinclair could have been compensated in costs. While Ms Brown lacked the means to make an immediate payment, that could have been directed by way of adjustment on the division of relationship property.

[122] The next issue concerns a decision made on 21 February 2012. Ms Brown applied for leave to file an affidavit out of time in the relationship property proceeding.

[123] Ms Brown’s application for leave was dated 13 February 2012. In her application she explained that she was not legally represented, and highlighted the difficulties involved in having affidavits sworn while she was overseas. At that time, she was still in the United States. Ms Brown added that she was unaware of the need to file an affidavit by 2 November 2011. Her application was put before Judge Wills on 21 February 2012. There does not appear to have been any hearing. The Judge issued a Minute in these terms:

[Ms Brown] has been debarred from defending the proceeding and accordingly leave to file out of time cannot be granted. There will be a formal proof hearing on 6 March 2012 to deal with relationship property matters.

[124] A formal proof hearing took place on 6 March 2012. On 30 May 2012, Judge Wills gave a reserved judgment adverse to Ms Brown.¹²³After setting out relevant facts, as distilled from the admitted affidavits before her, the Judge outlined the facts and legal issues she had to determine. She said:¹²⁴

[9] This is a marriage of short duration and it is necessary to determine: (a) The assets that were owned wholly or substantially by each

(b) Whether the contribution of the applicant to the marriage has clearly been disproportionately greater than the contribution of the respondent.

(d) What is the status of assets acquired during the relationship and their value?

(e) Whether post-separation adjustments are required: (i) For occupancy of the Trust property.

[125] Having determined those questions, the Judge expressed her conclusion as follows:¹²⁵

(a) The chattels in the possession of the applicant shall be his sole and separate property.

(d) The applicant will take as his separate property the one share of the respondent in [Mr Sinclair’s company]. To give effect to that order the respondent shall within 21 days from the date of these orders sign any documents necessary to transfer her one share to the applicant.

(e) In the event that the respondent fails to sign the share transfer and provide it to the applicant, the registrar of the Family Court is authorised to sign the transfer on the respondent’s behalf.

(f) The respondent shall take as her separate property all bikes in her possession.

(g) The applicant shall take as his separate property all assets in his name, possession or control.

(h) The respondent shall take as her separate property all assets in her name, possession and control.

From that sum may be deducted any costs awarded in this or any other proceeding in which these parties have been involved.

[126] Counsel agreed that if I were to hold that the decision to debar Ms Brown from participating should be set aside, the subsequent decisions of 21 February

consequence of the decision to debar, and each was infected by the error that led to that decision being reached.¹²⁸The decision to award costs in favour of Mr Sinclair on 17 December 2012¹²⁹falls into the same category.¹³⁰

[127] Ms Brown applied for leave to file and serve a notice of defence in the Domestic Violence Act proceedings and an affidavit in response to that of Mr Sinclair.¹³¹When her application was made, Ms Brown was in the United States. Around this time, Ms Brown had attempted on a number of occasions to file documents from that country by email and courier, but not all of these were accepted for filing by the Registrar. One example is a lengthy affidavit in response to Mr

Sinclair’s application for a protection order. It contained a detailed account of relevant events from Ms Brown’s perspective, but was never put before a Family Court Judge. The affidavit had been sworn in Nevada, 8 February 2012. Probably correctly, the Registrar took the view that they did not fully comply with the applicable rules of court. In any event, Judge Coyle had no reason to believe that this relevant evidence existed.

[128] For reasons I have already outlined, Judge Coyle declined to grant leave.¹³²

In my view, it was inappropriate for the Judge to do so. Ms Brown remained overseas and it does not appear that anything had occurred after Judge Wills decided

_{that the application must be heard on notice to require permanent
relief, by way of a}

protection order. In addition, while absolving Judge Coyle from any blame for this,¹³³he did not take into account the detailed response provided earlier by Ms Brown. Had he been able to do so it would have been clear that there were facts in issue that required the evidence of both parties to be tested by cross-examination. In those circumstances, and without opposition from Mr Sinclair, the order refusing leave to defend must be set aside and the protection order discharged.

[129] Once Judge Coyle had refused Ms Brown the opportunity to be heard, I have no doubt that, on the basis of the untested affidavit evidence of Mr Sinclair, it was open to him to make a protection order on 30 March 2012. However, that order must be set aside because it was improperly made without hearing from Ms Brown, for the reasons I have given.

Violence Act application. He did so in chambers, on the papers. The decision of 21

May 2012 represented Judge Coyle’s determination of costs on Mr Sinclair’s successful application for a protection order and Ms Brown’s discontinuance of her second application for such an order. The Judge ordered that she pay costs in the sum of $2,290, together with a sum of $862.50 that was ordered in respect of her discontinued application. The orders were made in the context of Ms Brown being in receipt of legal aid. Ms Brown applies to set aside those decisions as to costs.

2012? As I have held that the Judge ought to have allowed Ms Brown to have been heard on Mr Sinclair’s application, that order for costs must fall away. But, in my view, the position is different so far as costs ordered on discontinuance of Ms Brown’s own application for a protection order are concerned.

[132] In my view, the order that Ms Brown pay $862.50 on her discontinued application should stand. I do not consider the amount in respect of which costs was ordered was unreasonable. However, there is a further question: did the Judge have

_{grounds to find “exceptional circumstances” of a type that
would enable costs to be}

awarded against Ms Brown personally, notwithstanding her grant of legal aid? On that point, Judge Coyle said:¹³⁴

[26] The issues here are similar to that of the issues to be considered under the Legal Services Act 2011. It is my view that [Ms Brown] has pursued an application that lacks merit and that coupled with the fact that the second application was, in essence, a re-statement of the first application, and given the failure to disclose that the first application was struck out, a clear inference can be drawn in my view that the filing of the application was simply to provoke and harass [Mr Sinclair]. Given the particular facts of this case I am satisfied that indemnity costs are appropriate. The case law in relation to indemnity costs makes it clear that such costs are exceptional (see: Radfords Ltd v Advertising Works New Zealand Ltd HC Auckland CIV-

2006-404-325, 6 April 20-0-6) but I have reached a clear view that the facts of this case justify such an exceptional situation to justify indemnity costs

[133] While the Judge’s response to the discontinued application might be seen as stern, I cannot say it was unjustified. There had been a prior application which Ms Brown had been forced to withdraw after an allegation had been made that she had given false evidence.¹³⁵In that situation, a personal order for costs in a sum of

$862.50 was open to the Judge. This aspect of the application for judicial review must fail.

