Koyama v Southern Response Earthquake Services Limited
[2015] NZHC 537
•23 March 2015
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
CIV-2014-412-202 [2015] NZHC 537
BETWEEN TATSUHIKO AND AIKO KOYAMA
Appellants
AND
SOUTHERN RESPONSE EARTHQUAKE SERVICES LIMITED Respondent
Hearing: 23 March 2015
(By way of telephone conference)
Appearances:
Appellants in Person
GSA Macdonald and M K Henaghan for RespondentJudgment:
23 March 2015
JUDGMENT OF MANDER J
[1] On 19 March the appellants filed an application for an extension of time to comply with an unless order made by me on 12 March 2015.1 The appellants submitted that they should be granted an extension until the determination of their appeal to the Court of Appeal.
[2] They also cited r 12.7(1) and (4) of the High Court Rules in support of the contention that the respondent’s application for an unless order could not be heard less than 25 working days before the date of the hearing of the application. It was claimed that this rule had been breached. The appellants further submitted that it would be an abuse of process for the respondent to seek enforcement of the unless order to dismiss the appeal having been notified that an interlocutory appeal had
been filed with the Court of Appeal. The appellants complained that there had been
1 Koyama v Southern Response Earthquake Services Ltd HC Christchurch CIV-2014-412-202, minute of Mander J, 13 March 2015.
no hearing convened for the purpose of the respondent’s application for an unless
order.
[3] In opposition to the appellants’ application, the respondent submitted that the unless order of 12 March 2015 was one of last resort and that the appellants had been provided with several opportunities to comply with the timetable directions made in December 2014. The appellants had still not explained their non-compliance with those directions.
[4] The respondent observed that the appellants had been clearly notified of the consequences of non-compliance in my minutes of 13 and 17 March 2015 and in a letter sent to the appellants by the respondent of 18 March 2915. Compliance with the unless order would not prejudice the appellants’ ability to proceed with their application to amend their notice of appeal of 13 March 2015, to join the Attorney- General and to add damages and costs to the relief sought, as well as for a direction that the Solicitor-General be served with the amended notice. Compliance with the unless order would also not prejudice their appeal to the Court of Appeal.
[5] The respondent submitted that an extension of the unless order would effectively amount to a stay of the High Court appeal, which would be in direct contravention of the Court’s previous orders that the appeal proceed on 1 April
2015.2
[6] In the absence of myself and other Judges from Christchurch on 19 and 20
March 2015, my decision with brief reasons on the appellants’ application for an extension of time was delivered through the Registrar around midday on 20 March. It reads as follows:
The appellants' application for an extension is declined.
The appellants cite Rule 12.7(1) HCRs as providing a time requirement for service,however this rule concerns summary judgment applications and does not apply to the present situation.
2 Koyama v Southern Response Earthquake Services Ltd HC Christchurch CIV-2014-412-202, minutes of Gendall J, 9 and 16 February 2015, and Mander J, 26 February 2015.
The appellants appeal remains extant notwithstanding the operation of the unless order.3
I also note for completeness that a hearing of the respondent's application was attempted to be convened however the appellants declined to make themselves available despite repeated efforts by the registry.The matter was dealt with by way of memorandum.
The appellants have still not provided reasons for their non-compliance.
[7] Later that day, shortly before 4.00 pm, I was forwarded by the Registry a further application by the appellants for an extension of time to comply with the unless order and a request for an oral hearing on the application for the extension of time. The appellants repeated their submission that since the notice of their interlocutory appeal to the Court of Appeal has been filed and served, they should be granted an extension until the conclusion of the proceeding in the Court of Appeal.
[8] Attached to the application was an email sent on 20 March by the appellants to a Mr Cooper of the legal firm Cavell Leitch inquiring as to whether that firm was available to legally represent the appellants. A subsequent reply from Mr Cooper later that morning acknowledges the inquiry and asks a number of questions regarding the appellants’ litigation in the District Court and why the appellants want their appeal stayed. The appellants were invited to discuss the matter further with Mr Cooper. The appellants maintain the submission made in previous applications of their right to seek legal advice and representation under the New Zealand Bill of Rights Act 1990, the International Covenant on Civil and Political Rights and at common law.
[9] Over the weekend further submissions were received from the appellants. Submissions dated 22 March 2015, attached an email the appellants received from the Earthquake Commission acknowledging a complaint made by one of the appellants on 8 March 2015 relating to possible fraudulent documentation. The email advises that the appellants’ concerns and file information would be reviewed
before getting back to the appellant by the end of next week.
