He v Bai - [2016] NZCA 616

IN THE COURT OF APPEAL OF NEW ZEALAND

CA589/2016
[2016] NZCA 616

BETWEEN

JUN HE
Appellant

AND

CYNTHIA BAI
First Respondent

THE TENANCY TRIBUNAL
Second Respondent

THE DISTRICT COURT AT WAITAKERE
Third Respondent

Counsel:

K E Hogan (Counsel Assisting the Court)

Judgment:

(On the papers)

16 December 2016 at 1.00 pm

JUDGMENT OF MILLER J

AThe appellant’s application for leave to appeal is to be deemed a notice of appeal.
BThe application to review the Registrar’s decision is declined.

____________________________________________________________________

REASONS

Introduction

On 24 November Mr He filed an application for leave to appeal against a minute of Peters J.[1] He wishes to appeal the orders made at [3] and [10] of that minute: that the District Court at Waitakere be joined to the proceedings as the third defendant and that the matter be set down for hearing at a one day fixture on 9 February 2017. The Registry mistakenly treated his application for leave as an application for an extension of time under r 29A of the Court of Appeal (Civil) Rules 2005.
[1]He v Bai HC Auckland CIV-2015-404-2943, 27 October 2016 (minute of Peters J).
On 1 December, realising the error, the Deputy Registrar emailed Mr He informing him that no leave is required to appeal against a judicial review where the appeal is filed in time, so his application was incorrectly accepted for filing. Mr He was informed that if he were to urgently file a notice of appeal, the date on which he filed his erroneous application for leave would remain the filing date on his appeal. He was notified that security for costs was set at $6,600, with the date for compliance being 20 working days later (19 January 2017).
Mr He responded that an application for leave was the correct document to file, citing r 28(b) of the Court of Appeal (Civil) Rules. Rule 28 states that pt 3 of the Rules — the part governing appeals — applies to as-of-right appeals and appeals where leave has been granted, except where otherwise provided. He also cited rr 13, 14 and 15. He also stated that because leave had not yet been granted, security for costs was not due.
On 6 December Mr He filed an application to review the conduct of the Registry in processing his application for leave. He detailed the contact he had with both the Deputy Registrar and the Registrar and applied for relief in the form of immediate acceptance of his application for leave.

The filing issue

Mr He was incorrect in his assertions that all appeals from the High Court to this Court require leave. Section 66 of the Judicature Act 1908 gives this Court jurisdiction to determine appeals from any order of the High Court. This includes interlocutory decisions.[2] Mr He does not need leave to appeal Peters J’s minute.
[2]Siemer v Heron [2011] NZSC 133, [2012] 1 NZLR 309 at [31].
Mr He was labouring under an error when he filed the leave application…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading He v Bai

Details

AGLC: He v Bai [2016] NZCA 616
Case: [2016] NZCA 616
Decision Date: 16 December 2016 at 1.00 pm

CaseChat Overview and Summary

In the New Zealand Court of Appeal, Jun He has filed an appeal against a decision made by Peters J in the High Court. He is contesting the orders made at [3] and [10] of the minute, which require the District Court at Waitakere to be joined to the proceedings as the third defendant and set the matter down for a one-day hearing on 9 February 2017. The appeal is against a judicial review, and He's initial application for leave to appeal was mistakenly treated as an application for an extension of time. The Deputy Registrar informed He that no leave is required for an appeal against a judicial review if filed in time, and He was urged to file a notice of appeal urgently. He argued that an application for leave was the correct document, citing specific rules of the Court of Appeal (Civil) Rules. He also filed an application to review the conduct of the Registry in processing his leave application, seeking immediate acceptance of his leave application.

The legal issues before the Court of Appeal were whether He needed leave to appeal an interlocutory decision and whether the Registrar's decision to require He to file a notice of appeal was correct. The Court noted that all appeals from the High Court to this Court do not require leave under Section 66 of the Judicature Act 1908, and the Deputy Registrar correctly identified and applied the relevant rules. The Court concluded that the Deputy Registrar's decision was correct, and the application to review the decision was declined. Security for costs, set at $6,600, is due and must be paid by 2 February 2017.

The Court of Appeal deemed He's application for leave to appeal as a notice of appeal. The application to review the conduct of the Registry was declined. The Court granted He a two-week extension to pay the security for costs, making it due by 2 February 2017.

Orders