Ingenious Asset Management Limited v McConnon
[2024] NZHC 2982
•14 October 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2023-404-2103
[2024] NZHC 2982
UNDER Companies Act 1993 BETWEEN
INGENIOUS ASSET MANAGEMENT LIMITED
Plaintiff
AND
SIMON MCCONNON
First Defendant
JOHN BAIRD MCCONNON
Second DefendantKEVIN BRUCE RAMSEY
Third Defendant
STEPHEN MARK LAWRENCE
Fourth DefendantCHRISTOPHER CAREY MCCULLAGH
Fifth Defendant
Hearing: 11 September 2024 Appearances:
G Jindal for Plaintiff
R M Stewart, A J Wakeman and M Wallace
Judgment:
14 October 2024
JUDGMENT OF MUIR J
Application under s 26(2) of the Senior Courts Act 2016
This judgment was delivered by me on 14 October 2024 at 3 pm, Pursuant to Rule 11.5 of the High Court rules.
Solicitors:
DT Law
Freedom Chambers
Registrar/Deputy Registrar Date: ……………………………
INGENIOUS ASSET MANAGEMENT LIMITED v MCCONNON [2024] NZHC 2982 [14 October 2024]
Introduction
[1] Ingenious Asset Management Ltd (Ingenious) has been in litigation against the defendants since September 2023. It is represented by Mr G Jindal, solicitor. The proceedings have to this point been case managed by Associate Judge Brittain (the Associate Judge).1
[2] Ingenious is unhappy about various interlocutory orders and directions made by the Associate Judge. It wants the proceedings managed by a High Court Judge. Despite participating in hearings and mentions before the Associate Judge for six months it now says that he has no interlocutory jurisdiction in respect of the proceedings because they include claims for declarations.
Background
[3] Global Dairy Ltd (in liq) (GDL) was placed into liquidation in March 2020. The defendants are GDL’s three directors and two liquidators (collectively referred to as the Defendants). GDL’s three creditors assigned their unsatisfied claims from GDL’s liquidation to Ingenious.
[4] Ingenious’ statement of claim dated 6 September 2023 advances 11 causes of action premised on insolvent/reckless trading by the directors and unreasonable fees claims by the liquidators and/or failure on their part to investigate the directors.
[5] A feature of all bar the eighth and 11th causes of action are claims for declarations, often in addition to multiple other prayers for relief. The third cause of action is typical where the prayer includes not only claims for damages, but for “a declaration that the directors are responsible for allowing GDL to trade while being insolvent”.
1 There was an initial call before Associate Judge Lester on 16 February 2024.
[6] On 21 March 2024, the Associate Judge determined an application by the Defendants for security for costs.2 He has also determined an application for costs on the security application and has otherwise case managed the proceeding.
The application
[7] Ingenious applies for three orders. First, an order transferring the substantive proceeding to a High Court Judge under s 26(2) of the Senior Courts Act 2016 (the Act).3 Second, an urgent stay of all orders and directions made by the Associate Judge in the proceeding. Third, costs on the transfer application. The Defendants oppose the application.
[8]The orders are sought on the following grounds:
(a)Jurisdiction and powers of Associate Judges are not unfettered and are controlled by the legislature through the Act.
(b)The complexity of the proceeding, its interlocutory applications, and associated matters are such that it is desirable to transfer the proceeding to a High Court Judge.
(c)The substantive proceeding seeks “declarations” and “orders under equity”. An Associate Judge may not exercise powers of the High Court when “declarations” and/or “orders under equity” are sought.
(d)An Associate Judge is prohibited from exercising jurisdiction or powers referred to in s 22(4) of the Act.
(e)The proceeding (including a proceeding on an interlocutory application) involves subject matters under the Property Law Act 2007 (PLA), Lawyers and Conveyancers Act 2008 and its subordinate rules.
2 Ingenious Asset Management Ltd v McConnon [2024] NZHC 624. This decision was issued 21 March 2024 but was recalled by the Associate Judge and subsequently reissued on 31 May 2024 with an amendment to [37].
3 The substantive proceeding as referenced by the file number CIV-2023-4040-2103.
These subject matters are not within the powers permitted to be exercised by an Associate Judge.
