D v H
[2024] NZHC 2718
•19 September 2024
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CIV-2024-412-31
[2024] NZHC 2718
UNDER the Defamation Act 1992 BETWEEN
[D]
Appellant
AND
[H]
Respondent
Hearing: 18 September 2024 (by AVL) Counsel:
Appellant in person
J W Cowan for Respondent
Judgment:
19 September 2024
JUDGMENT OF ASSOCIATE JUDGE LESTER
[D] v [H] [2024] NZHC 2718 [19 September 2024]
[1] The appellant disputes that the respondent filed a notice of opposition to an interlocutory application within time. With the appellant maintaining that position, the respondent was directed to file an application for leave to file the notice of opposition out of time if leave was required. The reference to “if leave was required” was to address the respondent’s primary submission that her opposition was filed within time. If that submission was not correct, then leave would be required.
[2] If I am satisfied the opposition was filed within time, that will overtake the application for leave.
[3] I am satisfied that the opposition was filed within time and I confirm the opposition was validly served on 26 June 2024. I now explain why I have reached that conclusion.
The significance of a physical address for service
[4] ‘Address for service’ is defined in r 1.3(1) of the High Court Rules 2016 (the Rules) as follows:
address for service, in relation to a party, means the address of a place in New Zealand at which a document may be left for that party, or to which it may be sent by post to that party, under these rules or, …
(The balance of the definition dealing with service in Australia).
[5]Rule 6.20, headed “Failure to give address for service”, provides:
A party to a contentious proceeding who has not given an address for service is not entitled to be served with notice of any step in the proceeding or with copies of any further documents filed in the proceeding or to address the court.
The appellant’s compliance or otherwise with the above Rules
[6]The notice of appeal filed by the appellant concludes as follows:
Documents for service related to this appeal may be emailed to the following email address: [email address given]
[7] On 8 May 2024, Preston J issued a Minute, noting the submission of counsel for the respondent, that the appellant had not filed a physical address for service and
sought a direction that a physical address be provided. The appellant was directed to file a notice of physical address for service by a given date. A document called “notice of physical address” was filed, albeit outside the time limit directed by Preston J, but nothing turns on that.
[8]The document filed by the appellant to meet Preston J’s direction provides:
THIS DOCUMENT NOTIFIES YOU THAT
[1]Pursuant to the direction of the Honourable Justice Preston made this past 8th Day of May, 2024, [D] hereby gives notice of the following physical address:
[physical address given]
Paragraph [2] of that document then provides:
[2]Pursuant to the High Court Rules 2006, r 5.40(5), [D] hereby specifies that any service of documents for the purpose of this proceeding is to be by way of email communication to the following email address:
[email address given]
(emphasis added)
[9] The email address given is the same as that given at the foot of the notice of appeal.
[10] Rule 5.40 is headed “Change of representation or address for service”. Rule 5.40(5) provides:
A party may change that party’s address for service by—
(a)filing a notice of the change showing the new address for service or specifying an address for a method of service set out in rule 6.1(1)(d); and
(b)serving a copy of the notice on every other party.
[11] Rule 5.40(5) does not a mean a party can specify an email address as their only means of service. If it did, it would render r 6.20, which requires that a physical address for service be provided, of no effect as r 6.20 could be avoided in the way the appellant has sought to achieve here. Rule 5.40(5) distinguishes between the address
for service and the method of service. Service takes place at the address for service
— how service is achieved depends on the extent to which a party has agreed to accept service at their address for service by one of the means in r 6.1(1)(d). Rule 6.1(1) provides:
6.1 Methods of service
(1)Any of the following methods may be used for serving a document that is required by these rules to be served:
(a)personal service:
(b)service at an address for service given in accordance with these rules:
(c)service at an address directed by the court as the address for service for the party or person:
(d)if the solicitor for the party or person, or the party or person, has, under rule 5.40(5)(a), 5.42(2)(b)(i), or 5.44(1)(e), specified a post office box address, document exchange box number, fax number, or email address,—
(i)by posting the document to that post office box address; or
(ii)by leaving the document at a document exchange for direction to that document exchange box number; or
(iii)by transmitting the document electronically to that fax number or email address:
…
(2)In any case not provided for by these rules, service must be effected by the method and at the place the court directs.
(3)This rule does not apply if an Act or a rule requires a special and exclusive method of service.
(4) This rule is subject to rule 6.1A.1 (footnote added)
[12] Personal service, that is, putting the papers into the hands of a party, is good service under r 6.1(1)(a), as is service at an “address for service”, that is, a physical address. Rule 6.1(1)(c) is self-explanatory. Rule 6.1(1)(d) permits a party to agree to
1 Rule 5.40(5) of the High Court Rules 2016 referred to in 6.1(1)(d) is set out above. Rule 5.42 applies where a solicitor has obtained an order that they cease to act and r 5.44(1)(d) is summarised in para [13] of the judgment.
a method of service in addition to those in r 6.1(1)(a) and (b). But, as I have said, these are additional methods of service to achieve service at the address for service. The methods of service that can be adopted under r 6.1(1)(d) are not referred to in terms of being alternative addresses for service. Again, address for service is defined in r 1.3 of the Rules. Similarly, r 6.7 headed “Service under agreement” provides “Service by a method agreed to in writing by a party is sufficient service on that party”. This is consistent with the view I have taken that the Rules draw a distinction between providing a physical address for service — the paramount requirement, with a party being able to agree to alternative methods of service.
