Chang-Hooker v Rooke
[2012] NZHC 1747
•18 July 2012
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2011-404-6074
CIV-2012-404-2106 [2012] NZHC 1747
BETWEEN SANDY CHANG-HOOKER Appellant
ANDDAVID JOHN ROOKE Respondent
Hearing: 14 June 2012
Counsel: Ms Chang-Hooker in person
D Wu for Respondent
Judgment: 18 July 2012
In accordance with r 11.5, I direct the Registrar to endorse this judgment with the delivery time of 3.00pm on the 18th July 2012.
RESERVED JUDGMENT OF GODDARD J
Solicitors:
Ms Chang-Hooker, 33 Kilimanjaro Dr, Howick, Auckland, email: [email protected]
SANDY CHANG-HOOKER V DAVID JOHN ROOKE HC AK CIV-2011-404-6074 [18 July 2012]
[1] This is an application by Ms Chang-Hooker to set aside the judgment of Brewer J issued on 13 March 2012, dismissing an application by Ms Chang-Hooker for leave to appeal out of time in respect of a judgment and various consequential decisions given in the District Court at Manukau.
[2] The judgment at issue, which was the subject of the various subsequent decisions, was a claim by Mr Rooke for payment of fees owing since 2005 for High Court and Family Court proceedings in which he had represented Ms Chang-Hooker. It is important to note that there is no evidence of any challenge to those fees ever having been mounted with the Law Society and no costs revision appears to have been sought or obtained.
History
[3] On 22 November 2010, Mr Rooke obtained judgment in the District Court at Manukau against Ms Chang-Hooker in the sum of $22,512.71, comprising the balance of $9,478.20 owed for legal services billed in 2005, plus interest and costs. The judgment was entered after Ms Chang-Hooker had taken no steps to file a response to the claim or an information capsule. Judgment was entered by a Deputy Registrar and sealed the same day.
[4] On 18 January 2011, Judge Andree Wiltens, after considering a memorandum filed by Mr Rooke on 12 October 2010, struck out a counterclaim subsequently filed by Ms Chang-Hooker.
[5] Ms Chang-Hooker then applied to set aside the 22 November 2010 judgment. At an interlocutory hearing on 27 June 2011, Judge Andree Wiltens made the following orders and directions:
1. Applicant wants to proceed – will do it herself;
2. To file submissions by 11/07/2011;
3. Respondent to respond by 18/07/2011;
4. Two (2) hours hearing required to be set by Registrar;
5. Costs to Respondent for today, memorandum to be filed in 14 days.
[6] On 28 July 2011, Judge Andree Wiltens made the following further directions:
1. Costs fixed at $2,051 to be paid by defendant within 14 days.
2. In default defence application to be struck out.
[7] On 16 September 2011, after failing to pay the costs as directed, Judge Andree Wiltens struck out Ms Chang-Hooker’s application to set aside the judgment of 22 November and ordered her to pay costs totalling $7,775.29 in the following terms:
1. Costs were to be paid 14 days from 25/07/2011;
2. In default, the defendant’s action to set aside the judgment was to be
struck out;
3. Costs have not been paid;
4. Application to set aside therefore struck out;
5. Costs to plaintiff $7,775.29.
[8] Her application to set aside the default judgment having failed, Ms Chang- Hooker then sought the leave of this Court to appeal out of time the 22 November
2010 judgment, and also the decisions of 18 January, 27 June and 28 July 2011 that had followed consequent upon her non-compliance with lawful orders. She also sought to stay execution of those decisions pending the hearing of her appeal against the judgment of 22 November 2010.
[9] Ms Chang-Hooker filed her notice of appeal on 30 September 2011. The grounds stated were that the determinations of Judge Andree Wiltens were wrong in fact and in law. Ms Chang-Hooker also requested a stay of execution as Mr Rooke had advised her in writing on 21 September 2011 and he intended to take bankrupt proceedings against her.
