Mountz v Craig
[2016] NZHC 1558
•8 July 2016
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
CIV-2016-412-000044 [2016] NZHC 1558
BETWEEN MICHAEL ELTON MOUNTZ
Plaintiff
AND
MELANIE GAYNOR CRAIG First Defendant
AND
MELANIE CRAIG DESIGN LIMITED Second Defendant
AND
MELANIE CRAIG DESIGN PARTNERS Third Defendant
Hearing: 5 July 2016 (by telephone conference) Appearances:
R Donnelly for Applicants/Defendants
E M Stuart for Plaintiff/RespondentJudgment:
8 July 2016
JUDGMENT OF ASSOCIATE JUDGE OSBORNE (AS TO PROPER REGISTRY)
Introduction
[1] The facts involved in this proceeding give rise to an unusual question in relation to the proper registry. Is Wanaka nearer to Dunedin or Invercargill? Put another way, is it the registry at Dunedin or the registry at Invercargill which is nearest to Wanaka?
[2] A secondary issue was raised, as to the convenience of the parties, which falls away by reason of the decision I reach on the first question.
MOUNTZ v CRAIG [2016] NZHC 1558 [8 July 2016]
How the issue arises
[3] The plaintiff (who resides at Wanaka) sues three sets of defendants. The first defendant resides in Wanaka and carries on business there and elsewhere in Otago and Southland. The second defendant carries on business at Gore and elsewhere in Otago and Southland. The third defendant (sued as a firm) comprises two partners, (one being the first defendant) who respectively reside in Wanaka and Gore. The plaintiff has filed proceedings with the Dunedin Registry.
The requirements of r 5.1 High Court Rules
[4] Relevantly, r 5.1 provides:
5.1 Identification of proper registry
(1) The proper registry of the court, for the purposes of rules 5.25 and
19.7, is,—
(a) when a sole defendant is resident or has a principal place of business in New Zealand, the registry of the court nearest to the residence or principal place of business of the defendant, but when there are 2 or more defendants, the proper registry is determined by reference to the first-named defendant who is resident or has a principal place of business in New Zealand:
(b) when no defendant is resident or has a principal place of business in New Zealand, the registry the plaintiff selects:
…
(2) Despite subclause (1)(a), if the place where the cause of action sued on, or some material part of it, arose is nearer to the place where the plaintiff or the plaintiff first-named in the statement of claim resides than to the place where the defendant resides, the proper registry of the court for the purposes of subclause (1) is, at the option of the plaintiff or the plaintiff first-named, as the case may be, the registry nearest to the residence of the plaintiff or the plaintiff first-named, as the case may be.
(3) If a plaintiff proposes to exercise the option conferred by subclause (2), the plaintiff must file with the statement of claim and notice of proceeding an affidavit by the plaintiff or the plaintiff’s solicitor stating the place where the cause of action or the material part of it arose, and that that place is nearer to the place where the plaintiff or the plaintiff first-named in the statement of claim resides than to the place where the defendant resides.
(4) If it appears to a Judge, on application made, that the statement of claim has been filed in the wrong registry of the court, he or she may direct that the statement of claim or all documents filed in the proceeding be transferred to the proper registry.
(5) If it appears to a Judge, on application made, that a different registry of the court would be more convenient to the parties, he or she may direct that the statement of claim or all documents be transferred to that registry and that registry becomes the proper registry.
[5] In terms of r 5.1(1)(a), the first-named defendant resident in New Zealand is the first defendant. Her residence is in Wanaka. Accordingly, pursuant to r 5.1(1), the proper registry is that which is nearest to Wanaka.
What does “nearest” mean?
[6] Rule 1.3 High Court Rules contains the following definition which applies, unless the context otherwise requires:
nearer or nearest, in relation to any place, means nearer or nearest by the most practicable route.
[7] There is no reason arising from the context of r 5.1 to apply a different definition.
The defendants’ application
[8] The defendants apply for an order transferring all documents on the Court’s
file to theInvercargill Registry. The defendants assert two grounds, namely that: (a) the Invercargill Registry is the registry nearest to Wanaka; and
(b) the Invercargill Registry would be more convenient to the parties. [9] The application is opposed by the plaintiff in relation to both grounds.
The r 5.1(1)(a) ground – is the Dunedin Registry the nearest to Wanaka?