[13] The notice filed by the appellant (set out at [8] above), did not comply with the direction of Preston J as it did not provide a physical address for service. It gave “notice of the …. physical address” but specified that service was to be by way of email. The appellant submits the notice complied with the Rules because of what is referred to as an election to be served by email. A party may provide an email address as an additional means of service but doing so does not remove the requirement to provide an address for service in terms of r 1.3 of the Rules. This is because r 5.44(1)(d) of the Rules provides that at the end of the first document filed by a party, there must be a memorandum providing an address for service and any post office box address or email and so on, by which the party in person will accept service. That service may be by email, in addition to an address for service, is optional. A physical address for service as defined in r 1.3 of the Rules must be provided.
[14]I issued a Minute on 26 June 2024 in which I said:
[3] While the document provided a physical address, the terms of para [2] of that document specifies that “any service of documents for the purpose of this proceeding is to be by email”, indicated that the physical address was not to be used for service and therefore not a physical address for service.
[15] The Minute of 26 June 2024, was the same date as a telephone conference at which the appellant confirmed the physical address given could be used as an address for service but the appellant preferred documents to be sent by email. It is not enough, as the appellant submits, to file a notice of physical address if it is accompanied (as here) by a direction that service is to be by email.
[16] Accordingly, it was not until 26 June 2024 that, in terms of r 6.20 of the Rules, the appellant was entitled to be served with any documents.
The timing of the service of the notice of opposition
[17] If having been confirmed on 26 June 2024 that the physical address provided could be used for service, I directed counsel for the respondent to send by email to the appellant all documents that had been filed. That meant that at the telephone conference on 26 June 2024, the appellant had not seen the opposition to the interlocutory application, leaving her at a disadvantage as to how that application should proceed.
[18] I directed there be a further telephone conference on 3 July 2024. I recorded that the purpose of that conference was for the appellant to advise whether she wished to abandon the interlocutory application and have the appeal set down or whether the appellant wished to pursue the interlocutory application.
[19] At the telephone conference on 3 July 2024, the appellant advised that she had not received the notice of opposition. Counsel for the respondent advised it had been emailed on 26 June 2024. During the telephone conference, I requested counsel for the respondent re-send the email, which during the telephone conference the appellant acknowledged receiving. Accordingly, the notice of opposition was received by the appellant on 3 July 2024.
[20] However, the appellant advised at the telephone conference on 3 July 2024 that she maintained the notice of opposition had been served out of time, leading to the application noted at [1] above.
[21] I advised the appellant that if her opposition to the application was unsuccessful there would be costs consequences.
When did the notice of opposition have to be served?
[22] The starting position is r 6.20 of the Rules. Until a physical address for service was provided, the appellant was not entitled to be served. That the address provided
in the document of 30 May 2024 was intended to be a physical address for service, was not confirmed until the 26 June 2024 telephone conference. Until that date, time for service was not running as the appellant was not entitled to be served.
[23]Rule 7.24(1) of the Rules provides:
(1)A respondent who intends to oppose an application must file and serve on every other party a notice of opposition to the application—
(a)before the end of the tenth working day after being served with the application; and
(b)no less than 3 working days before the hearing date.
[24] The interlocutory application when served did not have a first call date inserted.
[25] I am satisfied that the time limits in r 7.24(1) apply from when a party is entitled to be served, that is, when they have provided an address for service that complies with the Rules.
[26] The appellant was only entitled to be served upon confirming on 26 June 2024 that the physical address provided could be used for service. It follows the 10 days in r 7.24 ran from 26 June 2024, therefore service of the notice of opposition on 3 July 2024 was valid service within time.
[27] Accordingly, I find that the notice of opposition was served within time. The appellant’s opposition to this application was primarily on the basis that the respondent failed to comply with r 7.24(1) of the Rules and did so intentionally and on that basis an application for an extension of time should be declined. However, that submission presupposes that the appellant was entitled to be served with the opposition before filing a physical address for service and the related point that time had started to run under r 7.24. I do not accept the appellant’s submissions for the reasons I have set out above.
On that basis, I need not rule on the application to extend time.
[29] The respondent has been successful and is entitled to costs on a 2B basis in respect of having to make the application, together with disbursements as fixed by the Registrar.
[30] I direct pursuant to r 7.48 of the Rules that if the appellant does not pay the costs within 15 working days of them being fixed and sealed, a copy of the cost order having been served on the appellant, that the appeal will be stayed until the costs are paid.
Associate Judge Lester
Solicitors:
Anderson Lloyd, Dunedin (for Respondent)
Copy to:
[D] (self-represented Applicant)
0
0