[134] On 14 May 2013, Judge Geoghegan gave judgment on two applications made by Mr Sinclair. The first sought an “unless order” to prevent Ms Brown from taking further steps in any of her Family Court proceedings until she had paid costs to Mr Sinclair in the sum of $12,478. That amount represented the total of costs awarded against Ms Brown in various judgments given to that time. The second was for an order for security for costs in relation to one of Ms Brown’s applications, for a

protection order.¹³⁶The Judge made orders that Ms Brown give security for costs to

_{Ms Brown until she paid all outstanding costs to Mr
Sinclair.}¹³⁷_{Ms Brown contends}

that those decisions were ultra vires the powers of the Family Court, or alternatively unreasonable.

[135] Judge Geoghegan heard this application on 8 May 2013, and gave judgment on 14 May 2013. Mr Sinclair was represented by counsel, at the hearing, while Ms Brown appeared on her own behalf. In his reserved judgment, the Judge chronicled the proceeding to that date, highlighting various orders for costs that had been made against Ms Brown.

[136] In determining whether to make an “unless” order, the Judge considered his jurisdiction to do so. Rightly, he concluded that jurisdiction did exist.¹³⁸In determining that the applications should be granted, Judge Geoghegan said:¹³⁹

[62] A decision in these proceedings must not only focus on the submission of [Ms Brown] that she has a right to prosecute her application for a protection order. It must also focus on [Ms Brown’s] conduct and the rights of [Mr Sinclair] to enjoy the fruits of any costs award in his favour. Call it what you may, natural justice, rights to justice or access to justice does not permit an individual to assert an inviolable right to prosecute a claim in circumstances where that individual has consistently failed or refused to comply with Court orders and directions or their obligations to another party imposed through an award of costs. The Court is required to balance the various rights and obligations of the parties in determining an application of the kind being considered in this case.

[63] There are a number of reasons why I consider the balance in this case to weigh in favour of the applications being granted. They are as follows:

(a) [Ms Brown] has consistently failed or refused to meet previous orders made in respect of costs. That failure or refusal has taken place since 10 November 2011 when she was ordered to pay [Mr Sinclair] the sum of $500 costs forthwith. It appears unlikely that she will meet those costs at any time in the near future, whether that is because she has no intention of meeting those costs or whether she is simply unable to.

(b) The approach of [Ms Brown] to the variety of applications before the Court and to which I have already made reference is to consistently fail to comply with any directions made by the Court.

the subject of two previous applications made by her, both of those applications having been subsequently withdrawn by her at her request. The allegations are vague and it is clear that at least in respect of one allegation of violence made by [Ms Brown], that allegation and subsequent complaint to the police was false, resulting in a criminal prosecution against her and her subsequent conviction. These matters must weigh heavily against any prospect of success in respect of her application. My assessment of the application, based on the evidence currently before the Court is that there is little prospect of [Ms Brown] being successful. I acknowledge that this assessment comes without the benefit of having heard any evidence and is necessarily limited to that.

(d) [Ms Brown] has advised me that she proposed to call evidence from 20 witnesses. No details were provided as to the nature of the evidence of those witnesses and indeed no request was made of [Ms Brown] for those details. On the face of it and assuming that that number of witnesses were to be called by [Ms Brown] the Court could conservatively estimate a hearing of no less than three days in duration. [Ms Brown] has acknowledged and confirmed that she would not be in a position to meet any costs award and I consider that in the event of [Ms Brown] being unsuccessful, an award of costs in favour of [Mr Sinclair] would be highly likely. In those circumstances, and taking into account the history of the proceedings between the parties I consider an order for security for costs to be entirely appropriate.

(e) While the Court should be reluctant to provide any barrier to a party seeking protection from domestic violence that does not mean that the Court should not impose appropriate measures for security for costs or by way of making an unless order in appropriate circumstances. In that regard the Court is also required to take into account the impact both emotionally and financially of the proceedings upon a respondent. While the Court should, I suggest, only take these steps in exceptional cases I regard this as one such case. There is a point at which the repeated filing of applications followed by their withdrawal becomes an abuse of process of the Court. I consider [Ms Brown] to have reached that point in these proceedings.

(f) While [Ms Brown] is currently unrepresented I take into account the fact that on both previous occasions when she has applied for a protection order she has been represented by counsel. There is a point at which it is completely appropriate for the Court to endeavour to impose order in respect of protracted proceedings particularly where proceedings were initiated by a party who has been unwilling to comply with any Court directions or orders. This is such a case.

[137] As was the position when Judge Wills debarred Ms Brown from defending the relationship property proceedings, the Court of Appeal had not given judgment in SM v LFDB,¹⁴⁰when Judge Geoghegan made his decision on the “unless” order application. I have already set out in some detail the principles applied by the Court of Appeal in SM v LFDB.¹⁴¹I need not repeat them.

[138] In my view, on the application of those principles, the “unless” order and the order for security for costs cannot stand. Having said that, Judge Geoghegan’s response to the applications is mitigated somewhat by absence of guidance of the type given by the Court of Appeal in SM v LFDB, and the need for the Judge to proceed on the basis that the earlier orders for costs had been validly imposed.

