Chatha v Attorney-General - [2009] NZCA 594

IN THE COURT OF APPEAL OF NEW ZEALAND
CA739/2008
[2009] NZCA 594
BETWEENARSHAD MAHMOOD CHATHA

Appellant

ANDTHE ATTORNEY-GENERAL

First Respondent
ANDLESLIE STRINGER

Second Respondent
ANDTHE NEW ZEALAND POLICE

Third Respondent
ANDLAND TRANSPORT NEW ZEALAND

Fourth Respondent
ANDGRAHAM TOPPING

Fifth Respondent
ANDJOHN HUTTON

Sixth Respondent

Hearing:1 December 2009

Court:William Young P, Chambers and Ellen France JJ
Counsel:Appellant in person

J K Gorman for 1st, 3rd, 4th and 6th Respondents
No appearance for 2nd Respondent
D G Dewar for 5th Respondent

Judgment:15 December 2009 at 3 pm

JUDGMENT OF THE COURT

AThe appeal is dismissed for want of jurisdiction.
BNo order as to costs.

REASONS OF THE COURT
(Given by Ellen France J)
Introduction
[1]        Mr Chatha seeks various procedural orders. His applications are made in the context of an appeal against decisions culminating in the strike out by the High Court of the majority of the causes of action in these proceedings. There is, however, an initial question as to whether Mr Chatha has a right of appeal to this Court or whether he first needs to seek leave to appeal from the High Court.
[2]        As will be seen, we have concluded Mr Chatha has filed his appeal in the wrong court. If he wishes to pursue this matter, he will first have to seek leave to appeal out of time in the High Court.
Chronology
[3]        We need to briefly set out the events leading up to the applications currently before the Court.
[4]        In October 2006, Mr Chatha began proceedings against the six respondents. His claim included allegations of malicious prosecution and misfeasance in public office. All but the third respondent applied to have the proceedings struck out.
[5]        In a decision delivered on 2 May 2008, Associate Judge Gendall struck out the causes of action except those relating to the third respondent: HC PMN CIV 2006-454-868. Mr Chatha was ordered to give security for costs to the third respondent in the sum of $20,000. Security for costs has not been paid.
[6]        Mr Chatha applied for a review of Associate Judge Gendall’s decision on 9 May 2008.
[7]        The application for review was set down for hearing on 21 November 2008. On 12 November 2008, Ronald Young J considered and declined Mr Chatha’s application for the Judge to recuse himself from hearing the application for review. The following day, Ronald Young J declined Mr Chatha's application to adjourn the review hearing which, by then, had been moved to 19 November 2008.
[8]        On 17 November 2008, Mr Chatha sought to file a notice of appeal against Ronald Young J’s two decisions. The notice was rejected because it had been filed by email. The registry officer also advised Mr Chatha that this Court’s jurisdiction depended on the matter having been dealt with by the Associate Judge in open court not in chambers.
[9]        Ronald Young J heard the application for review of the Associate Judge’s decision and, on 20 November 2008, delivered judgment upholding the decision of Associate…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Chatha v Attorney-General

Details

AGLC: Chatha v Attorney-General [2009] NZCA 594
Case: [2009] NZCA 594
Decision Date: 15 December 2009

CaseChat Overview and Summary

In the appeal of Chatha v Attorney-General, the Court of Appeal of New Zealand dismissed Mr Chatha's appeal for want of jurisdiction. The appeal arose from the High Court's decision to strike out the majority of causes of action in the proceedings against the Attorney-General, among others. Mr Chatha's application for review of the Associate Judge's decision to strike out the causes of action was also dismissed. The appeal raised questions about whether Mr Chatha had the right to appeal directly to the Court of Appeal or if he needed to seek leave from the High Court first.

The legal issues before the Court were whether Mr Chatha's appeal was properly filed in the Court of Appeal or if he needed to seek leave to appeal from the High Court. The Court of Appeal considered the relevant provisions of the Judicature Act 1908, which state that a High Court review of a decision made by an Associate Judge in chambers is final unless the High Court grants leave or the Court of Appeal grants special leave for an appeal.

The Court of Appeal concluded that Mr Chatha's attempt to appeal the interlocutory decisions of the High Court Judge must also be subject to obtaining leave. The Court found that it would be inconsistent to allow an appeal from the interlocutory decisions without leave while requiring leave for the substantive decision. The Court also noted that Mr Chatha's complaint ultimately related to the substantive decision, which is subject to the requirement of leave under section 26P(1AA) of the Judicature Act.

The Court of Appeal dismissed the appeal for want of jurisdiction and did not consider the other applications made by Mr Chatha. The Court found that the matters raised by Mr Chatha in support of an adjournment did not warrant an adjournment in circumstances where there had already been considerable delays in relation to the appeal. The Court made no order for costs.

Orders