McBeth v Morrison [2018] NZHC 1835 (23 July 2018)

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McBeth v Morrison [2018] NZHC 1835 (23 July 2018)

Last Updated: 31 July 2018

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV 2016-419-0061 [2018] NZHC 1835

UNDER	the Wills Act 2007
IN THE MATTER	of Gary Andrew Wendt Estate
BETWEEN	NEVILLE JOHN McBETH Appellant
AND	ANDREA LYNN MORRISON Respondent

Hearing:	On the papers
Appearances:	Appellant in person J E Galt for Respondent
Judgment:	23 July 2018

JUDGMENT OF VAN BOHEMEN J

This judgment was delivered by me on 23 July 2018 at 4.00 pm, Pursuant to Rule 11.5 of the High Court Rules

..............................

Registrar/Deputy Registrar

Solicitors:

N McBeth, Te Awamutu Frankton Law Ltd, Hamilton

McBETH v MORRISON [2018] NZHC 1835 [23 July 2018]

Introduction

[1] Neville McBeth has applied for leave to appeal to the Court of Appeal against a judgment I delivered on 17 May 2018¹ in which I dismissed the appeal by Mr McBeth, Kerry Evans and Julieann Welton against a decision of Judge Otene in the Family Court striking out their application for relief under s 3(3) of the Law Reform (Testamentary Promises) Act 1949.² In that application, Mr McBeth and his co-applicants had asserted a claim to motorcycles forming part of the estate of Gary Wendt who died on 2 January 2015.

[2] Mr Galt – counsel for the respondent, Ms Morrison – has also filed a memorandum in respect of costs.

[3] It had been my intention to convene a telephone conference with Mr McBeth, who is self-represented, and Mr Galt to try to obtain greater clarity on Mr McBeth’s grounds of appeal and to discuss whether I should convene a hearing in accordance with r 7.37 of the High Court Rules 2016. However, Mr McBeth informed the High Court Registry that he did not see the need for a conference. Mr Galt also informed the Registry he was happy for me to decide Mr McBeth’s application on the papers.

[4] On 11 July 2018, I issued a Minute noting I would decide Mr McBeth’s application on the papers after 18 July 2018 unless either party advised the Registry by that date of their wish for a hearing. I did not hear any further from either party.

Right of appeal

[5] In accordance with s 60 of the Senior Courts Act 2016, a decision of the High Court on appeal from the Family Court is final unless leave is obtained to appeal the decision to the Court of Appeal. Leave must be sought in the first instance from the High Court, but application may be made to the Court of Appeal if the High Court refuses leave.

¹ McBeth v Morrison [2018] NZHC 1081.

² McBeth v Morrison [2015] NZFC 11106.

Grounds of appeal

[6] The grounds of appeal in Mr McBeth’s application are not stated precisely. However, from the application and Mr McBeth’s affidavit in support, I understand the grounds to be:

(a) The court process made it impossible for the hearing to be fair and impartial;

(b) I should have adjourned the hearing for further case management because of the nature of the evidence before me;

(c) Mr McBeth raised issues, including theft and other criminal matters, that I failed to deal with in my judgment;

(d) I contradicted myself in my judgment.

Test for granting leave to appeal

[7] In accordance with the Court of Appeal’s decision in Snee v Snee, for leave to appeal to be granted:³

... the appeal must raise some question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost, both to the Court system and to the parties, and the delay involved in the further appeal.

[8] While Snee v Snee was an application for leave to appeal under s 67 of the Judicature Act 1908, the principles are equally applicable to applications for leave under s 60 of the Senior Courts Act, which replaced s 67 of the Judicature Act.

Alleged failure of Court process to be fair and impartial

[9] It appears this ground is based on an exchange I had with Mr McBeth at the outset of the hearing on 9 May 2018. I did not record the exchange in my decision of 17 May 2018 because it was not relevant to the decision.

