Jin v North Shore District Court
[2013] NZCA 475
•10 October 2013 at 3:00pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA168/2013 [2013] NZCA 475 |
| BETWEEN | RUJING JIN |
| AND | NORTH SHORE DISTRICT COURT YASUKI KONISHI AND MAKIKO KONISHI |
| Hearing: | 3 October 2013 |
Court: | Randerson, Stevens and Venning JJ |
Counsel: | Y Lee for Appellant |
Judgment: | 10 October 2013 at 3:00pm |
JUDGMENT OF THE COURT
AThe application for an extension of time to appeal the costs judgment is granted.
BThe application for leave to amend the notice of appeal is granted.
CThe appeal against the substantive judgment and the costs judgment is dismissed.
DThe appellant must pay the second respondents indemnity costs on a reasonable solicitor and client basis.
____________________________________________________________________
REASONS OF THE COURT
(Given by Randerson J)
Introduction
The appellant and the second respondents are engaged in litigation in the District Court arising from the cancellation of an agreement for sale and purchase of land between the appellant as vendor and the second respondents as purchasers. The second respondents are the plaintiffs in the District Court proceedings and seek a return of the deposit of $30,000 they paid under the agreement, rental costs of $15,642, interest and costs.
The second respondents launched their proceedings in the District Court in February 2011 but they have still not been heard substantively.[1] That is because the appellant has repeatedly failed to comply with procedural directions and because the appellant applied to the High Court in August 2012 for judicial review of six interlocutory decisions made in the District Court.
[1]We were told that, since the judgments under appeal, the appellant’s defence to the second respondents’ claim has been struck out and that the case is to be determined by formal proof on 18 December 2013.
The application for judicial review was heard by Wylie J on 6 December 2012. By a judgment delivered on 19 February 2013, the Judge dismissed the application.[2] Then, on 18 April 2013, Wylie J awarded the second respondents indemnity costs against the appellant of $25,568.48.[3]
[2]Jin v North Shore District Court [2013] NZHC 243.
[3]Jin v North Shore District Court [2013] NZHC 810.
The appellant filed an appeal against the substantive judgment of Wylie J and, at a very late stage, sought leave to amend grounds of appeal to include an appeal against the costs judgment. The application to amend was opposed by Mr Hickson on behalf of the respondents but we granted leave to amend at the hearing of the appeal and also extended the time to appeal the costs decision. We did so because the costs decision is closely related to the substantive judgment and because there was little prejudice to the second respondents.
The decisions which were the subject of the application for review
The Judge was very critical of the appellant’s pleadings in the High Court and the submissions presented on behalf of the appellant. He was obliged to seek clarification from counsel as to the precise decisions in the District Court that were the subject of the application for review. The Judge recorded counsel’s advice that there were six decisions at issue as confirmed in minutes of the District Court issued on 25 November 2011; 15 December 2011; 25 January 2012; 3 April 2012; 14 August 2012 and 12 October 2012.[4]
[4]The Judge also noted that a seventh minute (issued on 4 December 2012) was also mentioned by counsel. However, since this had not been pleaded and no copy of the minute was made available, the Judge declined, correctly in our view, to rule on this minute.
The Judge observed that the appellant’s pleadings had adopted a “scatter-gun” approach. Regrettably, the same criticism can be made of the appellant’s approach on appeal. Moreover, the submissions filed by Mr Lee on behalf of the appellant have referred extensively to events occurring after the judicial review application was heard in the High Court. None of that material was relevant to this appeal and we declined to consider it.
At the outset of the appeal, Mr Lee informed us that the appeal against the substantive judgment was to be limited to only two of the decisions identified in the High Court. These are decisions made by Judge Perkins on 3 April 2012 and by Judge Sharp on 14 August 2012. No prior notice of the reduced scope of the argument was given to the Court or to the second respondents.
The substantive judgment under appeal
The focus of the argument in the High Court concerned the powers of the District Court under the District Court Rules 2009 (the Rules) which came into force on 1 November 2009. As the Judge said, the Rules introduced a number of radical changes designed to secure the just, speedy and inexpensive determination of any civil proceeding or interlocutory application.[5] The Judge described the effect of the new Rules in broad terms and it is unnecessary for us to repeat his summary. It is sufficient at this stage to note that civil claims in the District Court are now commenced by the filing and service of a notice of claim rather than a statement of claim. There is provision for a defendant, within a specified time, to serve a notice of response and an exchange of information is then to occur. The Rules provide for three modes of trial: a short trial, a simplified trial and a full trial.[6]
[5]District Court Rules 2009, r 1.3.1.
