Jin v Konishi

[2016] NZHC 2675

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-001520 [2016] NZHC 2675

BETWEEN

RUJING JIN

Appellant

AND

YASUKI KONISHI AND MAKIKO KONISHI

Respondents

Hearing:	7 November 2016
Appearances:	Y B Lee for the Appellant, by telephone D Hickson for the Respondents, by telephone
Judgment:	8 November 2016

JUDGMENT OF HINTON J

This judgment was delivered by me on 8 November 2016 at 4.30 pm pursuant to Rule 11.5 of the High Court Rules

……………………………………………………………………

Registrar/Deputy Registrar

Solicitors:

Y B Lee, Auckland

D B Hickson, Auckland

JIN v KONISHI [2016] NZHC 2675 [8 November 2016]

[1]      The issues are firstly, whether the appellant has abandoned her appeal and secondly, whether such abandonment can be withdrawn.

Background

[2]      The history of the proceedings between the parties is quite complex.

[3]      For present purposes, the appellant asked the District Court to rescind orders that had been made against her, on the grounds that those orders were obtained fraudulently.

[4]      On 8 June 2016, Judge Sharp issued a Minute saying:

The  proceeding has  been determined.    I am now  functus  officio.   This application may not be heard and are [sic] to be returned to Mr Lee.

[5]      Ms Jin appealed that decision, primarily on the grounds that it was ultra vires or contrary to natural justice.

[6]      On  9  August  2016,  Woodhouse  J  set  the  appeal  down  for  hearing  on

9 November 2016 and made directions, including that the appellant was to file and serve  a  bundle  of  documents  by  20  September  2016  and  to  file  and  serve submissions and a chronology by 27 September 2016.  The respondents had eight days in which to respond to the appellant’s submissions.

[7]      Woodhouse J refers at [4], to having discussed with counsel for the appellant, questions as to whether the appeal was possibly misconceived.   He records that counsel said he would give serious consideration to the matters raised.

[8]      On 26 September 2016 at 1.25 pm, the appellant filed a memorandum stating as follows:

4.        Counsel has discussed with the appellant the point raised at [4] of Your Honour’s minute and proposed that the more appropriate course of action would be by way of judicial review of the District Court record of the proceedings so as to cover all extant matters that the District Court has declined to deal with.

5.        The  relief  sought  at  the  judicial  review  is  for  mandamus  and certiorari.

6.        The appellant seeks leave of the Court to withdraw her Notice of

Appeal.

7.        The appellant further seeks leave and requests that the Court change the fixture on 9 November 2016 to a judicial review hearing.

8.        Should leave be granted, the appellant shall reformat the notice of appeal into a statement of claim for judicial review.  The issue for review is whether the District Court, in declining to hear the appellant, has breached her natural justice rights to be heard for extant matters still before the court.

[9]      Also on 26 September 2016 at 4.22 pm, the appellant’s counsel filed a “notice of discontinuance and leave to substitute fixture with judicial review” which stated:

1.         Rujing  Jin  discontinues  the  appeal  against  Yasuki  Konishi  and

Makiko Konishi.

2.         Rujing Jin has filed memorandum to His Honour Woodhouse J on

26 September 2016 seeking leave to replace the appeal with a judicial review for the fixture on 9 November 2016.

[10]     Shortly afterwards, on 28 September 2016, counsel for the respondents filed a memorandum saying that he was proceeding on the basis that the notice of discontinuance comprised a notice of abandonment of the appeal within r 20.12(2) of the  High  Court  Rules.    He  sought  costs  of  $2,007,  being  scale  costs  on  the abandoned appeal calculated on a category 2B basis.

[11]     On 19 October 2016, the appellant filed a judicial review proceeding under CIV-2016-404-2638, which I am advised by her counsel, incorporates in full the points raised in the appeal, but also raises separate grounds of review.  The review proceeding was allocated a first call on 1 December 2016.

[12]     On  Thursday,   3   November   2016,   counsel   for   the   appellant   filed   a memorandum,   seeking   leave   to   withdraw   his   memorandum   and   notice   of

26 September 2016, on the basis these were “filed in the erroneous expectation that the change sought would be granted.  Counsel apologises for the inadvertent error.” Counsel also sought leave to file submissions out of time for the appeal, which submissions accompanied the memorandum.  Those submissions appear to turn on jurisdictional errors and the Judge having acted ultra vires in declining to consider the application.

[13]     Later on 3 November, the respondents’ counsel emailed the Court, saying he knew of no basis upon which a notice of discontinuance could be withdrawn, and it was opposed.  He said that if the appeal were to continue, despite the discontinuance, then given, the “gross breach” of timetable orders, the respondents asked for an adjournment to the next available date after 1 December 2016, that being the date for first call of the judicial review proceeding.

[14]     On Friday 4 November and on Monday 7 November, further memoranda were filed as to the ability to withdraw a discontinuance.

[15]     At 3.00 pm yesterday, I held a telephone conference with the parties so that they each had an opportunity to raise any points not addressed in the memoranda filed.

Was the “notice of discontinuance” an abandonment of the appeal?

[16]     Rule 20.12(2) provides:

The appeal is taken to have been dismissed, subject to the respondent’s right to apply for an order as to costs, if the appellant signs, files, and serves on every other party a statement to the effect that the appellant abandons the appeal.

