Jin v North Shore District Court

[2013] NZHC 243

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV2012-404-004905 [2013] NZHC 243

BETWEEN  RUJING JIN Applicant

ANDNORTH SHORE DISTRICT COURT First Respondent

ANDYASUKI KONISHI AND MAKIKO KONISHI Second Respondents

Hearing:         6 December 2012

Counsel:         Y Lee for the Applicant

First Respondent Abiding Decision of the Court
D B Hickson for the Second Respondents

Judgment:      19 February 2013

[RESERVED] JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 19 February 2013 at 11.00 am

Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Distribution:

Y Lee: [email protected]

North Shore District Court:

D B Hickson: [email protected]

JIN V NORTH SHORE DISTRICT COURT & ORS HC AK CIV 2012-404-004905 [19 February 2013]

Introduction

[1]      The applicant, Ms Jin, and the second respondents, Mr and Mrs Konishi, are involved  in  a  dispute  over  a  $30,000  deposit  held  by  a  real  estate  agent  as stakeholder.   The dispute is in the District Court.   Ms Jin now seeks to judicially review various decisions said to have been made by the District Court in trying to bring the matter on for hearing.

Background

[2]      Ms  Jin  was  the  developer  of  a  residential  dwelling  in  Wolsley Avenue, Milford.  She sold the dwelling while it was in the course of construction to Mr and Mrs Konishi.  A sale and purchase agreement was entered into on 19 July 2010, and Mr and Mrs Konishi paid the deposit in accordance with the agreement.

[3]      Mr and Mrs Konishi arranged for the dwelling to be inspected by a building surveyor.    He  considered  that  there  were significant  defects  in  its  construction. Mr and Mrs Konishi gave notice of the defects to Ms Jin, but she refused to remedy them.    On  11  January  2011,  Mr  and  Mrs  Konishi  gave  notice  cancelling  the agreement for sale and purchase.  They followed this up by filing a notice of claim in the District Court on 2 February 2011, seeking the refund of the deposit, $15,642.84 for rental costs incurred by them, interest, and their full solicitor/client costs.

[4]      Ms Jin filed a notice of response on 28 March 2011.   She asserted that the agreement for sale and purchase was not subject to a satisfactory building report being obtained and that the maintenance period provided for in the agreement had not come into effect as at 11 January 2011.

[5]      Ms Jin proceeded to obtain a composite cross lease title to the property and she then called on Mr and Mrs Konishi to settle.

[6]      Mr and Mrs Konishi considered that they had contracted to buy a fee simple title and they requisitioned the title seeking removal of the cross lease.   Ms Jin

refused to do so and Mr and Mrs Konishi gave a further (without prejudice) notice cancelling the agreement on 21 April 2011.

The application for judicial review

[7]      As  noted,  Mr  and  Mrs  Konishi’s  notice  of  claim  was  filed  in  the District Court  as  long  ago  as  February  2011.    Unfortunately,  it  has  made  little progress.   Rather, it has become bogged down.   The present application does not address the underlying dispute between the parties.  Rather, it is directed to various “decisions” alleged to have been made by the District Court.

[8]      The pleadings are difficult to follow.  The current statement of claim is the second amended statement of claim, dated 15 November 2012.  It recites the factual background from Ms Jin’s perspective and raises various peripheral matters of no obvious relevance.  It relies on the underlying assertion that the District Court, as a statutory body pursuant to the District Courts Act 1947, is required to adjudicate disputes brought before it by “applying the law codified in the new District Court Rules 2009”.   It cites various minutes issued by the District Court and asserts that “all decisions” made by the District Court after 23 August 2011 were contrary to the District Court Rules, and that they have caused a miscarriage of justice.  It is said that the decisions are either ultra vires, or flawed.

[9]      It is not possible from the second amended statement of claim to discern precisely what “decisions” Ms Jin is seeking to judicially review.  It refers variously to  minutes  issued  by the  District Court  and  to  positions  allegedly taken  by the Registrar of the Court from time to time.   In oral argument, and at my express request, Mr Lee told me that Ms Jin is seeking to challenge the following:

(a)      a minute issued on 25 November 2011 (Mr Lee said that the minute was issued on 24 November 2011.   There does not appear to be a minute of that date.  I assume that Mr Lee was in error);

(b)      a minute of 15 December 2011;

(c)       a minute of 25 January 2012; (d)         a minute of 3 April 2012;

(e)       a minute of 14 August 2012;

(f)       a minute of 12 October 2012; and

(g)      a minute of 4 December 2012.

[10]     The minute noted in (g) was not referred to in the pleadings or the supporting affidavits.  Nor was a copy of the minute made available to me.

[11]     The particular grounds relied on by Ms Jin for reviewing each “decision” are not clearly specified.  Rather, there are broad references to breach of natural justice, breach  of legitimate  expectations, mistakes of fact and  law, failure to  take into account relevant considerations, taking into account irrelevant considerations and manifest unreasonableness.  No attempt has been made to tie the grounds on which relief is sought to the decisions challenged.   A “scatter-gun” approach has been

taken.1    Section 9 of the Judicature Amendment Act 1972 has not been complied

with, except in the most rudimentary way.