[6]Rule 2.40.1.
Issues arose in the District Court concerning the responses required on the part of the appellant to the second respondents’ claim and whether there ought to be a short or simplified trial. One of the many issues raised by the appellant was that she wanted a short trial. Although this was initially directed, a judge later ordered that the matter be dealt with in a simplified trial. The appellant claims that she was wrongly deprived of a short trial which involves truncated procedures designed to achieve a speedy and inexpensive outcome.
A further key point of concern by the appellant is that she was deprived of a judicial settlement conference which she says was a mandatory requirement once a simplified trial was directed.
We do not propose to encumber this judgment with a full chronology of events in the District Court. Rather, we intend to focus on each of the impugned decisions and the Judge’s reasons for rejecting the application for judicial review in relation to each of them.
Judge Perkins’ directions of 3 April 2012
To place Judge Perkins’ directions of 3 April 2012 in context, it is necessary to refer to some of the prior procedural history.
After the respondents filed their notice of claim, the appellant filed a notice of response and there was an exchange of information between the parties. Initially, the respondents filed a memorandum requesting a short trial. On 23 August 2011, Judge Hinton issued a minute directing that a short trial be allocated. However, it became necessary for the respondents to seek directions about amending their notice of claim as a result of events that had occurred subsequent to the filing of the initial notice. The Rules do not make specific provision for the filing of amended claims but, on 25 November 2011, Judge Hinton directed that the respondents file an amended claim within seven days and that the appellant file a response seven days thereafter.
The appellant failed to comply with Judge Hinton’s directions and, on 25 January 2012, the Judge directed that the appellant’s defence would be struck out and judgment entered for the second respondents if the appellant’s notice of response was not received by a stipulated date. At that point, the parties were agreed that a short trial was appropriate and Judge Hinton directed the Registrar to allocate one day for the hearing.
After Judge Hinton’s directions, the appellant filed an amended notice of response to the second respondents’ amended notice of claim. The second respondents were concerned with aspects of the appellant’s amended notice of response but decided to leave any concerns in that respect until the substantive hearing.
By memorandum of 7 March 2012, the second respondents’ counsel informed the Court that at least two days would be required for the hearing given that there were preliminary issues to be determined; at least six witnesses would be giving evidence; and translators would be required. Mr Lee also filed a memorandum, objecting to the suggestion that the matter should be set down for two days and noting that Judge Hinton had twice directed a short trial.
On 3 April 2012 Judge Perkins issued the minute now at issue. It recorded that memoranda had been filed and that the second respondents had decided not to make any pre-trial applications. The Judge directed that the matter be set down for a two day simplified trial. The time limits for exchange of evidence and documents were to be strictly adhered to. Soon after, the Registrar set the matter down for a two day hearing to commence on 29 August 2012.
In the High Court, Mr Lee submitted first that there was no power for Judge Perkins to change the mode of trial. The Judge rejected this submission stating:
[88] There is no express rule permitting a change after the initial allocation, but in my view, a District Court Judge must have the power to make such a change where required and when the short trial process becomes inappropriate. It is a situation which is not provided for by the rules. The Judge was, in my view, entitled to change the trial allocation, pursuant to r 1.l3, and in the exercise of his implied jurisdiction.
In this Court, Mr Lee submitted that the High Court Judge was wrong to conclude that the District Court had power to change the initial allocation of the mode of trial. He relied first on r 2.40 which relevantly provides:
2.40 Court or Registrar to decide whether to allocate short trial
2.40.1 The modes of trial available in a proceeding are—
(a) the short trial:
(b) the simplified trial:
(c) the full trial.
2.40.2The court or a Registrar must first either allocate a short trial or decide not to allocate a short trial; and rules 2.44 to 2.46 apply if a short trial is allocated.
Mr Lee pointed out that a party had the right to apply under r 2.46 for a review of a decision to allocate a short trial and submitted this was the only means by which the allocation could be changed.
