Cooney v Rosenfield HC Auckland CIV 2010-404-2484
[2010] NZHC 1682
•2 July 2010
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV 2010-404-002484
BETWEEN JOHN ROBERT COONEY Appellant
ANDROSENFIELD KIDSON & CO LTD Respondent
Hearing: 1 July 2010
Appearances: J R Cooney in Person
B Pamatatau for the Respondent
Judgment: 2 July 2010 at 3:00 pm
JUDGMENT OF WYLIE J
This judgment was delivered by Justice Wylie on 2 July 2010 at 3:00 pm
pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
Solicitors/Counsel:
Alistaire Hall Lowers, P O Box 76 154, Manukau 2241
B Pamatatau, P O Box 2422, Shortland Street, Auckland 1140
Copy to:
J R Cooney, 50 Prices Road, Manukau 2025
J R COONEY V ROSENFIELD KIDSON & CO LTD HC AK CIV 2010-404-002484 2 July 2010
[1] The appellant, Mr Cooney, has appealed against an order of Judge Andrèe Wiltens given in the District Court at Manukau on 12 March 2010. The order struck out a statement of defence and counterclaim that Mr Cooney had filed and entered judgment against him.
[2] The respondent, Rosenfield Kidson & Co Ltd (“Rosenfield”), opposes the appeal.
Background
[3] Rosenfield is a timber merchant and importer. In August 2009, it commenced proceedings in the District Court at Manukau seeking to recover the sum of $22,246.95 it says is owing to it by Mr Cooney in respect of the supply of timber between November 2008 and April 2009. It says that the timber was supplied pursuant to a written agreement for terms of credit and trade between it and Mr Cooney, whereby Mr Cooney agreed to pay on the 20th of the month following the issue of an invoice.
[4] In September 2009, Mr Cooney filed a statement of defence and counterclaim. The document is unsatisfactory. He admitted the written contract, but denied that:
a) the timber had been supplied to him;
b) he had been invoiced; and
c) he had not paid the invoiced sum.
He went on to assert by way of counterclaim that the timber provided by Rosenfield was defective, and that as a result, he has incurred costs and suffered damage.
[5] Rosenfield filed a statement of defence to the counterclaim. Amongst other things, it asserted that Mr Cooney in his counterclaim had acknowledged that the timber was supplied to him. It noted Mr Cooney’s denial that he did not pay the
invoiced amount and asserted that he has definitely not paid the amount outstanding. In regard to Mr Cooney’s claim that the timber was defective, it referred to a clause in the terms of credit and trade which it stated read as follows:
The purchaser shall be responsible for the inspection of the goods and notification to the supplier of any damage or short supply and the goods will be deemed to have been delivered complete and in good condition unless the supplier is notified within seven days after the date of delivery. ...
It denied that it had supplied any defective timber to Mr Cooney and asserted that the timber supplied by it complied with the relevant specifications. It also referred to another clause in the terms of credit and trade which it stated read as follows:
The maximum extent of the supplier’s liability shall be to replace faulty goods and the supplier shall not be liable for any consequential losses whatsoever.
[6] Rosenfield took the view that the statement of defence filed by Mr Cooney was evasive, and that it did not answer the assertions made in the statement of claim. In a memorandum addressed to the District Court dated 17 February 2010, it sought that the defence and counterclaim should be struck out, and that judgment should be entered in its favour.
[7] Following a case management conference on Monday, 22 February 2010, Judge Andrèe Wiltens gave the following directions:
1.Defendant to file a full and complete Statement of Defence within 7 days.
2. Defendant to file a full and complete counterclaim within 7 days.
3.Unless that is done by 5pm 1/03/2010, there will be orders striking out the current defence pleadings and entering summary judgment for the plaintiff in the full amount claimed.
[8] The amended statement of defence and counterclaim should have been filed on Monday, 1 March 2010. They were not. Rather, they were filed on Tuesday,
2 March 2010.
[9] The matter was referred to the Judge, and on 12 March 2010, he made the following order:
Statement of Defence and Counterclaim are struck out. The amended documents really take the matter no further and were filed too late. Judgment for the plaintiff $22,246.95. Plaintiff to file memorandum as to further costs and/or interest.
[10] On 26 April 2010, Mr Cooney filed a notice of appeal in respect of this order. The grounds for appeal are as follows:
1.That the Judge unfairly ruled my Amended Statement of Defence out of time and failed to take account of a strike by court staff.