The defendants’ evidence
[10] The defendants assert that, in terms of the definition under the High Court
Rules, the Invercargill Registry is the registry nearest to Wanaka.
[11] The first defendant exhibits screen dumps from Google Maps which identify the following route information for the most direct routes:
(a) Wanaka–Dunedin: 276 kms, three hours, 25 minutes;
(b) Wanaka–Invercargill: 242 kms, three hours, 19 minutes.
[12] Similar calculations can be obtained from other public sources – Ms Craig refers to “Travel Guide” and “Wises”. The website of the Automobile Association of New Zealand also contains similar information.
The plaintiff ’s evidence
[13] Gillian Stuart, a solicitor employed by the plaintiff ’s solicitors’ firm, provided the evidence in opposition. She discussed the road between Wanaka and Queenstown over the Crown Range, which is part of the 242 km route between Wanaka and Invercargill as identified by the defendant. If the portion of route over the Crown Range is unavailable, a person travelling from Wanaka to Invercargill would travel via Cromwell over a distance which is significantly longer than the Wanaka to Dunedin route.
[14] Ms Stuart deposes:
The Crown Range is a most difficult route which rises to the highest elevation of any sealed public road in New Zealand. Consistent with that, the Crown Range is extremely susceptible to adverse weather. I have enquired of the Queenstown Lakes District Council concerning the status of the road. There are often winter conditions which make this road impassable or restricted by such as the use of chains, or by the driving conditions, which can have a big impact on travel time reliability. The Council often recommend in their winter road reports that the State Highway is used as an alternative to the Crown Range route. In winter, the Council advise that no
vehicle should use the Crown Range Road unless they are carrying chains with them. My understanding of their advice is as I have just detailed.
As the Plaintiff sees it, the Crown Range is not the most practicable route. That leaves as the most practicable route, that via Cromwell. Using that route, as Ms Craig acknowledges, Dunedin is a distance of 276 km with a driving time of 3 hours 25 minutes. In comparison, Invercargill is 287 km with a driving time of 3 hours 40 minutes. Dunedin is therefore nearer by the most practicable route.1
[15] Ms Stuart refers also to an exchange which the plaintiff’s solicitors had with the Ministry of Justice immediately before filing this proceeding. The issue of the correct registry had been raised. The plaintiff’s solicitors made an enquiry of the Wellington Contact Centre of the Ministry, and were advised by the Ministry that the closest registry in which to file documents for civil proceedings relating to Wanaka is the Dunedin Registry.
The submissions for the defendant
[16] For the defendants, Mr Donnelly submitted that, on the geographical facts of this case, the Invercargill Registry is the nearest to the first defendant’s residence (Wanaka) both in terms of rr 5.1(1)(a) and 1.3 High Court Rules. Mr Donnelly relies both in terms of geographical proximity (Invercargill being some 34 kilometres closer by road) and in terms of time (the estimated journey to Invercargill being approximately six minutes shorter).
[17] Mr Donnelly invites the Court to measure the practicability of the route by reference to what is ordinarily achievable. He invites the Court to take judicial notice of the fact that a number of routes in the South Island (apart from the Crown Range) can become temporarily impassable or passable only with chains. He notes the absence of specific evidence as to the extent of winter interruptions on the Crown Range route.
[18] Mr Donnelly referred to the advice which Ms Stuart deposed she had received from the Ministry of Justice as to the appropriateness of filing this
proceeding in the Dunedin Registry. He had been unable to identify any other
1 The deponent’s reference to 3 hours 40 minutes was “corrected” by counsel in submissions – the exhibits clearly identified the relevant time as 3 hours 30 minutes, still (slightly) greater than the three hours 25 minutes for the Wanaka/Dunedin route.
Ministry document which explained the Ministry’s conclusion. He submitted that the Ministry conclusion cannot stand against the specific requirements under the High Court Rules.
[19] Mr Donnelly suggested that the advice given to the plaintiff’s solicitors as to the appropriateness of the Dunedin Registry may have an historical explanation. He understands that the Dunedin Registry may have traditionally been regarded as the proper registry. He suggests that the explanation for that may lie in the fact that it is only in comparatively recent times that the Crown Range route road was sealed along its full length.
The submissions for the plaintiff
[20] Ms Stuart also appeared for the plaintiff.2 Ms Stuart accepted that there is no doubt, if one uses the Crown Range road, that Invercargill is the nearest registry to Wanaka, both in distance and time.