3 The appeal referred to is the appellants’ appeal to the Court of Appeal.
[10] A telephone conference was convened this afternoon in order to provide the appellants with an opportunity to address the Court directly on this, their second application for an extension. The unless order triggered at 5.00 pm on Friday 20
March 2015. However, given the lateness of the appellants’ further application for an extension, received approximately an hour before the deadline and immediately prior to the weekend, I provided the appellants with an opportunity today to be heard on their application before any final determination was made regarding the effect of the unless order.
[11] Further to the written submissions filed by the appellants on 20 and 22 March
2015, they submitted that they could not be in breach of the requirement to pay the scheduling fee of $640 because under the High Court Fees Regulations 2013 no such fee was payable. The appellants repeated the submission relating to their appeal to the Court of Appeal and the need for that to be heard and determined before the present appeal. Further, the appellants made a broad submission that all the proceedings described as “procedural and substantive” should be joined and heard together in a combined proceeding, although the appellants did not identify the mechanism by which such a course could be legitimately and lawfully adopted.
[12] The respondent did not seek to be heard in great detail in reply, preferring to rely upon the written submissions filed in advance of the telephone conference. The respondent, however, did stress that the appellants had made successive applications to have their appeal stayed, which had been declined, and had failed to provide explanations for their failure to comply with the timetabling orders. In the respondent’s memorandum it was submitted that the latest material relied upon, namely the EQC email, did not provide a valid ground for an extension of time to comply with the unless order. The appellants’ allegation of forgery or fraud is an issue which can be addressed in the substantive proceedings in the District Court and is simply not relevant to the procedural issues which give rise to the appeal in the High Court. Having regard to the hearing date of 1 April 2015, any extension at this late stage would prejudice the respondent, and effectively amount to a stay in direct contravention of the earlier orders of this Court.
Decision
[13] The discrete point raised by the appellants this afternoon regarding their liability to pay a scheduling fee is without merit. The appellants are liable to pay a scheduling fee of $640. Civil litigation fees are governed by the High Court Fees Regulations 2013. Regulation 4 defines “scheduling fee” as “the fee (if any) payable under item 17 of the fees table in respect of an application or proceeding”. The “fees table” is defined as the Schedule to the regulations.
[14] This proceeding, not being a specified proceeding as defined in reg 9(4), is governed by reg 9(2) which provides:
9 Prepayment of scheduling fees and estimated hearing fees
(2) The plaintiff, applicant, or appellant (as applicable) in respect of an application or proceeding other than a specified proceeding must pay the scheduling fee for the application or proceeding no later than—
(a) 15 working days after the Registrar notifies all parties of the scheduled hearing date; or
(b) if the Registrar gives less than 15 working days' notice of the scheduled hearing date, the date specified by the Registrar.
[15] For completeness, I observe that a specified proceeding is defined by reg 9(4) as “an interlocutory application, a bankruptcy proceeding, or a proceeding to which Part 19 (originating applications) or Part 31 (company liquidation) of the High Court Rules applies”.
[16] Before addressing whether a scheduling fee is payable under item 17 of the Schedule, it is to be noted that “item” is defined by reg 4 to mean “a matter described in the third column, and with the reference number given in the second column, of the fees table”.
[17] Item 17(c) states that scheduling a hearing for an application or proceeding to which, relevantly, item 3 applies, will incur a fee of $640. Item 3 deals with initiating documents, including “an appeal or cross-appeal to the court under any enactment”. It is therefore clear that the appellants are liable to pay a scheduling fee of $640. No issue arises about this being an “exempt application” in terms of reg 4.
[18] As the respondent has observed, compliance with the unless order would not prejudice the appellants’ ability to prosecute its appeal to the Court of Appeal, nor would the striking out of the appeal to this Court limit any remedy the appellants may wish to seek in the Court of Appeal.
[19] When the appellants filed material on Sunday 22 March 2015, there was no mention of any further communications with Mr Cooper of Cavell Leitch. I inquired from the appellants, this afternoon, as to whether that law firm had accepted instructions to act for the appellants as they had not appeared on the telephone conference on the appellants’ behalf. I was advised that there had been further discussions with legal advisors, and reference was made to efforts that had been taken by the appellants to secure legal representation over the previous months, but that such advice and representation had not been able to be secured.
[20] In earlier minutes I have canvassed this issue of legal representation. The appellants commenced their litigation in the District Court as self-represented litigants and filed and prosecuted the appeal on that basis. They attended on Gendall J in December 2014 in that capacity and did not raise with him at that time any difficulty with complying with their obligations because of a lack of professional legal representation. In that regard, I note that Mr Koyama, one of the appellants, informed me that he was a barrister and solicitor of the High Court of New Zealand but presently has no practising certificate.