2. That my defence was dismissed without hearing my claim.
[11] The notice of appeal was also filed out of time.
Extension of time for filing appeal in this Court
[12] Section 72 of the District Courts Act 1947 confers a general right of appeal. It reads as follows:
72 General right of appeal
(1)This subsection applies to every decision made by a District Court other than a decision of a kind in respect of which an enactment other than this Act—
(a) expressly confers a right of appeal; or
(b) provides expressly that there is no right of appeal.
(2)A party to proceedings in a District Court may appeal to the High Court against the whole or any part of any decision to which subsection (1) applies made by the District Court in or in relation to the proceedings.
[13] Although it is not stated in Mr Cooney’s notice of appeal, the appeal in this case is brought under s 72.
[14] Part 20 of the High Court Rules 2008 governs appeals from the District
Court. Rule 20.4 states:
20.4 Time for appeal if there is right of appeal
(1) This rule applies if a party has a right of appeal to the court. (2) An appeal must be brought—
(a) within the specified period if the enactment that confers the right of appeal specifies a period within which the appeal must be brought; or
(b) in every other case, within 20 working days after the decision appealed against is given.
(3) By special leave, the court may extend the time prescribed for appealing if the enactment that confers the right of appeal—
(a) permits the extension; or
(b) does not limit the time prescribed for bringing the appeal. (4) An application for an extension—
(a)must be made by an interlocutory application on notice to every other party affected by the appeal; and
(b)may be made before or after the expiry of the time for appealing.
[15] The rule applies, because Mr Cooney had a right of appeal to the High Court under s 72 of the District Courts Act. Rule 20.4(2) requires that any appeal must be brought within the specified period if the enactment that confers the right of appeal specifies a period within the appeal must be brought, or alternatively within 20 working days after the decision appealed against is given.
[16] There is nothing in the District Courts Act specifying a period within which an appeal from that Court must be brought. Nor is there anything in the District Courts Rules 2009. It follows that the appeal must be brought within 20 working days after the decision appealed against was given.
[17] Here, Judge Andrèe Wiltens’ order was made on 12 March 2010. The appeal was not brought until 26 April 2010. It was 11 days out of time.
[18] The Court may extend the time prescribing for appealing if the enactment that confers the right of appeal permits the extension or does not limit the time prescribed for bringing the appeal — r 20.4(3).
[19] Here, the District Courts Act does not permit an extension. Nor does it limit the time prescribed for bringing the appeal. It follows that the Court has power to extend the time prescribed for appealing by special leave under r 20.4(3).
[20] Mr Cooney has not applied by way of interlocutory application for special leave to extend the prescribed time. Rather his notice of appeal contains the following paragraph:
Appeal out of time
When I first attempted to file the appeal it was within the time for appeal. My paper work was not correct and wasn’t accepted. I was advised that I could apply for a rehearing in the District Court. I made this application. They advised that it had to be filed in the High Court. This resulted in the delay.
[21] The procedure for applying for special leave to extend the time prescribed for filing of an appeal is mandatory — see Sharma v Askelund.[1] An application must be made by way of interlocutory application on notice to every other party affected by the appeal. The application should be supported by an affidavit which provides an explanation for the failure to bring the appeal in time — see Ilich v Commissioner of Inland Revenue.[2]
[1] [2004] 17 PRNZ 853 (HC).
[2] (2010) 24 NZTC 24,093 (HC) at [20].
[22] Mr Cooney is self-represented. Initially I was minded to adjourn his substantive application and direct that he could, if he chose, file an application for special leave pursuant to r 20.4(3). I was prepared to grant him that indulgence because he is a lay litigant, and, in my view, it would have been appropriate to have given him the opportunity to bring an application for special leave. However, Mr Pamatatau for Rosenfield advised that his client would prefer to get on and deal with the more significant issue, namely — should Judge Andrèe Wiltens’ order made
on 12 March 2010 be set aside. He expressly consented to the appeal being brought out of time, and accepted that there was no prejudice to his client.
[23] In my view, that was a sensible and pragmatic concession and I am grateful to Mr Pamatatau for the same.
[24] Accordingly, I extend the time prescribed for appealing to 26 April 2010, and proceed to deal with the issue raised by Mr Cooney’s notice of appeal.
Notice of appeal – unless order
[25] An unless order is an order that provides for automatic consequences should a party fail to comply with it. It can be made in the exercise of the Court’s inherent jurisdiction.