[12]     The problems with the pleadings are compounded by the affidavits filed on behalf of the applicant:

(a)       Ms Jin has not filed an affidavit herself.

(b)There are two  very lengthy affidavits  filed by a  Mr Wang.    One affidavit was filed on 23 October 2012 and the other on 15 November

2012.  The affidavits cover the same ground.  I do not know why two separate affidavits were filed.   Mr Wang was the project manager engaged by Ms Jin to manage the development and construction of the

dwelling the subject of the dispute between the parties.  The affidavits

1      And see, Walsh v Pharmaceutical Management Agency [2010] NZAR 101 (HC) at [25].

contain little relevant information, and they do not set out the background to this matter in any coherent or complete way.  Rather, they simply annex a large number of documents “to support the judicial review application”.   No attempt is made to explain the relevance of the documents, and the affidavits throw little light on the decisions the subject of the application for review.

(c)      Ms Jin has filed an affidavit from a Khim Heng.  She is a secretary, who works for the solicitors acting for Ms Jin.  She does endeavour to present some of the relevant documents in a slightly more coherent way, and to explain them in context, albeit very briefly.

(d)Ms Heng has also filed a supplementary affidavit annexing various emails said to be relevant to the application.

[13]     The  affidavits  contain  much  that  is  inadmissible,  including  hearsay  and opinion evidence on the matters which are before the Court from various solicitors consulted by Mr Lee.

[14]     Ms Jin’s approach seems to have been to throw everything at the Court and leave it to me to scramble through the morass of material.   That is clearly unsatisfactory.2    If  it  were  not  for  a  helpful  affidavit,  annexing  the  relevant documents and explaining the background, filed on behalf of Mr and Mrs Konishi, and a copy of the District Court’s record filed by the first respondent, it would have been difficult to properly appreciate what occurred and the decisions that were made.

[15]     Unfortunately, the submissions advanced on behalf of the applicant were not particularly helpful either.   Mr Lee advanced a series of generalised propositions, and then reproduced verbatim passages from a textbook on judicial review.  There was little or no attempt to marry the facts to the law or even to discuss the affidavits filed.  The oral submissions were marked by curious changes in position.  By way of

example, Mr Lee asserted in his written submissions that Ms Jin took a pragmatic

2      See the comments of Richardson J in NZ Fishing Industry Association Inc v Minister of

Agriculture and Fisheries [1988] 1 NZLR 544 (CA) at 561–562.

approach  from  the  outset  and  consented  to  a  refund  of  the  deposit.    When  I questioned him about this, he withdrew this assertion.  He advised me that Ms Jin is happy to refund the deposit to the second respondents, but only if she is not liable for any costs at all.

[16]     Ultimately, it transpired that Ms Jin is concerned with what Mr Lee referred to as “matters of process”.  Ms Jin apparently feels aggrieved because she does not consider that the relevant procedures provided for by the District Court Rules 2009 have been complied with.  Mr Lee put it to me that the various decisions challenged “are ultra vires the rules of a short trial”.

The District Court

[17]     The application requires a brief analysis of the standing of the District Court. [18]     The District Courts Act 1947 confirmed the jurisdiction of the Court, which

had originated from earlier Magistrates Courts and their constituent legislation.3   It is a Court of record, with both criminal and civil jurisdiction.   The Court’s civil jurisdiction is detailed in Part 3 of the Act.  The Court has jurisdiction to hear and determine any proceeding where the debt, demand or damages, or the value of the chattels claimed, is not more than $200,000, subject to certain statutory restrictions.4

[19]     There is a general right of appeal to this Court.5  The appeal extends to “every decision made by a District Court”, including interlocutory decisions.   Exceptions arise only where the right to appeal is conferred by some other Act, or where other legislation expressly provides that there is no right of appeal.

[20]     As an inferior Court created by statute, the District Court is amendable to judicial  review  under  the  Judicature  Amendment  Act  1972.    The  prerogative remedies are not excluded by the right of appeal available.  However, the existence

of appeal rights is a matter to which the Court will invariable have regard in the

3      District Courts Act 1947, s 3; Peter Whiteside and Judge Anthony Willy District Courts Practice

(Civil Jurisdiction) (looseleaf ed, LexisNexis updated to 12 November 2012) at [DCA 1.3].

4      District Courts Act 1947, s 29(1).

5      Section 72.

exercise  of  its  discretion  whether  to  grant  relief  by  way  of  judicial  review. Moreover, it is not the case that any minor error, or want of legality, will ipso facto lead to the setting aside of an order or decision made by a body subject to judicial review.

The District Court Rules

[21]     Under s 122 of the District Courts Act, the Governor-General may, from time to time, by order in council, with the concurrence of the Chief District Court Judge, and  two  or  more  members  of  the  Rules  Committee,  make  rules  regulating  the practice  and  procedure  of  the  District Court  in  the  exercise  of  the  jurisdiction conferred on it.

