POWER v WHITE [2021] NZCA 454

POWER v WHITE [2021] NZCA 454 [9 September 2021]NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS)ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITHSS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA289/2021[2021] NZCA 454BETWEEN BRETT WILLIAM POWERApplicantAND KATHERINE MARIE WHITERespondentCourt: Brown and Collins JJCounsel: Applicant in PersonE S Butler for RespondentJudgment:(On the papers)9 September 2021 at 10.00 amJUDGMENT OF THE COURTA The application for leave to appeal is declined.B The applicant must pay the respondent costs for a standard applicationfor leave to appeal on a band A basis and usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Brown J)Introduction[1] In a judgment dated 10 December 2020 the Family Court at Hawera madeorders for the purpose of disposing of the parties' family home and in relation toseveral items of personal property.1 The applicant (Mr Power) filed in the High Courtsix notices of appeal against that judgment.[2] A telephone conference was convened by Gendall J on 22 February 2021 inrespect of two of those appeals. Counsel informed the Judge of the existence of theadditional four appeals. All six appeals were then set down for a two-day hearing.Timetable directions were made and security for costs was fixed in the sum of $7,060.[3] Mr Power's application to the High Court for leave under s 56(3) of theSenior Courts Act 2016 to appeal those directions was declined by Gault J in a minuteof 24 May 2021. The applicant now applies directly to this Court under s 56(5) forleave to appeal from the directions of Gendall J.Principles governing appeals from interlocutory judgments[4] In Finewood Upholstery Ltd v Vaughan, Fitzgerald J observed that therequirement for leave to appeal should serve as a filtering mechanism to ensure thatunmeritorious appeals of interlocutory orders, or appeals of interlocutory orders of nogreat significance to either the parties or more generally, do not unnecessarily delaythe proceedings in which the orders were made.2 The following considerations wererecognised as relevant on an application for leave to appeal:3(a) A high threshold exists.(b) The applicant must identify an arguable error of law or fact.(c) The alleged error should be of general or public importance warrantingdetermination or otherwise of sufficient importance to the applicant tooutweigh the lack of general or precedential value.(d) The circumstances must warrant incurring further delay.1 Power v White [2020] NZFC 10605.2 Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [13], upheld in Greendrake v DistrictCourt of New Zealand [2020] NZCA 122 at [6].3 At [9] and [14], citing A v Ministry of Internal Affairs [2017] NZHC 887.(e) The ultimate question is whether the interests of justice are served bygranting leave.[5] This Court in Ngai Te Hapu Inc v Bay of Plenty Regional Council indicatedthat considerations similar to the principles applicable to applications under the formers 24G of the Judicature Act 1908, as explained in Meates v Taylor [Leave],4 apply toapplications under s 56(5) of the Senior Courts Act, stating:5We agree that leave to appeal should only be granted where the significanceor implications of an arguable error of fact or law, either for the particular caseor for the applicant or as a matter of precedent, warrants the further delaywhich the appeal process would involve.Analysis[6] Neither in his interlocutory application in this Court for leave to appeal nor inhis written submissions in support dated 22 June 2021 did Mr Power appear to takeissue with the actual content of the directions given on 22 February 2021. IndeedMr Power's submission describes as "totally incorrect" the description of hisapplication (in the respondent's memorandum in opposition) as being for leave toappeal against timetable directions.[7] Rather, Mr Power explains the nature of his application in this way:This Appeal to the Court of Appeal is based on the issue that no courtdocuments (Four Notices of Appeal and six case management memorandums)were before the High Court when it addressed the case managementconference on 22 Feb 2021.Proceeding from that premise, Mr Power advances two propositions: first, the hearingwas null and void; secondly, in the absence of the documents relating to the additionalfour appeals (described in submissions as the "missing documents") security for costscould not be calculated.[8] Mr Power's contentions proceed on the misapprehension apparent in his noticeof application that it was necessary for him to file separate appeals in respect of eachof the orders in the Family Court decision with which he took issue. His application4 Meates v Taylor [Leave] (1992) 5 PRNZ 524 (CA) at 527.5 Ngai Te Hapu Inc v Bay of Plenty Regional Council [2018] NZCA 291 at [17].advanced the proposition that a single appeal against the Family Court judgmentwould be in breach of r 20.9(1)(b) of the High Court Rules 2016. That rule requiresthat a notice of appeal must specify the decision or part of the decision appealed from.Mr Power erroneously interpreted the rule as stating that an appeal must specify"the one decision or part of the one decision" being appealed against.[9] His application further stated that six separate appeals could not be condensedinto one appeal as counsel for the respondent requested. However Ms Butler for therespondent states that it was acknowledged at the February 2021 telephone conferencethat it was appropriate to consolidate all six appeals because they all related to the oneFamily Court decision and she submits that at the telephone conference Mr Powerraised no objection to the six proceedings being consolidated.[10] That certainly appears to be the tenor of [1] of Gendall J's minute. It is alsoreflected in his fifth direction:(e) Given that the appellant has chosen to file what are six separateappeals relating essentially to the same [Family] Court decision largely, itwould be useful to clarify matters for detailed and specific points on appeal tobe provided. The appellant must, therefore, file and serve not later than10 working days after the date of this minute points on appeal that clearly statethe issues to be addressed by the Court on appeal.[11] We do not consider that there was any error in accepting that the six appealsagainst the one judgment should be consolidated. On the contrary it was the logicaland sensible course to adopt. The fact that not all the physical files were available tothe Judge at the telephone conference does not affect the validity of the directionsgiven.[12] Nor was physical possession of the files a prerequisite for the making of a validorder for security for costs. Such an order is a standard direction and, as Ms Butlersubmits, an integral part of any appeal process. Mr Power's submissions did not takeissue with the quantum of the security. However if any issue arises from the apparentadoption of category 3 for the calculation of the amount of security,6 we agree withthe observation of Gault J that it could be addressed under the slip rule. It does not6 High Court Rules 2016, rr 20.13(3), 14.4 and 14.3.raise an issue of general or public importance, nor is it otherwise of sufficientimportance to warrant an appeal to this Court.[13] In our view Mr Power's proposed appeal is manifestly inappropriate for a grantof leave to appeal to this Court.Result[14] The application for leave to appeal is declined.[15] The applicant must pay the respondent costs for a standard application for leaveto appeal on a band A basis and usual disbursements.Solicitors:Connect Legal Taranaki, New Plymouth for Respondent