[17]     The appellant contends that there is a prescribed form G24 and that her own failure to comply with the prescribed form, means the document filed was not a notice of abandonment.   It is not clear that  G24 applies and in  any event, the appellant cannot rely on not filing a notice of abandonment in the correct form, to contend that no abandonment has in fact occurred.  The meaning and effect of the notice of discontinuance is clear, albeit possibly not in a form which is strictly in accordance with the rules.   That view is further reinforced, but not dependent on, r 20.12(2)  requiring  “a  statement  to  the  effect  that  the  appellant  abandons  the appeal”. There is no doubt the document filed is to that effect.

[18]     The  appellant  then  says  that  the  discontinuance  was  conditional,  and therefore not a discontinuance.   There is no such thing as a conditional discontinuance.     In  effect  though  the  appellant  is  arguing  that  she  did  not discontinue,  but  rather  was  saying  she  would  discontinue,  providing  the  appeal

hearing date could be substituted for a hearing of the judicial review proceeding.  As will be apparent from the content of the “notice of discontinuance” and the other documents/events  I  have  already  cited,  that  is  not  either  a  literal  or  a  fair interpretation of what happened here.  The appellant was discontinuing the appeal and seeking to replace the available hearing date with hearing of a judicial review proceeding (not yet filed).

[19]     The notice of discontinuance dated 26 September 2016, therefore constitutes a notice of abandonment of the appeal under r 20.12(2).  That rule provides that the appeal is taken to have been dismissed upon filing of a statement to the effect that the appeal is abandoned.   No further steps were required by the Court and so the appeal can be taken to have been dismissed on 26 September 2016.

Can the appellant withdraw the notice of abandonment?

[20]    There is jurisdiction, which appears to be based in the Court’s inherent jurisdiction rather than any specific rule, for the Court to allow withdrawal of a notice of abandonment of appeal.1

[21]     The Court in Pellikan was dealing with whether it could hear a second appeal on the same grounds, after a first appeal had been dismissed following abandonment of the appeal by the appellant himself.  The Court said that the second appeal will not  lie  and  the  only  course  open  to  an  appellant  who  has  given  notice  of abandonment is to withdraw it, if leave should be granted.

[22]     The Court of Appeal referred to the practice laid down by the Court of Criminal Appeal in England, which allows notice of abandonment to be withdrawn, only if something amounting to mistake or fraud is alleged, that then enabling the Court to say that the notice of abandonment should be regarded as a nullity.2

[23]     The Court of Appeal in Pellikan said it was not desirable to reach a final conclusion as to the circumstances in which a notice of abandonment could be

1      R v Pellikan [1959] NZLR 1319.

2      Referring to Lord Goddard in R v Healey (1956) 40 Cr. App. R. 40.

withdrawn, because it was plain on the facts of the case that the appellant did intend to abandon the appeal.

[24]     I reach the same conclusion here.  I do not consider the appellant was under any misapprehension, let alone something amounting to mistake or fraud justifying withdrawal of the notice of abandonment.   The appellant had  clearly made the decision to terminate the appeal and proceed by judicial review.   If having the hearing on the same day was so critical, that would have been stated.  Further, I can see no reason why it would be so critical, nor could counsel for the appellant point to one.    He  said  the  intention  was  economy  of  disposal  of  the  proceeding.    The proposed swap of proceedings was also plainly unlikely to happen.

[25]     I add that I consider the appellant should have to establish something akin to mistake or fraud, not just misapprehension.  The latter is too easy to allege and it would undermine the Court process, if notices which on their face are conclusive, could be too readily withdrawn.

[26]     Factors such as the merits of the appeal would also be relevant, given an application such as this is an indulgence.  In that regard, Woodhouse J has apparently already indicated to counsel there may be little utility in the appeal and in any event, it does seem that the substance of the “appeal” is addressed, and more properly addressed,  in  the  extant  judicial  review  proceeding  which  has  a  first  call  on

1 December 2016.   There can be little, if any, prejudice to the appellant in being refused leave to withdraw her abandonment of the appeal.

Conclusion

[27]   This appeal was dismissed on 26 September 2016 when the “notice of discontinuance   and   leave   to   substitute   fixture   with   judicial   review”   dated

26 September 2016 was filed.

[28]     The  application  for  leave  to  withdraw  the  “notice  of  discontinuance”  is

declined.

[29]   During the teleconference, I vacated the hearing that was allocated for Wednesday, 9 November 2016, as even if the appeal were reinstated, I would have allowed the respondents’ alternative application for an adjournment of the appeal hearing, given non-compliance with the timetable.

[30]     The  respondents  have  sought  costs  on  the  abandonment  of  the  appeal, pursuant to r 20.12(2), in the sum of $2,007.  The respondents have also sought costs on the application to withdraw the notice of discontinuance/abandonment, in the sum of $900, being the amount advised as counsel’s costs of attendances.

[31]     The appellant is to pay costs on a 2B basis in respect of attendances regarding the application to withdraw the abandonment of the appeal.

[32]     I have decided to reserve costs on the abandonment itself, to be dealt with at the conclusion of the judicial review proceeding.  If Ms Jin were to succeed on the judicial review proceeding, the Court might take the view she had acted responsibly in abandoning the appeal, rather than for example running the two side by side.

-------------------------------------------------- Hinton  J