(f)The proceeding (including interlocutory applications) involves an exercise of the “inherent jurisdiction” of the High Court which is not exercisable by an Associate Judge.
(g)If the orders and directions thus far made are not stayed there will be a miscarriage of justice.
[9]The Defendants oppose the orders on the basis that:
(a)the complexity of the proceedings and the related interlocutory applications and matters are not sufficiently complex to warrant a transfer to a High Court Judge;
(b)the application is generic, lacking in substance and fails to identify the specific powers or exercise of jurisdiction the Associate Judge is prohibited from exercising;
(c)Ingenious has submitted to the jurisdiction of the Associate Judge without protest in respect of applications that have already been determined and through directions sought;
(d)the Associate Judge will not be required to make declarations or orders under equity except in the context of a summary judgment application, for which the Associate Judge has the jurisdiction and powers of the High Court;
(e)there are no extant or anticipated applications within s 22(4) of the Act; and
(f)there are no other reasons justifying a transfer of the proceedings to a High Court Judge.
[10] The Defendants regard the application as “jurisdictionally flawed” and an abuse of process. They submit that granting the transfer application would rescind, vary or otherwise set aside orders made in the proceeding by the Associate Judge — circumnavigating well-trodden appeal pathways.
[11] The Defendants oppose the granting of a stay on the basis that it would operate as a de facto appeal or review of the directions and orders previously made by the Associate Judge in this proceeding; the stay application has not been made in accordance with r 20.10 of the High Court Rules 2016 and has not been advanced on proper grounds; and that the overall balance of convenience does not favour the granting of a stay.
The Defendants’ unresolved application against Mr Jindal
[12] The Defendants have previously applied for orders restraining Mr Jindal, and his firm Ormiston Legal from acting as solicitors and counsel for Ingenious. That application was originally scheduled to be heard on 1 October 2024. The fixture has however been vacated by me on the basis:
(a)that it had been set down before the Associate Judge;
(b)the jurisdiction of the Associate Judge to hear it may turn on the present judgment; and
(c)uncertainty as to when publication of this judgment might be expected.
[13] Prior to the fixture being vacated, the Defendants had indicated that, on a “course of least resistance” basis, they would prefer the restraint application to come before a High Court Judge. By then however, it was too late for hearing schedules to be adjusted.
[14] Now that the fixture has been vacated and awaits reallocation, I add my own support to the Defendants’ call that the application be heard by a High Court Judge. That is because, quite apart from the issues raised on the application now before me, Mr Jindal argues that a restraint order against him or his firm could, in substance, be
a form of interlocutory or permanent injunction and, as such, outside the jurisdiction of an Associate Judge. The Defendants do not agree, but it is not an argument that needs to be had. It can be avoided if the restraint application is heard by a High Court Judge.
The overall context
[15] All of this interlocutory activity arises in the context of a proceeding which was commenced in September 2023, but which has already generated multiple interlocutory applications and applications for variation, reconsideration, reversal or recission by Ingenious. Everything can be traced back to the judgment of the Associate Judge on 21 March 2024 granting the Defendants’ application for security for costs. That judgment was never appealed. Subsequently, costs were awarded on the application. Ingenious has sought leave to appeal in that respect. There have also been multiple skirmishes around access to court documents, variations to timetables and the like. In total, the Defendants identify Ingenious as having filed 21 memoranda since the inception of the proceeding. A year after filing, very little progress has been made in addressing the substance of the case.
Issues
[16]The following issues are raised on the application:
(a)does the Associate Judge have the jurisdiction to case manage the proceeding and hear interlocutory applications in respect of it, or is he precluded from doing so because of the relief, and in particular, declaratory and equitable relief sought in Ingenious’ statement of claim;
(b)if not, is there any other reason justifying the transfer of the proceeding under s 26 of the Act;
(c)should orders and directions previously made in this proceeding be stayed; and
(d)costs.
