Goodman Investment Nominee Limited v Christchurch City Council HC Auckland CRI 2009-409-132

[2010] NZHC 1632

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2009-409-000132

GOODMAN INVESTMENT NOMINEE LIMITED

Appellant

v

CHRISTCHURCH CITY COUNCIL

Respondent

Hearing:         12 August 2010

Appearances: Mr D Young (In person) for Appellant

K G Reid and B G Frowein for Respondent

Judgment:      12 August 2010

JUDGMENT OF FOGARTY J

[1]      The  appellant,  Goodman  Investments  Nominee  Ltd  appeals  against  two decisions of the District Court, one a reserved judgment of Judge Smith on 11 May

2010 finding the company in breach of Building Act 2004 requirements against an infringement notice issued by the Christchurch City Council; and the second being the sentence imposed by Judge Smith on 10 June.

[2]      In  the  argument  before  this  Court  written  submissions  were  filed  by Mr David Young, a director of the appellant.   The first part of his submissions challenge the earlier decision of Judge Moran on 17 December 2009 in which he

ruled that Mr Young may not continue to represent the defendant company.

GOODMAN INVESTMENT NOMINEE LIMITED  V CHRISTCHURCH CITY COUNCIL HC CHCH CRI

2009-409-000132   12 August 2010

[3]      Before I can consider this appeal I have to decide whether or not to allow Mr Young to represent the company.  I should say that the context of the order made by Judge Moran is that the fixture in which Goodman Investments Nominee Ltd sought to defend the prosecution by the Christchurch City Council started in front of Judge Crosbie with Mr Young being allowed to represent the company.   Obviously there were problems in the course of that hearing.  Mr Young has summed it up by saying that he was constantly interrupted by the Court in his efforts to cross-examine witnesses called by the Council, and just scanning the transcript, it is clear that there were numerous interjections by the Judge.

[4]      In the judgment of Judge Moran on 17 December he noticed that s 57(2) of the District Courts Act 1947 provides that a Corporation may appear by any officer, attorney or agent, and, of course, a director is an officer of the company.  He went on to point out that this section applies to civil proceedings only.  But it does not apply to criminal proceedings and in that regard he relied on s 37(1) Summary Proceedings Act 1957:

37       Who may conduct proceedings

(1)      At the hearing of any charge, the informant and the defendant may appear personally or by a barrister or a solicitor of the High Court.

[5]      It follows from that section that the defendant, which is the company, can only appear by a barrister and solicitor, unless the Courts are prepared to exercise a residual discretion, not spelt out in s 37, allowing unqualified advocates to appear before them.

[6]      This residual discretion was identified by the Court of Appeal in the case of Re G J Mannix Limited [1984] 1 NZLR 309. The judgment of the Court was delivered by Cooke J. In that judgment for the Court he makes the same points that Judge Moran made that s 57(2) of the District Courts Act applies only to civil proceedings and s 37 of the Summary Proceedings Act applies to criminal proceedings.

[7]      The  Court  of  Appeal  observes  there  are  probably sound  reasons  for  the special provisions in the two Acts.  I should observe that the position that High Court

Judges take is that we have to accept decisions made by Parliament and our job is to give them effect, to quote a famous aphorism:     “as to whether it is the road to heaven or to hell” because it is the entitlement of Parliament to make such policy decisions.   It follows that any identification of a special discretion designed as it were to partially qualify a decision of Parliament has to be kept very narrow and only used rarely and that is why it is described in the Court of Appeal decision as a reserve power or occasional expedience used  primarily in  emergency situations. Judge Moran identified that discretion and set out his reasons why it should not be applied in paragraph [7] of his judgment:

[7]       This is not such a case.  While it appears to be straightforward, the fact that the first inconclusive hearing occupied a full day indicates, either that appearances belie the reality, or Mr Young complicated the simple by his conduct of the case.   Moreover, the  defendant company appears, in reality, to be Mr Young in corporate guise so his objectivity as counsel must be compromised.   There can be little room for doubt that the Court will benefit from the company’s being represented by counsel inasmuch as the case will be conducted in an economical and focussed way.

[8]      Before me, Mr Young argued that he would do a better job than barristers, that he had been told that on numerous occasions by other barristers, that he does do a far better job than the majority of barristers he has to work with.  That is not an argument against the decision of Judge Moran.

[9]      The context of this case is that plainly Mr Young was given the opportunity to  defend  criminal  proceedings  on  behalf  of  the company,  as  an  officer  of  the company, possibly by a very generous interpretation of this residual discretion.   It was only after problems arose in that regard that the question of whether or not he should continue to represent the company arose.

[10]     I can see no basis for finding any error of law in the decision of Judge Moran and against the history, no basis in fact, for saying that the exercise of his discretion is manifestly wrong.   Accordingly, his decision stands.   I say this whether or not there was a right of appeal.  I leave that to one side.  I have been assuming that there is a right of appeal against Judge Moran’s decision and that it does form part of this appeal.

[11]     It  follows,  that  I cannot  continue  to  hear  Mr  Young as  an  advocate  for Goodman Investments on appeal.  Mr Young has made it quite clear that he has no confidence now in the Court and I do not think he is interested in this appeal being adjourned while he has an opportunity to retain counsel for the appellant but I will ask him now.

[Judge gives Mr Young an opportunity to request an adjournment so that he can obtain counsel to represent Goodman Investments.]

[12]     Mr Young has just confirmed that he does not want an adjournment of this appeal in order to retain counsel which is the option otherwise against the appeal being dismissed.

[13]     Accordingly, the appeal is dismissed.

Solicitors:

Goodman Tavendale Reid, Christchurch, for Respondent cc: Mr D Young