Hirstich v The Family Court At Manukau Hc Ak

• Jurisdiction: New Zealand
• Judge: Cooper J
• Judgment Date: 03 May 2013
• Neutral Citation: [2013] NZHC 963
• Docket Number: CIV-2012-404-6508
• Court: High Court
• Date: 03 May 2013

UNDER the Judicature Amendment Act 1972

IN THE MATTER OF an application for judicial review

BETWEEN

Mavis Jillian Hirstich

Applicant

and

The Family Court at Manukau

First Respondent

and

Selwyn Kupa Kahotea

Second Respondent

[2013] NZHC 963

CIV-2012-404-6508

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

Application for judicial review of direction of a Family Court judge that any proceedings filed in the Family Court by the applicant against her former partner, the second respondent, be referred to the Family Court judge in the first instance for assessment under r194 Family Court Rules 2002 (stay or dismissal proceedings have no reasonable basis, or are frivolous or an abuse of process) — long procedural history (99 applications over 16 years) of child support litigation between the parties no formal application under s163 Family Proceedings Act 1980 (vexatious proceedings) was filed by second respondent — whether the Family Court judge had the jurisdiction to make the direction — whether the direction was made in breach of natural justice whether the scope of the direction was too wide in that it purported to restrict the applicant's access to the Family Court jurisdiction and was therefore unlawful.

Counsel:

I T F Hikaka and S L Jackson for Appellant

Second Respondent in Person

JUDGMENT OF Cooper J

1 This is an application for judicial review of a direction made by Judge Rogers in the Family Court that any proceedings filed in that Court by the applicant, Ms Mavis Hirstich, against her former partner, the second respondent Mr Selwyn Kahotea, must be referred to Her Honour in the first instance.

2 Ms Hirstich applies to have that order quashed on the basis that it was made illegally and contrary to the principles of natural justice. In the alternative, Ms Hirstich submits that the Judge erred in law, as the direction made is too broad in scope.

Background

3 Ms Hirstich and Mr Kahotea have been litigating child support issues for some 16 years. 1 Much of that litigation is not, however, relevant for the purposes of the present application. Those portions of the litigation history that are relevant begin in March 2009, when Ms Hirstich's application for a Child Support Departure Order was heard. Ms Hirstich alleges that, during the course of that hearing, Mr Kahotea gave false evidence on oath. Ms Hirstich wanted to complain about this to the Police, and applied to the Family Court on 10 May 2010 for a copy of the transcript of that hearing and for permission to release that transcript to the Police. Ms Hirstich believes this application was necessary in order for her to be able to “publish” the details of the proceeding to the Police. 2 Her application was heard on 29 September 2010, and declined.

4 Ms Hirstich alleges that Mr Kahotea again gave false evidence during the course of the September 2010 hearing, and that that evidence was erroneously relied upon by the Judge. Consequently, on 11 July 2011 Ms Hirstich applied for release of the transcript of the September 2010 hearing, again for the purposes of passing it on to the Police. By minute of 5 September 2011, Judge Rogers directed that this application would be heard on the papers. In the interim, Ms Hirstich requested an opportunity to file and serve written interrogatories on the second respondent. That

request, as well as the substantive application permitting publication for permission to release the transcript, were declined on 3 October 2011

5 Ms Hirstich applied for a rehearing of the 3 October decision 3 on 31 October 2011. That application was advanced on two bases: first, that the decision refusing Ms Hirstich an opportunity to file written interrogatories amounted to a denial of her rights, causing prejudice. Further, it was claimed that the Judge was wrong to cite concerns regarding delay as a reason for refusing interrogatories because there was no urgency. Secondly, Ms Hirstich says that Judge Rogers was wrong to rely on Mr Kahotea's submission that Ms Hirstich did not need leave to request the September 2010 transcript and that the proper procedure was, instead, for the Police to apply to the Court.