Jurisdiction
Relevant law
[17] The jurisdiction of Associate Judges is defined in the Act and the High Court Rules. Sections 20 to 22 of the Act relevantly provide:
20Associate Judge may exercise certain powers of High Court
(1)An Associate Judge has the jurisdiction and powers of the High Court in relation to the following matters:
(a)an application for summary judgment:
(b)reinstating a company to the Register of Companies:
(c)any matter arising under the Insolvency Act 1967:
(d)case management of proceedings under the Admiralty Act 1973:
(e)a proceeding in which relief is claimed solely under any of sections 142, 143, 146, 177, 178, and 180 of the Land Transfer Act 2017 (which relate to caveats):
(f)an assessment of damages where liability has been determined or the trial of a proceeding in which only the amount of a debt or damages is in dispute:
(g)the entry of a judgment by consent or the making of an order by consent:
(h)the making of an order (other than an arrest order or an order relating to an arrest order) that may be made under the High Court Rules against a judgment debtor who has been ordered to attend the court for an examination:
(i)the making, variation, suspension, or discharge of an attachment order under the High Court Rules:
(j)any other matter that an Associate Judge has jurisdiction to deal with under an enactment.
(2)An Associate Judge has the jurisdiction and powers of the court or a High Court Judge under the following enactments:
…
(3)An Associate Judge may adjourn a proceeding even though the Associate Judge does not have jurisdiction in relation to the proceeding.
…
21Ancillary powers of Associate Judge
(1)An Associate Judge has, in relation to a proceeding (including a proceeding on an interlocutory application) that is properly before the Associate Judge, the same jurisdiction and power to make an order or exercise an authority as a Judge of the High Court.
(2)Despite subsection (1), an Associate Judge does not have the jurisdiction or powers referred to in section 22(4).
22Rules conferring on Associate Judges specified jurisdiction and powers of High Court Judge in chambers
(1)Rules made under section 148 and rules made under any other Act in the manner provided in that section may confer on an Associate Judge the jurisdiction and powers of a High Court Judge in chambers specified in the rules.
…
(4)Despite subsection (1), no rules may be made that confer on Associate Judges jurisdiction and power in relation to any of the following:
…
(g)an application for a search order or an interlocutory or a permanent injunction:
(h)an application for review or other relief under the Judicial Review Procedure Act 2016:
(i)a proceeding for a writ or an order in the nature of mandamus, prohibition, or certiorari, or for a declaration or an injunction:
…
[18] Under r 2.1 of the High Court Rules, an Associate Judge has the “jurisdiction and powers of a Judge in chambers conferred by the Act or these rules or another enactment” except as excluded by s 22(4) of the Act.4
[19] The Act consolidates the Judicature Act 1908 and the Supreme Court Act 2003.5 Significant elements of s 22(4) of the Act are derived directly from s 26J(3) and
(4) of the Judicature Act 1908.
4 As summarized in Ford v Strangwick [2019] NZHC 2245 at [33].
5 Senior Courts Act 2016, s 3(1)(a).
Submissions
[20] Mr Jindal submits that the substantive proceeding should be transferred to a High Court Judge as it seeks declaratory orders and declaratory relief under equity and thus falls outside of the Associate Judge jurisdiction. He states that orders and directions previously made by the Associate Judge are a nullity due to jurisdictional error and seeks for the orders to be re‑examined. He submits that it cannot be too late to raise a point of jurisdiction where the original decision is a nullity; and that Ingenious cannot be said to have waived an error of jurisdiction by default.6
[21] Mr Jindal states that the rules of practice and procedure made in accordance with ss 145 and 148 of the Act — relevantly the High Court Rules — must adhere to the limits prescribed by ss 21(2) and 22(4) of the Act. He submits that the jurisdiction of Associate Judges is, therefore, not determined by the interplay of the Act and the High Court Rules but rather by the Act alone.
[22] He submits that the jurisdiction and powers conferred on Associate Judges by Parliament are “subject matter specific” rather than “carte blanche”. He suggests the distinction between the jurisdiction of High Court Judges and Associate Judges represents a “bright line” and asserts that Associate Judges do not have inherent jurisdiction, which is solely held by the High Court.
