Hampton v Rennie [2020] NZHC 3153 (30 November 2020)

Last Updated: 15 January 2021

NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE https://www.justice.govt.nz/family/about/restriction-on-publishing- judgments/

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CIV-2020-443-018 [2020] NZHC 3153

BETWEEN	W J HAMPTON Appellant
AND	T L RENNIE First Respondent
AND	C W HAMPTON Second Respondent
AND	L RENNIE Third Respondent

Teleconference:	12 November 2020
Appearances:	Appellant appears in Person J Moore for the First Respondent No appearance by or for the Second Respondent R Standring for the Third Respondent M Cochrane as Lawyer for the Child
Judgment:	30 November 2020

JUDGMENT OF GRICE J

(Application to strike out appeal)

• [1] The respondents, supported by lawyer for the child, Mr Cochrane, apply to strike out the appellant’s appeal under r 15.1 of the High Court Rules 2016.¹

¹ This document has been anonymised (fictionalised) in accordance with Family Court protocol.

HAMPTON v RENNIE [2020] NZHC 3153 [30 November 2020]

• [2] The notice of appeal was filed by Mr Hampton, who is based in Australia, on 7 July 2020 (dated 11 June 2020) in relation to a decision of the Family Court of 3 April 2020.² Mr Hampton also applies for leave to appeal out of time. The Family Court decision related to Mr Hampton’s grandson who is presently living with his maternal grandmother, the third respondent, in New Zealand.

• [3] The background giving rise to the appeal was set out in my minute of 15 September 2020 as follows:³

• [2] [The child] lives in New Zealand with his maternal grandmother, [the third respondent], the third respondent. He has lived with her and her partner since 2013 initially in Australia and since 2018 in New Zealand. [The child] is now aged 10 years, his date of birth was 3 August 2010.

• [3] [The child’s] mother and father (first respondent and [second respondent] are largely out of the picture due to difficulties they have had, or are having, with drugs and mental health issues.

• [4] [The applicant⁴] applied for the return of [the child] to Australia under The Hague Convention. This application was dismissed by the Family Court on 5 July 2017. The appeal from that decision was dismissed by the High Court on 25 October 2017.

• [5] [The applicant] applied for leave under s 139A to apply for a parenting order and for appointment as a litigation guardian for his son, [the second respondent], [the child’s] father. These applications were heard in the Family Court on 3 April 2020 following a two-day hearing. ...

...

• [7] An additional matter of whether [the applicant] wished to pursue an application as an additional guardian so he might seek to change [the child’s] surname to [“Hampton”] was dealt with by allowing [the applicant] to advise the court if he intended to pursue the application no later than 14 days from the date New Zealand is released from the present COVID-19 level 4 lockdown.

• [8] The Judge in the course of the Family Court decision noted:

• [79] However, my analysis of the documentation the applicant has put before the Family Court to support his current applications discloses a deep seated frustration and discontentment with the Family Court decision of Judge Druce and the Hague Convention decisions at first instance and on appeal.

² H v R [2020] NZFC 2422 [Family Court decision]. Case name anonymised.

3. H v R, Minute of Grice J (directions to file amended notice of appeal and security for costs, dated 15 September 2020; teleconference 14 September 2020) at [2]–[5] and [7]–[13] (footnotes omitted). Case name anonymised.

⁴ The appellant in this application.

• [80] The applicant also appears to have a preoccupation and heavy focus on past litigation between himself and [C C] arising from their own Family Court proceedings about their son [C], and the alleged untruths and injustices caused to the applicant.

...

[83] There is a high level of conflict between the applicant and the third respondent. Sadly, this is not an uncommon feature in Family Court proceedings and ought not of itself prohibit the granting of leave. I have, however, formed the view that the nature of the adult conflict lies within previous litigation and that the granting of leave would provide a vehicle for re-litigation. I consider this New Zealand COCA application to be vindictive.

• [9] The Judge concluded:

[86] I have formed the view that the applicant has not demonstrated an appropriate and sustainable interest in promoting the welfare and best interests of [the child].

• [10] She found there was no arguable case to be determined.

• [11] [The applicant] lodged an appeal dated 11 June 2020. He has applied for leave as his appeal was lodged over a month out of time.

• [12] Justice Gwyn, at a case management conference on 10 August 2020, took the following steps:

(a) Appointed Mr Murray Cochrane as lawyer for [the child]. He had been [the child’s] lawyer in the Family Court.

(b) Noted:

• [4] Both Ms [M], appearing for [the first respondent] (the first respondent and [the child’s] mother), and Ms [S] for [the third respondent] (the third respondent and [the child’s] great-grandmother), have sought further and better particulars of the Notice of Appeal.

