KBRV Resort Operations Pty Ltd v Chilcott

[2001] NSWCA 116

Reported Decision: 51 NSWLR 516

New South Wales

Court of Appeal

CITATION:	KBRV RESORT OPERATIONS PTY LIMITED t/as KINGFISHER BAY RESORT & VILLAGE v CHILCOTT [2001] NSWCA 116
FILE NUMBER(S):	CA 40568/99
HEARING DATE(S):	28 March 2001
JUDGMENT DATE:	3 May 2001
PARTIES :	KBRV Resort Operations Pty Limited t/as Kingfisher Bay Resort & Village - Appellant Sandra Dennice Chilcott (formerly Smith) - Respondent
JUDGMENT OF:	Sheller JA at 1; Ipp AJA at 43; Grove AJA at 44

LOWER COURT JURISDICTION :	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S) :	20495/98
LOWER COURT JUDICIAL OFFICER :	Newman J

COUNSEL:	A Ashburner - Appellant A S Morrison SC/R J Wright - Respondent
SOLICITORS:	Ferguson Holz - Appellant Stacks - The Law Firm - Respondent
CATCHWORDS:	Practice - transfer of proceedings - meaning of 'proceedings' - where lack of jurisdiction - District Court Act 1973, s145(1), s145(3)
LEGISLATION CITED:	Choice of Law (Limitation Periods) Act 1993 Defamation Act 1992 (NZ) District Court Act 1973 Domestic Protection Act 1982 (NZ) Interpretation Act 1987 Limitation of Actions Act 1974 (Qld)
CASES CITED:	Anlaby v Praetorius (1888) 20 QBD 764 Cameron v Cole (1944) 68 CLR 571 China Ocean Shipping Co Ltd v PS Chellaram & Co Ltd (1990) 28 NSWLR 354 Commonwealth v Verwayen (1990) 170 CLR 394 Craig v Kanssen [1943] KB 256 Hamp-Adams v Hall [1911] 2 KB 942 Hewitson v Fabre (1888) 21 QBD 6 John Fairfax & Sons Ltd v Police Tribunal of NSW (1986) 5 NSWLR 465 John Pfeiffer Pty Ltd v Rogerson (2000) 74 ALJR 1109 Kronprinz, Owners of the cargo of v Owners of the Kronprinz (the Ardandhu) (1887) 12 AppCas 256 Mann v O'Neill (1997) 191 CLR 204 Munster v Lamb (1883) 11 QBD 588 Rawlinson v Oliver (1995) 3 NZLR 62 Smurthwaite v Hannay [1894] AC 494
DECISION:	Appeal dismissed with costs.

CA 40568/99

DC 5777/98

SHELLER JA

IPP AJA

GROVE AJA

KBRV RESORT OPERATIONS PTY LTD t/as KINGFISHER BAY RESORT & VILLAGE v CHILCOTT

The respondent began proceedings in the District Court in August 1998 against the appellant, a corporation incorporated in Queensland, to recover damages for injuries she had suffered in Queensland while a passenger in a vehicle owned by the appellant. However, as both parties later accepted, in the form of the District Court Act 1973 then in force, the District Court had no jurisdiction to hear the action. In September 1998, the limitation period under the Limitation of Actions Act 1974 (Qld), which applied to this claim, expired. In November 1998, the respondent filed a notice of discontinuance in the District Court, although this notice was technically defective.

In December 1998 the respondent began proceedings in the Supreme Court. The appellant filed a statement of defence pleading that the respondent was statute barred under the Queensland Act. The respondent then filed a notice of motion in the Supreme Court for a declaration that the notice of discontinuance was a nullity, that the District Court proceedings be transferred to the Supreme Court, and that the defence to the Supreme Court proceedings be struck out. Newman J granted the respondent’s motion.

The appellant submitted that the proceedings begun in the District Court could not be transferred to the Supreme Court because, since the District Court lacked jurisdiction, the proceedings were a nullity. Alternatively, the proceedings had been extinguished by the notice of discontinuance. This claim depended on an interpretation of s145(1) of the District Court Act 1973, which provided (in part) that “proceedings may…be removed into the Supreme Court by order of the Supreme Court.” The appellant further claimed that the respondent’s claim could not be removed to the Supreme Court since neither of the requirements of s145(3) were made out - the amount of damages would be inadequate, and the case failed to disclose issues that were complex or of general public importance.

The respondent submitted that there were “proceedings” which could be transferred pursuant to s145(1); and that the requirements of s145(3) did not apply to a claim over which the District Court lacked jurisdiction.

