GPM V JHM COA CA553/2012

GPM V JHM COA CA553/2012 [22 May 2013]NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS)ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITHSS 11B TO 11D OF THE FAMILY COURTS ACT 1980.FOR FURTHER INFORMATION, PLEASE SEEHTTP://WWW.JUSTICE.GOVT.NZ/COURTS/FAMILY-COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.IN THE COURT OF APPEAL OF NEW ZEALANDCA553/2012[2013] NZCA 166BETWEEN GPMAppellantAND JHMRespondentCourt: Arnold, Ellen France and White JJCounsel: Appellant in personE J Hudson for RespondentJudgment: 22 May 2013 at 12 pm(On the papers)JUDGMENT OF THE COURTA The appeal is dismissed.B The appellant must pay the respondent costs for a standard appeal on a band A basis together with usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Ellen France J)Introduction[1] GPM appeals to this Court against a decision of Chisholm J declining to grant her leave to appeal out of time against a decision of the Family Court delivered on 5 August 2009.1 The decision of the Family Court involved orders determining theparties' respective interests in relationship property.2Background[2] The matter has a complicated procedural background. It is necessary to set out some of this background to place the current appeal in context.[3] GPM and JHM had been married for 22 years when, in 2004, they separated. When they were unable to resolve issues about the division of relationship property, JHM applied to the Family Court for orders determining their respective interests in the property. His application was heard in the Family Court in April 2009 and Judge J Moran delivered judgment in August 2009. The key finding made by Judge Moran was that GPM had disposed of property to defeat JHM's claim or rightsto an increase in the value of the parties' lifestyle block subsequent to separation.The Judge also made rulings as to the value to be attributed to various relationship property assets. Judge Moran rejected GPM's claim that her post-separation contributions warranted a compensatory payment. Judge Moran concluded that GPM and JHM each had a relationship property entitlement of $373,895.53. The balance payable to JHM was $326,152.97, some of which was to come from a family trust and over $150,000 from GPM.[4] In September 2009 JHM appealed to the High Court against Judge Moran'sdecision. In that context, GPM sought leave to adduce further evidence in the High Court.3 Essentially, GPM wanted JHM to be required to provide evidence of his entitlements under an overseas pension scheme of which he had been a member, at1 GPM v JHM [2012] NZHC 1776. By consent, the appeal was dealt with on the papers.2 JHM v GPM FC Timaru FAM-2006-019-1475, 5 August 2009.3 There was no notice of motion to this effect but an affidavit in support of leave was treated asnotice.least since separation. The argument was that JHM had not been truthful in his affidavits in the Family Court on his pension/superannuation entitlements.[5] In a decision preliminary to that on JHM's appeal, Fogarty J required JHM to make full account of his membership of the scheme.4 Fogarty J then went on to hearJHM's appeal which related to Judge Moran's decision not to give JHM any awardfor interest on account of his entitlements being locked into the family home post- separation. That appeal was unsuccessful.5[6] Subsequently, on 19 July 2010, Fogarty J referred two matters back to the Family Court for consideration.6 The first of these matters arose out of the new evidence admitted in the High Court. The first issue was the question of JHM'sentitlements under the overseas pension scheme. The second issue referred back wasGPM's argument that there might be some other offshore bank account containingrelationship property.[7] We understand the Family Court has not yet considered these two matters. In the meantime, there were further developments in the High Court.[8] In February 2011, GPM filed an application for judicial review of Judge Moran's decision in the High Court. That application was supported by a statement of claim filed in June 2011. In that statement of claim, GPM challenged the Family Court decision on a number of grounds. First, there was a reference to her share of relationship property being locked up amongst other matters in offshore bank accounts and pension funds. Secondly, there was a claim for income disparity. Thirdly, GPM sought compensation for post-separation contributions. Fourthly, there was a claim for compensation based on delays. Finally, GPM challenged aspects of the valuation of assets.[9] Lang J had a telephone conference with the parties about the judicial review application on 13 July 2011. In his minute relating to the conference, Lang J said he4 JHM v GPM HC Timaru CIV-2009-476-428, 1 March 2010.5 JHM v GPM HC Timaru CIV-2009-476-428, 5 March 20106 JHM v GPM (No 3) HC Timaru CIV-2009-476-428, 19 July 2010.had questioned GPM about why she had filed a judicial review proceeding rather than an appeal.7 There was to be a further telephone conference on 25 August 2011.[10] Before that telephone conference was to take place, JHM applied to strike out the judicial review application. When the matter came back to Fogarty J on 25 August, the Judge said he did not see how the judicial review proceeding couldsucceed as "unbeknown, it would seem, to [Lang J], I had already heard an appealfrom the Family Court and it would appear that in part this application for judicialreview is an attempt to recall the judgment".8 The Registrar was directed to set down the strike out application.