• [5] As I discussed with [the applicant], the Notice of Appeal needs to be clear and succinct about the grounds of his appeal, in accordance with rule 20.9 of the High Court Rules. It is not to include evidence and/or commentary on the Judge’s decision. [The applicant] agrees that he is able to file and serve an amended Notice of Appeal within 21 days.

• [6] Ms [S] also seeks an order that [the applicant] provide security for his appeal, in the sum of $4,780.00, within 10 working days. [The applicant] has indicated that he is not, or not currently, in a position to pay that sum. ...

....

• [13] [The applicant] duly filed an amended grounds of appeal. However, that has not taken the matter much further. It is largely a narrative which includes submission and evidence. For instance:

...

• [4] I ordered security for costs, to be paid by Mr Hampton, of $2,390. That was on the basis that the appeal would take one day (the hearing having taken two days in the Family Court). I commented that the amount of security for costs might require revisiting if the likely length of time upon which I had based the order appeared inadequate.

• [5] Mr Hampton duly paid the security for costs. I also made directions that:⁵

[The applicant] is to file a further amended notice of appeal with grounds complying with the requirements of r 20.9 of the High Court Rules 2016. [The applicant] submitted that he had complied with this rule and his main focus was on the failure of the Family Court Judge to take into account the illegal removal of [the child] from Australia. I indicated to [the applicant] that it may be appropriate for him to take legal advice in the matter as he has already attempted to refine his notice of appeal without much success. That is a matter for him.

• [6] Mr Hampton did file an amended grounds of appeal, however, that suffered from the same defects as the original grounds.⁶ I noted that it was in the best interests of the child that the appeal be dealt with in a timely manner.⁷

• [7] Following those directions nothing was heard from Mr Hampton until 29 September 2020 when he filed an urgent memorandum noting he had become ill on 14 September and had been hospitalised. He attached a medical certificate from a doctor which was sparse at best.⁸ He also noted his difficulty in finding legal support for writing his notice of appeal. On 1 October 2020 the respondents and lawyer for the child filed a joint memorandum and an application to strike out the proceedings.

• [8] The respondents duly filed their submissions in support of the application for strike out which had been set down for hearing on 12 November. After all the

⁵ H v R, Minute of Grice J, dated 15 September 2020 at [25]. Case name anonymised.

⁶ H v R, Minute of Grice J, dated 15 September 2020 at [13]. Case name anonymised.

⁷ H v R, Minute of Grice J, dated 15 September 2020, at [17]. Case name anonymised.

8. Mr Hampton’s explanation for failing to meet the deadline to file the amended notice of appeal was described by Gwyn J in a minute of 7 October 2020 as “inconsistent and unpersuasive”.

respondents’ submissions had been filed in support of the strike out, on 6 November 2020 the appellant filed an application to file documents out of time, as well as an amended notice of appeal.

• [9] The amended notice of appeal had been drawn up with the assistance of a lawyer. Mr Hampton said he had obtained assistance from a lawyer at New Zealand Community Legal Services to draw up the notice of appeal.

• [10] The amended notice of appeal is dated 5 November 2020.⁹ In simple terms it sets out the following grounds of appeal:

(a) In relation to the litigation guardian finding by the Family Court: that there was evidence that Mr Hampton was the only person who could reasonably be expected to take on the role as litigation for his son (the relevant child’s father) and Mr Hampton and his son had a functional but fraught relationship.

(b) In relation to the dismissal of Mr Hampton’s application for contact with his grandson: disputes the Judge’s view that the applicant had not demonstrated “appropriate and sustainable interest in promoting the welfare and best interests” of the child.¹⁰

• [11] In addition, the notice of appeal alleges the Family Court was wrong to find that Mr Hampton’s application was vindictive.

Legal position

• [12] Rule 15.1 of the High Court Rules 2016 (Rules) provides:

• 15.1 Dismissing or staying all or part of proceeding

(1) The court may strike out all or part of a pleading if it—

(a) discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or

(b) is likely to cause prejudice or delay; or

⁹ Filed 6 November 2020.

¹⁰ Referring to [86] and [87] of the Family Court decision, above n 2.

(c) is frivolous or vexatious; or

(d) is otherwise an abuse of the process of the court.

(2) If the court strikes out a statement of claim or a counterclaim under subclause (1), it may by the same or a subsequent order dismiss the proceeding or the counterclaim.

(3) Instead of striking out all or part of a pleading under subclause (1), the court may stay all or part of the proceeding on such conditions as are considered just.