Held:

(per Sheller JA, Ipp AJA and Grove AJA agreeing):

1. Although the District Court had no jurisdiction to hear and dispose of the respondent’s action, the word “proceedings” is broad enough to include steps taken by and following on the statement of claim. This interpretation of the word “proceedings” is consistent with the remedial and discretionary nature of s145. Rawlinson v Oliver (1995) 3 NZLR 62; Mann v O’Neill (1997) 191 CLR 204, considered.

2. Section 145(3) applied only to motor vehicle accident claims which can be disposed of in the District Court, and therefore did not apply to the respondent’s claim.

3. The defect in the notice of discontinuance did not have the effect of nullifying that notice. However, the fact that the notice was still in effect did not prevent the District Court exercising its jurisdiction to remove the proceedings to the Supreme Court in circumstances where the proceedings could not otherwise be revived.

Legislation:

Choice of Law (Limitation Periods) Act

1993

Defamation Act

1992 (NZ)

District Court Act

1973

Domestic Protection Act

1982 (NZ)

Interpretation Act

1987

Limitation of Actions Act

1974 (Qld)

Cases cited:

Anlaby v Praetorius

(1888) 20 QBD 764

Cameron v Cole

(1944) 68 CLR 571

China Ocean Shipping Co Ltd v PS Chellaram & Co Ltd

(1990) 28 NSWLR 354

Commonwealth v Verwayen

(1990) 170 CLR 394

Craig v Kanssen

[1943] KB 256

Hamp-Adams v Hall

[1911] 2 KB 942

Hewitson v Fabre

(1888) 21 QBD 6

John Fairfax & Sons Ltd v Police Tribunal of NSW

(1986) 5 NSWLR 465

John Pfeiffer Pty Ltd v Rogerson

(2000) 74 ALJR 1109

Kronprinz, Owners of the cargo of v Owners of the Kronprinz (the Ardandhu)

(1887) 12 AppCas 256

Mann v O'Neill

(1997) 191 CLR 204

Munster v Lamb

(1883) 11 QBD 588

Rawlinson v Oliver

(1995) 3 NZLR 62

Smurthwaite v Hannay

[1894] AC 494

ORDERS

Appeal dismissed with costs.

*****

CA 40568/99

DC 5777/98

SHELLER JA

IPP AJA

GROVE AJA

KBRV RESORT OPERATIONS PTY LTD t/as KINGFISHER BAY RESORT & VILLAGE v CHILCOTT

JUDGMENT

SHELLER JA:

Background

1    On 11 August 1998 the respondent, Sandra Dennice Chilcott, began proceedings by an ordinary statement of claim in the District Court Motor Accidents List against the appellant, KBRV Resort Operations Pty Limited trading as Kingfisher Bay Resort & Village, a corporation incorporated in the State of Queensland, to recover damages the respondent alleged she had suffered on 5 September 1995 while a passenger in a tourist bus with Queensland registration owned by the appellant and being driven by its servant or agent on Fraser Island in the State of Queensland. On 21 July 1997 the appellant had admitted liability.

2 The statement of claim was lodged in accordance with the provisions of Part 5, rule 6 of the District Court Rules (see s53 of the District Court Act 1973 (the District Court Act)) and was in accordance with form 8 published under Pt 47, r2(2) of the District Court Rules. The copy served appears to have been sealed by the Registrar: Pt 5 r3(2).

3    The parties accept that in terms of the District Court Act as then in force, and particularly s47, the District Court had no jurisdiction to hear and dispose of the proceedings, since neither the whole cause of action nor any material part of it arose within New South Wales and the defendant was not resident in New South Wales at the time the initiating document was served.

4 On 5 September 1998 the three year limitation period under s11 of the Limitation of Actions Act 1974 (Qld) (the Queensland Limitation Act) for making a claim for damages for negligence for personal injuries expired. The Queensland Limitation Act applied to this claim; see s5 of the Choice of Law (Limitation Periods) Act 1993 (NSW) and John Pfeiffer Pty Limited v Rogerson (2000) 74 ALJR 1109.

5    By letter dated 14 September 1998 the appellant’s solicitors notified the respondent’s solicitor that the District Court did not have jurisdiction to determine the proceedings. The appellant’s solicitors wrote: “Please discontinue the action. The claim should either be brought in Queensland or in the Supreme Court of New South Wales pursuant to the cross-vesting legislation.” The respondent’s solicitor did not reply to this letter. On 5 November 1998 the appellant’s solicitors wrote again as follows:

“Given that you have commenced in the wrong forum and it is in the interest of all parties that this be rectified as soon as possible, we would appreciate receiving your advice as to your intentions regarding these proceedings. Should we not receive your advice within fourteen days we shall be forced to bring a Motion seeking to have these proceedings dismissed for want of jurisdiction in order to protect our client’s position.”

