Banks v Grey District Council

IN THE SUPREME COURT OF NEW ZEALAND

SC 60/2014
[2014] NZSC 102

BETWEEN	DOUGLAS AND CHRISTINE SANDRA BANKS Applicants
AND	GREY DISTRICT COUNCIL Respondent

Court:	Elias CJ, Glazebrook and Arnold JJ
Counsel:	Applicants in person J Shackleton and D A Ward for Respondent
Judgment:	5 August 2014

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

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REASONS

The applicants, the Banks, are involved in a dispute with the respondent, the Grey District Council, concerning a residential property in Blaketown, Greymouth that they occupy under a ground lease from the Council. The dispute concerns the timing of rent reviews under the ground lease. The Banks were unsuccessful before Fogarty J in the High Court[1] and have filed appeals in the Court of Appeal against the Judge’s substantive decision and his subsequent decision on costs.[2]
[1]Grey District Council v Banks [2013] NZHC 1485.
[2]Grey District Council v Banks [2013] NZHC 2304.
The Banks are self-represented. The Court of Appeal has not yet heard their appeals. On 13 May 2014, Stevens J gave directions that:
(a)both appeals would be heard together;
(b)the appeals would be heard on the basis of the case on appeal filed by the Council;
(c)all questions of costs would be dealt with as part of the appeals; and
(d)there should be a one day fixture.
The Banks seek leave to appeal to this Court against these directions, in particular the directions in (b) and (d). There is a question as to whether they filed their application in time, but as any delay was minimal, we will address the application on its merits.
Procedural orders of the sort made by Stevens J are made under s 61A(1) of the Judicature Act 1908. Under s 61A(2) such directions may be varied or set aside by a panel of Court of Appeal judges. That is the mechanism by which challenges to this type of procedural order should be brought pre-hearing.
If the directions of the single judge are upheld on review, the unsuccessful party may seek leave to appeal to this Court, although the Court is most unlikely to grant leave in respect of an interlocutory application of that type. The appropriate course is for the unsuccessful party to wait until the substantive appeal has been determined and, if unsuccessful, to seek leave to appeal to this Court against that substantive decision, raising the alleged procedural error(s) as a ground of appeal, along with any other grounds.
This is not to say, of course, that this Court would necessarily grant leave in such circumstances. The application for leave to appeal would have to meet the grounds set out in s 13 of the Supreme Court Act 2003.
In the result, we are not satisfied that it is necessary in the interests of justice that we hear and determine this appeal. Accordingly, the application for leave to appeal is dismissed.

Solicitors:
Simpson Grierson, Wellington for Respondent

CaseChat Overview and Summary

The Supreme Court of New Zealand was presented with an application for leave to appeal from Douglas and Christine Sandra Banks against the Grey District Council. The Banks, who occupy a residential property in Blaketown, Greymouth under a ground lease from the Council, are in a dispute concerning the timing of rent reviews under the lease. The Banks had previously been unsuccessful in their litigation before Fogarty J in the High Court and had appealed to the Court of Appeal. They now seek leave to appeal to the Supreme Court against directions made by Stevens J in the Court of Appeal, specifically regarding the basis of the case on appeal and the scheduling of the hearing. Stevens J had ruled that the appeals would be heard together, on the basis of the case on appeal filed by the Council, and that all questions of costs would be dealt with as part of the appeals. The Banks sought leave to appeal to the Supreme Court against these directions, particularly those in (b) and (d).

The Court considered whether procedural orders of the sort made by Stevens J could be challenged pre-hearing. It found that such orders were made under section 61A(1) of the Judicature Act 1908 and could be varied or set aside by a panel of Court of Appeal judges. The Court noted that the appropriate course for the Banks, if unsuccessful in the Court of Appeal, would be to seek leave to appeal to the Supreme Court against the substantive decision, raising the alleged procedural errors as a ground of appeal. The Court concluded that it was not necessary in the interests of justice to hear and determine the appeal and dismissed the application for leave to appeal.

The Supreme Court's decision underscores the importance of following established procedures for challenging procedural orders in New Zealand's courts. The Court emphasised that the appropriate course for the Banks was to raise any alleged procedural errors as a ground of appeal in their substantive appeal to the Court of Appeal, rather than seeking leave to appeal against the procedural order itself. This decision serves as a reminder to litigants to carefully consider the appropriate avenues for challenging procedural orders and to follow established procedures to avoid unnecessary appeals.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established