Gibson v Official Assignee

[2016] NZCA 93

IN THE COURT OF APPEAL OF NEW ZEALAND

CA17/2016
[2016] NZCA 93

BETWEEN	NEVILLE JAMES GIBSON Appellant
AND	THE OFFICIAL ASSIGNEE Respondent

Counsel:

Appellant in person

Judgment:

(On the papers)

5 April 2016

JUDGMENT OF THE HON JUSTICE KÓS

The application for review of the Deputy Registrar’s decision (not to accept a stay application for filing) is declined. 

____________________________________________________________________

REASONS

1. Either this Court or the court appealed from may order stay of execution of judgment under r 12 of the Court of Appeal (Civil) Rules 2005, pending an appeal to this Court.  May the Registrar refuse to accept for filing a stay application because it has not first been filed and dealt with in the court appealed from? 

2. Mr Gibson filed a notice of appeal against a costs decision of Woodhouse J in the High Court at Auckland.[1]  On 19 February 2016 he sought to file a stay application in this Court.  The Deputy Registrar refused to accept it for filing on the basis that application should first be made in the High Court.

   [1]Gibson v Official Assignee [2015] NZHC 3200.

3. Mr Gibson then filed another application for stay on 26 February 2016.  I treat that as an application for review of the Deputy Registrar’s decision.

This Court’s practice and procedure on stay applications

1. The Deputy Registrar’s refusal to accept the application for filing was based on the judgment of this Court in Salem Ltd v Top End Homes Ltd.[2]  There Chambers J said:

   [15]     … the application for stay was filed in this court rather than the High Court.  While the rules provide that this court has concurrent originating jurisdiction with the High Court in this area, applications for stay should, save in special circumstances, be filed, at least initially, in the High Court, not this court.  This is the current practice, both here (McGechan on Procedure at [CA 9.01(3)]) and in the United Kingdom (Ketchum International plc v Group Public Relations Holdings Limited [1996] 4 All ER 374 (CA) at 381). This court is under immense pressure. Stay applications, at least in the first instance, should not tie up three judges, as is inevitable if the originating application is made to this court. Further, filing in this court means that any hearing will generally have to take place in Wellington. We agreed, at Top End’s request and with Salem's consent, to deal with this application on the papers, to save the parties costs. Mr Bell, for Top End, advised that Top End’s “means are stretched”, with the consequence that it wished to avoid the cost of an oral hearing, and, in particular, the cost of sending counsel to Wellington. Had this application been filed in the High Court at Whangarei, where the summary judgment application was heard, where the parties’ directors reside, and where Top End’s lawyer practises, an oral hearing at little cost could have been swiftly arranged.

   [2]Salem Ltd v Top End Homes Ltd (2005) 18 PRNZ 122 (CA). 

2. In M v Hawke’s Bay Standards Committee Stevens J applied Salem.[3]  He upheld the Registrar’s decision to refuse to accept a stay application for filing.  He said there were no special circumstances.  It was the Court’s practice to require stay applications to first be determined in the court appealed from for the reasons given by Chambers J in Salem.  In addition, Stevens J said it is expedient for the court appealed from to determine the stay application because the Judge of that lower court will already be acquainted with the file.[4]

   [3]M v Hawke’s Bay Standards Committee [2014] NZCA 40.

   [4]At [11].

3. Applications for stay should not therefore be filed in this Court unless there are special circumstances.  Although this practice is not expressly provided for in the Court of Appeal (Civil) Rules 2005, it is an example of this Court’s inherent power to regulate its own practice and procedure.[5]  Sound practical reasons for this approach were given by Chambers J in Salem and Stevens J in M.

   [5]R v Smith [2003] 3 NZLR 617 (CA) at [28]. For another example of how this Court may exercise its inherent jurisdiction to regulate its practice and procedure, see Siemer v Heron [2011] NZSC 133, [2012] 1 NZLR 309 at [32].

4. In addition, and importantly, this approach preserves the parties’ right to have the question of stay reconsidered by this Court.[6] 

   [6]See r 12(5) and (6) of the Court of Appeal (Civil) Rules 2005.

5. If an appellant considers there are special circumstances warranting the first application for a stay being made in this Court, those circumstances should be stated clearly in the application.  The Registrar is well placed to assess whether there are special circumstances when deciding whether to accept the stay application for filing.  There is then a right of review of the Registrar’s decision to a Judge.[7]

Are there special circumstances in this case? 

[7]Court of Appeal (Civil) Rules, r 7(2).

1. Mr Gibson’s stay application states there are special circumstances.  But I see none.  In an affidavit, Mr Gibson has raised a concern that he will lose his right of appeal if he applies in the High Court for a stay.  That is not correct.  His notice of appeal was filed in this Court within time and his appeal will be processed in the usual manner. 

2. I therefore confirm the Deputy Registrar’s decision.

3. If Mr Gibson wishes to apply for a stay, he should do so in the High Court.  If he is unsuccessful, he may apply to this Court under r 12(5). 

Result

1. The application for review of the Deputy Registrar’s decision not to accept a stay application for filing is declined. 

Solicitors:
Meredith Connell, Auckland for Respondent