[139] Although Ms Brown had become involved in a wealth of proceedings in the Family Court, they had been initiated both by Mr Sinclair and her. Many of the applications can be traced back to the sense of injustice that she felt from orders that prevented her from being heard on the relationship property proceeding, and a Domestic Violence Act proceeding brought by Mr Sinclair. The first proceedings had been issued on 27 June 2011. By the time Judge Geoghegan made the “unless” order in issue on 14 May 2013, they had been on foot for less than two years.

[140] Although I recognise that Judge Geoghegan was obliged to treat all extant orders for costs as having been validly imposed, given the findings I have made and the orders for costs that I will quash, the order for security for costs made by Judge Geoghegan cannot be justified. The relationship property issues had already been resolved and the effect of the order that Judge Geoghegan made was to prevent Ms Brown from pursuing domestic violence issues and maintenance applications. The order for security for costs had a draconian effect and, notwithstanding the Judge’s reasoning, meant that she was denied access to justice on insufficient grounds.

[141] The breadth of the “unless” order is also problematic. It purported to relate to

_{all proceedings brought by Ms Brown in the Family Court. As is
explained in SM v}

LFDB, an unless order is a remedy of last resort and is directed to a particular application. The order made by Judge Geoghegan purported to go wider than the particular application with which he was dealing. That was inappropriate. Other proceedings were yet to be resolved, and how they would be determined on their individual facts could not be known. A useful analogy can be drawn with declarations that a person is a vexatious litigant, an order that can only be made by the High Court. Where such an order is made, proceedings may still be commenced

with leave of the High Court.¹⁴²On an application to have a person declared a

vexatious litigant, the High Court will consider whether a declaration is appropriate against the background of the circumstances in which the relevant proceedings were issued, and the extent to which a complaint about the litigant’s participation arose in the context of a proceeding or application commenced by another person. For example, see Attorney-General v Siemer.¹⁴³

[142] In my view, both the order for security for costs and the unless order should be set aside. In context, both orders were unreasonable.

[143] On 12 June 2013, Judge Geoghegan made an order dissolving Mr Sinclair’s and Ms Brown’s marriage.¹⁴⁴Ms Brown does not dispute the appropriateness of the dissolution order. Her complaint is with the Judge’s finding that the parties separated on 25 February 2011, rather than some time during the period between 7 and 13 March 2011.¹⁴⁵Duffy J did not consider that the grounds advanced by Ms Brown were sufficient to interfere with the order for security for costs that the Associate Judge had previously made in respect of this judicial review proceeding.¹⁴⁶

[144] When the judicial review proceedings were called on 31 October 2016, I inquired of Mr Eggleston whether his client was prepared to waive the benefit of the stay granted by the Associate Judge to enable me to deal substantively with this, as

_{well as all other judicial review proceedings. Mr Eggleston took
instructions from}

¹⁴⁶[citation redacted]. The Judge declined an application to recall this judgment: [citation redacted].

Mr Sinclair, who was present in Court. On the basis that Mr Sinclair has waived the benefit of the stay, I deal with this challenge on its merits.

[145] Judge Geoghegan heard evidence from both Mr Sinclair and Ms Brown on the dissolution application. Each appeared in person and cross-examined the other. The Judge correctly directed himself on the law. He then considered the competing evidence on the date of separation.

[146] The Judge accepted Mr Sinclair’s evidence that the parties had separated on

25 February 2011, as asserted by Mr Sinclair.¹⁴⁷The Judge’s discussion of the

[8] The evidence of [Ms Brown] was that the parties continued to maintain a domestic relationship, that they slept in the same bed most nights until 13 March 2011, that they ate meals together and that they both lived at her parents’ home. She stated that they also spent time at the [location redacted] property together.

[9] I have significant concerns in relation to the evidence given by [Ms Brown]. [Ms Brown] acknowledged during this hearing that she had sworn two affidavits where she had referred to the date of separation. In one affidavit she had stated at paragraph 3(c), “We separated on or about late February 2011”. In another affidavit sworn on 20 February 2012 she stated at paragraph 2(b), “I accept 26 February 2011 as being the date of separation”. She then described in some detail in that paragraph what had happened on that day.

[10] While [Ms Brown] asserted today that the reason that she made those statements was because she did not truly appreciate the nature of separation, I simply do not accept that evidence. Most people consider separation for what it is, a cessation of a relationship between two individuals. They do not tend to consider the legal niceties of separation. I think that the affidavit evidence previously sworn by [Ms Brown] in fact depicts her view of the reality of the position, namely that separation between these parties occurred in late February 2011.

[11] I was also concerned by [Ms Brown’s] assertion made in the course of her giving oral evidence today that the parties were sleeping in the same bed most nights until 13 March. That of course had never been asserted by [Ms Brown] in her affidavit evidence before the Court. When I put that to her, she stated that it was simply too difficult for her to talk about. It was an issue which is apparently too personal for her to contemplate. That, however, does not explain why she was able to refer to one specific occasion where she alleges that on 13 March the parties were in bed together.

[12] [Mr Sinclair] for his part does not accept that allegation and I need to say that because of my concerns around [Ms Brown’s] credibility, I prefer [Mr Sinclair’s] evidence to that of [Ms Brown]. While [Mr Sinclair] has accepted many of the things which [Ms Brown] has said such as payment of funds into a joint account and payment of half of the power account, those matters do not detract from my very clear assessment that the relationship between these two parties had come to an end on 25 February 2011. The fact that there may have been intermittent contact between them after that date does not mean that they ceased to be separated.

[147] The first reason why this application should be dismissed is that the Judge heard evidence from the parties and made a finding open on the evidence. The fact that Ms Brown does not approve of the finding made cannot affect its validity for judicial purposes. There is no basis on which judicial review of this decision could lie.