(4) This rule does not affect the court’s inherent jurisdiction.

• [13] It is not the function of the Court at a strike out application stage to assess the merits of the appeal.

• [14] The criteria for strike out applications were recently reaffirmed by the Court of Appeal in O’Neill v Bridgman and endorsed by the Supreme Court in Couch v Attorney-General:¹¹

(a) pleaded facts, whether or not admitted, are assumed to be true. This does not however extend to pleaded allegations which are entirely speculative and without foundation;

(b) the cause(s) of action must be clearly untenable. The Court must be certain that it (they) cannot succeed;

(c) the jurisdiction is to be exercised sparingly and only in clear cases;

(d) the jurisdiction is not excluded by the need to decide difficult questions of law, requiring extensive argument; and

(e) the Courts should be slow to strike out a claim in any developing area of the law, particularly where a duty of care is alleged in a new situation.

• [15] The threshold for a strike out is high, and Courts should consider not only the basis on which the claim is pleaded but also any other basis on which the claim might be pleaded.¹²

• [16] Mr Hampton opposed the application to strike out his appeal. He indicated he might be seeking further legal assistance, but his difficulty was paying for it. There is

¹¹ O’Neill v Bridgman [2020] NZCA 460 at [18] (footnotes omitted); citing Attorney-General v Prince [1998] 1 NZLR 262 (CA) at 267; endorsed by Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33]; and North Shore City Council v Attorney-General [2012] NZSC 49, [2012] 3 NZLR 341 at [25] and [146].

¹² O’Neill v Bridgman, above n 11, at [18].

no doubt that it would be to the benefit of Mr Hampton’s case on appeal for him to have a New Zealand lawyer assisting him in the hearing of the appeal. The notices of appeal which he had prepared himself were wide-ranging and raised matters well beyond the ambit of the appeal. It is likely had the notice of appeal not been amended with the assistance of legal input, the appeal would have been struck out or at least struck out in part.

• [17] The matters raised in the amended appeal grounds (of 6 November) are within the four corners of the original notice of appeal. They do set out arguable appeal grounds. The grounds are not clearly untenable, nor can the Court be certain that they will not succeed.

• [18] Mr Hampton has complied with the directions; he has obtained legal assistance and has filed an amended notice of appeal. He has paid the security for costs, albeit late. While Mr Hampton has been consistently late in filing documents, matters have not been delayed unduly. The Family Court decision was delivered in April 2020 (during the COVID-19 alert period in New Zealand). Mr Hampton is based in Australia and the COVID-19 position complicated matters through the relevant period. The Courts have taken a more generous attitude to delays in that period.

• [19] Mr Cochrane noted that the child the subject of the proceedings is presently aged 10. Counsel submitted that the matter needed to be determined in a timely manner for the child’s sake. On the other hand, the appeal was filed only six months ago and the issues involved are important. Mr Hampton says he is attempting to preserve his grandchild’s relationship with the paternal side of the family. The child’s father appears to be unable to do so on his own at the moment.

• [20] The respondents also submitted that the appeal was “frivolous or vexatious” or otherwise an “abuse of the process of the Court”, largely based on the irrelevant matters that Mr Hampton raised and which had featured in the proceedings before the Family Court.

• [21] Nevertheless, in my view Mr Hampton’s appeal, as it is reformulated, cannot be said to be entirely speculative and without foundation, the delays relatively are not

great and the issues involved are important issues which may affect the long-term welfare of the child and his relationship with his paternal family.

• [22] Bearing in mind that the jurisdiction to strike out must be exercised sparingly and only in clear cases, I consider the appeal should not be struck out.

• [23] However, the appeal should be moved on to a hearing quickly and be strictly confined to the issues on appeal as set out in the amended notice of appeal dated 6 November 2020.

• [24] The application to strike out the appeal is dismissed.

Costs

• [25] Mr Hampton has successfully opposed the application to strike out the appeal. Nevertheless, it was only on the eve of the hearing that Mr Hampton filed the amended notice of appeal without which the application to strike out would likely have been successful, at least in part. By that time the respondents had filed their submissions in support of the application to strike out.

• [26] If any party wishes to pursue an application for costs, such an application and supporting memorandum should be filed on or before five days of the date of this judgment. Any response must be filed within a further five days. Any reply to the response (strictly in reply) must be filed within a further three days.

• [27] A further telephone case management conference is to be set down by the registrar at a convenient time to put in place a timetable for this matter to be allocated an early hearing date.

Grice J

Solicitors:

Copy to the Appellant

Copy to counsel for first, second, third respondent Copy to lawyer for the child