SS V SK COA CA605/2011

SS V SK COA CA605/2011 6 December 2011NOTE: PURSUANT TO S 125 OF THE DOMESTIC VIOLENCE ACT 1995,ANY PUBLICATION OF A REPORT OF THESE PROCEEDINGS MUSTCOMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980.IN THE COURT OF APPEAL OF NEW ZEALANDCA605/2011[2011] NZCA 620BETWEEN SSApplicantAND SKRespondentHearing: 29 November 2011Court: Ellen France, Harrison and Wild JJCounsel: Applicant in PersonJ Niemand for RespondentJudgment: 6 December 2011 at 2:30 PMJUDGMENT OF THE COURTA The application for an extension of time to appeal is dismissed.B The applicant must pay the respondent costs for a standard application on a Band A basis with usual disbursements.REASONS OF THE COURT(Given by Harrison J)Introduction[1] SS applies for an order granting an extension of time to file a notice of appeal.1 SS wishes to appeal against a judgment delivered by Priestley J in the High Court at Hamilton on 7 April 2011, dismissing his appeal against a protection order made in favour of the respondent, SK, in the Family Court at Hamilton on 12 February 2010.Background[2] At all relevant times SS lived with his parents and family in Hamilton. SK came to New Zealand from India in 2009. She had agreed to an arranged marriage with SS. She was accompanied by her mother to New Zealand. SS, SK and hermother all lived together, for some time, in SS's family home.[3] The marriage was not a success and was never consummated. In the FamilyCourt, Judge Brown described the arrangement "as the cause of misery for both parties".2 SK alleged that SS assaulted her on three different occasions in September and October 2009. SS denied each allegation; he said that the injuries allegedly sustained by SK on the second and third occasions were accidental.[4] SK left SS's home in December 2009 and went to a Women's Refuge home.She applied for a protection order under s 14 of the Domestic Violence Act 1995. Following a defended hearing Judge Brown found that all three assaults wereproved. He accepted SK's evidence. He found her a credible witness. He rejectedSS's denial. Significantly, he also rejected evidence given by SS's mother as lackingin credibility and reliability. Judge Brown was satisfied that a protection order wasnecessary for SK's protection, although he found that question difficult.[5] SS appealed Judge Brown's decision. His appeal was out of time by aboutthree months. Despite expressing some misgivings, Priestley J granted SS leave to1 Court of Appeal (Civil) Rules 2005, r 29A.2 [SK] v [SS] FC Hamilton FAM-2009-09-1707, 12 February 2010 at [2].appeal out of time.3 In the interim, on 20 December 2010, Cooper J granted SS'sdefended application for leave to adduce further evidence at the hearing of the appeal. In particular, Cooper J allowed evidence that SS's mother was not proficientin the English language nor in Hindi, the language spoken by an interpreter who was present in the Family Court. As a result, it was said, Judge Brown had misunderstood her evidence when rejecting it.High Court[6] Priestley J dismissed SS's substantive appeal. He identified the criticalquestion to be determined, and the approach to be taken, as follows:[23] The question I must ask is whether the centrality of Mrs S's evidenceto the Family Court hearing was such that the interpretation problems, to which I have referred, have led the Judge to make orders which should not have been made in the first place. Certainly his adverse credibility findingagainst Mrs S (which in the light of Cooper J's remarks cannot be upheld)did not assist the appellant in his case.[24] However, I am of the view that the evidence of Mrs S can effectively be severed off. In the hypothetical situation where the matter had been heard by Judge Brown without benefit of any evidence from the mother, there still would remain cogent reasons for his findings. He and he alone observed the parties and heard their competing narratives. The findings which he made, although unpalatable to the appellant, were findings which were open to him. I have some concerns as to the extent to which it is helpful to talk about body language and demeanour when dealing with witnesses from a different culture. But there is force in what the Judge held, that throughout her evidence the respondent impressed him as being truthful and that herevidence generally was consistent and indeed, from the Judge's perspective,compelling.[25] So when I test his findings, even though I am satisfied the Judge was looking at the evidence of Mrs S through the wrong prism, I see no reason to upset his credibility findings in other areas and in particular the stark contrast between the competing evidence of appellant and respondent.[26] I am also of the view, particularly given the respondent's culturalpredicament, that the Judge was correct when he concluded (quite apart from the supermarket incident) that, for the time being at least, a protection order was necessary for the purposes of s 14(5).[27] Finally, I do not consider that the use of an inappropriate interpreterled to the Judge's credibility findings in areas other than Mrs S's evidencebeing unsafe. The interpreter issue fell short of tainting the entire proceeding.3 SS v SK HC Hamilton CIV-2010-419-768, 7 April 2011 at [1]–[4].[7] Effectively, SS wishes to challenge Priestley J's severance from Judge Brown's decision of the treatment of his mother's evidence. He says that Priestley Jshould have remitted the proceeding for a rehearing in the Family Court.Decision[8] Mr Niemand for SK does not consent to SS's application for an extension oftime in which to appeal. The issue then is whether, taking into account all the relevant circumstances, we should exercise our discretion to grant leave. We must determine where the interests of justice lie, bearing in mind that the right of appeal is limited to a question of law.4 In that respect we are entitled to take into account thelength of the delay and the reasons for it; SS's conduct; the extent of prejudicecaused by the delay; the prospective merits of the appeal; and whether the appeal raises any issue of public importance.5[9] The time for filing an appeal to this Court against Priestley J's decision expired on about 7 April 2011. SS's application for leave was filed on 6 September 2011. He is thus out of time by about five months. SS explains his delay as beingdue to an inability "to think straight after the injustice which has happened". Inparticular he attributes it to the death of his grandfather (who died on 3 June 2011)and service of a bankruptcy notice on SK's behalf for unpaid costs relating to aseparate application to the Family Court for dissolution of marriage (the date of the notice is not given).[10] SS's explanation does not adequately explain his delay, especially when it is considered in conjunction with his earlier lengthy and largely unexplained delay in filing his appeal in the High Court. We regard this factor as decisive. A delay of some five months is significant. It cannot be explained away on the grounds of oversight, mistake or a misunderstanding of his rights. He cannot claim that he was unaware of his obligations.4 Domestic Violence Act 1995, s 93(1).5 Robertson v Gilbert [2010] NZCA 429; Barber v Cottle [2010] NZCA 31 at [6]; My Noodle Ltdv Queenstown-Lakes District Count [2009] NZCA 224, (2009) 19 PRNZ 518.[11] Time limits are imposed for good reason; they are designed to bring litigation to a timely end and spare parties unnecessary burdens – both financial and, in a case such as this, emotional – delay and uncertainty. While Mr Niemand does not point to any specific prejudice suffered by SK, the facts that the original order was made in the Family Court some 21 months ago and that she has been required to submit to two appellate hearings in the High Court in the interim are in themselves relevant. IfSS's appeal was allowed, SK would have to participate in a further hearing in theFamily Court sometime in 2012, by which time the relevant circumstances are likely to be materially different from those prevailing in early 2010. SS is aware of his right to apply directly to that Court for an order discharging the original protection order.[12] We are not satisfied that the prospective merits of SS's proposed appealjustify granting an extension of time; and nor are we satisfied that it raises any question of law.Result[13] The application for an extension of time to appeal is dismissed.[14] SS is to pay costs to SK for a standard application on a Band A basis and usual disbursements.Solicitors:Niemand Peebles Hoult, Hamilton for Respondent