[148] A second reason for dismissing this application is that the order made is not challenged in itself. To that extent, the finding of fact is collateral to the order for dissolution of marriage. While Ms Brown has concerns that it may adversely impact on her ability to claim in respect of relationship property proceedings, the Family

Court maintains a general discretion as to the date of valuation of any assets.¹⁴⁸If

[149] A third reason is that if Ms Brown were successful, the dissolution order would need to be set aside. I suspect Ms Brown did not appreciate the possibility that that might occur.

(2) The ground for the order is established in law if, and only if, the court is satisfied that the parties to the marriage or civil union are living apart, and have been living apart for the period of 2 years immediately preceding the filing of the application for an order dissolving the marriage or civil union; and no proof of any other matter shall be required to establish the ground.

[151] Mr Sinclair filed the application for dissolution of marriage on 26 February

2013. He asserted that the date of separation was 25 February 2011. Ms Brown contended it was sometime in March 2011. In terms of s 39(2) of the Family Proceedings Act, no order for dissolution could have been made if Ms Brown’s evidence on the date of separation had been correct. That is because the parties would not “have been living apart for the period of two years immediately preceding the filing of the application for an order dissolving the marriage” in terms of s 39(2).

[152] Ms Brown’s application for judicial review of the dissolution decision will be

[153] A case management conference was held on 11 July 2014, over which Judge Wills presided. This took place in the context of the Domestic Violence Act application brought by Ms Brown. By that stage, Mr Sinclair had sought a further “unless” order, in relation to proceedings filed after Judge Geoghegan’s directions of

Somerville on 25 June 2014, in relation to Ms Brown’s ability to seek an administrative variation of the attachment order. As a result of Judge Somerville’s intervention Ms Brown had made an application after that hearing and was awaiting the outcome.

[154] Judge Wills also considered the spousal maintenance application which, Ms Brown told her, arose from her inability to live on income from which moneys subject to the attachment order were to be deducted. Because of other extant applications in both the High Court and the Family Court, Judge Wills suspended the attachment order for a period of one month and directed a further conference on 13

[155] Mr Sinclair was concerned about additional proceedings that had been filed by Ms Brown and the likelihood there might be more before the next conference. In her judgment of 11 July 2014, as a result of submissions made before her, Judge Wills recorded:¹⁵⁰

[18] Mr Eggleston [for Mr Sinclair] has drawn my attention to his request that no further applications be filed prior to 13 August. There have been a veritable flood of applications and quite frankly every application that could be contemplated has been filed in this Court or in the High Court. It is time for everyone to take a step back and deal with what is in front of the Court now and I direct that there be no further applications filed until this matter is the subject of the next conference on 13 August.

[19] I particularly note that [Ms Brown] opposes that order. She has raised the spectre of behaviour on the part of [Mr Sinclair] which might warrant or require the filing of a without notice application under the Domestic Violence Act 1995. I have seen in this Court a number of applications of that nature made. Those have, in general, not been dealt with on a without notice basis, certainly not in the last year or two.

[20] Applications under the Domestic Violence Act, if contemplated, should not, in my view, warrant any without notice proceeding. I am satisfied that the parties should file no further applications until 13 August and until a decision can be made. I have been asked by [Ms Brown] to record her objection to this specifically and I have done so.

[21] [Ms Brown] has raised the issue of her current application for a protection order – in fact there is a protection order application before the Court already. There would clearly not be any further need for another protection order to be filed.

[156] Ms Brown also challenges subsequent decisions in relation to the Domestic Violence Act application that was before Judge Wills. The additional decisions in issue were given by Judge Somerville on 6 August 2014, Judge Wills on 22 August

2014, at which time other applications were to be addressed. Directions made on 11 July 2014 continued in effect pending the

2014. But, on 22 August 2014, Judge Wills, after indicating an “appeal” had been set down for 4 September 2014, adjourned the proceeding until 22 September 2014. It appears that the Judge intended to refer to Ms Brown’s application for judicial review of orders for security for costs made by Associate Judge Doogue, the hearing for which began on 4 September 2014.¹⁵¹As it happened, the hearing of the judicial review application took two sitting days to complete. The delay in Duffy J delivering her judgment is explicable

by reference to both the complexity that had attended the applications and the many post-hearing submissions and memoranda that were filed between 8 September 2014 and 19 December 2014.¹⁵²The Family Court’s directions that followed the adjournment granted by Judge Wills on 22 August 2014 must be considered in that context.

(c) On 19 September 2014, both Ms Brown and counsel for Mr Sinclair appeared before Judge Twaddle for a case management conference. That conference had been convened with regard to Ms Brown’s application for “lump sum spousal maintenance and ... an interim maintenance order”.¹⁵³The Judge referred to other proceedings in the Family Court, and recorded Mr Eggleston’s submission that a fixture allocated for 3 October 2014 in respect of the maintenance applications should be deferred until (among other things) the High Court judicial review application had been determined.¹⁵⁴Judge Twaddle vacated the 3 October hearing date. A further conference was to be convened in November 2014 to monitor progress in the

¹⁵²Post-hearing submissions and memoranda were filed on 8 and 11 September by Ms Brown, on

29 September by Mr Sinclair, on 7, 10 and 13 November by Ms Brown, on 18 November by Mr Sinclair, on 25 November by Ms Brown, on 28 November by Mr Sinclair, on 5 December by Ms Brown, on 18 December by Mr Sinclair, and on 19 December by Ms Brown.

(d) On 20 November 2014, Judge Geoghegan recorded that he had “forwarded a request to Judge Druce as to whether he still wishes to deal with this matter”. The maintenance application had come before Judge Druce after it had been filed in Auckland.¹⁵⁵The application was later transferred to Tauranga. For present purposes, it is the indefinite adjournment of the applications before the Court that is of

[157] I have already outlined the nature of each of the decisions in issue.¹⁵⁶The substance of Ms Brown’s complaint is that the Court consistently adjourned her applications without any hearing because of the outstanding judicial review proceedings, with which I am now dealing. Indeed, on 11 July 2014, Judge Wills commented that any contemplated applications under the Domestic Violence Act “should not ... warrant any without notice proceeding” and that “the parties should file no further applications until 13 August and a decision can be made”. That was the date of the next conference fixed for the proceeding.

