Edwards v Perry [2023] NZHC 2123 (9 August 2023)

Last Updated: 25 October 2023

NOTE: PURSUANT TO S 182 OF THE FAMILY VIOLENCE ACT 2018, 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 CHRISTCHURCH REGISTRY I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2023-409-353 [2023] NZHC 2123

BETWEEN	K EDWARDS Applicant
AND	W PERRY Respondent

Appearances:	K Edwards appears in person
Judgment:	9 August 2023
	(Determined on the papers)

JUDGMENT OF OSBORNE J

This judgment was delivered by me on 9 August at 4.15 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

EDWARDS v PERRY [2023] NZHC 2123 [9 August 2023]

Notice of appeal

• [1] On 7 July 2023, the applicant Mr Edwards, filed a document called “Notice of Appeal” in relation to proceedings concerning the respondent, Ms Perry.¹ The Registrar has referred the notice of appeal to me pursuant to r 5.35A of the High Court Rules 2016 (the Rules). That rule provides:

Registrar may refer plainly abusive proceeding to Judge before service

(1) This rule applies if a Registrar believes that, on the face of a proceeding tendered for filing, the proceeding is plainly an abuse of the process of the court.

(2) The Registrar must accept the proceeding for filing if it meets the formal requirements for documents set out in rules 5.3 to 5.16.

(3) However, the Registrar may,—

(a) as soon as practicable after accepting the proceeding for filing, refer it to a Judge for consideration under rule 5.35B; and

(b) until a Judge has considered the proceeding under that rule, decline to sign and release the notice of proceeding and attached memorandum for the plaintiff or the applicant (as appropriate) to serve the proceeding.

• [2] Where a referral is made under r 5.35A, a Judge may make a number of different orders, including:²

(a) the proceeding may be struck out;

(b) the proceeding be stayed until further order; and

(c) documents for service be kept by the Court and not be served until the stay is lifted.

• [3] Mr Edwards’ notice of appeal is not easy to follow. It refers to two decisions; the first being Perry v Edwards.³ Mr Edwards did not give the date of that decision but rather he gave what he called “the release date”, being 30 June 2023.

¹ In accordance with current practice, pseudonyms have been used instead of the parties’ real names.

² High Court Rules 2016, r 5.35B.

³ Perry v Edwards [2023] NZFC 5962.

• [4] The second decision is Perry v Edwards.⁴ Again, no date of judgment is given but Mr Edwards gives “the release date” as “June 12, 2023”.

The Family Court’s 9 May 2023 decision

• [5] I had the Registrar make enquiries of the Family Court to confirm what decision was being referred to as being released on 12 June 2023. That was a judgment of Judge Duggan delivered orally on 9 May 2023.⁵

• [6] This is the second appeal Mr Edwards has intended to file in respect of that judgment. The first appeal was the subject of a judgment of this Court on 26 June 2023.⁶

• [7] Dunningham J recorded that Mr Edwards’ notice of appeal had been filed outside the 20-working-day timeframe prescribed by r 20.4(2)(b) of the Rules. Her Honour criticised what she described as highly derogatory allegations made by Mr Edwards in his appeal document.

• [8] Dunningham J stayed Mr Edwards’ appeal against the 9 May 2023 decision until and unless an allegation against the District Court Judge contained at paragraph 2(z) of the appeal document was removed and Mr Edwards made an application with an accompanying affidavit seeking leave to file the appeal out of time. Her Honour also observed the appeal document should name as respondent not the Family Court but Ms Perry.

• [9] With that appeal already filed by Mr Edwards against the 9 May 2023 decision, which is now stayed, it is an abuse of process for Mr Edwards to commence a separate appeal against that decision.

• [10] That said, it is appropriate that I record the reason why Mr Edwards has sought to lodge a second appeal. His rationale relates to his focus on what he calls “the release date” for the judgment. Mr Edwards focuses on the release date to say (as I understand

⁴ Perry v Edwards [2023] NZFC 4661.

⁵ Perry v Edwards, above n 4.

⁶ Edwards v Perry [2023] NZHC 1577.

it) that, if the time for an appeal to be lodged under the Rules is calculated from the date of release, the appeal considered by Dunningham J would have been in time.

