Inder v Commissioner of Crown Lands HC CHCH CIV 2009 409 001219
[2009] NZHC 2386
•27 November 2009
IN THE HIGH COURT OF NEW ZEALAND
CHRISTCHURCH REGISTRY
CIV 2009 409 001219
UNDER The Judicature Amendment Act 1972
IN THE MATTER OF THE PASTORAL LAND ACT 1998 AND THE LAND ACT 1948
BETWEEN CLARLES LAURENCE JOHN INDER, WILLIAM MURRAY SCOTT, JOHNSTONE DOUGLAS HORE, GRANT MALCOLM GEDDES, JOHN MURRAY SCOTT, ALAN KENNETH
SCOTT, CHARLES LAURENCE INDER AND HARRIS INGLE HUNTER (KNOWN AS THE MOUNT IDA SYNDICATE) AND PERPETUAL
TRUST LIMITED Plaintiffs
ANDTHE COMMISSIONER OF CROWN LANDS
Defendant
Hearing: 23 September 2009 (By telephone conference) Appearances: N R W Davidson QC and C D Mouat for Plaintiffs
M T Parker for Defendant
Judgment: 27 November 2009 at 2pm
JUDGMENT OF ASSOCIATE JUDGE OSBORNE
as to proper registry
CLARLES LAURENCE JOHN INDER, WILLIAM MURRAY SCOTT, JOHNSTONE DOUGLAS HORE,
GRANT MALCOLM GEDDES, JOHN MURRAY SCOTT, ALAN KENNETH SCOTT, CHARLES
LAURENCE INDER AND HARRIS INGLE HUNTER (KNOWN AS THE MOUNT IDA SYNDICATE) AND PERPETUAL TRUST LIMITED V THE COMMISSIONER OF CROWN LANDS HC CHCH CIV 2009 409
001219 27 November 2009
Introduction
[1] The plaintiffs (a syndicate) are each pastoral occupation licence holders. The Commissioner of Crown Lands conducted a review under the Crown Pastoral Land Act 1998 regarding the future tenure of the affected land. Ultimately, the Commissioner adopted a substantive proposal to retain the land in full Crown ownership and control.
[2] The plaintiffs bring proceedings for judicial review. On a number of grounds they seek orders quashing or setting aside decisions associated with the review of tenure; an injunction or order in the nature of prohibition preventing the restoration of the land to full Crown ownership and control; an order requiring a rehearing under s17 Land Act 1948; and other associated orders.
[3] The proceeding was filed in the Christchurch registry.
Commissioner’s application for transfer
[4] The Commissioner applies for an order that all documents filed in the proceeding be transferred to the Wellington registry of the court on the basis it was the proper registry.
Grounds of application and opposition
[5] High Court Rule 5.1 deals with the identification of the proper registry of the court for commencing a claim.
[6] The Commissioner relies on r 5.1(c) which states:
(1) The proper registry of the court for the purposes or rules 5.25 and
19.7, is -
….
(c) When the Crown is a defendant, the registry nearest to the place where the cause of action or a material part of it arose:
Prior to 1 February 2009 the matter was covered by High Court Rule 107(1) and before that by r 4 of the Code of Civil Procedure.
[7] Rule 5.1(2) (previously r 107(2)) provides the plaintiff with an option to file
in the registry nearest to the residence of the plaintiff if the place where a material cause of the action arose is nearer to the place where the plaintiff resides. Rule 5.1(2) is not directly applicable in a case in which the Crown is defendant – r 5.1(1)(c) is then the applicable rule.
[8] The Commissioner says that this proceeding has been filed in the wrong registry because, pursuant to r 5.1(1)(c) the registry should be Wellington as the cause of action in its entirety arose there.
[9] In opposition, the plaintiffs say:
(a) A material part of the cause of action arose in or near Christchurch.
(b)The Commissioner has filed a statement of defence and a notice requiring further particulars, thereby waiving any irregularity in relation to the registry.