[158] Undoubtedly, the difficulties encountered by all concerned in relation to these proceedings had reached the point at which the Family Court Judges considered they were being swamped by unnecessary applications, not all of which justified their attention; particularly, on a without notice basis.

[159] But, standing back, it was wrong in principle to put off indefinitely proceedings brought under the Domestic Violence Act. That statute contemplates that every application will be determined on its own merits. That is emphasised by s 18 which makes it clear that when a protection order is granted in favour of one party, the Court is not entitled to make a reciprocal order unless a proper application has been made by that other party and determined in accordance with the Act.¹⁵⁷

[160] The laudable objects of the Act are to reduce and prevent domestic violence.¹⁵⁸What happens when one party to a relationship abuses the process to

harass the other? And, at what point can a Court validly determine that persistent applications amount to an abuse of process? The perennial problem of a person who “cries wolf” raises problematic issues for the Court in deciding whether it can ignore any particular application of this type. Unlike property, it is the safety of a person that is at risk. No Judge would want to ignore an application of this type when to do so may bring about tragic consequences.

[161] No person will be allowed to abuse the processes of the Court. But, preventing someone from pursuing an application (whether by debarring or through not allocating a hearing date) is not a remedy contemplated either by the Domestic Violence Act or those specific provisions of the Family Courts Rules that deal with applications under that Act.¹⁵⁹The question is whether there are any other means available to a Family Court Judge who is faced with a party who persistently brings proceedings out of spite. Or, more likely in this case, out of a perception by Ms Brown that she is being psychologically abused by Mr Sinclair when, objectively,

[162] This type of situation causes a dilemma for Judges at all levels of the judicial system. Short of having someone declared a vexatious litigant, the Court remains obliged to deal with all applications filed before it, however lacking in merit they might be.

[163] Some solace may be found in a provision in the Senior Courts Act 2016, which comes into force on 1 March 2017. Section 166 gives jurisdiction to a Judge of the High Court to make an order restricting someone from commencing or continuing a civil proceeding. That jurisdiction may be exercised in respect of Courts other than the High Court. The order may be “limited”, “extended” or “general” in nature. The grounds on which an order might be made are set out in s 167 of the Senior Courts Act:

(1) A Judge may make a limited order under section 166 if, in civil proceedings about the same matter in any court or tribunal, the Judge

considers that at least 2 or more of the proceedings are or were totally without merit.

(2) A Judge may make an extended order under section 166 if, in at least 2 proceedings about any matter in any court or tribunal, the Judge considers that the proceedings are or were totally without merit.

(3) A Judge may make a general order if, in at least 2 proceedings about any matter in any court or tribunal, the Judge considers that the proceedings are or were totally without merit.

(4) In determining whether proceedings are or were totally without merit, the Judge may take into account the nature of any interlocutory applications, appeals, or criminal prosecutions involving the party to be restrained, but is not limited to those considerations.

(5) The proceedings concerned must be proceedings commenced or continued by the party to be restrained, whether against the same person or different persons.

(6) For the purpose of this section and sections 168 and 169, an appeal in a civil proceeding must be treated as part of that proceeding and not as a distinct proceeding.

[164] I mention these provisions not because I find that Ms Brown has engaged in conduct that would justify such an order at this stage, but to emphasise that Parliament has recently taken steps to arm the High Court with a power to address persistent and meritless attempts to engage Courts in proceedings that are brought for improper purposes.

[165] For present purposes, I must hold that the Family Court ought not to have declined to engage Ms Brown’s application for a domestic violence order, pending determination of applications for review in this Court in other proceedings. As a result, the decisions in issue must be regarded as wrong in law. There was no basis on which the Court could exercise a jurisdiction to defer consideration of a fresh application for a protection order while process challenges in respect of earlier applications were pending before this Court.

[166] Ms Brown’s challenge to the decision of the Tenancy Tribunal is different in

Mr Sinclair and the Tribunal. It appears that the three tenants chose not to take any steps in relation to the proceeding. Mr McKillop appeared for the Tribunal.

[167] I have outlined the issues that were before the Tenancy Tribunal when it made an order on 10 April 2012 that Ms Sinclair pay a sum of money to the former tenants.¹⁶⁰Judicial review is sought in relation to that decision, on the grounds that the Adjudicator made reviewable errors that caused prejudice to her. The prejudice is said to have arisen out of a separate judgment given by Brewer J in this Court on

December 2011, and against himself and Ms Brown (as trustees of the Trust), as owners of the family home. Ms Brown counterclaimed for $43,965 for occupation rent in the period between 17 December 2011 and 1 November 2013, together with consequential losses.

[169] Importantly, for present purposes, Ms Brown alleged that Mr Sinclair should pay to the Trust a sum of $16,800 “for wrongfully causing tenants of the property to break a 12 month’s fixed tenancy after two months’ of occupation”. She also alleged that $1,050 was owing to her “because, as a result of [Mr Sinclair’s] wrongful actions, the Tenancy Tribunal ordered her to refund the tenants’ bond”.¹⁶²

[68] [Mr Sinclair] and [Ms Brown] both succeed in their occupation rent claims against one another.

[69] [Mr Sinclair] is successful in his claims against the Trust. I direct that the Trust pay [Mr Sinclair]:

(b) $9,284.00 for outgoings and repairs in respect of the Trust property and interest of $849.55.

[70] [Ms Brown] is unsuccessful in her claim against [Mr Sinclair] for wrongfully inducing a breach of contract and in her claim against the Trust for reimbursement of payments made in respect of the house.

