Grey District Council v Blain
[2013] NZHC 976
•6 May 2013
IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY
CIV-2011-418-000060
CIV-2011-418-000123 [2013] NZHC 976
BETWEEN GREY DISTRICT COUNCIL Plaintiff
ANDANDREW SCOTT BLAIN First Defendant
ANDKEVIN O'CONNOR & ASSOCIATES LIMITED
Second Defendant
ANDASC ARCHITECTS LIMITED [DISCONTINUED]
Third Defendant
ANDCARTER HOLT HARVEY LIMITED Fourth Defendant
ANDLHT DESIGN LIMITED Fifth Defendant
ANDEVAN JONES CONSTRUCTION LIMITED
Third Party
Hearing: 26 April 2013
(By way of telephone conference)
Appearances: No appearance for the Plaintiff
S Lester for the First and Second Defendants
K Simcock for the Fourth Defendant
D J Macrae for the Fifth Defendant
G M Brodie for the Third Party
Judgment: 6 May 2013
JUDGMENT OF FOGARTY J
Solicitors:
Buddle Findlay, PO Box 322, Christchurch 8140
Duncan Cotterill, PO Box 5, Christchurch – [email protected]Lee Salmon Long, Auckland – [email protected]
Morgan Croakle, Auckland – [email protected]
G M Brodie, Christchurch – [email protected]
GREY DISTRICT COUNCIL V BLAIN and Ors HC GRY CIV-2011-418-000060 [6 May 2013]
[1] The plaintiff Council contracted with Evan Jones Construction for the construction of an aquatic centre. It retained the first and second defendant as consultant engineers. It is suing the first and second defendants in tort.
[2] The fourth defendant was a supplier of certain product. The Council is suing the fourth defendant in tort for negligence. The Council is suing the fifth defendant in contract and in tort. LHT Design Limited (LHT) was retained for the design and administration of the construction, and to deal with regulatory compliance.
[3] The first, second, fourth and fifth defendants have all joined the builder, Evan Jones Construction Limited (EJCL), as a third party. They allege that EJCL owed the Council a duty of care, and so would be liable as a concurrent tortfeasor. EJCL has applied for orders setting aside the third party notice, and granting summary judgment in its favour in respect of them. The application was heard by Associate Judge Matthews, who found in favour or EJCL, setting aside the notices and awarding it costs.
[4] Applications have been lodged to review this decision by the first, second, fourth and fifth defendants. (The proceedings by the third defendant had been discontinued.)
[5] The Court has received a consent memorandum advising that the parties have conferred, and agree that the review applications would be more appropriately dealt with by the Court of Appeal. They apply to have the review hearing transferred to the Court of Appeal under s 64 of the Judicature Act 1908.
[6] They argue that such a transfer is justified on the basis that the review raises an issue of considerable public importance:
(1)Whether a builder engaged by a landowner to undertake a commercial construction project on the terms set out in the conditions of contract for Building and Civil Engineering Construction NZS 3910:2003 can arguably be a concurrent duty in tort to the landowner to exercise reasonable care skill and diligence in carrying out the construction.
But this is a question of law that has not been decided previously, and will have widespread implications
(2) That the issue needs to be determined expeditiously.
(3) That if the review application is heard in the High Court, an application for leave to the Court of Appeal is highly probable.
(4) That a reasoned first instance decision has already been given by
Associate Judge Matthews.
(5)The review will not involve the determination of any significant questions of fact.
[7] Section 64 of the Judicature Act provides:
64 Transfer of civil proceedings from High Court to Court of Appeal
(1) If the circumstances of a civil proceeding pending before the High Court are exceptional, the High Court may order that the proceeding be transferred to the Court of Appeal.
(2) Without limiting the generality of subsection (1), the circumstances of a proceeding may be exceptional if—
(a) a party to the proceeding intends to submit that a relevant decision of the Court of Appeal should be overruled by the Court of Appeal:
(b) the proceeding raises 1 or more issues of considerable public importance that need to be determined urgently, and those issues are unlikely to be determined urgently if the proceeding is heard and determined by both the High Court and the Court of Appeal:
(c) the proceeding does not raise any question of fact or any significant question of fact, but does raise 1 or more questions of law that are the subject of conflicting decisions of the High Court.
(3) In deciding whether to transfer a proceeding under subsection (1), a Judge must have regard to the following matters:
(a) the primary purpose of the Court of Appeal as an appellate court:
(b) the desirability of obtaining a determination at first instance and a review of that determination on appeal:
(c) whether a full court of the High Court could effectively determine the question in issue:
(d) whether the proceeding raises any question of fact or any significant question of fact:
(e) whether the parties have agreed to the transfer of the proceeding to the
Court of Appeal:
(f) any other matter that the Judge considers that he or she should have regard to in the public interest.
(4) The fact that the parties to a proceeding agree to the transfer of the proceeding to the Court of Appeal is not in itself a sufficient ground for an order transferring the proceeding.
(5) If the High Court transfers a proceeding under subsection (1), the Court of Appeal has the jurisdiction of the High Court to hear and determine the proceeding.
[8] Section 64 has to be read in the context of the whole of the Judicature Act. Section 26P provides for review of or appeals against decisions of Associate Judges. It provides:
26P Review of, or appeals against, decisions of Associate Judges
(1) Any party to any proceedings who is affected by any order or decision made by an Associate Judge in chambers may apply to the court to review that order or decision and, where a party so applies in accordance with the High Court Rules, the court—
(a) must review the order or decision in accordance with the High Court
Rules; and
(b) may make such order as may be just.