[10] Specifically the plaintiffs filed their statement of claim in the Christchurch Registry on 11 June 2009. On 15 June 2009 the plaintiffs filed affidavits in support of their claim. On 17 July 2009 the Commissioner filed his statement of defence, together with a notice requiring further particulars of the claim. On 30 July 2009 the
Commissioner filed the application that is now before me for transfer of the proceedings. An affidavit in support was filed at the same time.
[11] The plaintiffs say that by filing the statement of defence and the notice requiring further particulars in the Christchurch Registry, the Commissioner waived his right to apply for the proceeding to be transferred to Wellington.
The rules under discussion – irregularity under r 1.5
[12] As the discussion which follows involves also rules in force before the current High Court Rule 1.5 came into force, I set out a brief guide to the evolution of the rules –
· Failure to comply with rules an irregularity –
HCR 1.5(1)(a) ← HCR 5(1)(a) ← Code (of Civil Procedure) r 599.
·Failure to comply with rules does not nullify - HCR 1.5(1)(b) ← HCR 5(1)(b) ← Code r 599.
· The court may set aside a proceeding or step unless...
HCR 1.5(2) ← HCR 5(2) ← Code r 599.
·No setting aside unless application within a reasonable time and before applicant took a fresh step after becoming aware of the irregularity –
HCR 1.5(4) ← HCR 5(4) ← Code r 599.
[13] The New Zealand rules bear a close relationship to the English Order 70 Rule
2 which from 1853 precluded the setting aside of an irregularity when an applicant had taken a fresh step after becoming aware of the irregularity. Until New Zealand enacted its own rule, the New Zealand courts acted in accordance with the English Order 70, Rule 2. Under the Code of Civil Procedure in New Zealand, reference
continued thereafter to be made to the English decisions as to waiver of an
irregularity – see for instance Sim and Cain The Practice of the High Court and Court of Appeal in New Zealand 1986 (annotated), which made reference to a series of English cases from Tozier v Hawkins (1885) 15 QBD 680 to Hamp-Adams v Hall [1911] 2 KB 942.
The rules under discussion – the proper registry
[14] The filing of a statement of claim in the wrong registry is to be treated as an irregularity – this is the combined effect of r 5.1(4) and r 1.5(1)(a). The proceeding itself and the steps taken by the plaintiff to that date are not nullified by the irregularity: r 1.5.(1)(b).
[15] Rule 5.1(4) provides:
(4)If it appears to a Judge, on application made, that the statement of claim has been filed in the wrong registry of the court, he or she may direct that the statement of claim or all documents filed in the proceeding be transferred to the proper registry.
[16] Rule 1.5(1) provides:
(1) A failure to comply with the requirements of these rules— (a) must be treated as an irregularity; and.
(b) does not nullify—
(i) the proceeding; or
(ii) any step taken in the proceeding; or
(iii) any document, judgment, or order in the proceeding.
[17] Rule 1.5(4) provides:
(4) The court must not set aside any proceeding or any step taken in a
proceeding or any document, judgment, or order in any proceeding on the ground of a failure to which subclause (1) applies on the application of a party unless the application is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity.
[18] What has been written both judicially and extra-judicially as to the waiver of
an irregularity as to the proper registry has not in the past been easy to reconcile. This may be illustrated by reference to seven particular steps in the history:
(a) Richards v New Zealand Newspapers Ltd [1931] NZLR 623 (described by Master Williams QC in Cadbury Confectionary Limited v Regina (1988) Ltd (1992) 6 PRNZ 47 as “the settled law for over 60 years”) – Ostler J ruled, in Chambers, that the defendants’ filing of statements of defence operated as a waiver of an irregularity in relation to the place for filing; the same view was reached by both Myers CJ and Ostler J on review of the Chambers order. Ostler J adopted the terminology of the then r 599 – there had been a waiver of all irregularities of which the defendant had knowledge where the defendant takes “a fresh step in the action”.