³ Snee v Snee [1999] NZCA 252; [2000] NZFLR 120 (CA) at [22].

[10] When I entered the Courtroom for the hearing, Mr McBeth immediately stood and insisted on addressing me at some length on matters he said he needed to make clear before the hearing got under way. These are the matters Mr McBeth refers to in his application as “significant issues that could complicate a fair and impartial decision”.

[11] I asked Mr McBeth a number of times to sit down so I could take Mr Galt’s appearance and then commence the hearing. Mr McBeth refused to sit down and insisted on stating his views about the case and about other encounters he had had with the Court process which had led him to conclude, even before the hearing had begun, that the Court would not give him a fair hearing and would dismiss his appeal.

[12] In the face of Mr McBeth’s refusal to sit down, I stood up and said that if Mr McBeth did not sit down I would adjourn the hearing and leave the court. I also said that if I did so I would dismiss Mr McBeth’s application because he could not dictate how the hearing would proceed. At that point, Mr McBeth did sit down and I was able to record Mr Galt’s appearance. I told Mr McBeth how I expected him to conduct himself in the hearing and invited him to address me on his appeal.

[13] The rest of the hearing proceeded in reasonably good order, although on occasion I had to remind Mr McBeth not to interrupt me. Because Mr McBeth was self-represented and did not have a good grasp of legal procedure, I was careful to ensure Mr McBeth had every opportunity to raise issues of concern, provided they were relevant to the appeal.

[14] The exchange at the beginning of the hearing had no bearing on my decision. To the extent any issue of fair process arose, it arose because of Mr McBeth’s conduct. If any prejudice or unfairness resulted, it was to Ms Morrison’s counsel and not to Mr McBeth who cannot call on his behaviour in support of an appeal.

Requirement for adjournment and further case management

[15] As recorded in my judgment of 17 May 2018,⁴ I told Mr McBeth he must limit himself to matters raised in his appeal against the Family Court decision striking out the application under the Law Reform (Testamentary Promises) Act 1949. Such an application had to be based on a claim Mr McBeth and the other applicants had rendered services or performed work for Mr Wendt and Mr Wendt had promised to provide for them in his will. I emphasised to Mr McBeth that the validity or otherwise of Mr Wendt’s will did not arise in such an application.

[16] I asked Mr McBeth to tell me about his relationship with Mr Wendt and how that had given rise to Mr McBeth’s expectation that Mr Wendt would leave Mr McBeth and others some of his motorcycles. I invited him to refer to his own experience and to the evidence Mr McBeth had filed with his submissions, despite the fact Mr McBeth had not applied for leave to adduce further evidence. Mr Galt did not object and neither did Mr McBeth who spoke to those issues.

[17] I do not accept the assertions in Mr McBeth’s affidavit that as the hearing proceeded, “... it was obvious that there were problems with Judge Otene’s decision
...” and that I “... attempted to satisfy [my] opinion based on a short notice very basic draft of oral evidence.”

[18] The problem did not lie in Judge Otene’s decision. It lay in Mr McBeth’s failure to understand the nature of the application he and the other applicants had brought under the Law Reform (Testamentary Promises) Act. The crux of Judge Otene’s decision was that there was no evidence Mr McBeth and the other applicants had provided services or performed work for Mr Wendt or that Mr Wendt had promised to provide for them in his will. I offered Mr McBeth the opportunity to address me on those matters.

[19] There was no question of short notice. The appeal has a lengthy history:

⁴ McBeth v Morrison [2018] NZHC 1081 at [9]- [10].

(a) On 16 December 2015, Judge Otene gave her decision striking out Mr McBeth’s application.

(b) On 29 January 2016, Mr McBeth filed his appeal.

(c) On 31 May 2017, there was a case management conference before Whata J where a timetable was set for the filing of memoranda directed to the matters in Schedule 6 of the High Court Rules.