[10] On 1 November 2011, Ms Chang-Hooker and Mr Rooke appeared before Wylie J, who directed that the appeal was to be heard on Thursday 22 March 2012, noting that the time for the hearing was estimated by Ms Chang-Hooker to be one day and classifying the appeal as Category 2 for costs purposes. Security in the sum of $1,880 was also ordered, to be paid within 10 working days or the appeal would be treated as abandoned and dismissed without any further call before the Court.
[11] In passing, Wylie J noted the notice of appeal was manifestly deficient and did not contain any detailed points on appeal and directed Ms Chang-Hooker to file and serve detailed points of appeal within 10 working days. Ms Chang-Hooker complied with those directions.
[12] Ms Chang-Hooker’s application for leave to appeal out of time in respect of the 22 November 2010 judgment and the further decisions of the District Court was set down for hearing in the High Court on 13 March 2012. Mr Rooke appeared on that date but Ms Chang-Hooker failed to appear. In the course of dismissing the application, Brewer J made the following pertinent observations:
I have had an opportunity to read the papers prior to coming to Court. Ms Chang-Hooker had an insurmountable task on the papers because, firstly, there are inadequate explanations as to why appeal rights were not exercised within time and, secondly, the merits she puts forward are not able to be adjudicated properly on appeal.
I further note there is one appeal which is within time. It relates to the last of the series of decisions, made in the District Court on 16 September 2011. That appeal is due to be heard in this Court on 22 March 2012. If it is successful, it might give Ms Chang-Hooker a means of re-opening the chain of earlier decisions in any event.
However, on the merits, Ms Chang-Hooker is essentially saying that Mr Rooke has deliberately breached District Court Rules and has, in her words, lied to the Court on purpose. In essence, she is submitting that he has obtained decisions of the Court through fraud. Where those sorts of allegations are made, the proper course is not to seek to appeal to a higher Court but to file fresh proceedings in the Court in which it is alleged the fraud was committed and then seek to prove the fraud. Of course, failure to do so will meet a stern response when it comes to costs.
In these circumstances, I am satisfied there is no point in the applications proceeding and I dismiss them accordingly.
[13] On 22 March 2012, the parties appeared before Hansen J. Ms Chang-Hooker had not, at that stage, filed an application to set aside the judgment of Brewer J, although she signalled her intentions to do so. Mr Rooke sought to persuade Hansen J to proceed to determine the one decision of the District Court (the decision of Judge Andree Wiltens of 16 September 2011) that was not out of time and thus did not require the leave of the Court to appeal out of time. Hansen J expressed the view that there was no prospect of that particular appeal succeeding while the earlier decisions stood. Therefore he declined to deal with the appeal from that decision only and adjourned the hearing to await the disposal of any challenge to Brewer J’s judgment.
[14] On 20 April 2012, Ms Chang-Hooker filed notice of applications for Orders in the following terms:
a)Re-instate Appellant’s Application for Leave to Appeal out of time dated 14 Nov 2011
b) Re-instate Appellant’s Application for Stay Of Execution of
Judgment dated 14 Nov 2011
c) Set Aside Judgment of Brewer J dated 13 March 2012
d) Rehearing of All Interlocutory Applications scheduled on 13 March
2012.
[15] The application to set aside Brewer J’s decision was called before Wylie J on
1 May 2012. Ms Chang-Hooker did not initially appear and Wylie J stood the matter down to the end of the list. When Ms Chang-Hooker entered her appearance late, she explained that she had been delayed by a traffic accident. She was advised by Wylie J about the necessity for prompt attendance at Court hearings. Further timetable orders were made.
The application to set aside Brewer J’s judgment
[16] Ms Chang-Hooker appeared on this matter before me on 14 June 2012. Mr Rooke was represented at the hearing by Mr Wu.
[17] Although the hearing was confined to a consideration only of the question as to whether Brewer J’s judgment of 13 March 2012 should be set aside, necessarily the consideration extended to the historical context of the matters that brought Ms Chang-Hooker and Mr Rooke to this hearing and that I have traversed also.