(b)McGechan on Procedure HR 107.17 (loose leaf, c 1980) – the learned author of McGechan was taken to doubt the continued authority of Richards v New Zealand Newspapers Ltd as to waiver (see Tag Corporation Limited v Paper Sales (N.Z.) Ltd (NZPR) 2 PRNZ 440 at 446 (per Master Williams QC). The wording in McGechan at the time appears to have been:
Under former rules it was considered that the filing of a statement of defence amounted to a waiver of any irregularity in place of commencement: Richards v New Zealand Newspapers Ltd...
(c) Sim and Cain r 4 – the learned author of Sim and Cain as late as 1984
had expressed no doubt as to the continued authority of Richards vNew Zealand Newspapers Ltd in relation to the filing of a proceeding in the wrong registry under the then r 4 of the Code (subsequently r 107 and now r 5.1):
The irregularity is waived by filing a statement of defence: Richards
v New Zealand Newspapers Ltd ...
(d)In the Tag Corporation case, at 446, Master Williams QC observed, by reference to Richards v New Zealand Newspapers Ltd., that “in some circumstances, such an action [as filing a statement of defence and counterclaim] has been held to amount to a waiver of the right to apply under r 107” (now r 5.1). The Master then noted the doubting of the authority of Richards v New Zealand Newspapers Ltd in McGechan on Procedure. He “dismissed” the issue of waiver as a factor which had not weighed in his determination of the application. (His Honour determined the application upon the basis that the defendant had failed to demonstrate that no material part of the cause of action had arisen nearer to the Registry in which the proceeding had been filed).
(e) BNZ Nominees Ltd v Boddendijk (1991) 4 PRNZ 54 – Master Williams QC referred to his earlier decision in the Tag Corporation case, distinguishing that decision by confining it “to the fact that it was an application under r 107(2) only, not an application under r 107(4) or r 479..” His Honour noted also that any question of possible waiver had not been argued in the Tag Corporation case.
(f) Madden Drilling Ltd v Fenwick Enterprises Ltd HC DN CP128/89,
17 May 1990 (Master Hansen) – Master Hansen referred to the Tag Corporation case and doubted that Richards v N Z Newspapers was good authority in relation to proceedings filed pursuant to r 107(2). He suggested that Richards may well be good authority in relation to proceedings filed pursuant to r 107(1) (the distinction being that r 107(1) has a bias in favour of the defendant whereas r 107(2) has a “clear bias as to the plaintiff’s choice”).
(g) McGechan on Procedure HR 5.1.16 (current annotation) – the
McGechan discussion now commences with this commentary:
Filing a statement of defence may amount to a waiver of any irregularity in place of commencement: Richards v New Zealand Newspapers Ltd...
Waiver – discussion
[19] The numbering of the New Zealand rules has changed substantially over the years. The rules themselves whilst set out somewhat differently have had less change. It is not a straight-forward task for a Judge in 2009 to line up the discussion in each case with the particular rules.
[20] I therefore start this discussion of “waiver” with a focus on the current rules.
[21] I observe first that the “waiver” which applies is a form of waiver created by statute, now through r 1.5(4). It is unnecessary to refer to the rules governing waiver
at common law. Parliament has through r 1.5(4) provided that a party may not apply
to set aside an irregularity if either:
(a) the applicant has not applied within a reasonable time, or
(b) the applicant has taken a fresh step in the proceeding.
[22] While it is plain that ingredients of the statutory waiver under r 1.5(4) are based on the common law doctrine of waiver, the Court’s duty in administering the High Court Rules is to apply the statutory waiver and not to import aspects of the common law doctrine which r 1.5(4) does not itself import.
[23] In this case the plaintiffs do not suggest the application for transfer was not made within a reasonable time. Rather, they say that the filing of the statement of defence and the notice for further particulars were “fresh steps” taken before the Commissioner made application for transfer.
[24] Once such a fresh step is taken, without the prior or contemporaneous application under r 5.1(4), the Court is not entitled to grant any later application brought under r 5.1(4). The filing of a document – the fresh step – constitutes the act of waiver.