[21] Ms Stuart had been unable to obtain from the local authority any specific data as to periods of impassability of the Crown Range route. This had led to the need in her affidavit to refer simply to “significant periods in winter”.
[22] Ms Stuart urged the Court, when considering the practicability of the Crown Range route, to note the distinction between the State Highway (SH6) classification of the road to Cromwell as contrasted with the lesser status (albeit still sealed) of the Crown Range road.
[23] Ms Stuart submits, nevertheless, that the definitional requirement under r 1.3
High Court Rules that a particular registry be the “nearest by the most practicable route” disqualifies Invercargill because “for significant periods in winter, the route is
closed, passable only with chains, or not advised as an appropriate route by the local
2 As identified above at [13] – [15], it was Ms Stuart who provided the affidavit evidence for the plaintiff in opposition to the present interlocutory application. When she appeared as counsel at the (conference) hearing, I observed to her that the Court would not normally consider it appropriate that she appear as counsel having provided opposition evidence. Having regard to the limited differences between the deponents and to the cooperation with which the interlocutory application had come on for hearing, I orally granted Ms Stuart leave to continue as counsel in the interlocutory hearing.
Council roads department”. Ms Stuart accordingly submits that against that background, the most practicable route is a route via Cromwell. That would mean that Dunedin is the nearest registry.
Discussion
The practicability of a route contrasted with straight line measurement
[24] The requirement to consider the practicability of a route may be contrasted with the provision in s 36 Interpretation Act 1999 which is:
36 Distance
A reference to a distance means a distance measured in a straight line on a horizontal plane.
[25] It is initially surprising to learn that the Interpretation Act provision (preceded by s 25(c) Acts Interpretation Act 1924), was enacted to overcome what were seen as difficulties in determining what was the most practicable route. The parallel English development is explained in Maxwell on the Interpretation of Statutes where the authors write:3
Distances were formerly measured by the nearest and most usual road or way, and this is undoubtedly the popular manner of measuring them. But ‘in the measurement of any distance for the purposes of any Act passed after’ January 1, 1890 ‘that distance shall, unless the contrary intention appears, be measured in a straight line on a horizontal plane’. And this solution has, on grounds of convenience, been applied to older statutes as well. For if we are to take ‘the nearest practicable road … does that mean a footway or a carriageway? Or, if a footway will not do, will a bridle path? In an aquatic country are we to take a boat? All these are questions of doubt avoided by the simple rule now adopted’.
[26] The interpretation provisions of the Interpretation Act 1999 do not apply where an enactment provides otherwise or the context of the enactment requires a different interpretation.
[27] The express adoption of a test of “practicability” in rr 5.1 and 1.3 High Court
Rules is shared with a number of other statutes dealing with matters of judicial
3 P St J Langan Maxwell on the Interpretation of Statutes (12th ed, Sweet & Maxwell, London,
1969) at 312 – 313.
administration.4 All such provisions require a different approach to construction than would occur through s 36 Interpretation Act 1999.
The courts’ approach to “practicability” of route
[28] In Nicholls v District Court at Masterton, McGechan J was required to consider whether, under s 168A(1)(b) Summary Proceedings Act 1957, the applicant should have been committed for trial at Palmerston North rather than Wellington.5
In judicial review proceedings, counsel for the applicant submitted that the registry at Palmerston North was the registry nearest to Masterton.
[29] Section 168A(1)(b) provided:
168A Court to which defendant to be committed
(1) Subject to subsection (2) of this section, the Court to which a defendant shall be committed for trial under section 168 or section
172 of this Act shall be as follows:
…
(b) In respect of any other offence, the High Court at the place where sittings of the Court are held nearest to the committing Court.
[30] McGechan J dealt with the issue in this way:6
…
So it must be asked which is the High Court nearest to Masterton; Wellington or Palmerston North? “Nearest”, in my view, is to be construed in this section in a commonsense fashion. In my view it means nearest by the most practicable route, an approach which is adopted in the Juries Act and, of less immediate relevance perhaps, in the High Court Rules in a civil context. I do not ignore s25(c) Acts Interpretations Act 1924 which directs that in measurement of any distance for the purposes of any Act the distance shall, unless a different intention appears, be measured in a straight line on a horizontal plane. However, I do not think in the context of a decision on location of trial measurement in straight lines, let alone on horizontal planes, was in mind. What was in mind was accessibility by practicable route dictating the realities of how people could travel and attend. I do not think the distance between Masterton and Palmerston North or Wellington is to be
4 See, for instance, Juries Act 1981, s 5(3); Summary Proceedings Act 1957, ss 18 and 168A (since repealed); Disputes Tribunals Act 1988, s 24; High Court Rules rr r 24.13(a) and 31.4(1).