[22]     The rules in issue in the present case are the District Court Rules 2009.  They came into force on 1 November 2009.6    The rules introduced a number of radical changes designed to secure the just, speedy and inexpensive determination of any civil proceeding or interlocutory application.7

[23]     In very broad terms, the rules provide for most civil claims to be commenced by the filing and service of a notice of claim, rather than a statement of claim.8   A defendant has 20 working days to serve, but not file, a notice of response.9    The documents required are intended to be “lay friendly”.  Once the notice of response has been received by the plaintiff, the plaintiff has 20 working days to provide an information capsule to the defendant.10   In the capsule, the plaintiff has to rebut any defences advanced by the defendant, provide details of rejected settlement offers, a list of witnesses together with their will say statements and a list of the essential documents supporting the claim.  The capsule has to be verified by the plaintiff.11

Following  service  of   the  plaintiff’s   information   capsule,   the  defendant   has

6      District Court Rules 2009, r 1.2

7      Rule 1.3.1.

8      Rule 2.10.

9      Rule 2.12. the period was 30 working days. It was reduced to 20 working days by the

District Courts (General) Amendment Rules 2012 (2012, no.85) with effect from 14 June 2012.

20 working days to respond by serving his or her own information capsule.12    If a plaintiff wishes to continue thereafter, a notice of pursuit of claim must be filed.13

There is then provision for the joinder of third parties and for the filing of counterclaims within specified timeframes.

[24]     The Court or the Registrar must determine the trial allocation procedure for each matter that comes before the Court.  Rule 2.40.1 provides that there are three modes of trial available, the short trial, the simplified trial and the full trial.

[25]     The Court or Registrar must either allocate a short trial, or decide not to do so.  If a short trial is allocated, rr 2.44 to 2.46 apply.14   A decision as to whether or not to allocate a short trial must be made as soon as practicable after the expiry of 15 working days from the date on which the Court receives proof of service of the notice of proceeding or notice of pursuit of claim, unless a third or subsequent party notice is filed within that 15-day period, or a counterclaim is filed in accordance with the rules.15    If the Court or Registrar decides not to allocate a short trial, a judicial settlement conference must be held, and if the parties cannot settle the proceedings at the judicial settlement conference, then the judicial settlement conference becomes a judicial directions conference, and at the conference, a simplified trial or a full trial is allocated.16

[26]     The rules set out the assessment criteria the Court or Registrar may have regard to in deciding the appropriate mode of trial.17    The short trial procedure is intended for claims that can come to hearing quickly, where the issues are relatively uncomplicated or a modest amount is at stake, and where the trial time is not likely to exceed a day.18   Interlocutory steps are limited; the statements of evidence allowed to be produced are the will say statements; oral evidence is allowed; no bundles of documents are required and a judicial settlement conference is not mandated.  The

total time for the presentation of a party’s case is constrained.  The rules, however,

12     Rule 2.15.

13     Rule 2.17.

14     Rule 2.40.2.

15     Rule 2.40.3.

16     Rule 2.40.6.

provide that the Court may, for good reason consistent with the objective of the rules, extend the total time available to a party.19

[27]     Rule 2.46 provides that a party may apply for review of a decision to allocate a short trial.  The Court can decide the application on the papers, or decide it after hearing submissions.  It can either confirm the decision under review, or revoke the decision and order that a judicial settlement conference be convened under r 2.47.

[28]     A simplified trial provides for pre-trial disclosure.   Affidavits of evidence must be served and witnesses must appear at the hearing if a party serves notice to cross-examine, or the Judge so requests.20     Each party is limited to one expert witness per specialist discipline, unless the Court allows more witnesses by leave. Again, there are provisions limiting the amount of time that can be taken in cross- examination, re-examination, and submissions.

[29]     The  rules  for  a  full  trial  adopt  the  High Court  Rules,  subject  to  special provision for interlocutory applications.

[30]     Curiously, there is no rule entitling a party to apply for review of a decision to allocate a simplified trial or a full trial.  Nor is there any rule permitting the Court, of its own motion or on application, from changing the allocated trial mode if the initial allocation turns out to be inappropriate.

[31]     It is noteworthy that r 1.13 provides as follows:

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.

The dispute between Mr and Mrs Konishi and Ms Jin

[32]     As noted, Mr and Mrs Konishi commenced their proceedings by filing a notice of claim on 2 February 2011.  Ms Jin’s response was dated 28 March 2011. At the time, the relevant rule — rule 2.12 — allowed a default 30 working days to respond.  Even so, Ms Jin was in breach of the rules from the outset.  Her response was served late.  Mr and Mrs Konishi did not, however, seek to exploit this breach.

[33]     At the time that the notice of claim was filed, Ms Jin had not obtained title to the property.  Title to the property was obtained on the same day that the notice of response was served.  Ms Jin called on Mr and Mrs Konishi to settle.  Mr and Mrs Konishi did not accept the title, and as noted, they gave a further notice of cancellation on 21 April 2011.