[11] GPM subsequently advised the Court she wanted to discontinue the judicial review proceeding. French J, in a judgment delivered on 30 September 2011, dealtwith JHM's application for costs in relation to that proceeding.9[12] GPM's application for leave to appeal out of time was filed on 15 December 2011. Then, on 22 December 2011, it appears that GPM made an application that the judicial review application be heard as an appeal. That application was opposed.[13] Chisholm J heard the application for leave to appeal out of time on 19 July 2012 and delivered an oral judgment that day dismissing the application.10Decision declining leave to appeal[14] Chisholm J gave two primary reasons for declining leave. First, the Judge considered GPM had effectively had her appeal determined by Fogarty J. This resulted in the two issues being referred back to the Family Court. That decision has not been appealed. Chisholm J was concerned to avoid the prospect of the High Court entertaining two appeals on the same subject matter.[15] Secondly, Chisholm J said the delay was too long and largely unexplained. Chisholm J observed:7 GPM v District Court at Timaru HC Timaru CIV-2011-476-304, 13 July 2011.8 JHM v GPM HC Timaru CIV-2009-476-428, 25 August 2011.9 GPM v Timaru District Court HC Timaru CIV-2011-476-304, 30 September 2011.10 GPM v JHM, above n 1.[14] While the problems that have been explained by [GPM], particularly those relating to her former lawyer and her difficulty in understanding the process, are understandable, they can only go so far. The reality is that there has now been a delay of more than two years since the appeal period expired. It is extremely rare for leave to be granted after such a long delay, and I am afraid that I cannot see any basis on which leave could be granted on this occasion.[15] This means that the issues of superannuation and overseas bank accounts will have to be determined in the Family Court in accordance with the directions given by Fogarty J. I emphasise that it is only the two matters that have been specifically referred back by Fogarty J that are to be heard bythe Family Court. [16] In this context, Chisholm J explained that apart from a payment of $50,000, no payment had been made by GPM to JHM. JHM had by then issued bankruptcy proceedings.The appeal to this Court[17] Chisholm J's decision declining to grant leave was made under r 20.4 of the High Court Rules. Rule 20.4(3) states that, by special leave, the Court may extend the time prescribed for filing an appeal if the relevant statute permits an extension or does not limit the time prescribed.[18] As counsel for JHM submits, the decision under r 20.4(3) requires consideration of the overall interests of justice. The relevant factors include:11When and under what circumstances was the decision to appeal taken?The extent of the delay.Whether the delay is capable of a satisfactory explanation.Whether prejudice will be suffered by other parties if time is extended.The strength of the appeal and any other relevant circumstances.[19] GPM says that it would be unjust if she is not able to pursue her appeal against Judge Moran's decision. She explains the delay by reference to her dyslexia and illness together with the procedural muddle she says resulted from the directions11 Juken Nissho Ltd v Attorney-General (1998) 12 PRNZ 380 (HC) at 383.about the proper procedure she should be following. GPM also relies on the strength of her appeal.Assessment[20] The delay in this case is lengthy. As counsel for JHM submits, the time for filing the appeal expired in early September 2009. Even if we treat the relevant period as starting to run from the date of GPM's application for judicial review, thedelay is lengthy. That application was not filed until February 2011.[21] Further, the delay is not adequately explained. GPM's dyslexia and the factshe is a sickness beneficiary do not explain this delay. There is, in particular, no good reason advanced as to why GPM could not have appealed at the time JHM filed his appeal (in September 2009). At that point, GPM was represented by counsel. She did raise with the High Court at that time the question of further evidence onJHM's assets which has led to the two matters to be considered further by the Family Court. The confusion that subsequently emerged over the proper process to be followed does not explain the failure to act earlier. Rather, as counsel for JHM notes, it seems GPM was not galvanised into taking action until early 2011 with the assistance of advice from friends.[22] The delay is prejudicial to JHM in that he remains largely out of the fundsdue to him in terms of the Family Court's decision. It appears there will be furtherdelay with the reconsideration of the two matters referred back by Fogarty J in the Family Court.[23] As to the strength of the appeal against Judge Moran's decision, it is difficult to make any detailed assessment. However, the matters GPM wishes to raise are factual. Judge Moran's decision is both comprehensive and reasoned. Further, GPM will have two matters reconsidered. While those matters do not reflect the full scope of the issues GPM wishes to raise on appeal, they do encompass a consistent theme in her concerns about Judge Moran's decision.[24] In these circumstances, we consider Chisholm J was right to decline leave.Result[25] For these reasons, the appeal is dismissed.[26] GPM did what she could to reduce costs by seeking to have the matter dealt with on the papers. However, JHM has incurred costs of instructing counsel. Having succeeded, he should be able to recover those costs.[27] GPM is ordered to pay costs for a standard appeal on a band A basis together with usual disbursements.Solicitors:Nielsen Law, Hamilton for Respondent