(1AA) The determination of the High Court on a review under subsection (1) is final, unless the High Court gives leave (or the High Court refuses leave, but the Court of Appeal gives special leave) to appeal from it to the Court of Appeal.
(1A) Rules under section 51C may—
(a) specify the nature and extent of reviews or classes of review under subsection (1):
(b) regulate the procedure for hearing applications or classes of application under subsection (1):
(c) regulate the procedure for hearing applications or classes of application for leave under subsection (1AA).
(2) Any party to any proceedings may appeal to the Court of Appeal against any order or decision of an Associate Judge in those proceedings (other than an order or decision made in chambers).
(3) Section 66 shall apply to any appeal under subsection (2).
[9] Rule 2.1(1) provides an Associate Judge has the jurisdiction and powers of a Judge in chambers, conferred by the Act or these rules under another enactment. Section 26P applies.
[10] Section 26P(1) imposes an obligation on the High Court to review the order or decision in accordance with the High Court Rules.
[11] The consent memorandum assumes that the hearing can be transferred to the Court of Appeal under s 64 of the Judicature Act. Apart from the grounds already set out, no other grounds are cited, and no authorities are cited in support. For the reasons which follow, it is by no means a simple application of s 64.
[12] There are two jurisdictional issues: (1) Can s 64 be used?
(2)Given that s 64 can only be used sparingly, is this a clear case where it should be used?
[13] There is no doubt that interlocutory applications to the High Court can be moved directly to the Court of Appeal. See Vector Ltd v Transpower New Zealand Ltd.1
[14] But that authority did not have to address whether or not the review of an Associate Judge’s decision can be conducted by the Court of Appeal. In P v Bridgecorp Limited (in Rec and in Liq),2 judgment had been entered against P. P applied to set aside an admission of claim. The Associate Judge declined that application to set aside the judgment. P sought to appeal both decisions to the Court of Appeal.
[15] In a minute of the Court dated 17 October 2012, at [3], the Court said:
1 Vector Ltd v Transpower New Zealand Ltd (2000) 14 PRNZ 240 (HC).
2 P v Bridgecorp Limited (in Rec and Liq) (CA) 756/2011.
[3] The appellant has appealed direct to this Court. However, as the orders made were on an interlocutory application s 26P(2) of the Judicature Act appears to apply. The order made by the Associate Judge was an order made in chambers on an interlocutory application. Rule 7.35 of the High Court Rules provides that an interlocutory application must be heard in Chambers unless a Judge otherwise directs. It does not appear there was any such direction.
[4] We note that in his decision declining to withdraw the admission Associate Judge Christiansen went on to record the respondent was entitled to judgment in terms of the admission. However, the Judge had no jurisdiction to enter a substantive judgement. The only application before the Court was to withdraw the admission. Once that application was determined against the appellant then 1 15.16(3) applied. The respondent was entitled to seal judgment. The Associate Judge did not enter the judgment. The judgment followed as a matter of operation of the rule.
[5] If the above analysis is correct then this Court may not presently have jurisdiction to deal with the appeal before it as the matter should have been the subject of an application for review of the Associate Judge’s decision before a High Court Judge with r 2.3: Nottingham v Registered Securities Ltd (in liq); Talyancich v Index Developments Ltd.
[6] It may be possible for the parties to address the issue by the appellant filing an urgent application for review in the High Court accompanied by an application under s 64 Judicature Act 1908 for transfer to this Court. We would expect that could be done by consent to ensure the fixture in this Court tomorrow can remain in place. Counsel are encouraged to activate these steps without delay.
[16] P appears to contemplate that, once there is an application for review, the review can be transferred to the Court of Appeal.
[17] That is what happened, as is recorded in the judgment of the Court of Appeal [2012] NZCA 530[3]. The facts in P are complicated because both the minute of the Court of Appeal on 17 October 2012 and the judgment on 15
November 2012 treat the matter as an appeal.
[18] On the authority of P v Bridgecorp Limited, there is jurisdiction to consider the transfer of a review to the Court of Appeal.
[19] Turning to the grounds for the review, there is no doubt that this issue of whether there is a concurrent duty in tort will have to be resolved by the Court of Appeal or Supreme Court. It would be a needless expense to the parties to have another hearing in the High Court, whatever the decision of the High Court Judge on review.
[20] Transferring this case to the Court of Appeal will not, I think, convert it to an appeal, rather, I think the Judges will be sitting as a full Court of the High Court. This is one of the reasons why I have released my views as a judgment, leaving room for this judgment to be reversed by the Court of Appeal.
[21] I have not lost sight of subsections (1) and (3) of s 64. I think these circumstances are exceptional. In a situation where an interlocutory proceeding is inevitably heading to the appellate Courts, it is desirable that it be heard in the first instance by a High Court Judge rather than an Associate Judge. Otherwise, s 64 has to be used for a purpose that it is not obviously intended for. Parliament expects it to be used rarely. But this issue, having been examined by an Associate Judge, it would in this particular case place an onerous and unjustified burden on counsel for it to be re-argued in the High Court.
[22] The application for transfer is granted, with some diffidence. [23] Costs are reserved.
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