5 Nicholls v District Court at Masterton HC Masterton CP 1/96, 19 February 1996.
6 At pp 3 – 4.
measured in a straight line as though one burrows through the mountain ranges intervening. Nor do I think the distance is to be measured by travel by air. That may or may not be economic in certain circumstances. It would not be a practicable mode of travel as between Masterton and Palmerston North or Wellington, if only on economic grounds, and the contrary was not suggested. The measurement of practicability in the end reduces to travel by road or by rail. So far as road is concerned, I accept on the materials before me that the shortest route between Masterton and Wellington on a court to court basis is either 99.6km or 98.9km. In comparison the shortest route to Palmerston North on a court to court basis over the Pahiatua Track is either
96.4km or 96.1km along the route demonstrated on a blue line on the map put in. Accordingly, by road, Palmerston North is marginally closer in
kilometres. By rail the track distance between railway stations Masterton and
Wellington is given as 90.9km. I am prepared to take judicial notice that additional distances between stations and court houses which should perhaps
be taken into account for fully comparative purposes would add very little,
so by rail Wellington is marginally closer in kilometre terms. That should not be the end of consideration. It is true that many, and perhaps most, prefer to travel by car as opposed to rail or otherwise. It is the preferred mode of transport in the New Zealand culture. Many prosecution witnesses I am sure will be brought by police transport by road. It may well be many defence witnesses, if there are such, will prefer likewise. However, there is a perfectly practicable alternative route available by train. That is by no means always so in other areas but it is so here. It may require the traveller to leave rather earlier and return rather later than some would think ideal but it can fit with court hours. It avoids difficulties over parking and like matters and is not unduly expensive. It need not take markedly longer than by road. It is, in the end, essentially a matter of individual preference. The one route to Wellington is in my view as practicable as the other and in that situation, with one shorter and equal option open, I regard Wellington as the nearest Court within the intent of s168A(1)(b).
[31] The judgment is therefore authority for the following propositions: (a) “nearest” is to be construed in a common-sense fashion;
(b)“straight line” measurement (in terms of s 36 Interpretation Act) is not applicable;
(c) relevant considerations informing which registry is “nearest” include considerations of geographical distance, time of travel and the economics of travel;
(d)generally the measurement of practicability in New Zealand will reduce to travel by road or by rail (and not by air).
[32] Mr Nicholls appealed the High Court judgment.7 The Court of Appeal agreed with McGechan J’s reasoning and conclusions and dismissed the appeal. Richardson P, delivering the judgment of the Court, considered in detail but rejected an argument that the Court should adopt a straight line calculation. It was concluded:8
In the present context the statutory focus [under s 168A Summary Proceedings Act] is on the Court which is nearest from the committing Court in a practical sense for the range of people who could be expected to attend the trial.
The Court noted that, while the differences over the two routes by road were slight both in terms of distance and time, for those without access to a private car the difference in time and convenience was overwhelming (in favour of Wellington).9
[33] The approach approved and adopted by the Court of Appeal in Nicholls v District Court at Masterton imports into s 168A Summary Proceedings Act a requirement that “nearest” be measured in terms of practicability. Given that practicability is an express test under r 1.3 High Court Rules, I am bound to apply the Nicholls approach to the assessment of practicability.
Is an occasionally impassable route practicable?
[34] Counsel were unable to refer me to any New Zealand or other authority which deals directly with the possibility that the predictable, temporary impassability of a particular route, or its passability only with chains, may render that route “impracticable”. (I will refer to both situations as “impassability”).
[35] The answer must be that the context of the statutory provision or rule will
inform what is “practicable”.