6    On 11 November 1998 the respondent’s solicitor replied stating that they intended to discontinue proceedings in the District Court immediately and commence proceedings in the Supreme Court “should the matter remain unresolved after the settlement conference on 10 December 1998”. The writer went on to say: “In relation to settlement negotiations, we note that we forwarded a settlement offer to you in the form of an Offer of Compromise. Given that the District Court proceedings are a nullity, that offer should be similarly ….. regarded as a nullity.”

7 On 11 December 1998 the respondent filed a notice of discontinuance. Because there was no certificate from the respondent’s solicitor that he did not “represent any other person” the notice did not comply with Part 18, r1 of the District Court Rules. However, s159 of the District Court Act, so far as presently relevant, provides:

“ Irregularity
(1) Where, in the purported commencement of any proceedings or at any stage in the course of or in connection with any proceedings, there is, by reason of anything done or left undone, a failure to comply with any requirement of this Act or of the rules whether in respect of time, place, manner, form or content or in any other respect:
(a) the failure shall be treated as an irregularity and shall not nullify the proceedings, or any step taken in the proceedings, or any document, judgment or order in the proceedings, …..”

No application was made to set aside the notice of discontinuance.

8    According to the affidavit of 12 February 1999 of Allison Margaret Robertson, a solicitor employed in the office of the respondent’s solicitor, at the pre-arranged settlement conference with the appellant’s solicitors on 10 December 1998 she was informed by Ms Margaret Holz, a partner of Ferguson Holz, who had the conduct of the action on behalf of the appellant, that the action was statute barred because the limitation legislation of Queensland applied.

9    On 23 December 1998 the respondent began proceedings in the Supreme Court of New South Wales against the appellant to recover damages for the same injury. The Supreme Court had jurisdiction to hear the proceedings. On 4 January 1999 the appellant’s solicitors wrote to the respondent’s solicitor reiterating their advice that the case was now statute barred. On 21 January 1999 the appellant filed a statement of defence pleading that the respondent was statute barred under the Queensland Limitation Act.

10    On 10 February 1999 the respondent filed a reply to the statement of defence, paragraph 10 of which was as follows:

“The [respondent] says that the filing of the notice of discontinuance was in reliance upon the implied representation that no such defence [ie a limitation defence] would be pleaded and in response to the expressed request that proceedings be discontinued in the District Court and commenced in the Supreme Court and that in reliance upon such representations the [respondent] took that course instead of transferring such proceedings to the Supreme Court or cross vesting such proceedings to Queensland (thereby remaining within the limitation period) and that the [appellant] is now estopped by its conduct from relying upon a limitation defence.”

11    In her affidavit Ms Robertson said that at no time during her discussion with the appellant’s solicitors before the filing of the notice of discontinuance was she informed by them that the limitation defence would be raised if the proceedings were discontinued. Ms Robertson asserted that had she been informed that the limitation period would become an issue she would not have prepared and filed the notice of discontinuance. Rather she would have made an application to the Supreme Court, by way of summons, for the District Court proceedings to be transferred to the Supreme Court of New South Wales. According to the affidavit of 22 February 1999 by Ms Holz it was during the course of the settlement conference that it was realised that the limitation period had expired. During that conference the matter was drawn to the attention of Ms Robertson.

Transfer and strike out proceedings

12    On 10 February 1999 the respondent filed a notice of motion in the Supreme Court proceedings for a declaration that the notice of discontinuance was a nullity and for orders that the District Court proceedings be transferred to the Supreme Court and that the defence to the Supreme Court proceedings be struck out. The last order was based on the allegation found in the respondent’s reply that the appellant was estopped by its conduct from relying upon a limitation defence. On 22 February 1999 the appellant filed an amended notice of motion in the Supreme Court proceedings for, inter alia, summary judgment with costs.

13 The notices of motion came on for hearing before Newman J. On 25 June 1999 his Honour ordered that the District Court proceedings be transferred to the Supreme Court, that the pleadings in the District Court stand as pleadings in the Supreme Court and that the appellant’s amended notice of motion be dismissed. This is an appeal by the appellant from that decision. The respondent filed an amended notice of contention contending that s145(1) of the District Court Act enabled the proceedings to be transferred, that the proceedings did not fall within s145(3) and that Newman J should have held that the appellant was estopped by its conduct and representations from raising the limitation defence.