[34]     Mr and Mrs Konishi served their information capsule on 9 May 2011, on the thirtieth working day then allowed by the rules.  In their information capsule, they dealt with the title issue and the second notice of cancellation.   The relevant documentation was referred to, and the outline of evidence contained in the information capsule dealt with the matter.

[35]     Ms Jin served her information capsule on 13 July 2011.  Again, Ms Jin failed to comply with the relevant rules.  Her information capsule was served well outside the then applicable 30 working day period.  In her capsule, referred to the fact that the title had issued and that settlement had been demanded.  She asserted that Mr and Mrs Konishi were aware throughout that the title was to be a cross lease freehold title.

[36]    On 18 July 2011, Mr Hickson, acting for Mr and Mrs Konishi, sent a memorandum  to  the Court,  requesting that  no  judicial  settlement  conference be allocated for the matter, and rather, that it proceed to a short trial at the earliest available date.

[37]     No steps were taken by Ms Jin.

[38]     On 23 August 2011, Judge Hinton issued a minute.   The minute read  as follows:

This file should be transferred to Auckland District Court.   A short trial needs to be allocated.

Although there is no express reference to r 2.40 in the minute, it can only be treated as being a decision that the dispute should proceed by way of the short trial procedure.

[39]     Ms Jin endeavoured to issue third party notices.  However, it seems that she breached the rules again.  No notice of claim was attached to the third party notices served, and they were served out of time. A memorandum was filed on behalf of one of the prospective third parties, a Francis Fan, on 2 September 2011.  She was the real estate agent involved.   The memorandum brought to the Court’s attention the fact  that  third  party  notices  had,  on  two  occasions,  been  irregularly  served  on Ms Fan.  It asserted that the use of the third party notices was irregular, as well as unmeritorious, and sought directions from the Court.

[40]     Mr and Mrs Konishi, through Mr Hickson, requested that the matter should be allocated a short telephone conference.  They indicated that they wished to file an amended claim to raise their assertion that the agreement for sale and purchase had been cancelled for the failure by Ms Jin to comply with their requisition to remove the cross lease from the title.  They noted that there was no provision for amended claims  in  the  District Court  Rules.    They  also  sought  that  the  filing  of  fresh information capsules should be dispensed with.

[41]     Mr Ye filed a memorandum in response on 27 November 2011 on behalf of Ms Jin.  He also noted that the District Court Rules did not provide for the Court to grant leave for an amended notice of claim.   The filing of an amended notice of claim was opposed, and a request was made that the dispute should proceed to a short trial without further delay.

[42]     Judge Hinton convened a telephone conference, heard from the parties and then issued a further minute dated 25 November 2011.  He directed that Mr and Mrs

Konishi file an amended claim within seven days, and that Ms Jin file a response within a further seven days.  The Judge expressly indicated that it was not intended that the parties need file other amended or further documentation.  He recorded that the parties were agreed that the matter should be set down for a short trial forthwith, and directed the Registrar to allocate one day for the hearing.   This is the first decision challenged by Ms Jin.

[43]     Mr and Mrs Konishi complied with the direction, and filed an  amended notice of claim on 1 December 2011.  Ms Jin, however, failed to file her response within the timeframe directed by Judge Hinton.  Instead,  Mr Lee filed a document headed “Memorandum of counsel for the defendant seeking leave to extend date of filing response to plaintiffs’ amended statement of claim pending outcome of application to review allocation of short trial”.   An application for review of the decision to allocate a short trial was filed at the same time.  Presumably, Ms Jin was seeking either a simplified trial or a full trial.

[44]     The Registrar, in an email dated 15 December 2011, declined to accept these documents.  Mr Lee was advised that the documents would not be accepted “as per Judge’s directions”. Mr Lee was advised that he must follow the directions issued by Judge Hinton dated 25 November 2011, and that no further documents would be accepted, unless they were specified in Judge Hinton’s directions.  This is the second “decision” challenged by Ms Jin.

[45]     No  further  steps  were  taken  by  Ms Jin  until  11  January  2012,  when  a memorandum was filed seeking to extend the time for filing a response.

[46]     The file was referred to Judge Hinton, and on 25 January 2012, he made the following directions:

1.        The defendant’s response to the amended claim (due to be filed by

9 December 2011), pursuant to my Minute dated 25 November 2011 must be filed by 17 February 2012.

2.If that response is not filed by 17 February 2012, the defence and response of the defendant will be struck out and judgment entered for the plaintiff.

3.In the meantime, the Registrar should allocate a short trial date, one day duration, for hearing of this matter.

This is the third decision challenged by Ms Jin.

[47]     In compliance with the minute, an amended notice of response was filed by

Ms Jin on 10 February 2012.