[25] In the final paragraph of his decision is the Tag Corporation case (at 447) Master Williams QC in an obiter observation doubted the authority of Richards v New Zealand Newspaper Ltd as to waiver. Master Hansen in the Madden Drilling case at page 6 also doubted the authority of Richards v New Zealand Newspapers Ltd. His Honour nevertheless observed (at page 6):
In any event, it would seem to me more appropriate for an application under
Rule 107 to be made before a Defendant takes any steps.
[26] My conclusion is that because of the combined effect of the rules then in existence, namely rr 107 and 5 (now rr 5.1 and 1.5(4)), it is not only appropriate but mandatory that an intending applicant file its application before taking other steps.
[27] For the Commissioner, Mr Parker, unsurprisingly, placed substantial reliance upon Master Williams’ decision in the Tag Corporation case. Mr Parker submitted
that in the Tag Corporation the Master had held, after considering the Richards
decision, that the defendant’s taking steps in the proceeding did not amount to a waiver of the right to seek a transfer. I do not accept that the judgment contains such a “holding” and if it did I would respectfully decline to follow it. While it is correct that the Master appeared to adopt the doubt of the learned author of McGechan as to the authority of Richards v New Zealand Newspapers Ltd., the judgment contains no “holding” as to precisely when a waiver would or would not arise. The Master himself recognised that “in some circumstances” a waiver would arise. The matter was not argued and the comments in question were obiter. The reason the application for transfer of the proceeding was dismissed was that the court concluded that the defendant had failed to show that no material part of the cause of action arose nearer to the court of filing. I note in passing that it was in that context that Master Williams’ QC emphasis upon plaintiff’s choice arose.
[28] Mr Parker made a further submission in support of the Tag Corporation
dicta. He noted that under r 5.1(4) the court may “direct that the statement of claim
or all documents filed in the proceeding be transferred...”(emphasis added). Mr Parker’s suggestion was that the catch-all “or all documents” may have been intended to encompass documents filed by a defendant. I do not consider that the catch-all expression used in r 5.1(4) (which I note also appears in r 5.1(5)) was intended to affect the meaning of the statutory waiver provision in r 1.5(4). Rule 1.5(4) is a rule which deals with waiver of irregularities generally – it is inappropriate to construe rules (under r 5.1(4) and (5)) which are focussed on transfer of proceeding as altering the meaning of a waiver rule which applies to all irregularities. The natural meaning of the term “the statement of claim or all documents” appearing in r 5.1(4) and (5) is that it is intended to be a catch-all, equivalent to “whatever documents have been filed”. In a typical civil proceeding that may well encompass a series of documents filed by the plaintiff such as a statement of claim, a notice of proceeding, an affidavit as to cause of action, an application for directions, and other interlocutory applications such as relating to
summary judgment. The fact that the rules refer to “the statement of claim or all
documents” is not to be read as an acceptance by Parliament that the defendant may file other documents before filing it application for transfer without creating the statutory waiver which r 1.4 establishes.
Waiver – the three possible sequences of a fresh step and a transfer application
[29] There are three possible timings of a transfer application with the following results:
(a) An application for transfer made before the next step is taken – the application under r 1.5(4) may be granted.
(b)An application filed contemporaneously with the defendant’s other documents – there is no waiver. See BNZ Nominees Ltd v Boddendijk per Master Williams QC at [58] – [59] and N Z Food Group (1992) Ltd v Diverse Holdings Limited HC CHCH CP34/00 27 June 2000 (Master Venning) at [23], both applying Royal Oak Mall Limited v Savory Holdings Ltd CA106/89, 2 November 1989.
(c) An application filed after the defendant’s “fresh step” documents have been filed – there is a waiver: see A G and L A Thomson Ltd v Victor Industries Limited (1989) 3 PRNZ 581 (Hardie Boys J) applying Richards v New Zealand Newspapers Ltd. This is so whether the other documents are filed before the application by one day, one month or one year – I note that in the Cadbury Confectionary case at [49], the Master observed that the defendant had waived the registry irregularity by filing its defence and counterclaim well before the application to transfer. If intended to leave open the possibility that an application filed shortly afterwards
may be granted, the observation should be viewed as obiter. I would
respectfully not follow it. Any subsequent application, no matter whether much or little later, is too late.
