Supreme Court dismisses lawsuit against family court lawyer and NZLS

Mother unsatisfied with outcome of custody dispute

Supreme Court dismisses lawsuit against family court lawyer and NZLS

The Supreme Court has dismissed a lawsuit brought against a court-appointed lawyer and the New Zealand Law Society (NZLS) concerning a custody dispute case.

In DFT v Auckland High Court [2023] NZSC 57 (17 May 2023), the parties had been involved in a custody dispute in the Family Court over their two children. At the time of the proceedings, the children were aged about nine and seven. The mother lost and was deeply unhappy with the outcome. She commenced collateral proceedings against her former partner, the court-appointed lawyer for her children, and various government agencies.

Some of the mother’s actions have been directed against RMC, the court-appointed lawyer for the children. The mother brought her complaints against RMC to the NZLS, the entity exercising statutory responsibility for administering a disciplinary regime for the New Zealand legal profession.

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Dissatisfied with NZLS’ response to her complaints, the mother elevated the case to the High Court. She challenged NZLS’s decision over her complaints regarding RMC, while NZLS applied to strike out the proceeding. The High Court ruled in favour of NZLS and struck out the proceedings against NZLS and RMC. The court also found that the mother’s proceedings were an abuse of process. She raised the case to the Court of Appeal and applied for an extension to appeal the strike-out order. However, her action was almost a year out of time.

The High Court ordered that the registrar should only receive further applications for filing relating to particular matters with the leave of a judge. The mother made four appeals to the court of appeal, challenging instances in which her proceedings were not accepted for filing due to the leave requirement.

In a consolidated decision, the court of appeal addressed the four appeals of the leave refusals and the application for an extension of time. The court found that it would not be in the interests of justice to grant the applicant an extension of time to appeal the strike-out order. The leave requirement and the leave refusals were set aside. The appellate court ruled that the high court could not cut across the statutory civil restrain regime by making an order under its inherent powers, as it had done.

The applicant brought her case to the Supreme Court, seeing leave to appeal against certain aspects of the court of appeal decision, namely:

  • the refusal of an extension of time concerning a strike-out application;
  • the Court of Appeal’s decision not to grant her disbursements;
  • the costs order against her and failure to award costs in her favour.

The NZLS and Attorney-General opposed her application, arguing that statutory leave criteria were not met. The Attorney-General asserted that the applicant’s grounds of appeal relate to technical aspects of the judgment or conclusions she disagrees with, and that the importance of the matter is to the applicant alone.

The Supreme Court agreed that none of the leave criteria are met. The applicant’s procedural complaints are particular to the circumstances of the case and do not involve matters of general or public importance. The court likewise did not find a miscarriage of justice. Consequently, her application for leave to appeal is dismissed.


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