Jayashree Ltd v Moore
[2022] NZCA 151
•29 April 2022 at 11 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA34/2021 [2022] NZCA 151 |
| BETWEEN | JAYASHREE LIMITED |
| AND | SAMUEL MOORE |
| Court: | Brown and Courtney JJ |
Counsel: | No appearance for Appellant |
Judgment: | 29 April 2022 at 11 am |
JUDGMENT OF THE COURT
A The application to strike out the appeal is granted.
BThe appellant must pay the respondent costs for a standard application on a band A basis and usual disbursements.
____________________________________________________________________
REASONS OF THE COURT
(Given by Courtney J)
Introduction
Jayashree Ltd has appealed against a judgment of Palmer J, Karmarkar v Moore.[1] There is an obvious difficulty with the appeal: Jayashree Ltd was not a party to the proceeding in the High Court. Its director, Mr Karmarkar, was the plaintiff. In addition, Jayashree Ltd is not represented, even though both the High Court and this Court have made it clear that it requires representation in order to advance the appeal to a hearing.[2]
[1]Karmarkar v Moore [2020] NZHC 3480 [High Court decision].
[2]At [4]; and Jayashree Ltd v Moore CA34/2021, 22 July 2021 (Minute of Cooper J).
The respondent, Mr Moore, applies under r 44A(1) of the Court of Appeal (Civil) Rules 2005 to strike out the appeal. His grounds are, essentially, that Jayashree Ltd is in continuing default with a direction of this Court and that the appeal does not raise any arguable question of fact or law.
Rule 44A(1) provides:
44A Court’s power to strike out or stay appeal
(1)In addition to any express power in these rules to strike out an appeal, the Court may, on an interlocutory application or on its own initiative, make an order striking out or staying an appeal in whole or in part if—
(a)the appellant is in continuing default in complying with any of these rules or with any procedural direction or order made by a Judge; or
(b)the appellant has failed to prosecute the appeal with due diligence and dispatch; or
(c)the appeal is frivolous, vexatious, or otherwise an abuse of the process of the Court.
…
The power to strike out is one that is used sparingly. In the case of a strike out application brought on the ground that the appeal is frivolous or vexatious the Court will consider whether there is some element of impropriety, including a procedural impropriety:[3]
… a “frivolous” pleading is one which trifles with the court’s processes, while a vexatious one contains an element of impropriety. [A pleading is] “otherwise an abuse of process of the court” [if it] extends beyond the other grounds and captures all other instances of misuse of the court’s processes, such as a proceedings that has been brought with an improper motive or are an attempt to obtain a collateral benefit.
(Footnotes omitted).
[3]Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679 at [89]; see also Deliu v Hong [2011] NZAR 681 (HC) at [21]–[22].
Mr Karmarkar filed submissions in opposition to the application to strike out. However, we decline to take these submissions into account. This Court has made it clear on many occasions that, save for exceptional circumstances, the Court will not permit a company to be represented other than by a lawyer with rights of audience in the courts.[4] This requirement is in the public interest. It ensures that parties to litigation advance their cases with proper understanding of the law. It also ensures that the scarce resources of the courts are not wasted by the efforts of those who are not equipped to identify the relevant issues and assist the court in the effective dispatch of court business.[5] This is equally important for other litigants with cases that need to be determined as to the particular litigant in question. The present case is a good example of the reasons for the rule.
A brief history
[4]Re G J Mannix Ltd [1984] 1 NZLR 309 (CA) at 310; Commissioner of Inland Revenue, above n 3, at [25]–[34]; and Dreamtech Designs & Productions Pty Ltd v Clownfish Entertainment Ltd [2015] NZCA 491, (2015) 23 PRNZ 141 at [8]–[10].
[5]Commissioner of Inland Revenue, above n 3, at [34].
In 2018 Jayashree Ltd engaged Mr Moore, a barrister, to act for it on an appeal from the Environment Court to the High Court. Before the hearing Jayashree Ltd terminated Mr Moore’s engagement. Mr Karmarkar, Jayashree Ltd’s director, complained to the New Zealand Law Society Complaints Service about Mr Moore’s fee. That complaint was then heard by the Central Standards Committee, who declined to take any further action on the complaint. Mr Karmarkar applied to the Legal Complaints Review Office (LCRO) for a review of the decision, but the LCRO ultimately found that Mr Moore’s fee was fair and reasonable.
Mr Karmarkar applied for judicial review of the LCRO’s decision. Although Mr Karmarkar had brought the complaint in the LCRO, the real complainant must have been Jayashree Ltd, which had engaged Mr Moore. Jayashree Ltd ought therefore to have been the applicant in the High Court and would have required legal representation. Both these facts were brought to Mr Karmarkar’s attention.
In August 2020 Palmer J advised Mr Karmarkar in a telephone conference that he would not be permitted to represent Jayashree Ltd in the proceedings and that if the company was to advance the judicial review application it had to be represented by a lawyer.[6]
[6]Karmarkar v Moore HC Auckland CIV-2020-404-1144, 27 August 2020 (Minute of Palmer J).
At a call of the proceeding on 10 September 2020 Fitzgerald J adjourned the matter because Mr Karmarkar had not taken any further steps.