[48]     Mr  Hickson  took  issue  with  a  number  of  matters  contained  in  Ms Jin’s response.   He asserted in a memorandum that various paragraphs in the response contained privileged material, which ought not to be on the Court record, and that various other aspects of the response failed to comply with the relevant rules.

[49]     Judge Perkins, in a minute issued on 20 February 2012, declined to deal with these matters and indicated that the matter should proceed to hearing.

[50]     In a memorandum filed on 12 March 2012, Mr Hickson accepted that the most expeditious way of dealing with the proceeding was to set it down for trial, and indicated that any defects in the amended notice of response could be dealt with as a preliminary matter at the commencement of the hearing.

[51]     On 30 March 2012, a further memorandum was filed on behalf of Ms Jin seeking further directions from the Court.

[52]     Judge  Perkins  issued  a  further  minute  on  3 April  2012.    He  noted  that memoranda had been received from counsel, and that Mr and Mrs Konishi had decided  not  to  make  any  formal  pre-trial  applications.    He  noted  that  the  trial estimate provided by Mr and Mrs Konishi was two days, and directed that the matter be set down for a two-day simplified trial.  He noted that the time limits provided should be strictly adhered to. This is the fourth decision challenged by Ms Jin.

[53]     The Registrar then set the matter down for a two-day hearing, to commence on 29 August 2012.

[54]     On  9 August  2012,  Mr  Hickson  filed a memorandum  seeking an  urgent telephone conference.   He noted that Ms Jin had failed to comply with the rules, because she had not filed affidavits of evidence as required by r 2.51.

[55]     On 10 August 2012, Mr Lee filed a response.  He apologised for the fact that Ms Jin  had  failed  to  file  her  affidavit  evidence,  but  indicated  that  all  pre-trial disclosure  which  Ms Jin  intended  to  rely  on  was  in  the  correspondence  and documents exchanged.  Leave was sought for an extension of time for the filing of the relevant documents.

[56]     Mr Hickson filed a memorandum in reply on 11 August 2012.

[57]     On 14 August 2012, Judge Sharp issued a minute recording that there was no need  for  a  further  telephone  conference,  and  that  there  would  be  no  judicial settlement conference.  She directed that Ms Jin’s defence would be struck out and judgment would be entered for the plaintiffs if she did not serve her affidavits of evidence by 5.00 pm on Friday, 17 August 2012, that no person could give evidence at the trial unless affidavits had earlier been served on the opposing party, and that no document could be tendered in evidence, unless earlier disclosed to the opposing party. This is the fifth decision challenged by Ms Jin.

[58]     On  17  August  2012,  Mr  Lee  filed  a  memorandum  seeking  a  recall  of Judge Sharp’s minute.  He asserted that it was mandatory that the Court convene a judicial settlement conference if it had decided not to allocate a short trial.

[59]     Mr and  Mrs Konishi  applied  to  strike out  Ms Jin’s  defence  for  failing  to comply with Judge Sharp’s unless orders.

[60]     On 23 August 2012, Judge Hinton convened a telephone conference.  Further memoranda were then filed.   Ms Jin sought an adjournment of the trial.   Mr and Mrs Konishi reluctantly consented, and on 24 August 29012, Judge Hinton vacated the fixture and directed  a conference with  counsel.   A conference was held on

29 August 2012, but it does not seem that any orders were made arising from the conference.  Further memoranda were filed.

[61]     A further telephone conference was held on 12 October 2012.  Judge Hinton then issued the following directions:

(a)      Mr and Mrs Konishi were to file within 10 days, by 23 October 2012, an application for strike out and for judgment for failure by Ms Jin to comply with Judge Sharp’s unless orders;

(b)      Mr Lee was to file Ms Jin’s response within 10 days thereafter;

(c)       Mr Lee was to file within 10 days, by 23 October 2012, an application

for recall of Judge Sharp’s minute dated 14 August 2012;

(d)      Mr  Hickson  was  to  file  the  plaintiffs’  response  within  10  days

thereafter;

(e)       A hearing was to be sought urgently before Judge Sharp. This is the sixth decision challenged by Ms Jin.

[62]     The relevant documents were filed, insofar as I am aware, within the times directed.  As at the date of hearing before me, no date had been allocated for the strike out application made by Mr and Mrs Konishi, or the application to recall Judge Sharp’s decision filed by Ms Jin.

[63]     As noted above, Mr Lee also sought review of a decision apparently given by Judge Sharp on 4 December 2012 at a mentions hearing.   That decision was not referred to in the pleadings, or in the affidavits.  As I understand it from the bar, the various outstanding applications were called before Judge Sharp on 4 December

2012.  Mr Lee had previously filed a memorandum with the Court, advising that he was in the High Court, and that he was unable to attend.   He had not, however, requested an adjournment.   Mr Lee told me that he had not been advised of the mentions hearing.   Mr Hickson told me that he expressly told Mr Lee that the mentions hearing was on 4 December 2012.   I cannot resolve that dispute in the present context.  Mr Hickson also told me that he brought Mr Lee’s memorandum advising of his unavailability to the attention of the Judge.  He told the Judge that

Mr Lee and his client had failed to comply with Court directions, and he sought an unless order in respect of Ms Jin’s response to the strike out application.  He told me that Judge Sharp declined to make an unless order in Mr Lee’s absence.  Mr Hickson also told me that he sought costs, and that the Judge granted costs in his favour in the sum of $465.