Issues on the appeal

14 Section 145 of the District Court Act provides as follows:

“ Transfer of proceedings to Supreme Court
(1) Proceedings may, upon the application of a party, be removed into the Supreme Court by order of the Supreme Court upon such terms as to payment of costs, giving security for the amount claimed or costs, or otherwise, as the Supreme Court thinks fit.
(2) An action for damages in respect of personal injury or death (other than a motor accident claim) may be so removed only if the Supreme Court is satisfied that the amount to be awarded to the plaintiff in the case, if successful, would be likely to exceed $750,000 or that there is other sufficient reason for trying the action in the Supreme Court.
(3) A motor accident claim may be so removed only if the Supreme Court is satisfied that the amount to be awarded to the plaintiff in the case, if successful, would be likely to exceed $1,000,000 and that the case involves complex legal issues or issues of general public importance.”

15 The essential question in this appeal was whether the proceedings begun in the District Court, but which the District Court had no jurisdiction to hear and dispose of, could, pursuant to s145, be transferred to the Supreme Court and, if so, whether this could be done after the proceedings had been discontinued in the District Court. The appellant submitted that the proceedings in the District Court were a nullity or, alternatively, if not, were extinguished by the discontinuance. The respondent submitted that although the District Court had no jurisdiction to hear and dispose of them, there were proceedings in the District Court which could be transferred pursuant to s145 even if they had been effectively discontinued. The respondent relied upon the decision of the New Zealand Court of Appeal in Rawlinson v Oliver (1995) 3 NZLR 62.

16    If for any reason the proceedings could not be removed into the Supreme Court the respondent relied upon estoppel to say that the appellant’s limitation defence in the Supreme Court proceedings should be struck out; Commonwealth v Verwayen (1990) 170 CLR 394 and China Ocean Shipping Co Limited v P S Chellaram & Co Limited (1990) 28 NSWLR 354.

17    Newman J, although not required to decide the estoppel point, said without giving reasons, that he would not have upheld this argument. The argument was confronted with problems related to proving a representation of sufficient certainty and clarity, reliance by the respondent on such representation and detriment suffered as a result.

District Court jurisdiction

18    The consequences of proceedings being brought or orders made in courts without jurisdiction to entertain the proceedings have been described in different ways. Some of the cases are helpfully summarised in Greene MR’s judgment in Craig v Kanssen [1943] KB 256 at 258 and following partly in the context of distinguishing between proceedings or orders “which are nullities and those in respect of which there has been nothing worse than an irregularity” (258). In Smurthwaite v Hannay [1894] AC 494 plaintiffs had been joined in one action in a way not authorised by the rules. Members of the House of Lords described this as more than an irregularity; see 501 and 506. In Daniell’s Chancery Practice, 8th ed, vol 1, page 708 the author said: “A judgment obtained by some step not warranted by the rules, or capable of being sanctioned, is wholly void and must be set aside” and cited Smurthwaite and Hamp-Adams v Hall [1911] 2 KB 942. In Anlaby v Praetorius (1888) 20 QBD 764 Fry LJ said at 769:

“There is a strong distinction between setting aside a judgment for irregularity, in which case the Court has no discretion to refuse to set it aside, and setting it aside where the judgment, though regular, has been obtained through some slip or error on the part of the defendant, in which case the Court has a discretion to impose terms as a condition of granting the defendant relief.”

A judgment here described as one which must be set aside for irregularity is in other cases referred to as a nullity or as void ab initio.

19    In Hewitson v Fabre (1888) 21 QBD 6 the plaintiff sued the defendant who was a foreigner residing in France for goods sold and delivered to him in England and obtained a judge’s order for the service upon the defendant of the writ out of the jurisdiction. The writ was served upon the defendant in France and judgment signed against him in default of appearance. The service of the writ instead of a notice of the writ was a nullity. Field J said at 9: “The proceedings here are void ab initio and I think the defendant is entitled to the relief which he claims”. The relief claimed was that the judgment and “subsequent proceedings” be set aside: see 8.