On 8 October 2020 Mr Karmarkar requested a further three-week adjournment to secure representation for the company. That adjournment was given on the basis that if he had not secured legal representation for the company and filed an amended statement of claim and accompanying memorandum by 22 October 2020 Mr Moore would be permitted to file an application to strike out the judicial review proceeding. Nevertheless, on 29 October 2020 Mr Karmarkar sought a further three-week adjournment.
Mr Moore applied to strike out the proceeding. In granting the application, Palmer J made the following observations:[7]
[10] The efficient procedural path for these proceedings has been delayed by Mr Karmarkar’s failure to either [sic] find legal representation of Jayashree Ltd. He has elected to pursue the proceedings through the company. It would be contrary to good authority, and good reason, for Mr Karmarkar to represent the company. Mr Karmarkar has been given more than enough time to find legal representation for the company. He has failed to do so over some four months. The attempts of which he has provided evidence include emails to in-house counsel, non-litigators and even non‑lawyers. I consider allowing the proceeding to remain on foot is likely to cause prejudice to Mr Moore and delay to the court system. I strike out the proceedings.
[11] I note that even if Karmarkar were able to pursue the proceedings, they appear to have little merit. Mr Karmarkar appears to confuse judicial review of the LCRO decision with the substance of his complaint against Mr Moore and/or the substance of his case before the Environment Court. Even if the judicial review were successful, the Court would be very unlikely to excuse liability for payment of unpaid invoices.
Mr Moore’s current strike-out application
[7]High Court decision, above n 1.
In a minute dated 22 July 2021, Cooper J directed that:[8]
[2] As Jayashree Limited was not a party to the High Court judgment, it appears on the face of it that there can be no right of appeal by Jayashree Limited.
[3] Further, it appears that Mr Karmarkar wishes to present arguments in the appeal on behalf of the company, notwithstanding that it is not a party. He would need leave to represent the company even if it were a proper party to the appeal.
[4] Mr Karmarkar should seek legal advice as to the best way to proceed. If he is not in a position to secure legal advice he should apply for legal aid.
[8]Jayashree Ltd v Moore, above n 2.
As Cooper J pointed out, Jayashree Ltd was not a party to the High Court judgment (though it undoubtedly should have been). In any event, it cannot advance an appeal in this Court without representation. Despite being notified of this requirement many times (through Mr Karmarkar) Jayashree Ltd has not filed any document in Court, nor given notice to Mr Moore to indicate that it now has representation.
The interests of justice require that litigants respect the rule of law, including through complying with orders and directions of the Court. In the present case, Mr Karmarkar has been indulged in the High Court and given further time in this Court to ensure that Jayashree Ltd has legal representation as it is required to in order to prosecute its appeal. However, although Cooper J made it clear that representation for Jayashree Ltd was required for the appeal to be advanced, no specific date was set for that to be arranged. Therefore, it cannot be said that Jayashree Ltd is so clearly in default of a Court direction as to justify striking out on that ground.
However, we consider that the second ground advanced for striking the appeal out, that the appeal is frivolous, vexations or otherwise an abuse of Court process, is made out.
The grounds of appeal advanced by Mr Karmarkar, supposedly on behalf of Jayashree Ltd are:
(1)The applicant contends that the honourable Justice erred in not granting sufficient opportunity to the applicant to secure legal representation.
(2)The applicant contends that the legal professionals are free to deny him representation and he is at their mercy to accept his case.
(3)The applicant humbly requests that he may be kindly be given enough time to secure good legal representation.
(4)Applicant further contends that his arguments were never heard to the full extent despite going through proper legal channels and three decision making authorities namely the central committee, LCRO and the High Court.
(5)The applicant is constrained by the procedural hurdles to come to a position; wherein he can present his arguments to the full extent. The applicant contends that the procedures should help him in the quest of justice rather than create difficulties.
The first three grounds relate to the lack of legal representation. There is no basis for excusing Jayashree Ltd from the usual requirement for representation. To the contrary, this case is a very good example of why the rule exists. Nor can there possibly be any merit in the assertion that insufficient time has been allowed to make the necessary arrangements. It is obvious from our review of the procedural history that Mr Karmarkar/Jayashree Ltd have been indulged to a considerable extent in both the High Court and this Court. To bring an appeal on the ground that insufficient opportunity was provided to comply with a fundamental obligation that was well known to Mr Karmarkar/Jayashree Ltd is a waste of the Court’s resources and unfair to Mr Moore.
The remaining two grounds are essentially that Jayashree Ltd has not had the opportunity to fully advance its arguments up to this point. However, given the nature of the decision under review and the history of the proceeding, it is not tenable to suggest that the previous hearings did not provide an adequate opportunity to advance Jayashree Ltd’s case. Significantly, no specific error on Palmer J’s part is identified.
It is difficult to avoid the conclusion that Mr Karmarkar is misusing the Court’s processes to avoid Jayashree Ltd having to meet its contractual obligations to Mr Moore.
Conscious of the fact that the power to strike out is to be used sparingly, we have nevertheless reached the view that the present appeal is both frivolous and vexatious.
Result
The application to strike out the appeal is granted.
The appellant must pay the respondent costs for a standard application on a band A basis and usual disbursements.
Solicitors:
Neilsons Lawyers, Auckland for Respondent
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