PAYNE V THE ATTORNEY-GENERAL ON BEHALF OF FAMILY COURT JUDGES MOSS, BISPHAN & ELLIS CA CA256/04

PAYNE V THE ATTORNEY-GENERAL ON BEHALF OF FAMILY COURT JUDGES MOSS, BISPHAN & ELLIS CA CA256/04 23 May 2005IN THE COURT OF APPEAL OF NEW ZEALAND CA256/04BETWEEN ROGER JOHN PAYNE Applicant AND THE ATTORNEY-GENERAL ON BEHALF OF FAMILY COURT JUDGES MOSS, BISPHAN & ELLIS Respondent Hearing: 16 May 2005 Court: Hammond, O'Regan and Robertson JJ Counsel: Applicant in person T J Warburton for Respondent Judgment: 23 May 2005JUDGMENT OF THE COURT A The application for special leave to appeal against the decision of Ronald Young J is declined, except in relation to the award of indemnity costs against the applicant. B We make no award of costs. REASONS(Given by O'Regan J)Introduction[1] The applicant seeks special leave to appeal to this Court from a decision of Ronald Young J (HC WN CIV 2003-485-1203, CIV 2003-485-1547 and CIV 2003- 485-2238, 4 August 2004). The Court dismissed the applicant's application to review three decisions of Associate Judge Gendall striking out proceedings alleging misfeasance of public office against three Judges of the Family Court, Judge Moss, Judge Bisphan and Judge Ellis. The Associate Judge prepared separate judgments for the respective claims against each Judge and these are now reported as Payne v Attorney-General (No. 1) [2004] NZFLR 408, Payne v Attorney-General (No. 2) [2004] NZFLR 481 and Payne v Attorney-General (No.3) [2004] NZFLR 529. [2] The applicant sought leave from the High Court to appeal to this Court against the decision of Ronald Young J. Leave was declined by Miller J in a decision dated 18 November 2004.Applicable test[3] The application for special leave is brought under s 26P(1AA) of the Judicature Act 1908, which provides that the determination of the High Court on a review of a decision of an Associate Judge in Chambers is "final, unless the High Court gives leave (or the High Court refuses leave, but the Court of Appeal gives special leave) to appeal from it to the Court of Appeal." This provision is similar to s 67 of the Judicature Act which applies in the case of determinations of the High Court on appeals from inferior Courts. [4] The approach to applications for special leave under s 67 is clear. The appeal must raise a question of law or fact which is capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of a second appeal. The guiding principle must be the requirements of justice. That test was stated by this Court in Waller v Hider [1998] 1 NZLR 412 at 413 and has been followed on numerous occasions since then.[5] We were also referred to certain High Court decisions: Dew v Dew HC AK M406/02 9 May 2003 Patterson J and Dragonfly Helicopter Sales Limited v BiehlerHC AK CIV 2001-404-2362 26 May 2004 Randerson J. In those cases, it was held that applications for leave to appeal under s 26P(1AA) should be approached in the same way as applications under s 67. In view of the similarity of the wording of s 26P(1AA) to that of s 67, and the similarity of the subject matter, we agree that it is appropriate to treat applications for leave under s 26P(1AA) in the same way as applications for special leave under s 67 are treated. The test in Waller v Hiderapplies.The Associate Judge's decisions[6] The Attorney-General applied to strike out the applicant's claims in respect of each of Judge Moss, Judge Bisphan and Judge Ellis on the basis that the pleadings disclosed no reasonable cause of action or, alternatively, that the claims were an abuse of the Court's process: R 186 of the High Court Rules. [7] In Payne v Attorney-General (No. 1), the Associate Judge set out the test for appealing the strike out applications, based on Attorney-General v Prince & Gardiner [1998] 1 NZLR 262, and repeated this in the other two decisions. No issue is taken with the way in which he expressed the test. [8] The Associate Judge noted that the claim relating to Judge Moss alleged negligent acts, malpractice and omissions on her part which constituted misfeasance or misfeasance in public office. He noted that s 193 of the Summary Proceedings Act 1957 says that no action shall be brought against a District Court Judge for any acts done by him or her unless he or she has exceeded his or her jurisdiction or acted without jurisdiction. Similarly, s 6(5) of the Crown Proceedings Act 1950 says that no proceedings will lie against the Crown in respect of anything done or omitted to be done by any person while discharging or purporting to discharge any responsibilities of a judicial nature vested in him or her, or any responsibilities which he or she has in connection with the execution of judicial process.