We agree with the Judge that this submission is untenable. The Rules did not at the relevant time provide express power for a Judge to alter the mode of trial on his or her own motion. However, r 1.13 provides:
1.13 Cases not provided for
1.13.1 If any case arises for which no form of procedure is prescribed by any Act, rule, or regulation or by these rules, the court must dispose of the case as nearly as may be practicable in accordance with the provisions of the rules affecting any similar case or in accordance with the provisions of the High Court Rules.
1.13.2 If there are no relevant High Court Rules, the court must dispose of the case in the manner that the court thinks best calculated to promote the objective of these rules.
Although not referred to by the Judge or by counsel, there is a comparable provision in the High Court Rules which may be imported into the District Court Rules by virtue of r 1.13.1. Rule 7.1(6) of the High Court Rules requires a judge to classify a proceeding as an ordinary defended proceeding or a complex defended proceeding. Under r 7.1(7), a judge may, at any time, review the classification assigned and decide whether to maintain or alter it.
We are satisfied that, in the absence of an applicable provision in the Rules, a District Court judge must dispose of the case as nearly as may be practicable in accordance with the rules relating to the classification of proceedings in the High Court. It follows that a District Court judge has power to alter the mode of hearing at any time on his or her own initiative.
We are also satisfied that a District Court judge has inherent or implied power to change the mode of hearing under the Rules on the footing that a power of that nature is necessary to enable the Court to exercise the functions, powers and duties conferred on it by statute.[7]
[7]McMenamin v Attorney-General [1985] 2 NZLR 274 (CA) at 276.
We do not accept Mr Lee’s further argument that the order by Judge Perkins was ultra vires on the grounds that a judge may not review the ruling of another judge in the same jurisdiction. We accept Mr Hickson’s submission on behalf of the second respondents that Judge Perkins was simply exercising his power to alter the mode of hearing in the light of the other information and changed circumstances drawn to his attention by counsel subsequent to the earlier order for a short trial. The Rules gave him the power to change the mode of hearing as we have found.
Mr Lee submitted that the Judge was wrong to conclude that a simplified trial was appropriate rather than the short trial initially allocated. On that issue, the Judge found:
[89] Judge Perkins’ decision directing that the matter proceed by way of simplified trial was entirely understandable. It was apparent from the papers that had been filed in the Court that the dispute was mushrooming. Mr and Mrs Konishi through their counsel had indicated that the matter was likely to take two days. They were proposing to call five witnesses, and they had advised that translators were required. They had also indicated that there were a number of preliminary issues that required resolution. They had objected to various aspects of Ms Jin’s notice of response, and arguments had been signalled as to the admissibility of evidence.
Mr Lee challenged the findings made by Wylie J in upholding the decision made by Judge Perkins to change the mode of hearing. He attempted to do so by expressing the opinion that the issues were simple and the Judge was wrong to reach the conclusions he did on each of the identified factors. In making these submissions, Mr Lee has failed to appreciate the proper scope of judicial review. His submission was simply an attack on the merits and was not based on the available grounds of judicial review. The question is whether the factors identified by the Judge were relevant in law. The criteria for deciding the appropriate mode of trial are specified in the Rules. Rule 2.41 provides:
2.41 Criteria for deciding appropriate mode of trial
In deciding the appropriate mode of trial, the court or a Registrar may have regard to the following:
(a) the number of parties:
(b) the complexity of the issues:
(c) the amount at stake:
(d) proportionality:
(e) the nature of the action:
(f) party requests:
(g) any other matter the court or Registrar considers relevant.
These matters are essentially a matter for judicial assessment by the court or a Registrar. We agree with Wylie J that the factors taken into account by Judge Perkins were relevant and that there is no basis upon which the decision to change the mode of hearing could be challenged on judicial review on that account.
Mr Lee argued in the High Court that there had been a breach of natural justice because the appellant did not have the opportunity to address argument to the Court on the mode of hearing issue. However, Wylie J recorded that Mr Lee had filed a memorandum on this subject. While the High Court Judge thought it would have been preferable to discuss the issue directly with the parties (by telephone conference or at a face-to-face hearing), the course adopted by Judge Perkins was appropriate in the circumstances. We agree.
