WOOTTON v WOOTTON [2020] NZSC 142

WOOTTON v WOOTTON [2020] NZSC 142 [11 December 2020]IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUISC 86/2020[2020] NZSC 142BETWEEN MARGARET ANN WOOTTONApplicantAND PHILLIP GARY WOOTTONRespondentCourt: Glazebrook, O'Regan and Williams JJCounsel: Applicant in personE J Collins for RespondentJudgment: 11 December 2020JUDGMENT OF THE COURTA The application for leave to appeal is dismissed.B The applicant must pay the respondent costs of $2,500.____________________________________________________________________REASONS[1] The applicant applied to the Court of Appeal for leave to appeal against adecision of the High Court on certain interlocutory applications made by her.1 Theapplicant also applied to the Court of Appeal under r 12(3)(a) of the Court of Appeal(Civil) Rules 2005 for an order staying the High Court proceedings between theapplicant and the respondent pending the determination of her application for leave toappeal.1 Wootton v Wootton [2020] NZHC 2584 (Edwards J). The application for leave to appeal to theCourt of Appeal was made under s 56(5) of the Senior Courts Act 2016, as Edwards J had refusedto grant leave under s 56(3).[2] In a judgment issued on 5 October 2020, Brown J declined her application fora stay.2[3] The applicant now seeks leave from this Court to appeal against the decisionof Brown J. She also sought a stay of proceedings pending determination of thatapplication for leave, but her application for a stay was dismissed by this Court on29 October 2020.3[4] The background to the case and the essential reasoning of Brown J is set out insome detail in the stay judgment, but for ease of reference we repeat it here:4[3] Mr E J Collins is counsel for the respondent, the applicant's formerhusband, in the caveat proceeding. Ms Wootton's application for an orderprohibiting Mr Collins from continuing to act for the respondent in the caveatproceeding was declined by Associate Judge Johnston on 25 September 2020.[4] The applicant then filed an urgent without notice interlocutoryapplication in the caveat proceeding seeking the following orders:(a) applying for the transfer of the proceeding to a High CourtJudge;(b) adjourning the 5 October 2020 hearing date pending theNew Zealand Law Society's (NZLS) decisions of the jointcomplaints before it regarding Mr Eugene Collins andMr Lloyd Collins;(c) restraining Mr Eugene Collins pending the outcome of theNZLS and Land Information New Zealand (LINZ)complaints process;(d) allocating a further case management conference forrescheduling a hearing date for the caveat application;(e) varying the order for the proceeds of sale of one of theproperties so that the monies currently held in the trustaccount may be held by the Court; and(f) seeking leave to appeal to [the Court of Appeal] in the eventthat the application was not granted.[5] Following a hearing at short notice (the Judge having declined to dealwith the application on a without notice basis) Edwards J concluded there wasno basis either to restrain Mr Collins from acting or to adjourn the 5 October2020 hearing. The application was accordingly declined.2 Wootton v Wootton [2020] NZCA 474.3 Wootton v Wootton [2020] NZSC 117.4 Wootton v Wootton [2020] NZCA 478.[6] Ms Wootton's application for leave to appeal to this Court unders 56(3) of the [Senior Courts] Act was also declined by Edwards J.[16] Having regard to the high threshold for the making of an orderrestraining counsel from acting, it is not apparent to me how the presentcircumstances would support a grant of leave under s 56(5) [of the SeniorCourts Act]. Both the Associate Judge and Edwards J considered that thecircumstances of the case fell well short of the threshold. Edwards J declinedleave to appeal under s 56(3).[17] While I accept that declining a stay will in all probability remove anyprospect of Ms Wootton obtaining an order restraining Mr Collins fromappearing on the caveat matter, I consider that the prospects of her(a) obtaining leave to appeal and (b) succeeding on appeal in obtaining aninjunction are remote.[18] On the other side of the scales, the grant of a stay would have theeffect of granting a de facto adjournment of Ms Wootton's application for anorder to sustain the caveats which she has registered. That is neither in theinterests of the respondent nor the public interest. There does not appear tohave been an undertaking as to damages lodged by Ms Wootton which wouldbe available to respond to any loss which the respondent might suffer flowingfrom the retention of the caveats on the titles of the relevant properties.[19] Weighing these several considerations I consider that this is not anappropriate case for the grant of a stay of Ms Wootton's application to sustaincaveats. The balance of convenience lies strongly in favour of the respondent.[5] Because the proposed appeal to this Court is against an order made by the Courtof Appeal on an interlocutory application, the Court must not grant leave unless it issatisfied that both the criteria for leave to appeal set out in s 74(1) and (2)5 of theSenior Courts Act 2016 and the additional requirement in relation to interlocutoryappeals in s 74(4)6 are satisfied.[6] The applicant argues that a stay of proceedings is crucial to avoid a substantialmiscarriage of justice and that a matter of public importance arises in relation to thecircumstances in which the High Court should exercise jurisdiction over officers ofthe Court when complaints before the Law Society are extant. We do not consider thateither of these grounds is established. The decision of Brown J to refuse a stay wasan orthodox decision based on well-established criteria. We do not consider that anymatter of public importance arises. Nor are we satisfied that the test for a substantial5 That it is in the interests of justice to grant leave.6 That it is in the interests of justice for this Court to hear and determine the proposed appeal beforethe proceeding is concluded.miscarriage of justice is met in this case.7 Even if we were satisfied that one or moreof the grounds under s 74(2) of the Senior Courts Act was made out, we would nothave given leave because, in our view, there is no need for the issue to be resolvednow, before the Court of Appeal has even determined whether it will give the applicantleave to appeal against the decision of Edwards J.[7] The application for leave to appeal is dismissed. The applicant must pay therespondent costs of $2,500.Solicitors:Collins & May Law Ltd, Lower Hutt for Respondent7 In civil proceedings, the miscarriage of justice ground is limited to cases in which there is asufficiently apparent error, made or left uncorrected by the Court of Appeal, of such a substantialcharacter that it would be repugnant to justice to allow it to go uncorrected: Junior Farms Ltd vHampton Securities Ltd (in liq) [2006] NZSC 60, (2006) 18 PRNZ 369 at [5].