(d) On 2 August 2017, there was a further case management conference before Downs J at which Mr McBeth sought and was granted an adjournment of the conference to allow Mr McBeth to obtain and consider an opinion from a lawyer he had retained to advise him on the appeal.

(e) On 30 August 2017, there was a further case management conference before Brewer J who:

(i) Recorded that Mr McBeth had been unable to obtain legal advice at a cost he could afford but was continuing his efforts to get legal assistance;

(ii) Told Mr McBeth that self-represented litigants had the same obligation to progress their case as anyone else;

(iii) Set the appeal down for a hearing on 14 November 2017 and set a timetable for the exchange of submissions.

(f) On 27 October 2017, there was a further case management conference before Woodhouse J who informed Mr McBeth he would need leave to file an order for discovery of documents and indicated that leave was unlikely because:

(i) There is no express provision for discovery on appeal;
(ii) Leave would be required to adduce new evidence on appeal;

(iii) There had been inordinate delay in progressing the appeal.

Woodhouse J also observed that the matters in respect of which Mr McBeth sought discovery appeared to be irrelevant to the judgment under appeal.

(g) On 10 November 2017, at Mr McBeth’s request, Whata J granted an adjournment of the hearing set down for 14 November 2017 to 24 November 2017 to enable Mr McBeth to instruct counsel he had just retained. However, that counsel later withdrew.

(h) In the event, the hearing was further adjourned until the appeal came before me on 9 May 2018.

[20] Given this history, there was no case for further adjournment and case management. Mr McBeth had ample opportunity to prepare his case adequately, even if he was self-represented most of the time. In allowing Mr McBeth to address the evidence he had filed with his submissions and to address me on the basis of his own experience, I was granting him an indulgence to which he was not entitled under the High Court Rules. This cannot have caused unfairness or prejudice to Mr McBeth.

Failure to deal with theft and other criminal matters

[21] This allegation relates to Mr McBeth’s suspicions about the validity of the will appointing Ms Morrison executrix and sole beneficiary under Mr Wendt’s will as well as his view that he has a right to parts he had shared with Mr Wendt and which had been incorporated into some of Mr Wendt’s motorcycles.

[22] As noted above, I told Mr McBeth he had to limit himself to matters raised on his appeal against the Family Court decision and that I had no jurisdiction on appeal to deal with the validity of the will and other matters such as the ownership of parts incorporated into Mr Wendt’s motorcycles. I explained to Mr Wendt the distinct nature of proceedings under the Law Reform (Testamentary Promises) Act and those relating
to the grant of probate and the validity of wills. I told Mr McBeth he could not lump all of those matters together in the current appeal and that if he wanted to challenge the validity of the will, he would need to bring a separate proceeding.

[23] I thought Mr McBeth had grasped the last point but his appeal suggests otherwise. Be that as it may, it is not seriously arguable that I made an error of law in failing to address matters that were not before me on appeal.

Contradictions in judgment

[24] Mr McBeth does not identify the contradictions he says are in my judgment. It is not possible to take this matter any further.

Conclusion on leave to appeal

[25] None of the grounds of appeal raises a question of law or fact capable of bona fide and serious argument, let alone one that outweighs the costs and delays of a further appeal.

[26] Accordingly, Mr McBeth’s application for leave to appeal is dismissed.

Ms Morrison’s application for costs

[27] In a memorandum dated 12 June 2018, Mr Galt sought costs based on the order in my judgment of 17 May 2018 that Ms Morrison was entitled to costs on a 2B basis. Mr Galt’s memorandum explains he has not approached Mr McBeth to seek agreement as to costs because he has not had a productive relationship with Mr McBeth. Mr McBeth has not filed any response to Mr Galt’s memorandum.

[28] The costs set out in Mr Galt’s memorandum are fair and in accordance with Schedules 2 and 3 of the High Court Rules. I enter judgment for costs in the amount of $3699.00 in accordance with the schedule to that memorandum.

G J van Bohemen J