[23] Relying on the heading to s 22, he submits that Associate Judges do not have a broad jurisdiction to determine interlocutory applications but rather have jurisdiction to determine only specified interlocutory applications in chambers.7 He says there is no such jurisdiction where the substantive claim seeks one or more declarations having regard to s 22(4)(i) of the Act. In reply submissions, he contends that the statute must be interpreted literally and that the “implied exclusion rule” should apply.8 He is critical of the way in which he says judges have assumed the law remained essentially unaltered by the 2016 Act and emphasises the need for judges to interpret statutes in
6 Referring to the Court of Appeal decision Morris v Templeton CA105/00, 17 July 2000.
7 As prescribed by s 10(4) of the Legislation Act 2019.
8 Citing BDM Grange Ltd v Parker [2006] 1 NZLR 353 (HC).
“a non-self-serving manner i.e., not to satisfy their own need of jurisdiction or power”.9
[24] In a further memorandum filed with my leave the day after the hearing, Mr Jindal addresses in greater detail the purposive approach to construction urged on me by the Defendants in oral submission. He says that the language of every statute must be construed according to its plain import and that, only when such import is doubtful, can purpose be invoked.10 He says interpreting one subsection literally but then taking a purposive approach to another subsection amounts to “cherry picking”, contrary to the interests of justice.
[25] The Defendants submit that every exercise of jurisdiction by an Associate Judge in this proceeding has been within the jurisdiction established by the Act as it has involved an exercise of the jurisdiction of a Judge in chambers, whether in the context of a directions conference or interlocutory application.
[26] They emphasise that this proceeding has not yet involved the exercise of inherent jurisdiction and say that there is, in any event, no prohibition on Associate Judges exercising the Court’s inherent jurisdiction.11
[27] For their contextual and purposive approach to construction of s 22(4)(i), the Defendants rely on a line of authority originating with Clark v Governor‑General (No.1),12 (a case pre‑dating the Act and applied subsequent to the Act’s introduction in AR (India) v Attorney-General).13
9 Citing John Willis “Statute Interpretation in a Nutshell” (1938) 16 Can Bar Rev 1 at 16.
10 Citing Allied Concrete Ltd v Meltzer [2015] NZSC 7, [2016] 1 NZLR 141 at [55]; and D (SC31/2019) v New Zealand Police [2021] NZSC 2, [2021] 1 NZLR 213 at [162]. The cited passage from Allied does not in my view support the proposition. It says “The Court’s task is to ascertain the meaning of the provisions from their language, read in context, and the statute’s purpose informed by any relevant background material”. It does not restrict identification of purpose to instances where the “plain import” is doubtful.
11 Relying on Flynn v McCallum HC Tauranga CIV-2005-470-611, 17 December 2009 at [162]. This is not an issue I need consider further. The Defendants primary argument, which I accept, is that there has not yet been any purported exercise by the Associate Judge of any inherent jurisdiction of the Court. The hearing of the substantive proceeding, including the applications for declarations will take place before a High Court Judge.
12 Clark v Governor-General (No.1) HC Wellington CIV-2004-485-1902, 2 February 2006. Reasoning further applied in The Secretary for Internal Affairs v Kilbirnie Tavern Ltd HC Wellington CIV-2007-485-1988, 7 May 2008.
13 AR (India) v Attorney-General [2020] NZHC 421.
Discussion
[28] While s 22(4) of the Act limits the exercise of jurisdiction to specific matters,14 the High Court Rules address the jurisdiction of Associate Judges in matters not captured by s 22(4), with r 2.1(1) providing jurisdiction and powers in addition to the jurisdiction and powers conferred by s 20 of the Act.15
[29] Section 22(4) of the Act provides that Associate Judges do not have jurisdiction or power in relation to “a proceeding for a writ or an order in the nature of mandamus, prohibition, or certiorari, or for a declaration or an injunction”.16 This provision largely mirrors s 26J(4)(c) of the Judicature Act, which stated that Associate Judges do not have any jurisdiction or power “to grant any relief in any proceedings for a writ or order of or in the nature of mandamus, prohibition, or certiorari, or for a declaration or injunction”.