[18] Ms Chang-Hooker frankly advised the Court that she had incorrectly diaried the date of the hearing that proceeded before Brewer J and that is why she did not appear on that day. She said she had prepared extensive submissions for the occasion and was devastated when she realised that she had made a mistake resulting in her failure to appear. However, against that, it is necessary to note that Ms Chang- Hooker was fully aware of the date set for the hearing, as was Mr Rooke who did appear.
[19] The law relating to the setting aside of a judgment following non-appearance is provided for by r 10.9 of the High Court Rules as follows:
Judgment following non-appearance may be set aside
Any verdict or judgment obtained when one party does not appear at the trial may be set aside or varied by the court on any terms that are just if there has, or may have been, a miscarriage of justice.
[20] The underpinning principle is therefore that judgment following non- appearance by a party may only be satisfied where there has, or may have been, a miscarriage of justice.
[21] The test for miscarriage of justice, as laid down by the Court of Appeal in Russell v Cox1 and confirmed in Mathieson v Jones2 was helpfully referred to the Court by Mr Wu. Mr Wu also referred to the seven factors that are considered by the Courts in relation to miscarriage of justice, as set out in the leading cases of Jones v
Chatfield3 and Vermeulen v Department of Health.4
1 Russell v Cox [1983] NZLR 654.
2 Mathieson v Jones CA 198/92, 11 December 1992.
3 Jones v Chatfield [1993] 1 NZLR 617.4 Vermeulen v Department of Health HC Whangarei A76/85, 6 December 1991.
[22] Applying those principles to Ms Chang-Hooker’s application, it cannot be said that her failure to appear before Brewer J was excusable, particularly when she was present at the time the hearing date for the application was allocated.
[23] The failure to appear before Brewer J finds context in the history of the proceedings from the time that judgment by default was entered by a Deputy Registrar in the District Court on 22 November 2010, followed by Ms Chang- Hooker’s history of non-responsiveness to court proceedings and to orders and directions lawfully made. While she proffered numerous excuses during the hearing before me relating to those omissions and oversights, these were not prima facie plausible as in the main they were assertions that she had never received notifications from the District Court and thus was unaware of any orders for timetabling or dates for compliance with directions made.
[24] In relation to a defence to the entering of judgment on 22 November 2010 and whether that has substance, there are further considerable difficulties. The various decisions of the District Court against which Ms Chang-Hooker wishes to appeal all relate to that one matter: that is, the non-payment of legal fees incurred by her in 2005 following Mr Rooke’s representation of her in the High Court and the Family Court. As I noted at the outset, there has been no appropriate challenge to those fees having been properly incurred. They should properly have been the subject of a costs revision. It is difficult to see how the High Court can now sensibly adjudicate on a fees dispute and I agree with the observations of Brewer J that an “insurmountable task” faces Ms Chang-Hooker on the papers.
[25] In contrast to her conduct, Mr Rooke appears to have taken all proper steps in accordance with required procedure and has been successful at every step of the way. He deserves finality. I concur with Brewer J’s decision to dismiss Ms Chang- Hooker’s applications for leave to appeal out of time when she failed to appear, rather than simply adjourning them to a further date. To allow a further indulgence would amount to permitting an abuse of the Court processes, and only to delay what appears to be an inevitable outcome.
[26] I have not overlooked that one of Ms Chang-Hooker’s appeals is not out of time. That concerns the decision of Judge Andree Wiltens of 16 September 2011 to strike out Ms Chang-Hooker’s application to set aside the judgment of 22 November
2010. If Ms Chang-Hooker still wishes to pursue that matter, then that is her decision. It will be for her to carefully consider whether a decision to persist in pursuing that appeal is meritorious.
Conclusion
[27] The application to set aside the judgment of Brewer J dated 30 March 2012 is dismissed.
[28] Costs are ordered on a Category 2B basis.
Goddard J
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