[171] The circumstances in which Ms Brown challenges the Tenancy Tribunal’s decision have been detailed earlier.¹⁶³As Mr McArthur did not have instructions to act for Ms Brown on this particular application, no submissions were filed. In a memorandum provided to the Court after the judicial review applications were heard, Mr McArthur made it clear that while no steps had been taken by the tenants to recover the damages of $860.44 ordered to be paid by Ms Brown to them,¹⁶⁴she was still concerned that they may do so. Mr McArthur sought leave to file additional papers to which Ms Brown had referred in her memorandum of 31 October 2016. In that memorandum, Ms Brown simply asks for leave to file evidence in relation to the Tenancy Tribunal hearing.

[172] As a matter of law, I am not entitled to interfere with the decision of the Tribunal if it made an order within its jurisdiction on the basis of evidence available to it, and on which it was entitled to act. As Ms Brown’s application could not succeed on any basis, there is no reason to adjourn for further evidence to be given. The Adjudicator heard such evidence as was available and formed his own view of it. Had I thought that further evidence might assist, I would have adjourned the application. I would also have ensured that the tenants had adequate notice of a new date, so that they could be heard if they wished.

[173] The Adjudicator wrote a detailed decision which set out the history in some detail. Ms Brown contended that the Tribunal had no jurisdiction to deal with the

_{tenants’ claims because of s 5(n) of the Residential Tenancies Act
1986. That states:}

(n) where the premises, not being a boarding house, continue to be used, during the tenancy, principally as a place of residence by the landlord or the owner of the premises or by any member of the landlord’s or owner’s family:

[174] Sections 10 and 78(1) of the Residential Tenancies Act are also relevant. They were considered by the Adjudicator. Those two provisions state:

Where, in any proceedings before the Tribunal, any party contends that this Act does not apply in respect of any tenancy of any residential premises, it shall be for that party to establish the facts upon which it is contended that this Act does not apply.

(1) Without limiting the generality of section 77 or the nature or extent of orders that the Tribunal may make in the exercise of its jurisdiction, the Tribunal may, in respect of any claim within its jurisdiction, make 1 or more of the following orders:

(a) an order in the nature of a declaration, whether as to the status for the purposes of this Act of any premises or of any agreement or purported agreement, or as to the rights or obligations of any party, or otherwise:

(f) where it appears to the Tribunal that an agreement between the parties, or any term of any such agreement, is harsh or unconscionable, or that any power conferred by an agreement between them has been exercised in a harsh or unconscionable manner, an order varying the agreement, or setting it aside (either wholly or in part):

(g) where it appears to the Tribunal that an agreement between the parties has been induced by fraud, misrepresentation, or mistake, or that any writing purporting to express the

agreement between the parties does not accord with their true agreement, an order varying, or setting aside, the agreement or the writing (either wholly or in part):

(h) any other order that the High Court or a District Court may make under any enactment or rule of law relating to contracts:

[175] Ms Brown contended that she lived in the property and therefore the Residential Tenancies Act could not apply. As a result, she contended that the Tribunal lacked jurisdiction to make any order.

37. [One of the tenants] ..., gave his evidence in a frank and straightforward manner. Although there were minor discrepancies in his evidence regarding dates and amounts paid, that is not surprising given the lapse of time since the end of the tenancy, and his likely nervousness at appearing in the Tribunal. Despite the landlord’s claims to the contrary, my clear impression of [the tenant who gave evidence] was of an honest and reliable witness. The landlord’s reference to the tenants being “sneaky” was a little unfair. There is nothing untoward about the tenants applying to the Tribunal for refund of the bond; and the landlord herself made a ‘one party’ application for bond refund to the Bond Centre.

38. Because the landlord attended the hearing by telephone; it was more difficult to assess her reliability from the manner in which she gave her evidence. She presented as a very forceful and forthright person. However, when I compare the evidence given by both parties against the background ‘matrix of facts’, I have reached the clear conclusion that the landlord did not tell the tenants, prior to signing the agreement, that she intended to live in the property. Whatever her real intention may have been at that time, she did not communicate it to the tenants, and they were misled into believing that they were signing a standard residential tenancy agreement for their exclusive occupation of the premises.

40. Having considered the evidence as a whole, despite the unusual circumstances, I am satisfied that: the parties signed a standard residential tenancy agreement; the landlord did not disclose her intention to live at the premises prior to signing the agreement; the landlord’s failure to disclose her intention misled the tenants into believing that they would have exclusive occupation of the premises; and the landlord breached the tenancy agreement and the Act by living at the premises after the commencement of the tenancy. It

follows from those findings of fact that the agreement between the parties as not excluded by section 5(n) of the Act. The landlord cannot bring that section into operation by virtue of her breach of the agreement.

[177] I can discern no error of law in the Tribunal’s approach. The Adjudicator, whatever view a party may take of it, was entitled to come to the conclusion he did on the evidence. As a result, it cannot be said that the Adjudicator made an unreasonable decision that could be set aside on an application for judicial review.

[178] I decline leave for further evidence to be adduced or for the statement of claim to be amended. This application for judicial review will be dismissed.

[179] On 25 June 2014, Judge Somerville heard from Ms Brown and Mr Eggleston on her application for an interim maintenance order.¹⁶⁵That application was opposed. Ms Brown was concerned about her financial situation because, at that time, about 40 percent of her income was subject to an attachment order granted in favour of Mr Sinclair in respect of costs ordered to that time.¹⁶⁶The Judge adjourned the proceeding for three months “to monitor determination of the application by Mr Sinclair for a stay of proceedings”.¹⁶⁷It appears that the Judge thought that Ms Brown’s applications for judicial review might have been resolved by that time.¹⁶⁸

[180] In this proceeding, Ms Brown seeks judicial review of the attachment order itself. She contends that she was not given adequate notice of the application and was prevented by the approach taken by Judge Somerville from obtaining relief from the financial hardship caused to her.