There was a further ground upon which the High Court Judge was entitled to deny relief to the appellant. It is axiomatic that a court on judicial review has a discretion whether to grant relief. In that respect, the Judge said:
[92] It is also noteworthy that Ms Jin did not seek to challenge the change in allocation. Rather, on 10 August 2012, Mr Lee filed a memorandum dealing with pre-trial disclosure (which is not required in short trials) and seeking leave to extend the time for the filing of the briefs of evidence required under the simplified trial rules. He did not then protest the fact that Judge Perkins had directed a simplified trial rather than the short trial initially allocated by Judge Hinton. In effect, any complaint in this regard was waived. (Footnotes omitted.)
We agree with the Judge that the appellant’s failure to object in a timely fashion was a matter he was entitled to take into account in denying relief to the appellant on this issue.
Judge Sharp’s directions of 14 August 2012
It will be recalled that a two day hearing was to commence on 29 August 2012. On 9 August 2012, the second respondents requested an urgent telephone conference to discuss the appellant’s failure to file affidavits. A telephone conference took place before Judge Sharp on 14 August 2012. Amongst other things, she directed that:
(a)There would be no judicial settlement conference.
(b)The appellant’s claim would be struck out and judgment entered for the second respondents if the appellant did not serve her affidavits by 17 August 2012.
Mr Lee first submitted that Judge Sharp ought to have directed a judicial settlement conference. He submitted that, in terms of r 2.40.6, a judicial settlement conference must be allocated if the decision is made not to allocate a short trial. That rule provides:
2.40 Court or Registrar to decide whether to allocate short trial
…
2.40.6 If the court or Registrar decides not to allocate a short trial,—
(a)a judicial settlement conference must be held by a Judge under rule 2.47:
(b)if the parties do not settle the proceedings at the judicial settlement conference stage, rule 2.48 provides that the judicial settlement conference becomes a judicial directions conference, and at that conference a simplified trial or full trial is allocated.
Rule 2.40.8 goes on to state that a judicial settlement conference must be held as soon as practicable after the period ending 30 working days after the date of the relevant decision not to allocate a short trial. Rule 2.47 also relevantly provides:
2.47 Judicial settlement conference
2.47.1 The purpose of a judicial settlement conference is to give the parties to the proceeding an opportunity to negotiate a settlement of the claim or any issue.
2.47.2 A judicial settlement conference must be convened by a Judge and held in chambers.
Mr Lee submitted that the intention of the Rules was clear. A judicial settlement conference is mandatory except in the case of a short trial. If there is an initial decision to allocate a short trial which is subsequently changed to a direction for a simplified trial, the obligation to hold a judicial settlement conference arises.
On this issue, the Judge found that r 2.40.6 did not come into operation. A short trial was allocated in August 2011 and confirmed in November 2011. The Judge was not convinced that the fact that Judge Perkins subsequently changed the mode of allocation to a simplified trial belatedly triggered the need for a judicial settlement conference in this case.
We accept Mr Lee’s submission on this point as far as it goes. We agree with him that the Rules contemplate that a judicial settlement conference must be allocated for all modes of trial other than a short trial. It does not matter if there is a subsequent change from a short hearing to a simplified trial or to a full trial. This interpretation of the Rules is consistent with their objective of securing the just, speedy and inexpensive determination of any proceeding or interlocutory application.[8]
[8]Rule 1.3.
However, that is not the end of the matter for the purposes of the present appeal. As the Judge pointed out, a judicial settlement conference was later offered by the Court. On 21 September 2012, a member of the Registry staff emailed counsel advising that Judge Hinton had:
… directed the registry to find out with counsel in attending a settlement conference which was discussed with his honour on 29/08/2012.
His honour and the registry is trying to accommodate this settlement conference and some dates have been made available.
The email went on to offer counsel three dates on 3, 4 or 5 October 2012. Counsel were asked to confirm as soon as possible so that the necessary arrangements could be made. The second respondents declined to take part in the proposed judicial settlement conference. They declined because they were awaiting a response to their amended notice of claim.