[26] While the District Court does not have inherent jurisdiction, it has implied powers to do whatever is necessary to enable it to exercise the functions, powers and duties conferred on it by statute.[3] It follows that unless orders can be made by the
District Court — see Zhao v Wallace.[4]
[3]McMenamin v Attorney-General [1985] 2 NZLR 274 (CA).
[4] [2009] DCR 55 at [44]–[45].
[27] The leading case in respect of unless orders is Ko v Ko.[5] Having considered the principles discussed in Hytech Information Systems Ltd v Coventry City Council,[6] Paterson J noted at [18] as follows:
[5] (2000) 14 PRNZ 362 (HC).
[6] [1997] 1 WLR 1666 (CA).
An “unless order” is an order of last resort. Case management principles should not in ordinary circumstances override the justice of the situation but in a situation where a judicial officer has felt compelled to make an “unless order”, unless it can be established that there were no grounds for making such an order or that reasons beyond the party's control caused non- compliance, the order should be upheld. An “unless order” is a last chance order and counsel must be aware that non-compliance with it will in normal circumstances bring the proceedings to an end. It is only in extreme circumstances, which will normally require evidence that the non- compliance was caused by something beyond the control of the party, that a Court should intervene and set aside the order. This is particularly so in a case such as the present one where counsel, knowing that the order was an
“unless order”, did not apply before the expiry of that order for an extension of time to comply with it. In the circumstances of this case, such an extension may not have been granted but the failure to apply may arguably in this case be another example of the manner in which the plaintiff has treated Court orders. It would seriously reduce the value of “unless orders” if the defaulting party could without adequate explanation and without evidence of intervening extraneous circumstances have such orders set aside.
[28] In Anderson v Mainland Beverages Ltd,[7] the Court of Appeal considered that unless orders should “generally be reserved for cases where breach or continued breach is objectively measurable and unchallengeable.” A failure to file a particular document by a particular day was given as an example of a proper subject of an unless order. The Court also cited Re Jokai Tea Holdings Ltd,[8] where it was stated that:
… The rationale of such penalty being that it is contumelious to flout the order of court, if a party can explain convincingly that outside circumstances account for the failure to obey the peremptory order and that there was no deliberate flouting of the court’s order, his conduct is not contumelious and therefore the consequences of contumely do not flow.
[7] (2005) 17 PRNZ 757 (CA).
[8] [1992] 1 WLR 1196 at 1202.
[29] The sanction for failure to comply with unless orders was discussed in Jarden v Lawlor.[9] The Court held that it has an inherent jurisdiction to reinstate proceedings which have been struck out for want of compliance with unless orders. In exercising its discretion in such a situation, the Court:[10]
[9] (1998) 12 PRNZ 516 (HC).
[10] At 517
must have regard to the reasons for the default and the explanation for the same, the general merits or otherwise (at least on an interlocutory basis) of the claim or defence, and the considerations of overall justice which would include consideration of prejudice to the other parties to the proceedings.
The Court also observed at 518 that:
It is a draconian step to have a claim struck out for failure to comply with procedural orders of the Court. Nevertheless that is a reality of litigation over recent times.
[30] I have no doubt but that Judge Andrèe Wiltens was correct to make an unless order on 8 March 2010. Mr Cooney has previously failed to file documents on time. In particular, as at 22 February 2010, he had failed to comply with a notice for discovery, and had failed to file and serve a verified list of documents.
[31] Since that time, Mr Cooney has failed to take other steps in a timely or appropriate fashion.
a) He failed to comply with the unless order by not filing and serving his amended statement of defence and counterclaim on time.
b)He failed to apply for an extension of time to comply with the unless order.
c) I am advised by Mr Pamatatau that he failed to serve the amended statement of defence and counterclaim on Rosenfield at all.
d) He failed to bring his appeal to this Court within time.
e) He has failed to serve a chronology and submissions in breach of directions made by Asher J on 11 May 2010.
[32] Judge Andrèe Wiltens’ order made on 22 February 2010 clearly stated the consequence of non-compliance. Mr Cooney cannot claim to be taken by surprise. The question becomes whether or not I, in the exercise of my inherent jurisdiction, should reinstate the proceedings which have been struck out for failure to comply with the unless order.
[33] It is clear from Ko v Ko that it is only in extreme circumstances, which normally require evidence that non-compliance was caused by something beyond the control of the party, that a Court should intervene and set aside an unless order.
a) In an initial affidavit filed together with the notice of appeal sworn on
26 April 2010, he stated as follows:
2I was at the Manukau District Court to get a copy from the court file. This was the day that the Amended Statement of Defence had to be filed as directed by the judge.