[181] Ms Brown seeks a declaration that the attachment order is unlawful and unenforceable and orders that the moneys attached be reimbursed by Mr Sinclair,

together with interest at 5 percent. She also seeks an order against the District Court that it pay damages for breach of s 27 of the Bill of Rights.¹⁶⁹

[182] Mr McKillop, for the District Court, initially filed an application to strike out this particular claim, though that did not proceed because he recognised it was capable of being re-pleaded. Two other parties were initially named as defendants, the Tauranga Collections Unit and the National Office of the Ministry of Justice. Both of those parties were struck out. No amended pleading has been filed in respect of this application. At the hearing on 31 October 2016, the application to strike out was withdrawn.

[183] Now that the District Court is the sole defendant, Mr McKillop abides my decision on Ms Brown’s application for review but submits that her claim for damages for breach of her right to justice conferred by s 27 of the Bill of Rights should be refused. In support of that submission, he relies on a recent judgment of

[184] Apart from the order made on discontinuance of Ms Brown’s first application for a protection order in the sum of $862.50, the costs awarded in favour of Mr Sinclair are to be set aside. Without going into the merits of the application so far as the District Court’s attachment order is concerned, I am satisfied that it has no present utility and ought to be set aside. I record Mr Sinclair’s agreement with that proposition. There is no lawful basis on which I could make any order for damages against Mr Sinclair, who used the Court’s process in an appropriate way. Ms Brown is protected by the fact that adjustments can be made in the context of the relationship property proceeding in respect of costs that remain outstanding and claims by Ms Brown for reimbursement from Mr Sinclair of funds paid to him following the attachment.

[185] There is another reason why it is unnecessary to deal with the merits of the application to set aside the attachment order because the second aspect of the claim

¹⁷⁰Attorney-General v Chapman [2011] NZSC 110; [2012] 1 NZLR 462 (SC) at para [97]. Subsequently, in Thompson v Attorney-General [2016] NZSC 134, the Supreme Court refused leave to appeal on a point involving the scope of its decision in Chapman.

which seeks damages for breach of the Bill of Rights against the District Court cannot succeed, as a matter of law. Assuming (without deciding the point) that there was such a breach, the law does not permit a claim for public law compensation for alleged breaches by the judicial branch of Government. In Chapman, that view was taken by a majority of three to two.¹⁷¹

[186] In Chapman, McGrath and William Young JJ took the view that Simpson v Attorney-General [Baigent’s Case]¹⁷²was not authority for the proposition that public law damages could be awarded in such circumstances. Their Honours also held that Maharaj v Attorney-General of Trinidad and Tobago (No 2)¹⁷³was not “of controlling significance”. They said:¹⁷⁴

[97] But although we will engage with the cases relied on by [counsel for Mr Chapman] – and in some detail – the reality is that the case also turns on a policy judgment. Judicial immunity gives effect to systemic public interest considerations, the most important of which is judicial independence. As we will explain, allowing a claim of this kind to proceed would be as inimical to those public interest considerations as allowing a personal claim against judges. Given this and our view that there is no particular need for the provision of financial remedies for judicial breaches of the Bill of Rights Act, we conclude that the claim is not available.

[213] I consider that the independence of the judiciary and its concomitant principle of judicial immunity are fundamental elements of our constitutional structure. They are not to be interpreted away by importing a different context. The immunity with which this case is concerned is, in any event, of a different order of importance from that in Baigent’s case.

[214] On these matters, and whether the Baigent cause of action should apply in respect of breaches of rights by judges, I am content to express agreement with the reasons and decision in the joint judgment of McGrath and William Young JJ.

[188] In those circumstances, the claim against the District Court, as a judicial tribunal, must be dismissed.

¹⁷¹_{McGrath, William Young and Gault JJ, Elias CJ and
Anderson J dissenting.}

¹⁷³_{Maharaj v Attorney-General of Trinidad and Tobago (No
2) [1978] UKPC 3; [1979] AC 385 (PC).}

¹⁷⁴Attorney-General v Chapman [2011] NZSC 110; [2012] 1 NZLR 462 (SC) at para [97].

[189] This proceeding is directed to a number of orders with which I have already dealt, or have been set aside in consequence of other decisions. Any remaining aspects are of no practical significance because no orders were made that can affect the overall outcome. In that situation, I propose to treat this application as moot. It will be dismissed on that basis.

[190] During the hearing, I learnt of a decision made by Judge Coyle of his own motion on 15 July 2016, pursuant to which he purported to transfer three sets of Family Court proceedings to the Family Court at Auckland.¹⁷⁵The parties were not heard on this point.

That is the Court where the proceedings can be more efficiently and conveniently dealt with on the basis that the parties reside in Auckland, but more importantly, there is a greater pool of Family Court Judges who are not conflicted out of dealing with these proceedings when they are returned to the Family Court from the High Court.

[192] With respect, such an order should not have been made without hearing from the parties. To avoid unnecessary further proceedings, I set aside that order, of my own motion. The difference between the order made by Judge Coyle and the one that I shall make is that both parties indicated at the hearing before me that they expected any proceedings that required further attention to be dealt with in Tauranga.

[193] Any application to transfer that either party may wish to make should be made in the first instance to the Family Court at Tauranga. I am aware that, owing to a pending retirement and a secondment overseas, next year there will be two resident

_{Family Court Judges in Tauranga, who have had no involvement in the
litigation}

between Ms Brown and Mr Sinclair. Ideally, remaining aspects of the proceeding should be assigned to one or the other.

(i) I make orders setting aside the decisions made by Judge Wills on 22 December 2011, 21 February 2012, 30 May 2012 and 17

(ii) I remit the relationship property proceeding to be reheard in the Family Court.

(iii) I direct the Family Court to allocate a case management conference so that timetabling directions can be made for the substantive relationship property proceeding as soon as practicable.

(iv) I direct the Family Court to give consideration to the assignment of a single Judge to deal with all outstanding applications in that Court.

March 2012 refusing leave for Ms Brown to file a notice of defence to Mr Sinclair’s application under the Domestic Violence Act.