Mr Lee accepted that the Court did not have power to compel the attendance of the parties at a judicial settlement conference. But he submitted that the Court had not “directed” a judicial settlement conference as it was required to do. We are satisfied that any obligation to direct a judicial settlement conference was substantially satisfied by the inquiry made by the Registry staff at the direction of Judge Hinton. There could be no utility in directing a settlement conference where the second respondents had made it clear that they were not willing to attend. The High Court was right to reject this ground of judicial review.
Mr Lee next challenged Judge Sharp’s order that the appellant’s claim would be struck out and judgment entered for the second respondents if the appellant did not file affidavits by 17 August. Mr Lee was somewhat equivocal about whether he accepted there was power for Judge Sharp to make an unless order of this type.
We are satisfied that the District Court does have power under the Rules to make an unless order of this type. Although there is no express power to do so in the Rules, the issue is covered by r 1.13 which we have already cited. By virtue of that provision, the District Court has power to make an unless order since it is clear that the High Court has power to do so under the High Court Rules. Rule 7.48 of the High Court Rules relevantly provides:
7.48 Enforcement of interlocutory order
(1)If a party (the party in default) fails to comply with an interlocutory order or any requirement imposed by or under subpart 1 of Part 7 (case management), a Judge may, subject to any express provision of these rules, make any order that the Judge thinks just.
(2)The Judge may, for example, order—
(a)that any pleading of the party in default be struck out in whole or in part:
(b)that judgment be sealed:
(c)that the proceeding be stayed in whole or in part:
(d)that the party in default be committed:
(e)if any property in dispute is in the possession or control of the party in default, that the property be sequestered:
(f)that any fund in dispute be paid into court:
(g)the appointment of a receiver of any property or of any fund in dispute.
If the Court has power to strike out a pleading of the party in default, then it follows that the Court is entitled to order that this result will follow if a direction of the Court is disobeyed. This Court noted in Anderson v Mainland Beverages Ltd that unless orders are now reasonably common.[9] They should generally be reserved for cases where breach or continued breach is objectively measurable and unchallengeable given the serious potential consequences of failure to comply.
[9]Anderson v Mainland Beverages Ltd (2005) 17 PRNZ 757 (CA) at [44] and [45].
Wylie J found that the unless order was appropriate in the circumstances. He said:
[98] … The dispute had been set down for hearing on 29 August 2012 and 30 August 2012. Ms Jin had been required to serve copies of her affidavits of evidence, together with copies of all documents which she intended to rely on, at least 15 working days before the trial — r 2.51. She had failed to do so. Rather than serve her affidavits of evidence or documents, she served the plaintiffs with copies of notices to cross-examine witnesses it seems she was intending to call. The notices bore an incorrect trial date. In the circumstances, where there was a history of breach of timetables by Ms Jin, an unless order was to be expected. None of the orders made by Judge Sharp can be described as amounting to a breach of natural justice, or as being in breach of Ms Jin’s legitimate expectations, or as being manifestly unreasonable. The orders were not ultra vires.
We agree with the conclusion reached by the Judge for the reasons he gave. Importantly, there was no prospect that the High Court would grant judicial review on this ground given what happened after Judge Sharp’s directions. Although the appellant attempted to serve affidavits as directed at the close of business on 17 August 2012, the second respondents objected to the form and content of the affidavits on a variety of grounds. They applied to strike out the appellant’s defence for failure to comply with the orders made by Judge Sharp.
In consequence, Judge Hinton adjourned the trial on 24 August 2012. He later gave further directions after a telephone conference on 12 October 2012. Those directions required the respondents to file an application to strike out the appellant’s claim and for the appellant to respond to that application. Judge Hinton also directed that the appellant was to file within a stipulated period an application for recall of Judge Sharp’s minute of 14 August 2012. By that time, however, the appellant already had her judicial review proceedings underway in the High Court which effectively suspended proceedings in the District Court.
In short, the unless orders made by Judge Sharp were never acted upon and were overtaken by subsequent events. We are satisfied there was no basis upon which the appellant could succeed in her application for judicial review on this ground.
The costs judgment
As already noted, Wylie J subsequently ordered the appellant to pay to the second respondents indemnity costs totalling $25,568.48. The reasons given by the Judge may be briefly summarised:
(a)The proceedings were misconceived from the outset. There was never any reasonably arguable basis for contending that the case management directions in the District Court were ultra vires.