[9] The Associate Judge referred to the decision of this Court in Rawlinson v Rice [1997] 2 NZLR 651, which established that the tort of misfeasance in public office can apply to a District Court Judge who acts knowingly without or beyond jurisdiction, giving rise to damage causitively linked to that action. In such an event, the immunity under s 193 of the Summary Proceedings Act does not apply. [10] The Associate Judge said that the elements of the tort of misfeasance in public office were: (a) The defendant must be a person holding public office; (b) There must be knowing or reckless abuse or violation of the powers or duties which the public officer is bound to perform (i.e. he or she must act with malice or with knowledge that he or she was acting invalidly); (c) Damage must be caused to the plaintiff by the public officer as a result of the actions; (d) Such damage must be caused by either: (i) a deliberate act or omission actuated by malice; or (ii) a deliberate act knowingly in excess of official powers; or (iii) a reckless indifference as to whether or not the officer was acting in excess of judicial powers. [11] He derived those principles from the decisions of this Court in Rawlinson v Rice and Garrett v Attorney-General [1997] 2 NZLR 332. Again, there was no challenge to the correctness of the test expounded by the Associate Judge in the High Court review proceedings or in this Court. The Associate Judge applied the same analysis in his decisions relating to Judge Bisphan and Judge Ellis.[12] The Associate Judge determined that Judge Moss acted within her jurisdiction in making certain orders which she made in relation to a matrimonial property dispute between the applicant and his former wife. He said that the applicant's case was based on a misunderstanding of the effect of an order which Judge Moss made, noting that this misunderstanding had been pointed out in subsequent decisions both of the High Court and of this Court. He also rejected the submission that other orders made by Judge Moss during the course of the proceedings were made without jurisdiction. [13] The Associate Judge also held that the applicant had not established any causative link between the actions of Judge Moss and the damage he claimed to have suffered. [14] For completeness, the Associate Judge also dealt with the abuse of process argument. He said that the applicant's proceeding was an attempt to continue his previous litigation (in relation to his matrimonial dispute with his former wife) under another guise as the essential issues in the two sets of proceedings were the same. He said this was an abuse of process. [15] The Associate Judge reached similar conclusions in relation to the claim relating to Judge Bisphan. Again, he determined that Judge Bisphan had jurisdiction under the Matrimonial Property Act to make the orders which founded the applicant's claim. Again, he found that the matters which the applicant raised had been considered in the High Court and Court of Appeal, and the actions of Judge Bisphan were held to have been correct and within jurisdiction. Again, he found no causative link between the Judge's conduct and the loss which the applicant claimed to have suffered. He also found that the other criticisms of Judge Bisphan were unfounded. He also found that there was an abuse of process: the applicant's allegations of malice, bias and misconduct against Judge Bisphan were an attempt to overcome the fact that he had exhausted his rights of appeal in the matrimonial property proceedings with his former wife. [16] The decision in relation to the claim relating to Judge Ellis was similar. Judge Ellis' role had been in relation to an application by the applicant's former wifefor a protection order under the Domestic Violence Act 1995. Judge Ellis' decision had been upheld in the High Court and this Court declined special leave to appeal and refused to recall its decision. Again, the Associate Judge found that Judge Ellis acted within jurisdiction, that there was no causative link between Judge Ellis' actions and the damage for which the applicant claimed and that the proceedings were an abuse of process being an attempt to re-litigate issues by making allegations of tortious conduct against Judge Ellis. [17] In three separate judgments dated 24 February 2004, Associate Judge Gendall awarded costs against the applicant on a category 2B basis in relation to each of the three claims.Judgment of Ronald Young J[18] Ronald Young J upheld the decisions of Associate Judge Gendall on review. He concluded that there was nothing in the submissions presented to him by the applicant which identified any wrong principle of law or fact upon which the Associate Judge had based his decisions. He said the Associate Judge was clearly correct when