3While in the Civil Section I was told that the court staff were walking out on a stop work protest.
4I had planned to file the Amended Statement that day but because of the stop work walkout I decided to file it the next day.
5The amended claim would have been filed on time had it not been for the industrial action by court workers and the Judge failed to take account of the information I was given in regards to the industrial action.
(emphasis added)
b) In a further affidavit dated 1 June 2010, Mr Cooney stated as follows:
2That on Monday the first day of March I had set aside time to complete and file an amended statement of defence at Manukau District Court.
3I could not locate my original statement of defence so I went to the Manukau Court at approximately mid day to obtain a copy of the file.
4I was given a copy and then was told that the court staff were walking out for a stop work protest over their pay dispute.
5I was aware from media reports that there had been ongoing stop work protests over a period of time concerning pay disputes.
6I had the amended statement ready for filing and filed it the following morning.
(emphasis added)
[35] At the hearing, Mr Cooney produced a number of emails which had passed between him and registry staff at the Manukau District Court. One of the emails from the Registrar reads as follows:
Dear Mr Cooney
Thank you for your email.
Your email will be forwarded to the Judge. Although our court staff were on strike on Monday 1st March 2010, the Civil Department had 2 court staff serving the counter and they are not part of the union that walked out on Monday. I was told that you came in on Monday and asked for a copy of the Statement of Defence and Counterclaim and then you left.
(emphasis added)
[36] I have considered the reasons advanced by Mr Cooney for his delay. I accept that the strike by a number of members of the Court staff was an unusual circumstance. However, it is clear from what Mr Cooney told me in Court, and from the Registrar’s email, that the civil counter was manned. Mr Cooney could have filed the statement of defence within the time specified and he could have complied with the unless order. I glean from Mr Cooney’s affidavit of 26 April 2010 that he “decided to file [the documents] the next day”. This can also be inferred from his affidavit of 1 June 2010. I cannot see that Mr Cooney’s non-compliance was beyond his control. Rather, he seems to have made a unilateral decision to delay filing the document. In my judgment, Mr Cooney’s affidavits do not explain convincingly circumstances that account for his failure to obey Judge Andrèe Wiltens’ peremptory unless order. Rather, it seems to me that Mr Cooney has contumeliously chosen to flout the Court order made on 22 February 2010.
[37] I have also considered the merits of the amended statement of defence and counterclaim belatedly filed by Mr Cooney. The documents do not advance matters significantly beyond those initially filed. Mr Cooney continues to deny that Rosenfield supplied timber to him or that he was invoiced, even though other parts of the pleading acknowledge that timber was supplied and that there were invoices. He continues to deny that he did not pay the invoiced sum. He does not address any of the matters raised by Rosenfield in its statement of defence to the counterclaim or in its memorandum to the District Court dated 17 February 2010.
[38] I have endeavoured to balance the overall justice of the case. It is difficult to do so in the limited context of this appeal hearing. Nevertheless, I am mindful of the following:
a) The timber was supplied between November 2008 and April 2009.
b)It is clear from what Mr Cooney told me, and from photographs he presented to me at the hearing, that the timber has been used by him. Presumably Mr Cooney has been paid either in whole or in part for his work.
c) Rosenfield has been waiting for some considerable time for payment.
The first invoice was dated 25 November 2008. It was in the sum of
$12,102.65.
d)While I have not seen the document, according to the pleadings, the terms of the written agreement for terms of credit and trade are reasonably clear. Mr Cooney admits that this document was signed and he has not disputed the existence of the terms relied on by Rosenfield.
e) The overall impression I get from reading the papers is that
Mr Cooney has endeavoured to delay matters at every turn.
f) If Mr Cooney wishes to bring separate proceedings against
Rosenfield, then he is entitled to do so.
[39] In the circumstances, it seems to me that the overall justice of the case requires that Judge Andrèe Wiltens’ order made on 12 March 2010 should stand. Rosenfield has been out of its money for some time. Mr Cooney has failed to make payment. He failed to comply with a timetable set by the District Court, notwithstanding that he must have been aware of the consequences of flouting the unless order.
[40] Accordingly, I dismiss Mr Cooney’s appeal.
Costs
[41] Rosenfield is entitled to costs, and to its reasonable disbursements.
[42] I fix costs on a 2B basis. If there is any dispute regarding calculation of the same, it can be referred to me.
Wylie J
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