(b)It was clear from the correspondence that the appellant was using the threat of judicial review to try to compel the second respondents to attend a judicial settlement conference. The Judge considered that threat was inappropriate.
(c)Counsel for the second respondents had expressly warned counsel for the appellant that if the judicial review proceeded and failed, costs would be sought on a full solicitor and client basis.
(d)Counsel for the second respondents had expressed the view to opposing counsel that the judicial review was doomed to fail and would cause needless expense. It was suggested that counsel for the appellant should take advice from a senior barrister. That did not happen.
(e)There were a number of deficiencies in the process followed by the appellant.
(f)There were significant defects in the proceedings even once they were finalised. The pleadings were seriously defective and were compounded by affidavits which were “woefully inadequate”.[10]
(g)Counsel’s submissions were inadequate with no attempt made to marry the facts to the law.
(h)The Judge was left with the overwhelming impression that review proceedings were part of an overall plan by the appellant to frustrate the District Court proceedings.
(i)The proceedings were unnecessary; they were never going to advance the substantive dispute; and their pursuit was vexatious, frivolous and improper in terms of r 14.6(4) of the High Court Rules under which indemnity costs may be awarded.
[10]The Judge elaborated on these defects in greater detail in his substantive judgment at [12]–[14].
The Judge then drew attention to another matter which he regarded as being of significant concern:
[16] … When I read the file prior to the hearing, it became clear that Ms Jin was prepared to refund the deposit the subject of the District Court proceedings. Accordingly, I asked to see counsel in chambers, before the review proceeding commenced. Mr Lee confirmed that that was Ms Jin’s position, but that she was not prepared to make any payment towards costs. I suggested to counsel that Ms Jin should simply authorise the return of the deposit and that thereafter, each party should file memoranda as to costs in both this Court and the District Court. Counsel for the second respondents indicated that his clients would be more than happy to proceed on that basis. Counsel for Ms Jin took instructions. I was then told that resolution on that basis was not possible. As a result, the application for review proceeded to a substantive hearing.
Mr Lee accepted before us that Wylie J’s account of the attempts he made to resolve the matter was accurate. It is evident that the second respondents were more than willing to accept the sensible proposal the Judge made to resolve the issue. The appellant declined to accept that proposal. Mr Lee confirmed that the appellant was not willing simply to authorise the return of the deposit and to have the costs issue resolved in the District Court or in the High Court as the Judge proposed. He confirmed that the appellant was never willing to pay costs to the second respondents. He suggested that Wylie J’s proposal did not involve the second respondents abandoning their claim for rental costs. However, we accept Mr Hickson’s advice that the second respondents were willing to abandon the claim for rental costs and that this was made clear in the discussions counsel held with the Judge. It is plain that this was so from the account given by the Judge.
Mr Lee submitted that the High Court Judge had failed to refer to the leading authority on indemnity costs.[11] The failure to refer to relevant case law is not a proper ground upon which the costs award could have been challenged. The reasons given by the Judge were more than sufficient to justify the award of indemnity costs. Mr Lee also submitted that the High Court had failed to take into account that the second respondents had erroneously claimed the refund of the deposit from the appellant rather than from the real estate agents as stakeholders. He referred to changes made by the second respondents to their notice of claim after the judgment in the High Court. These submissions (even if correct) are entirely irrelevant. The issue for the High Court was whether the proceedings were vexatious, frivolous and improper. We are satisfied that they were for the reasons the Judge gave.
[11]Bradbury v Westpac Banking Corporation [2009] NZCA 234, [2009] 3 NZLR 400.
Mr Lee sought to challenge the amount of the award but we are not disposed to interfere with the Judge’s assessment. He considered that the hourly charge-out rate employed was modest. He examined the invoices and counsel’s timesheets in assessing the amount to be awarded. He concluded that the second respondents should not be left out of pocket for having to defend proceedings that were unnecessary.
We are satisfied there is no basis to interfere with the Judge’s assessment of the award of costs.
Costs in this Court
The second respondents sought costs against the appellant in this Court on an indemnity basis. Mr Hickson submitted that the appeal was doomed to failure and that his clients had again been put to wholly unnecessary cost. In terms of r 53E(3) of the Court of Appeal (Civil) Rules 2005, we are satisfied that indemnity costs are properly payable by the appellant to the second respondents on the grounds that the appellant has acted vexatiously, frivolously, improperly, or unnecessarily in commencing, continuing, or defending the appeal.