The challenged decisions

[64]     I deal with each of the decisions challenged by Ms Jin in turn.

Minute issued on 25 November 2011

[65]     As noted above, in this minute, Judge Hinton directed that Mr and Mrs Konishi were to file an amended notice of claim within seven days, and that Ms Jin was to file a response within a further seven days.

[66]     Ms Jin complains that Judge Hinton allowed Mr and Mrs Konishi to file an amended notice of claim.   Mr Lee noted that Ms Jin opposed the application, and submitted that her opposition was not heard in open Court.  He argued that there is no power vested in the District Court permitting it to allow the filing of an amended notice of claim.   He also submitted on Ms Jin’s behalf that it was mandatory for Mr and Mrs Konishi to file an updated information capsule, once leave had been given permitting the filing of an amended notice of claim.

[67]     There was no express power permitting the Court to allow the filing of an amended notice of claim prior to the introduction of r 2.38A as from 14 June 2012. Rule 1.14 did, however, permit the Court to amend any defects in pleadings, and r 1.14.2 allowed the Court, at any stage of a proceeding, to make either on its own initiative or on application, any amendments to any pleadings that were necessary to determining the real controversy between the parties.   There is nothing to suggest that this power did not extend to the amendment of a notice of claim.

[68]     Moreover, Mr Lee’s submission overlooks r 1.13 which I have set out above. It enabled the Court to deal with situations where there was nothing prescribed in the

Act or rules.   In doing so, it had to be alive to the objective of the rules which is detailed in r 1.3.

[69]     Further, and in any event, the Court has an implied power to do whatever is necessary to enable it to exercise the functions, powers and duties conferred on it by statute.21

[70]     In my judgment, it was clearly appropriate for Judge Hinton to allow Mr and Mrs Konishi to file an amended notice of claim, so that they could plead matters which had arisen subsequent to the filing of their original notice of claim.   I am satisfied that he had ample power to do so.  A telephone conference was convened before the minute was issued.   No more formal hearing was necessary.   It was a matter which could readily be dealt with on the papers following a telephone conference.  Ms Jin’s objection was unmeritorious and indeed churlish.  The matter was of minor import and both parties, and in particular Ms Jin, were then pushing for an early hearing.  The approach taken by the Judge was consistent with the objective detailed in the rules, and with the parties’ expressed desire for an early hearing.

[71]     No amended information capsules were necessary, because both parties had already put in their respective information capsules, all material that was relevant to the amended pleading.   The Judge’s direction in this regard was sensible and pragmatic.

[72]     There is no want of jurisdiction or error.  The application for review cannot succeed in this regard.

Registrar’s email of 15 December 2011

[73]     The Registrar declined by email to accept documents which Mr Lee was endeavouring to file on behalf of Ms Jin.  The Registrar advised that the documents would not be accepted “as per Judge’s directions”.  This was presumably a reference

back to Judge Hinton’s minute of 25 November 2011.  In that minute, the Judge had

21     McMenamin v Attorney-General [1985] 2 NZLR 274 (CA) at 276.

indicated that it was not intended that the parties should file other amended or further documentation.

[74]     The documentation which Mr Lee was endeavouring to file on his client’s behalf was a memorandum seeking leave to extend the date for filing of Ms Jin’s response, and an application for review of the decision to allocate a short trial.

[75]     Mr Lee asserted that the refusal to accept the documents was a breach of natural justice, that the Registrar’s “decision” was ultra vires, that there was a breach of Ms Jin’s legitimate expectations, a mistake of fact and law, and that the “decision” was manifestly unreasonable.

[76]     I accept that the Registrar erred.  Judge Hinton had simply indicated that the parties need not file amended information capsules.  There is nothing to suggest that he intended to prevent either party from filing other documents.

[77]     However,   I  am  not  necessarily  persuaded  that  the  Registrar’s   email constituted a “decision”, which is amenable to judicial review.   Mr Hickson made very brief submissions on this point.  Mr Lee did not deal with it.   Given that the issue was not fully argued, I take it no further.

[78]     Even if it is assumed that the Registrar’s refusal to accept the documents is subject to judicial review, I decline to grant Ms Jin’s application.  First, there were other remedies available to Ms Jin.  The most obvious and simple solution for her was to ask the Registrar to refer the matter to a Judge for direction.  No such request was made.  Secondly, Ms Jin was well out of time with her proposed application to review the decision  to  allocate  a short  trial.   That  decision  had  been  made by Judge Hinton on 23 August 2011.  Rule 2.46.2 required an application for review to be filed within 15 working days after the date of allocation.  Thirdly, Ms Jin was not prejudiced by the failure of the Registrar to refer the memorandum seeking leave to extend the date for the filing of her response to the amended notice of claim.  As I have  noted  above,  the  file  was  ultimately  referred  to  Judge  Hinton,  and  on

25 January 2012, he extended the time available to Ms Jin to 17 February 2012.  It would be futile to grant relief.

[79]     The application for review is declined.