he concluded that the applicant had failed to identify any facts upon which he could mount an action for misfeasance of public office. He therefore dismissed the review. [19] In a separate judgment dated 1 September 2004, Ronald Young J awarded indemnity costs against the applicant. The total amount of costs and disbursements awarded was $10,420.89.High Court application for leave[20] Miller J declined leave to appeal to this Court in a judgment dated 18 November 2004. Miller J observed that it was impossible to avoid the conclusion that the applicant's claims were a collateral attack on the decisions of the Family Court. He said that the same questions of law and fact that were resolved in the earlier litigation between the applicant and his former wife were at the heart of thepresent proceedings: only the form of the litigation had changed. Applying theWaller v Hider test, the Judge concluded that nothing in the applicant's submissions raised a question of law or fact that was capable of bona fide and serious argument so as to justify further appeal to this Court.Submissions in this Court[21] The applicant's submission rested on the propositions that the conduct of the review process by Ronald Young J was unfair, that decisions made in the context of the litigation against his former wife were wrong and needed to be corrected, and that there were various errors in the judgment of Ronald Young J and the judgments of Associate Judge Gendall. [22] It is apparent from the material provided to us by the applicant that he seeks to go behind the decisions of this Court and the High Court which uphold the actions of the Family Court Judges who are the subject of the present claims. He describes the decision of this Court of 5 March 2003 as flawed, and says that it should not block the misfeasance action from being considered on its merits. [23] Counsel for the respondent said that the decisions of this Court and the High Court in the matrimonial litigation establish that the Family Court Judges' decisions were not only within their jurisdiction but correct, and that the applicant's case is based on his refusal to accept Court findings which are adverse to him. She argued that the present claims were re-litigation of the matrimonial litigation in another guise. She said that the present application did not stipulate any ground of appeal based on a question of law or fact capable of bona fide and serious argument on appeal.Discussion[24] Having reviewed the material provided to us by the applicant, we are satisfied that the Waller v Hider test is not met in this case. The Associate Judge carefully reviewed the applicant's claims, and his conclusion that they did notdisclose a tenable cause of action was upheld on review by Ronald Young J. We can see no grounds for a second appeal. We are satisfied that no tenable cause of action exists in this case, for the reasons enunciated by Associate Judge Gendall. That conclusion is clear on the basis of the information before the Court: nothing would be gained by allowing the matter to proceed to trial. [25] We agree with Miller J that it is impossible to avoid the conclusion that these proceedings are a collateral attack on the decisions of the Family Court Judges who are the subject of these claims. It is clear that the applicant does not accept any of the decisions which have gone against him in the matrimonial litigation, but those decisions are binding on him and the indirect challenging of them through the present proceedings is an abuse of the Court's process.Costs[26] A different situation exists in relation to the decision of Ronald Young J to order indemnity costs against the applicant. The Judge awarded indemnity costs in the course of his judgment on the review of the decisions of Associate Judge Gendall. Different considerations must apply to that aspect of his decision. We say that because the need for leave (or special leave) to appeal in s 26P(1AA) is predicated on the basis that an appeal to this Court is, in effect, a second appeal. But the decision of Ronald Young J in relation to costs was not, in itself, a reconsideration of a decision already made by the Associate Judge, and thus has not been the subject of a "first appeal". It may be that leave is not necessary, but we need not decide the point. In the circumstances, we think it is fair to allow the applicant to pursue an appeal to this Court against the decision of Ronald Young J to award indemnity costs because that will, in effect, be a first appeal on that aspect of the case. If leave is needed for the applicant to pursue that appeal, we grant it.Costs in this Court[27] We make no award of costs in this Court.Solicitors: Crown Law Office, Wellington for Respondent