20    In Hamp-Adams v Hall, referred to in Daniell, the writ was served but the date of service was not endorsed on it within three days as required by the rules. The plaintiff signed judgment in default of appearance and a verdict for damages was given by a Sheriff’s jury. It was held that non-compliance with the rules which required due endorsement of the date of service was not an irregularity which could be waived and that the plaintiff not having complied with the rule was not entitled to proceed by default and the verdict and judgment must be set aside. Vaughan-Williams LJ said at 943 that the result of the non-compliance with the rule was that there was no writ on which the plaintiff was entitled to proceed. Lindley LJ said at 398 that the question was “whether the order for substituted service was a nullity, rendering all that was done afterwards void or whether it was only an irregularity.” In Craig v Kanssen, Lord Greene MR, after referring to these cases, said at 262-3:

“Those cases appear to me to establish that a person who is affected by an order which can properly be described as a nullity is entitled ex debito justitiae to have it set aside. So far as procedure is concerned, it seems to me that the court in its inherent jurisdiction can set aside its own order, and it is not necessary to appeal from it. …… Apart from proper ex parte proceedings, the idea that an order can validly be made against a man who has had no notification of any intention to apply for it has never been adopted in this country. It cannot be maintained that an order which has been made in those circumstances is to be treated as a mere irregularity and not as something which is affected by a fundamental vice. …… In the present case, as appears from the affidavit of service, the summons was not sent to the address for service of the defendant, so the rule was not complied with and the alleged service mentioned in the affidavit was no service at all. It was clearly a mistake and there can be no suggestion of bad faith, but there was no warrant or justification in the Rules of Court for obtaining the order of January 18, 1940, in such circumstances. That order is a nullity, and it must be set aside.”

21    In Cameron v Cole (1944) 68 CLR 571 a sequestration order had been made by the Bankruptcy Court in the absence of the debtor who had no notice of the hearing. The Bankruptcy Court ultimately annulled the sequestration order and ordered a re-hearing at which a sequestration order was made. The question was the jurisdiction of the Bankruptcy Court to make the second order. Latham CJ treated the Bankruptcy Court as an inferior court and in that respect differed from the other members of the High Court. At 584 the Chief Justice said that under the statutory provisions of the Bankruptcy Act orders affected by irregularity or formal defect were voidable by the court. His Honour continued:

“But the position is different if an ‘order’ is null and void ab initio . There is then no real order of the court. Thus, if a sequestration order is void in this full sense, there is nothing in relation to which s124 can operate. …. The failure to give notice was not an irregularity which would only make the order of sequestration voidable so as to entitle the appellant to ask the Court to set it aside. It made the order a nullity.”

22    The District Court of New South Wales was established as a court of record by the District Court Act 1973. Section 9 describes its jurisdiction generally. It is no doubt properly described as an inferior court of record created by statute and as such can have no powers, jurisdictions or authorities other than those authorised by the Act; see generally John Fairfax & Sons Limited v Police Tribunal of New South Wales (1986) 5 NSWLR 465. At 476 McHugh JA, as his Honour then was, said:

“Nonetheless as Lord Morris of Borth-y-gest pointed out in Connelly v Director of Public Prosecutions [1964] AC 1254 at 1301 there ‘can be no doubt that a court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction’. His Lordship said that he would regard such powers as inherent powers: see also R v Forbes; Ex parte Bevan (1972) 127 CLR 1 at 7; Taylor v Attorney-General [1975] 2 NZLR 675 at 680, 682, 689; Taylor v Taylor (1979) 143 CLR 1 at 5-6. The source of this inherent jurisdiction is the implied authority conferred on the judiciary to uphold, protect and fulfil the judicial function by ensuring that justice is administered, both in a particular case and as a continuing process, according to law and in an effective manner: Jacob, ‘The Inherent Jurisdiction of the Court’, Current Legal Problems (1970) 23 at 27-28.”

23 Part 3 of the District Court Act is headed “The civil jurisdiction of the Court”. Division 2 of Part 3 is headed “Actions: jurisdiction”. Subdivision 1 is headed “General jurisdiction in relation to actions”. Within that subdivision are found ss 44 and 47. Division 9 is headed “Transfer of proceedings from or to Supreme Court”. Subdivision 2, in which s145 is found, is headed “Transfer of proceedings to Supreme Court”. Division 9A is headed “Costs in proceedings” and Division 10 “Miscellaneous provisions”. Section 149, which can be compared with s130(1) of the District Courts Act 1912 provides:

“Where any proceedings purport to be commenced in the Court and the Court has no jurisdiction to hear and dispose of the proceedings, the Court may, notwithstanding the lack of jurisdiction, make such order (if any) as it thinks fit for the payment by any party to any other party of the costs of the proceedings in the Court, and any such order for costs may be enforced as if the Court had had jurisdiction to hear and dispose of the proceedings.”