We agree that the appeal was hopeless and that it has put the second respondents to costs that were entirely unnecessary. Moreover, the appellant has acted unreasonably in a number of respects. These include:
(a)Preparing five volumes of largely irrelevant material for the case on appeal and a further three volumes of cases that were scarcely mentioned;
(b)Including extensive material in submissions relating to events subsequent to the High Court decision which could have no bearing on the issues on appeal;
(c)Seeking to challenge the costs decision at a very late stage;
(d)Failing to inform the Court or opposing counsel until the commencement of the hearing that only two of the six decisions challenged in the High Court would be pursued on appeal;
(e)Presenting argument in a way that lacked coherence or logical structure.
In the circumstances, we are satisfied that an award of indemnity costs on a solicitor and client basis is appropriate.
Final observations
Before concluding this judgment we wish to comment on two matters.
Approach to the interpretation and application of rules of court
We endorse Wylie J’s observation that rules of court are not to be viewed as a straitjacket. They are to be interpreted so as to achieve their objective which, in this case, is set out explicitly in Rule 1.3. The Court is obliged by Rule 1.4 to give effect to the objective of the Rules in their implementation and interpretation. The Rules should be applied flexibly with a view to achieving their defined objective. They are designed to serve the ends of justice; not to be used to undermine the just disposal of the business of the Court.
In the present case, the appellant and her counsel have been guilty of a signal failure to act in a way that is designed to achieve the objective of the Rules, namely to secure the just, speedy and inexpensive determination of the proceeding. They have embarked on a series of interlocutory applications and on a wholly unnecessary judicial review application and appeal in a way that is seriously disproportionate to the amounts at issue.
The irony of the appellant’s position is plain. While professing a desire to have a speedy and inexpensive trial in the District Court, the appellant instead embarked on a course of action which was both prolonged and expensive.
As the Judge said, there were a variety of ways under the Rules in which the appellant could have raised her concerns in the District Court. She could have applied for directions under r 1.11 or r 1.12 and she could have applied under s 70A of the District Courts Act 1947 for a determination of a question relating to the Rules. Instead she chose to issue judicial review proceedings, the appropriateness of which we now address.
Appropriateness of judicial review
Section 72 of the District Court Act provides for a general appeal to the High Court as of right in relation to decisions of the District Court in civil cases. This right of appeal embraces both final and interlocutory decisions. That is the usual and proper course to adopt in the vast majority of cases where it is desired to challenge a District Court decision.[12] The existence of a right of appeal does not preclude the High Court from exercising its powers on judicial review but it is usually regarded as an important factor in deciding whether relief should be granted.[13]
[12]See Tannadyce Investments v Commissioner of Inland Revenue [2011] NZSC 158. [2012] 2 NZLR 153 at [5]–[6] for a discussion of the general approach to judicial review where a statutory right of appeal exists.
[13]Judicature Amendment Act 1972, s 4(1) and the commentary in A R Joseph (ed) McGechan on Procedure (looseleaf ed, Brookers) at [JA4.03(5)].
Care should nevertheless be taken before filing appeals against interlocutory orders. First, there may be other less expensive and quicker ways to resolve the issues (as was the case here). Second, it may in some cases be preferable to get on with the substantive case. That is particularly so where the interlocutory decision does not have the effect of determining the claim or does not materially impact on the disposal of the substantive claim. As the Supreme Court noted in Siemer v Heron, the appellate court may decline to hear an appeal against an interlocutory decision until after the conclusion of the substantive case in the lower court.[14]
[14]Siemer v Heron [2011] NZSC 133, [2012] 1 NZLR 309 at [32] (in the context of appeals under s 66 of the Judicature Act 1908).
In the present case, the appellant ought to have appealed if the matter could not be resolved in any other way.
Result
The application for an extension of time to appeal the costs judgment is granted.
The application for leave to amend the notice of appeal is granted.
The appeal against the substantive judgment and the costs judgment is dismissed.
The appellant must pay the second respondents indemnity costs on a reasonable solicitor and client basis.
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