[30] In Clark, Miller J reviewed an Associate Judge’s exercise of jurisdiction when striking out a cause of action that sought declarations that the defendants had breached ss 9 and 23(5) of the New Zealand Bill of Rights Act 1990 (NZBORA). The case was governed by the Judicature Act. At the relevant time (2006) s 26J(4) provided:
(4)Nothing in subsection (1) or (2) authorises the making of any rule which confers on Associate Judges any jurisdiction or power-
(a) to grant an Anton Piller order or an injunction (whether interlocutory or otherwise):
(b) to grant any relief on an application for review under section 4(1) of the judicature Amendment Act 1972:
(c) to grant any relief in any proceedings for a writ or order of or in the nature of mandamus, prohibition, or certiorari, or for a declaration or injunction:
(d) to grant any application to remove any person from public office:
(e) to try the right of any person to hold any public office.
[31]Referring to s 26J(4) his Honour held:
[22] The language of s26J(4)(c) appears to have been taken from s4(1) of the Judicature Amendment Act. That Act was designed to simplify judicial review by creating a single procedure encompassing all such applications. It
14 High Court Rules 2016, r 2.1(3)(a).
15 Rule 2.1(2).
16 Emphasis added.
confers jurisdiction to review the exercise of statutory powers and it establishes a single procedure that also applies to review of non-statutory or prerogative powers. For that reason it was not sufficient for the drafter to refer in s 26J(4) only to applications under s4(1). In order to exclude judicial review from the Associate Judges’ jurisdiction, it was also necessary to refer, as s4(1) of the Judicature Amendment Act does, to relief that the Court might grant in an application for judicial review. I conclude that the drafter intended only to exclude judicial review, and not to prohibit the making of declarations in other proceedings. If that were not so, s26J(4)(a), which excludes injunctions, would be redundant; the word ‘injunction’ also appears in subsection (4)(d).17
[32] Miller J held that as the declaration sought by the plaintiff did not arise in a judicial review proceeding, the Associate Judge had jurisdiction to strike out the second cause of action.
[33] In AR (India) v Attorney-General Associate Judge Bell applied the same reasoning in the context of a case postdating the introduction of the Act. Again, the issue was whether he had jurisdiction to strike out a claim seeking a declaration of a breach of NZBORA. The Associate Judge was satisfied that the bar under s 22(4)(i) of the Act did not apply stating:
[15] … Section 26J(4)(c) is in substantially similar terms to s 22(4)(i) of the Senior Courts Act 2016. … The interpretation of the Judicature Act also applies to s 22(4) of the Senior Courts Act 2016. That is, following the reasoning in those other cases, s 22(4)(a)18 of the Senior Courts Act applies only to proceedings under the Judicial Review Procedure Act 2016.19 The cause of action under the New Zealand Bill of Rights Act is therefore not caught by s 22(4)(i). I issued a minute indicating that I would hear the application. At the start of the hearing, Mr Pang referred me to my decision in Thode v Turners & Growers Horticulture Ltd,20 and my observation that an associate judge ought not to make a declaration where the effect of the declaration is coercive. I do not resile from what I said in that decision, but I do not regard it as applying in the present case. The declarations that AR has sought go to findings that there have been breaches of the New Zealand Bill of Rights Act. They are declaratory of what has already happened and as to a present state of affairs. The declarations sought are not in the nature of injunctions directed at requiring the Crown to take steps in the future. I therefore do not regard the Thode case as authority to bar me from hearing the current application.
[16] Accordingly, I am satisfied that I have jurisdiction, and the bar under s 22(4)(i) of the Senior Courts Act does not apply.
17 The reference to subs (4)(d) appears to be a typographical error with the correct reference being subs 4(c). The word ‘injunction’ did not appear in 4(d).
18 Again, this appears to be a typographical error. Section 22(4)(a) refers to criminal proceedings which were not in issue in the case. I consider the intended reference was s 22(4)(i).
19 Judicial Review Procedure Act 2016, ss 11 and 12.
20 Thode v Turners & Growers Horticulture Ltd [2018] NZHC 890 at [13].
[34] In his reply submissions, Mr Jindal submits that Miller J’s analysis in Clark is “erroneous” and “contrary to the principles of statutory interpretation”. He suggests that the Judge read words into the statute that were not there, in a manner akin to legislating — again criticising any purposive approach. He also distinguishes the cases relied upon by the Defendants on the basis that, in both, declarations were sought in respect of what had already occurred whereas the declarations sought in this proceeding have, he submits, future affect in that anyone claiming funds in the liquidation will be bound by them. He further submits that with the repeal of the Judicature Act and its replacement by the Senior Courts Act, reliance on case law pre- dating 2016 is “against the interests of justice”.