24    In Rawlinson v Oliver the New Zealand Court of Appeal was concerned with a whether a solicitor who was a defendant in defamation proceedings could rely upon absolute privilege as a defence on the basis that the allegedly defamatory statements had been made in the course of “proceedings” within the meaning of s14(1) of the Defamation Act 1992 (NZ). The defendant, on behalf of a female client, had filed in the Family Court, purportedly under the Domestic Protection Act 1982 (NZ), an ex parte application for a non-molestation order against the plaintiff. The Family Court was a division of the District Court. Despite the fact there was no jurisdiction under the Domestic Protection Act for the making of such an order because the parties “did not live together”, the Family Court made an ex parte order which was subsequently confirmed after a full hearing. On appeal the High Court held that both the final non-molestation order and the earlier ex parte order had been made without jurisdiction and set aside both orders on the basis that they were void ab initio. Later the High Court held that the alleged defamatory statements were contained either in pleadings filed in the Family Court or statements made in that court and as such were absolutely privileged. The proceeding itself had not been set aside and while the non-molestation orders were void ab initio the allegedly defamatory statements were made in the course of the administration of the law.

25    In the Court of Appeal at 67 Richardson J said that the crucial question was whether the initial application made to the Family Court and the steps taken in the Family Court under the application leading to the making of the now quashed non-molestation orders were within the expression “any proceedings” before the Family Court. His Honour noted that the High Court had not purported to set aside the proceedings and said: “ ‘Proceedings’ is a wide expression.” In Lincoln v Daniels [1962] 1 QB 237 at 256 Devlin LJ observed that the rule of absolute privilege has not been devised so as to protect malicious persons but to ensure that judges and others engaged in the administration of justice should be free from the fear of proceedings and “the vexation of defending actions” as Fry LJ put it in Munster v Lamb (1883) 11 QBD 588 at 607. The privilege applied, Devlin LJ said at 257-8:

“(1) to what is done in the course of the hearing before the Court or Tribunal;
(2) to what is done from the inception of proceedings including all pleadings and other documents brought into existence for the purpose of the proceedings; and
(3) to the briefs of evidence and to what is said in the course of interview of potential witnesses.”

26    At 68 Richardson J said:

“Whether a matter raised before the Court is within its jurisdiction may require evidence, argument and assessment. Parliament could never have intended that the protection provided by s14 should depend on whether, possibly at the end of extensive argument or even as emerging only on appeal or through other subsequent challenges, it was ruled that jurisdiction to determine the matter existed. Otherwise in any situation where it was eventually held that the jurisdictional criteria were not satisfied defamation proceedings could be brought. In my view where a matter which is of a statutorily recognised character is brought before the Court, it is a ‘proceeding’ within s14 whether or not the Court ultimately rules that it lacks jurisdiction in the circumstances of the particular case. It is not necessary to go beyond that in order to determine the present case.
…..
Clearly the application in the present case was of a kind within the description of proceedings under the Domestic Protection Act and rules and the appeal provisions thereunder. Further the application for discharge of the non-molestation proceedings which went on appeal to Penlington J was brought under R6 which provides that ‘Non-compliance with any of these rules shall not render void the proceedings in which the non-compliance has occurred, but the proceedings may … be set aside either wholly or in part’ and went on appeal under s38.
On this analysis of the statutory provisions I am satisfied that the application for a non-molestation order and subsequent steps were proceedings both within the Domestic Protection Act and, more importantly, s14 of the Defamation Act.” (my emphasis)

27    At 69-70 McKay J said:

“The argument put forward by Mr Rawlinson was that these documents were not within s14 because the proceedings were a nullity.. I agree with Richardson J that the proceedings themselves cannot be treated as a nullity. The orders made in those proceedings were set aside, but the proceedings themselves were proceedings in the District Court and within the words of s14 of the Defamation Act 1992. It would be entirely contrary to the policy of the defence of absolute privilege to limit that defence to proceedings filed in Court which were in fact within the jurisdiction of the Court. (my emphasis)
….
The fact that the Court made orders in these proceedings and those orders were subsequently set aside only serves to emphasise the need for the privilege to extend to all proceedings filed in Court and dealt with by the Court.”