[21] I do not consider that an inability to obtain legal advice and representation provides the appellants with a reasonable excuse for failing to comply with their obligations in relation to this appeal. It simply does not address the substance of their defaults. The appeal is from procedural rulings made by the District Court, before which the appellants were self-represented. There is no reason, having regard to their familiarity with those matters, that they could not have at least filed their points on appeal and made the payments required regarding security for costs and the scheduling fee. The appellants were also to file and serve a common bundle by 5
February 2015, and their submissions and a chronology by 13 February, none of which has been attended to. The appellants since 17 December 2015 have been aware of these obligations.
[22] I will not set out again the relevant passages from Hytec Information Systems Ltd v Coventry CC4 and Ko v Ko5 which review the principles to be applied when making an unless order or refusing an application for relief from such an order. These were traversed by me in my minute of 13 March 2015 when the unless order was made. It was noted, however, by Paterson J in Ko v Ko6 that in order for a party to be exonerated from compliance with an unless order it will be necessary for the defaulting party to satisfy the Court that something beyond that party’s control has caused the failure to comply with the order. Paterson J further remarked:
[18] An “unless order” is an order of last resort. Case management principles should not in ordinary circumstances override the justice of the situation but in a situation where a judicial officer has felt compelled to make an “unless order”, unless it can be established that there were no grounds for making such an order or that reasons beyond the party's control caused non-compliance, the order should be upheld. An “unless order” is a last chance order and counsel must be aware that non-compliance with it will in normal circumstances bring the proceedings to an end. It is only in extreme circumstances, which will normally require evidence that the non- compliance was caused by something beyond the control of the party, that a Court should intervene and set aside the order…
[23] Paterson J further observed:
[22] English authority establishes that failure to comply with an “unless order” will generally be considered to be contumelious unless the defaulting party can show that there was no intention to ignore or flout the order and the failure to comply with the order was due to extraneous circumstances…
[24] The appellants are in deliberate default of the unless order. I am satisfied that they have no intention of complying with the orders. No reason has been put forward as to why security of costs and the scheduling fee have not been paid. These are mechanical requirements which require no expertise. The appellants’ response to their non-compliance has been to seek a stay of their appeal. Despite adverse rulings in respect of successive applications, the appellants’ have refused to comply with their obligations. Further applications have been made ignoring previous rulings.
[25] The appellants have been informed repeatedly that the matters they seek to raise regarding allegations of fraud and improper conduct on the part of the
4 Hytec Information Systems Ltd v Coventry CC [1997] 1 WLR 1666 (CA) at 1674.
5 Ko v Ko [2000] 14 PRNZ 362.
6 At [16].
respondent and others, and which they have referred to police and other persons, are not relevant to the hearing of an appeal from the procedural interlocutory rulings. The appellants have not sought to remedy their defaults and have provided no explanation for them.
[26] The only conclusion that can be reached is that their non-compliance is deliberate and that they have no intention of complying with Gendall J’s orders. The appellants are of the view that the appeal should not be heard on 1 April and therefore any extension of the unless order would not be for the purpose of facilitating the hearing of the appeal, or allowing the appellants to be heard on their appeal, but rather to produce the result which the appellants have always sought, that the appeal be deferred indefinitely.
[27] I am not therefore persuaded that the unless order should be amended to allow the appellants further time to comply with its terms. The original order was as follows:
Unless the appellants:
· Pay the scheduling fee to the Court; and
· Pay security for costs; and
· File their points on appeal
by 5.00 pm on 20 March 2015 its appeal will be struck out.
[28] As the appellants’ application for an extension of time to comply with the
unless order has been declined, it follows that the order took effect as at 5.00 pm on
20 March 2015. The appeal is therefore struck out. The fixture for 1 April 2015 is vacated.
[29] In my minute of 13 March 2015, I noted the respondent’s application for costs. At that time, I indicated that my preference was to deal with the issue of costs after the expiration of the stipulated deadline, or earlier compliance by the appellants. The appellants have not complied and the deadline has now expired. Accordingly, it is appropriate, if the respondent wishes to persevere with its application for costs, for it to file memorandum (no more than five pages) regarding
that issue. The appellants, upon receipt of the respondent’s memorandum, will have
10 working days to file their memorandum in opposition to an award of costs (again, no longer than five pages).
Solicitors:
DLA Phillips Fox, Auckland
Copy to appellants
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