6 The second respondent filed a notice of defence, as well as an affidavit of support in which he referred to comments made in the 3 October decision that these were “long running proceedings”, involving a disproportionate amount of Court time. Similarly, a minute dated 9 August 2011 recorded that “Ms Hirstich has pursued her case has been somewhat obsessive and bordering on the vexatious” [sic]. In light of those comments and the procedural history between the parties, the second respondent asked the Court to make an order restraining her ability to file future proceedings:

It is these comments, similar to those of past Judges, the 99 applications thus far, the near (as at February 2012) 16 years of ongoing litigation and the Applicants [sic] prior engagement of 26 lawyers in proceedings that I now invite this Court, of their own volition to file its own Restraining Order on the Applicant that only upon the Granting of Leave of this Court shall further Applications be permitted to proceed between the parties based upon the clear past and current frivolous and vexatious nature of this applicant.

7 The application for rehearing was heard on 7 June 2012. In his written submissions, Mr Kahotea again submitted that the Court should make an order preventing Ms Hirstich from filing further proceedings against him, suggesting that:

…of its own volition this Court should file its own Restraining Order on the Applicant that only upon the Granting of Leave of this Court [the First

Respondent] shall further Applications be permitted to proceed between the parties.

8 The possibility of such an order being made was addressed in passing in oral submissions, but was not the subject of detailed argument. Ms Hirstich briefly referred to Mr Kahotea's request as follows:

…Mr Kahotea has put in here that he would like a restraining order. I've simply followed process. I'm, followed legal advice, [sic] I didn't do it lightly, I checked with more than one authority to ensure that this is what I had to do.

9 At the conclusion of the hearing, Judge Rogers declined Ms Hirstich's application for a rehearing, reserving her reasons. The Judge further said in relation to the restriction of further proceedings:

Mr Kahotea, as far as your application for an order restricting Ms Hirstich from filing further proceedings and for costs, I am going to reserve my decision on that point. I want an opportunity to look at the legal issues further. I am also conscious that you are asking the Court to make this motion effectively of its own volition without an application being served on Ms Hirstich, and that is a matter that has to be given some weight as Ms Hirstich has not prior to today been given an opportunity to be heard on it.

10 On 28 August 2012, Judge Rogers gave her reasons for declining on the rehearing application as well as her decision in respect of Mr Kahotea's request. In respect of the latter, the Judge said:

[14] Section 163 of the Family Proceedings Act 1980 deals with vexatious proceedings. Subsection 2 provides that the Family Court may, if it is satisfied that a person has persistently instituted vexatious proceedings under this Act or any former Act, after giving the first mentioned person an opportunity of being heard, order that no proceedings under this Act, or no such proceedings of any specified kind or against any specified person, shall be commenced without the leave of the Court.

[15] No formal application has been made pursuant to this provision, rather Mr Kahotea makes a request at paragraph [13] of his submissions dated 5 June 2012 that the Court “should file its own restraining order on the applicant that only upon the granting of leave of this Court shall further application be permitted to proceed between the parties”.

[16] I sympathise with Mr Kahotea's frustration in respect of these proceedings but to limit a person's access to the Court is a very significant step. It does in my view require the filing of a formal application so that the respondent has the opportunity to put their case as contemplated by s 163(2). In the absence of a formal application I will not make an order under s 163(2) but I will direct that any proceedings filed in this jurisdiction by Ms Hirstich against Mr Kahotea are to be referred to me in the first instance for assessment having regard to the provisions ofr 194 of the Family Court Rules 2002 which allows the Court to order that proceedings be stayed or dismissed if the Court considers, in relation to the proceedings or to the application, that -

• (a) there is no reasonable basis for the proceedings or application; or

• (b) the proceedings are frivolous or vexatious; or

• (c) the proceedings are an abuse of the Court's process.

(emphasis added)

11 It is the italicised portion of paragraph [16] that Ms Hirstich challenges in the current application for judicial review.

The application for review

12 The present application is advanced by the applicant on the principal basis that the Family Court Judge did not, as a matter of law, have the power to make the direction that she made on 28 August 2012. An alternative argument is that if there was jurisdiction it was made in breach of natural justice and there is also a claim that the scope of the direction was unlawful because of its breadth, even if within the Court's jurisdiction and not made in breach of natural justice.

Jurisdiction

13 Mr Hikaka, for Ms Hirstich, based his argument about jurisdictional error on a contention that the direction was of the same type as orders that may be made with respect to vexatious...