28    At 71 Blanchard J said:

“There is good reason of public policy for not reading restrictively the word ‘proceedings’ in s14 of the Defamation Act 1992. Parties, counsel, solicitors and witnesses ought not to be exposed to the hazard of making statements in the course of litigation before a Court or other tribunal or authority and then finding that, because the litigation was not soundly based, the privilege which they could ordinarily expect to protect them under s14 does not apply. In my view it should do so even if the proceedings are plainly misconceived or fatally flawed. They are nevertheless ‘proceedings’ .” (my emphasis)

29    Although the New Zealand Court of Appeal was concerned with the meaning of the word “proceedings” in s14 of the Defamation Act, the passages from the judgments to which I have referred suggest that their Honours’ remarks about the meaning of “proceedings” were not confined to that context. In Mann v O’Neill (1997) 191 CLR 204 the High Court was concerned in defamation proceedings with the scope of absolute privilege attaching to all statements made in the course of judicial proceedings; 211. At 243 Gummow J observed:

“In general, the immunity extends to statements made outside court but forming an integral and necessary part of the preparation for and pursuit of the litigation. The immunity has been said not to extend to the publication of material after the proceeding to which it pertains has come to an end. The ascertainment of that outer limit involves consideration of the court structure and rules of practice and procedure within which the proceeding is placed and from which it draws its sustenance. Thus, after delivery of its statement of reasons, a court may correct or modify it and the absolute immunity will still apply. This is true also if the orders made are subsequently set aside.”

In support of the last sentence his Honour cited Rawlinson v Oliver.

30    Although it is now accepted that the District Court had no jurisdiction to hear and dispose of the respondent’s action, inevitably any application by the appellant to have the action struck out or dismissed would have been in the District Court and can only have been in the proceedings themselves. It would be fanciful to suggest that separate proceedings should have been begun. Clearly enough, the District Court has the implied authority to ensure that justice is administered by striking out or dismissing the action. If a court has no jurisdiction to hear and dispose of a claim brought before it, any order the court makes which proceeds on the basis that the court does have jurisdiction is null, but an order that proceeds on the basis that the court does not have jurisdiction, such as an order striking out or dismissing the claim for want of jurisdiction, is effective.

31 As was pointed out in the New Zealand Court of Appeal, the word “proceedings” is not one of precise meaning. It is a word broad enough to include those steps taken by and following on the filing of the statement of claim. I do not think the word “proceedings” in s145(1) should be read as having any narrower meaning. Any doubt that may linger about the power of the court to award costs is resolved by s149.

32 Section 145 is remedial and confers a discretionary power on the Supreme Court. In the absence of any express limitation other than those found in subss (2) and (3), there is no basis for limiting the word to mean only proceedings within the jurisdiction of the District Court. To say, in effect, that there were no proceedings in the District Court would cause considerable inconvenience. It would mean that the District Court, if it concluded after evidence and argument that proceedings begun in that court were outside its jurisdiction, had no power to dispose of the proceedings by striking them out.

33 However, although not referred to by Newman J, subs (3) appears to stand in the way of the respondent’s application to transfer the proceedings. There is no evidence that the condition precedent to the transfer of a motor accident claim was or could be satisfied. The respondent submitted that the subsection applies only to a motor accident claim justiciable in the District Court and does not apply to a claim outside the jurisdiction of the District Court. The point can be developed this way. Subsection (3) is obviously intended to prevent motor accident claims which can be disposed of in the District Court being removed to the Supreme Court unless the Supreme Court is satisfied that the amount to be awarded to the plaintiff in the case if successful would be likely to exceed $1,000,000 and that the case involves complex legal issues or issues of general public importance. The present is not such a case. The claim is one which the District Court cannot dispose of because it is outside its jurisdiction. It would be entirely foreign to the obvious intention of subs (3) to prevent motor accident claims which can be disposed of in the District Court being removed to the Supreme Court, to read the subsection so as also to prevent the removal of motor accident claims which the District Court does not have jurisdiction to dispose of. Consistently with the remedial nature of s145 and the limited reasons of convenience for inserting subss (2) and (3), the section should be read as enabling the removal of any proceedings begun in the District Court but beyond the jurisdiction of that court to the Supreme Court; see s33 of the Interpretation Act 1987. In my opinion, subs(3) should be read as preventing the removal of a motor accident claim of the nature described which the District Court has jurisdiction to dispose of.

Notice of discontinuance

34 The plaintiff filed its notice of discontinuance under Pt 18 of the District Court Rules. Rule 1 provides that a party making a claim for relief may, before the beginning of the trial or hearing of the proceedings on the claim (but not otherwise), discontinue the proceedings so far as concerns the whole of any claim for relief made by him with consent or with the leave of the court. In my opinion, s159 of the District Court Act requires that the defect in the notice be treated as an irregularity and not as nullifying the discontinuance.