[35] He says that s 22(4)(h) captures and excludes all judicial review and public law matters and submits that s 22(4)(h) and (i) are intended to operate independently with subs (h) excluding proceedings caught within the Judicial Review Procedure Act 2016 and subs (i) excluding proceedings as described in the subsection whether in the nature of judicial review or not.
[36] I am not persuaded by these submissions. For a start, the Act was intended to “consolidate in a single statute the provisions of the Judicature Act 1908 and the Supreme Court Act 2003”.21 There is no indication as Mr Jindal submits, that Parliament intended to draw a new and clear “bright line” in terms of the powers of High Court Judges and Associate Judges. Indeed, many of the provisions in the Judicature Act are simply carried over to the new Act. What is now s 22(4)(i) is in that category.22 To that end, authorities such as Clark remain relevant to the construction of s 22(4)(i), as recognised by Associate Judge Bell in AR (India).
[37] Nor am I persuaded that Miller J’s analysis in Clark was incorrect. As his Honour correctly pointed out, if the reference to injunctions in s 26J(4)(c) of the Judicature Act was intended to apply to injunctions beyond these sought in a judicial review context, s 26J(4)(a) would be otiose. In turn that strongly suggests that the word “declaration” which immediately preceded “injunction” in s 26J(4)(c) also
21 Senior Courts Act, s 3(1)(a).
22 There are minor changes in wording by comparison with the Judicature Act 1908 s 26J(4)(c) but they are not relevant for present purposes.
referenced declarations in the same judicial review context. And in s 22(4)(g) of the Act we see exactly the same “carve out” in respect of rules conferring jurisdiction with regard to applications for “an interlocutory or permanent injunction”, in addition to the reference to “injunction” in s 22(4)(i). Again, this is strongly suggestive of the fact that s 22(4)(i) is referencing a more limited context — declarations or injunctions arising in a proceeding where a statutory power is in issue.
[38] Likewise, s 26J(4)(b) of the Judicature Act made specific reference to applications for review under the Judicature Amendment Act 1972, just as s 22(4)(h) of the Act references the contemporary equivalent, such being applications for relief under the Judicial Review Procedure Act. This tends to negate Mr Jindal’s submission that the approach in Clark must now surrender to a new and clear bright line which captures all judicial review and public law exclusions within s 22(4)(h).
[39] I come back then to the purpose and context of s 22, which form essential reference points in terms of proper construction of the text.23
[40] A statute’s purpose is informed by the scheme of the Act and its legislative history,24 which may include adoption of earlier wording in equivalent statutes. Context will include decisions such as Clark which discuss such earlier iterations. The section must be read as a whole and, in turn, within the context of the whole Act. I need to also consider the interrelationship between all the subsections in s 22(4).
[41] Section 22(4)(h) prohibits Associate Judges from dealing with applications for review or other relief under the Judicial Review Procedure Act. Section 22(4)(i) prohibits “a proceeding for a writ or an order in the nature of mandamus, prohibition, or certiorari, or for a declaration or an injunction” reflecting common law applications for judicial review.25 Sections 11 and 12 of the Judicial Review Procedure Act are clear that proceedings for the writs of mandamus, prohibition or certiorari are to be treated and disposed of as if they were applications for judicial review and that where
23 Legislation Act 2019, s 10(1).
24 Allied Concrete Ltd v Meltzer, above n 10, at [55]; and D (SC31/2019) v New Zealand Police, above n 10, at [162].
25 Peter Twist Sim’s Court Practice (NZ) (online ed, Lexis Nexis) at [SEN22.3].
proceedings seek “a declaration or injunction” and a statutory power is in issue, the court may treat them likewise.