(iii) I make an order setting aside the order for costs made by Judge Coyle on 21 May 2012 on Mr Sinclair’s application for a protection order, in the sum of $2,290.

(iv) The application for judicial review of Judge Coyle’s decision of 21 May 2012 to order costs to be paid by Ms Brown to Mr Sinclair in the sum of $862.50 on her discontinued application for a protection order is dismissed.

(c) In CIV-2013-470-419, I make orders setting aside the “unless” order made by Judge Geoghegan on 14 May 2013, and the order for security for costs.

(d) In CIV-2013-470-495, the application to set aside Judge Geoghegan’s decision of 12 June 2013 (on the dissolution application) is dismissed. Any issues arising out of the point raised by Ms Brown in relation to the date of separation shall be addressed in the context of any financial adjustments that may be required to secure a “just division” of relationship property.

(e) In CIV-2015-470-050, I make a declaration that the Family Court ought to have allowed Ms Brown to proceed with her application for a protection order that was filed in the Family Court at Auckland. No other order is required.

(g) In CIV-2015-470-104, the attachment order of 19 June 2014 is set aside, on the basis that the order for costs of 21 May 2012 in the sum

of $862.50 and the question of reimbursement of payments made to Mr Sinclair under the attachment order shall be addressed in the context of any financial adjustments that may be required to secure a “just division” of relationship property.

That application has been adequately determined by reference to the overlapping application under CIV-2015-470-050. It is moot.

[195] The outcome is that the Family Court remains seized of the relationship property application, the application for a protection order made by Ms Brown, her application for spousal maintenance and competing applications in respect of contempt proceedings. For completeness, I indicate that if I have overlooked any live applications they too will be able to proceed. All are to be considered by the Family Court. Any outstanding interlocutory issues in respect of any of those proceedings remain on foot.

[196] I am conscious that Ms Brown has asked the Court to deal with a wider range of issues than those I have addressed. For example, I have no jurisdiction to deal with complaints about the conduct of Mr Eggleston, and I decline to do so. Nor is it appropriate in a proceeding of this type to consider whether Mr Sinclair may or may not have given false evidence on any particular issue. I have explained my

[197] Mr Sinclair sought an order that relationship property proceedings be retained in the High Court. The issues are such that a Family Court Judge coming afresh to the proceeding should be able to address the outstanding issues competently and efficiently. In any event, the jurisdiction to transfer to the High Court lies with the

[198] I make no order as to costs in this Court. Questions of costs arising out of the orders made in the Family Court are to be addressed in that jurisdiction.

[199] Each party has suffered hardship in the costs they have incurred. I see no benefit in ordering costs either way. Although Ms Brown has been successful on many of her applications, Mr Sinclair did not, in the end, offer resistance. While the strident stance he took in the early part of the proceeding played its own part in bringing about the complex situation that arose, I do not consider he ought to bear all costs that resulted. There were a number of contributing factors to the problems that

[200] I am sure that neither party will be happy with that outcome. Nevertheless, I hope that they will accept it so that they can move on to resolve outstanding issues promptly. This will be the best opportunity for that to be done. If it were not, their lives will be ruined even more than they have been already. There are many better ways to spend one’s life than participating in bitterly fought litigation in Court.

[201] There are systemic issues that require this judgment to be publicly available. That is a matter of the public interest overriding the parties’ rights to privacy. If improvements can be made to Court processes as a result of the difficulties encountered in this case, there will be a small silver lining.

[202] I make an order prohibiting publication of the names and any identifying particulars of the parties. I make a further order prohibiting search, copy or inspection of the Court files in respect of which this judgment has been given without leave of a Judge on an application made on notice to all parties. These orders have been made to protect the privacy interests of the parties given the nature of publicity that might follow debate about the systemic issues. I am satisfied that extreme hardship could be caused to the mental health of both Mr Sinclair and Ms

anonymised so that the Registrar can distribute it publicly. Although this judgment is anonymised, any reporting of it must avoid any information that could identify the true identity of the parties.

[203] I shall arrange for a copy of the judgment in both redacted and unredacted form to be sent to the Chief District Court Judge and the Principal Family Court Judge for their consideration.¹⁷⁹Copies will also be sent to the Judges from whose decisions the applications for review were brought. Any further dissemination from any of those Judges is confined to this anonymised version. [The tenants] did not take any steps in respect of the proceeding and their interests have not been

adversely affected by this judgment. In that circumstance, I direct the Registrar not to send a copy of the judgment to them. I make that direction to preserve privacy interests of Mr Sinclair and Ms Brown.

[204] I propose to offer some thoughts on how proceedings might best be progressed in the Family Court. That Court is free to accept or reject what I say. I am making these comments as a result of similar experiences that I have encountered in this Court.

[205] If practicable, a Judge without prior involvement in the proceedings, should be assigned to deal with all outstanding applications. A case management conference should be convened. Sufficient time should be allocated for that conference to ensure that the parties are able to discuss constructively all relevant procedural issues. It will be necessary to make arrangements for the hearing that minimise any friction that remains between Ms Brown and Mr Sinclair. A telephone conference in the first instance might assist in resolving procedural issues of that type. A fixture should not be allocated until a Judge is confident that the parties are ready, and an accurate estimate of its likely duration can be made. It is in the

_{interests of both parties to co-operate in having outstanding issues
resolved promptly.}

[206] Mr Sinclair and Ms Brown need to be aware that compliance must be made with timetabling directions made after input from each. It is necessary that this dispute be resolved finally. While the interests of justice should always rule the procedural orders required, the Family Court must also be astute to ensure that its processes are not abused. I have already indicated one potential remedy that may be

available after 1 March 2017.¹⁸⁰I trust that it will not be necessary for anyone to

High Court of New Zealand Decisions

Brown v Sinclair [2016] NZHC 3196 (22 December 2016)