35 The authors of the English Supreme Court Practice (The White Book) (1999), commenting on Order 21 rules 4 and 5 of the Supreme Court Rules, observed that:

“the term ‘discontinuance’ appears to be directed to the final termination of the whole action ….so that no part of it survives an effective discontinuance.”

36    The nature of discontinuance is well illustrated in the Kronprinz, Owners of the cargo of v Owners of the Kronprinz (the Ardandhu) (1887) 12 AppCas 256. A collision occurred between two ships, the “Kronprinz” and the “Ardandhu”. The owners of the Kronprinz brought an action for damage in the Admiralty Division against the owners of the Ardandhu. After the service of the writ and the filing of an appearance, the solicitors for the parties drew up an agreement whereunder the solicitors for the defendants consented to the action being “discontinued” without costs on the ground of inevitable accident. An order was made in the Admiralty Registry: “Upon consent of both solicitors, it is ordered that this action be discontinued, without costs, on the ground of inevitable accident.”

37    Later the owners of the cargo of the Kronprinz brought an action for damages against the owners of the Ardandhu arising out of the same collision and recovered half their damages. On an action for limitation of liability the owners of the Ardandhu obtained judgment limiting their liability to £8 a ton and a fund was paid into court. Thereafter the owners of the cargo of the Kronprinz filed a claim for half their damages which exceeded the fund in court. On the application of the owners of the Kronprinz and after hearing the solicitors for the owners of the Ardandhu, the Admiralty Court made an order rescinding the order discontinuing the action.

38    The Court of Appeal’s decision affirming the decision of the Admiralty Court was appealed to the House of Lords. At 259 Lord Halsbury LC observed that the terms of the agreement and order left the parties at large to reassert their rights if they pleased. At 260-61 Lord Bramwell said:

“If the claim of the Kronprinz against the Ardandhu is in existence, the owners of the Kronprinz have a right, as it seems to me, to share in the fund which has been brought into Court. If it is not in existence, of course they have no right to do so. That produces the question to this, Is the claim in existence? It is said that it is not; partly, as I understand, by the effect of the order of discontinuance. I can see nothing in the order of discontinuance which, by what you may call its intrinsic effect, would bar a claim of the owners of the Kronprinz .
But then it is said that there was a bargain between the parties which is embodied in that order, and that the bargain is operative to prevent the owners of the Kronprinz claiming against this fund. As I have said, that can only be because that bargain has extinguished the right. But has it? We have not the slightest evidence of any agreement between the parties that the claims on the one side should be given up in consideration of the claims of the other being given up.”

39    At 262 Lord Herschell referred to counsel being compelled to admit that an order for discontinuance does not of itself operate as a release or an extinguishment of the claim or in any other way bar further proceedings.

40 In my opinion, and with due respect, having regard to s159 of the District Court Act, Newman J was wrong to say that the notice of discontinuance filed in the District Court was nugatory and for that reason the proceedings still on foot. However, the fact that the notice of discontinuance, though irregular, was effective to terminate the whole action does not mean that thereafter there were no proceedings between the parties which could be removed into the Supreme Court. The discontinuance could be rescinded as in the Ardandhu not in separate proceedings but in the proceedings in which the notice was filed. The proceedings did not cease to exist but remained. Further steps could be taken by the parties in the proceedings such as rescission of the notice of discontinuance or removal into the Supreme Court. Whether such order should be made was of course another question. In the present case the discontinuance can be rescinded in the Supreme Court.

41    The justice of the case strongly favours the conclusion that the course chosen by Newman J should be adopted. One can readily understand that these proceedings were begun in the District Court as a result of an oversight or misunderstanding as to the limit of jurisdiction. The answer to that error was originally seen to be by discontinuing the proceedings and beginning new proceedings in the Supreme Court. To some extent that course was encouraged by the appellant, though apparently, at the time its solicitors were not conscious that the limitation period had expired. Recognition by the respondent’s solicitor that the limitation period had expired would have led the respondent not to discontinue the proceedings but to apply immediately to have them removed into the Supreme Court. Had that been done it is hard to see how the want of jurisdiction in the District Court would have inhibited the making of an order for removal into the Supreme Court where there was jurisdiction. To read the section as preventing a party which has erroneously begun proceedings in the District Court, believing there to be jurisdiction where there was not, from removing them into the Supreme Court where there was jurisdiction would indeed be a triumph of form and technicality over substance and merit.

Conclusion

42    In my opinion, the appeal should be dismissed with costs. It is not necessary to consider the estoppel argument further.

43    IPP AJA: I agree with Sheller JA.

44    GROVE AJA: I agree with Sheller JA.

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