Minute of 25 January 2012

[80]     As noted above, in this minute, Judge Hinton granted leave to Ms Jin to file her response out of time, and advised that if she did not do so by the substituted date, her defence would be struck out and judgment would be entered for the plaintiffs. The Judge directed the Registrar to allocate a short trial date of one-day duration.

[81]     Mr Lee did not directly deal with this particular decision in either his oral or written submissions.   He did, however, advance an overall submission that the Registrar failed to allocate a hearing “forthwith” and he argued that the Registrar had a positive duty to set a hearing date after a short trial had been allocated.

[82]     If  this  is  the  complaint,  it  overlooks  the  fact  that  the  rules  contain  no provision which makes it mandatory for the Registrar to allocate a hearing within any given period.  A Registrar must allocate a hearing in accordance with a Judge’s direction, but there are a number of matters he or she has to consider in doing so. There will be competing demands  on  Court time and  frequently, it will not be possible for a Registrar to allocate a date immediately.   In the present case, the Registrar did allocate a date in April 2012, after the pleadings were settled and disclosure had been attended to.

[83]     I cannot see any criticism can be made of Judge Hinton’s minute.  He was doing no more than trying to bring the matter to a head.   There was no want of jurisdiction. The application for review of this decision must also fail.

Minute of 3 April 2012

[84]     In this minute, Judge Perkins directed that the matter should proceed by way of the simplified trial process.

[85]     Mr Lee complains that this decision was ultra vires, that there was a failure to take into account relevant considerations, that irrelevant considerations were taken into account, and that the decision was manifestly unreasonable.

[86]     I can see no basis for these criticisms.

[87]     Judge  Perkins,  in  his  minute,  in  effect  made  a  fresh  decision  as  to  the appropriate mode of trial.  He directed that the matter should proceed by way of a simplified trial, rather than a short trial.

[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.

[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.

[90]     Mr Lee, in a memorandum dated 30 March 2012, had argued that there was no provision in the rules for preliminary arguments to be dealt with by way of memorandum, and that the proper place to address the issues raised by Mr and Mrs Konishi was at the hearing.   He also indicated that Ms Jin intended to file an amended information capsule.  He nevertheless objected to the suggestion that the matter should be set down for two days, and he noted that Judge Hinton had twice directed a short trial.  (I pause to note that this submission appears to be inconsistent

with the application to review the short trial allocation which the Registrar refused to accept for filing.)

[91]     Although it would have been preferable to discuss the issue direct with the parties, either by way of telephone conference or at a face-to-face hearing, in my judgment, Judge Perkins was entitled to change the mode of trial allocation, and in the circumstances, it was appropriate for him to do so.

[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.22

[93]     The application for review in this regard fails as well.

Minute of 14 August 2012

[94]     In this minute, Judge Sharp declined a request made by Ms Jin to convene a judicial settlement conference, and put in place an unless order.

[95]     Mr Lee challenges this decision, asserting that it was in breach of natural justice,  ultra vires,  in  breach  of Ms Jin’s  legitimate expectations  and  manifestly unreasonable.

[96]     The  only  relevant  rule  dealing  with  judicial  settlement  conferences  is r 2.40.6.   It provides that a judicial settlement conference must be allocated if the decision is made not to allocate a short trial.  However, in the circumstances of this case, that rule was not applicable.  A short trial was allocated in August 2011, and

that allocation was confirmed in November 2011.   It follows that r 2.40.6 did not

22     For a discussion of waiver in the context of judicial review see Auckland Casino Ltd v Casino

Control Authority [1995] 1 NZLR 142 (CA) at 150-151.

come  into  operation.     I  am  not  convinced  that  the  fact  that  Judge  Perkins subsequently changed the mode of allocation to a simplified trial in the exercise of his inherent powers and/or pursuant to r 1.13, belatedly triggered the need for a judicial settlement conference in this case.

[97]     Moreover, and in any event, according to Mr Lee in his written submissions, a settlement conference was later directed.   Mr and Mrs Konishi advised that they would not attend.

[98]     The unless order was appropriate.  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.

[99]     The application for review in this regard fails.

Minute of 12 October 2012

[100]   On this date, Judge Hinton issued a minute requiring both parties to file various   interlocutory   applications,   and   directing   an   urgent   hearing   before Judge Sharp.

[101]   Mr Lee alleges this decision was ultra vires and unreasonable.

[102]   Mr and  Mrs Konishi  had  filed detailed memoranda  arguing  why,  in  their view, Ms Jin’s defence to their notice of claim should be struck out.   Mr Lee for Ms Jin had argued that formal application was necessary.  In the event, Judge Hinton

agreed with him and directed Mr and Mrs Konishi to formally file an application for strike out and for judgment.  He also directed Mr Lee to file an application for recall of Judge Sharp’s judgment.