[42] In short, the position is that because common law applications may still be brought in the public law context, even if “treated and disposed of as if they were an application for judicial review”,26 comprehensive legislative drafting designed either to limit relief, or, in this case, limit the jurisdiction of Associate Judges, will reference both the common law and (now) Judicial Review Procedure Act mechanisms. That is, in my view, what was intended by s 22(4)(i), not a prohibition on rules being made which conferred on Associate Judges jurisdiction and power where a (non-public law) declaration happened to feature in a prayer for relief.
[43] I note that s 296 of the Resource Management Act 1991 likewise distinguishes between an application for review brought under the Judicial Review Procedure Act and common law applications for review. It provides:
296No review of decisions unless right of appeal or reference to inquiry exercised
If there is a right to refer any matter for inquiry to the Environment Court or to appeal to the court against a decision of a local authority, consent authority or any person under this Act or under any other Act or regulation—
(a)no application for review under the Judicial Review Procedure Act 2016 may be made; and
(b)no proceedings seeking a writ of, or in the nature of, mandamus, prohibition, or certiorari, or a declaration or injunction in relation to that decision, may be heard by the High Court—
unless the right has been exercised by the applicant in the proceedings and the court has made a decision.
[44] I am satisfied therefore that, having regard to purpose and context, the s 22(4)(i) reference is to proceedings seeking declarations in the public law sphere.
[45] Nor does the fact that equitable relief may ultimately be sought preclude Associate Judge jurisdiction in case management of the file. Were equitable relief
26 Judicial Review Procedure Act, s 11(2).
sought on any application (other than in the summary judgment context specifically provided for) the matter could of course be referred to a High Court Judge.
Is there any other reason justifying the transfer of the proceeding under s 26 of the Act?
[46] Section 26 of the Act permits the transfer of proceedings to a High Court Judge. It provides:
26 Transfer of proceeding to High Court Judge
(1)An Associate Judge may, on the application of a party to a proceeding before the Associate Judge or on the Associate Judge’s own initiative, refer the proceeding or a matter in the proceeding to a High Court Judge if the Associate Judge is satisfied that because of the complexity of the proceeding or matter it is desirable to do so.
(2)A High Court Judge may, on the application of a party to a proceeding that is being or is to be dealt with by an Associate Judge, order that the proceeding or any part of it be transferred to and dealt with by a High Court Judge if the Judge making the order is satisfied that it is desirable to do so.
(3)A High Court Judge may—
(a)dispose of the proceeding; or
(b)refer the proceeding or matter back to the Associate Judge with any directions the High Court Judge thinks fit.
Discussion
[47] Mr Jindal submits that the complexity of the case arises from the intertwined nature of Ingenious’ claims that the directors failed in their duties to the company and in turn the liquidators failed in their duty to pursue the directors. He raises concerns about Associate Judges exercising jurisdiction over proceedings in equity.
[48] But as the Defendants point out, Ingenious has previously made costs submissions on the basis that the proceedings are of average complexity and, therefore, fall to be considered under category 2 for costs purposes. Moreover, Associate Judges routinely grant the equitable remedy of specific performance in a summary judgment context.
[49] I do not consider the case to be of sufficient complexity that it cannot be adequately case managed by the experienced Associate Judge. I accept that the trial itself may be reasonably complex. But that is not the point. No full trial will take place before the Associate Judge and his jurisdiction to entertain applications for summary judgment is specifically provided for.27
Should orders and directions previously made in this proceeding be stayed?
[50] Having regard to the conclusions I have reached, there is no proper basis to stay any of the orders of the Associate Judge on jurisdictional or other grounds.
Costs
[51] The Defendants having succeeded are entitled to costs, which I award on a 2B basis (one award for all the Defendants).
[52] My expectation is that these be agreed but, in the absence of such agreement, brief memorandum (maximum three pages, plus any schedules) may be filed on the following timetable:
(a)Submissions for the Defendants — 21 October 2024.
(b)Response by Ingenious — 4 November 2024.
(c)Any reply — 11 November 2024.
Result
[53] Ingenious’ application to transfer the proceeding to a High Court Judge is declined.
[54] Ingenious’ application for a stay of all orders, directions and judgments of the Associate Judge in proceedings CIV-2023-404-2103 is declined.
27 Senior Courts Act, s 20(1)(a).
[55]Costs are awarded in favour of the Defendants (one award) on a 2B basis.
Muir J
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