• [11] Such an argument should have been raised in Mr Edwards’ original appeal. However, Mr Edwards’ argument in any event is incorrect because it ignores r 20.5 of the Rules which specifies the time from when the appeal period is calculated. The time for calculating appeal periods begins when the decision to which it relates is given, whether or not reasons for the decision are given at that time or later or whether formal steps such as entering or sealing the decision are necessary or taken after the decision was given.

• [12] The 9 May 2023 decision was delivered orally by the learned Family Court Judge.

• [13] Accordingly, pursuant to r 20.5, time ran from 9 May 2023. Mr Edwards’ appeal was out of time. To the extent Mr Edwards’ notice of appeal filed 7 July 2023 seeks to raise a further appeal, then pursuant to rr 5.35(b) and 15.1 of the Rules, that aspect of the notice of appeal dated 7 July 2023 will be struck out.

The Family Court’s 30 June 2023 decision

• [14] Mr Edwards’ notice of appeal in respect of the decision of 30 June 2023 is within time.

• [15] Most of what Mr Edwards sets out under the heading “Grounds” seems to relate to the 9 May 2023 decision in which Judge Duggan made final the existing interim protection orders against Mr Edwards. The later decision of 30 June 2023 rejected Mr Edwards’ application for an order preventing the childrens’ removal from New Zealand, rejected Mr Edwards’ application for a parenting order and granted Ms Perry’s applications for a parenting order with conditions as to Mr Edwards’ supervised access.

• [16] On the last page of Mr Edwards’ appeal document under the heading “Relief”, he seeks:

That the judgment be amended to reflect the evidence that there are errors in the judges judgement, it not already changed.

• [17] Mr Edwards has already been informed through a Minute of this Court dated 3 July 2023 that issues in relation to errors or corrections of a judgment (short of an appeal) are matters for the Family Court and not this Court.

• [18] Mr Edwards next seeks under the heading “Relief”:

That the orders be reversed or revised, and I be granted a mutual protection order.

• [19] Again, this is a reference to the 9 May 2023 decision. It is apparent on my reading of the Family Court decisions that Mr Edwards had not made an application for a protection order against Ms Perry. If there are grounds for such an order, then such is to be dealt with in the first instance by the Family Court.

• [20] Accordingly, it is apparent that Mr Edwards’ notice of appeal simply identified the 30 June 2023 judgment but contains no grounds of appeal in respect of that judgment. Rule 20.9(1) of the Rules provides:

(1) Unless the court otherwise directs, a notice of appeal must—

(a) have a heading stating the full name and description of each party and referring to the enactment under which the appeal is brought; and

(b) specify the decision or part of the decision appealed against; and

(c) specify the grounds of the appeal in sufficient detail to fully inform the court, the other parties to the appeal, and the decision-maker of the issues in the appeal; and

(d) specify the relief sought.

• [21] Accordingly, to the extent that Mr Edwards’ document refers to the 30 June 2023 judgment, it will be stayed unless and until he files an amended notice of appeal that complies with r 20.9(1) and omits all reference to, and grounds referable to, the 9 May 2023 decision (identified in Mr Edwards’ appeal document as having the “release date June 12, 2023”).
• [22] Again, Mr Edwards has a right of appeal against this decision.

Orders

• [23] I order:

(a) the notice of appeal filed 7 July 2023 is struck out to the extent it refers to the Family Court’s 9 May 2023 decision (Perry v Edwards [2023] NZFC 4661), identified in the notice of appeal as “Perry v Edwards – release date Monday, June 12, 2023”; and

(b) the notice of appeal filed 7 July 2023, to the extent not struck out by the order at [23](a) above, is stayed unless and until Mr Edwards files an amended notice of appeal that:

(i) complies with the requirements of r 20.9(1) High Court Rules 2016; and

(ii) omits all reference to, and grounds referable to, the 9 May 2023 decision.

• [24] Mr Edwards has the right to appeal against this decision.

Osborne J

Copy to:

Mr Edwards

T Cook, Barrister, Christchurch C Eason, Barrister, Christchurch