[103]   I cannot see how the timetable directions made by Judge Hinton can be said to be ultra vires, or manifestly unreasonable.  They were simply directions made in the course of the proceedings to advance matters and bring them to a head.

[104]   The application for review fails in this regard as well.

Minute of 4 December 2012

[105]   I decline to deal with this minute.  It was not pleaded.  As I have noted, there were conflicting factual allegations in relation to it, all from the bar, and I do not have a copy of the minute issued by the Court.

[106]   Further, I note that Ms Jin’s challenge is to a costs order made against her. She could have appealed that order.  It is still open to her to seek leave to appeal out of time, although this observation should not be seen as encouragement to do so.

General Observations

[107]   Ms Jin has not sought to appeal any of the decisions she now challenges.  A right of appeal was open to her in respect of each decision (other than the Registrar’s refusal to accept the documents for filing noted above).

[108]   It has previously been suggested that the High Court is likely to try and avoid dealing with appeals against decisions on what are basically trial management issues,23   and  that  rulings  on  timing  and  procedural  issues  are  unlikely  to  be

considered a decision amenable to appeal.24    This view cannot survive the recent

23     District Courts Practice (Civil Jurisdiction), supra n 1, at [DCA 72.3]; see also Association of Dispensing Opticians of New Zealand Inc v Opticians Board [2000] 1 NZLR 158 (CA) at [21]– [22].

24     Dorchester Finance Ltd v Christchurch Food Courts Ltd HC Auckland CIV 2005-404-6193, 6

April 2006 at [19]-[20].

decision of the majority of the Supreme Court in Siemer v Heron.25   Although that decision  was  concerned  with  appeals  from   the  High Court   rather  than  the District Court, the clear signal from the decision is that appeal rights provided by statute should not be read down and that where a general right of appeal as of right if conferred by Parliament against all decisions, the right of appeal extends to interlocutory decisions, unless there is provision to the contrary.

[109]   Other remedies were also open to Ms Jin.  She could have made application under s 70A of the District Courts Act.  Pursuant to s 70A, if, in any civil proceeding, any question arises as to the application of any provision of any rules made under s

122,  the  District Court  may,  either  on  the  application  of  a  party or  of  its  own initiative, determine the question and give any direction it thinks fit in the interests of justice.   Ms Jin could also have made application under r 1.11.   It provides that a party to proceedings may apply without notice for directions where there is doubt regarding a matter.   Alternatively, she could have made application under r 1.12, which permits a part to a proceeding to apply to the Court for an order determining, and directions relating to, any question that arises as to the application of the rules.

[110]   As a general observation, I observe that the District Court Rules are not a straightjacket.  The fact that the rules have not been fully complied with does not of itself invalidate the proceeding or any step taken in the proceeding.26   It was clearly not the intention of the rule makers that the rules should become an instrument of oppression in the hands of a truculent litigant who breaches the rules when it suits him or her, but otherwise insists on punctilious adherence by the other party to a strict, literal and utterly unrealistic interpretation of the relevant provisions.

[111]   The District Court Rules should be interpreted in such a way as to bring about a result that is just to all parties.  They invoke case management principles, and as Tipping J observed in Commerce Commission v Giltrap City Ltd,27  case management principles, while important in practice and vital for controlling crowded

calendars and promoting the expeditious despatch of Court business, should not be

25 [2011] NZSC 133 at [19]–[34].

26     District Court Rules, r 1.10.

27     Commerce Commission v Giltrap City Ltd (1997) 11 PRNZ 573 (CA) at 579.

allowed to obscure or undermine the fundamental purpose of any system of justice which is to deliver justice to all concerned.

[112]   The District Court Rules contain a clear objective.  The aim is to secure the just, speedy and inexpensive determination of any proceeding or interlocutory application.  The objective of the rules extends, insofar as practicable, to ensuring that all parties are treated equally, to saving expense, to dealing with a case in ways that are proportionate to its importance, complexity, the amount of money involved and the financial position of each party, and to ensuring that the case is dealt with speedily and fairly. They also require the case have allotted to it an appropriate share of the Court’s resources, while taking into account the need to allot resources to other cases.  The Courts are required to give effect to the objective of these rules — r 1.4.  In my view, the rules need to be interpreted in a broad and commonsense way, to achieve their mandated objective.

[113]   The application for review fails.  In my clear view, it was misconceived from the outset.

Costs

[114]   Mr and Mrs Konishi are entitled to their costs and disbursements.   In that regard, I make the following directions:

(a)       Mr and Mrs Konishi are to file a memorandum seeking costs within

10 working days of the date of this decision.

(b)Any  memorandum  in  response  is  to  be  filed  within  a  further  10 working days.

[115]   I will then deal with the issue of costs on the papers, unless I require the assistance of counsel.

Wylie J