[30] I note that this analysis accords, in somewhat expanded form, with the summary of the law in Laws of New Zealand, Civil Procedure, High Court para [91].
Relevance of plaintiffs’ choice – benefit to the plaintiffs or to the defendant
[31] For the Commissioner, Mr Parker did not suggest that anything turns in relation to the present application on whether any aspect of the proper registry rules is for the benefit of the plaintiffs (or anyone else). A number of the decisions make reference to the concept of “benefit to the plaintiff” or “plaintiffs’ choice”. In the Tag Corporation case, Master Williams QC spoke of the clear bias in the then r 107 towards plaintiff’s option: this being a reference to the plaintiff’s option expressly contained in r 107(1) (now r 5.1(2)) when the cause of action (or a material part of it) is nearer to where the plaintiff resides. Master Hansen in Madden Drilling Limited (at pages 5 – 6) referred to the Tag Corporation emphasis on plaintiff’s choice in developing a distinction based on whether a particular rule was for the plaintiff’s benefit. The Master categorised r 107.(2) (now r 5.1(2)) as benefiting the plaintiff. His Honour on this ground doubted the authority of Richards v New Zealand Newspapers Ltd where the proceedings are filed under r 107(2) (or now r 5.1(2)). His Honour categorised r 107(1) (now r 5.1) as being biased in favour of a defendant. He commented that Richards “may well be good authority” in relation to r 107(1). The current editor of McGechan on Procedure at HR 5.1.16, makes the comment in relation to r 5.1 (together with rr 5.47 and 10.1) that “the three rules appear to be for the benefit of the defendant”.
Application of r 1.5(4) to this case
[32] The Commissioner’s application for transfer was filed thirteen days after his statement of defence and notice for further particulars. He thereby took a fresh step before making his application for transfer. Rule 1.5(4) therefore applies. This court must not set aside the step taken by the plaintiffs in filing the proceeding in the Christchurch registry.
[33] I do not consider the “benefit” analysis of r 5.1 to be informative as to the current application of r 1.5. Rules 5.1(1) and 5.2 (previously rules 107(1) and 107(2) contain beneath issues of choice or option requirements as to the location of residence or cause of action. If on either limb of r 5.1 the underlying elements are not made out to justify the choice made by the plaintiff, the choice of registry is not “proper”. The registry is “wrong”. An irregularity occurs. Rule 1.5 operates. On my analysis, the matter is not affected by an argument that the provision which has been breached (in this case said to be r 5.1) was intended to benefit one party or the other or that one party or the other had a choice.
Where the cause of action arose
[34] Given the conclusions I have reached as to waiver, it is unnecessary to deal with the detailed submissions which I received in relation to the place where the cause of action, or a material part of it, arose.
[35] Some of the matters addressed may well be relevant should either party later pursue an application for change of registry or venue on account of convenience. That involves a broader inquiry than the evidence and submissions I have heard. Mr Davidson QC for the plaintiffs addressed some brief submissions to me in relation to convenience considerations but there is no application before me for transfer of the
proceeding on grounds of convenience (to which r 5.1(5) would apply). I refrain
from speculating on the outcome of such an application should it be made.
Order
[36] I refuse the application of the respondent for an order that all documents filed
in the proceeding be transferred to the Wellington registry of this court.
Costs
[37] I reserve costs.
[38] In relation to an application of this nature, there appears to be no reason to depart from the principle that costs should follow the event. The proceeding has previously been agreed to be a category 2 matter. Upon that basis, in relation to this application, a 2B award would appear appropriate.
[39] I leave it to counsel to confer with a view to agreeing costs. If costs and disbursements cannot be agreed, the applying party should file submission to be followed within five working days by submissions in response (each submission limited to four pages).
Solicitors:
Goodman Steven Tavendale Reid, Christchurch
Crown Law, Wellington
2
0
0