[36] The context in which rr 5.1 and 1.3 operate to determine the proper registry, is in the life of a High Court civil proceeding. The common context will be in
relation to ordinary proceedings in which there is at least one defendant. The
7 Nicholls v District Court at Masterton [1996] 2 NZLR 156 (CA).
8 At 159.
9 At 160. See also Jones v James HC Wellington A260/85, 7 October 1985, in which Greig J found by reference to both the distance and time of travel that the Wellington Registry was nearer than the Auckland Registry to Turangi by the most practicable route.
proceeding, if it goes to trial, will typically take a year or more. While there may be a need for counsel to appear in Court on interlocutory issues, the most common time at which those involved in the proceeding – counsel, parties and witnesses – will be required to attend a court is for the trial. In relation to the allocation of a trial date, this will typically occur at least six months before the event.
[37] It is in that context that the predictable, temporary impassability of the Crown Range route must be considered. Whether a temporary impassability renders a route “impracticable” involves a judgement of degree. While the plaintiff, as respondent, has been unable to source any statistics as to the occasions and periods of closure, the evidence is that (by the nature of the relevant conditions) it is only the winter season which is affected. The Court may take judicial notice of the fact that with skiing facilities on the route, there is a public and commercial need, in the event of adverse conditions, to keep the route passable and, when that is not possible, to quickly return it to passability.
[38] In this sense, the Crown Range, although it sits at a greater altitude, it is not unlike a route such as Burkes Pass. One would without hesitation describe Burkes Pass the most practicable route between Fairlie and Lake Tekapo notwithstanding that it too is subject to occasional periods of impassability.
[39] The default requirements in r 5.1(1) as to proper registry are also to be seen in the context of r 5.1 as a whole. Where a registry is the proper registry by reason of its being nearest to the residence of the defendant, that does not lock the parties into having any hearings or trial in that registry.
[40] Under r 5.1(5) another registry may become by Court direction the proper registry when “more convenient to the parties”. The Court has the ability to respond promptly and pragmatically to the circumstances of the case. If, for instance, a trial were to be allocated in mid-winter, for the convenience of the parties the Court may be led to direct a transfer of the file for the purposes of trial.
[41] I do not overlook the fact that, apparently in accordance with previously
settled practice, a Court officer informed the plaintiff’s solicitors before this
proceeding was commenced that it was appropriate to commence the proceeding in the Dunedin Registry. There are two historical reasons why such advice would have once been appropriate. First, under the Code of Civil Procedure as it applied until
1973, the registries were assigned defined territorial districts.10 Queenstown fell
within the Invercargill district. Arrowtown and towns north (therefore including Wanaka) fell within the Dunedin district. Secondly, there is the fact that until 2001 the Crown Range route was not sealed along its full length. The circumstances pertaining to the Crown Range road – both the legal definition of registry districts and the physical condition of the road – have changed. The previously accepted view in relation to the appropriateness of the Dunedin registry for Wanaka matters no longer stands.
[42] I conclude that Invercargill is the registry of the Court nearest to the first
defendant’s residence (at Wanaka).
Outcome under r 5.1(1)(a)
[43] The application of the defendants for an order transferring the proceeding to the registry at Invercargill will be granted on the first ground specified.
Alternative ground under r 5.1(5)
[44] It is unnecessary that the Court make a ruling in relation to the defendant’s second ground, namely that the Invercargill Registry would be more convenient to the parties. The plaintiff has not made a cross-application to be considered in the event the Court upheld the defendants’ claim in relation to proper registry.
Costs
[45] Costs and disbursements should follow the event. It is appropriate that the costs be calculated on a 2B basis.11
10 The Supreme Court districts existed by the definition contained in the Code of Civil Procedure, r 607. They were abolished by the Judicature Amendment Act 1972. The modern requirement of “proper registry” was introduced as Rule 4 through the Supreme Court Amendment Rules
1973, r 3 and First Schedule.
11 High Court Rule, Category 2 under r 14.3(1) and band B under r 14.5(2).
Orders
[46] I order:
(a) All documents filed in this proceeding are to be transferred to the Invercargill Registry which shall become the proper registry of this proceeding;
(b)The plaintiff is to pay to the defendants in any event the costs of the defendants’ interlocutory application on a 2B basis, together with disbursements to be fixed by the Registrar.
ADDENDUM
[47] The present application has highlighted the unusual fact that the inhabitants of towns comprising a significant population (the Wanaka/Queenstown residents numbering 28,224 at the 2013 Census) have to travel so far to the nearest High Court registry. According to the evidence in this case, a Wanaka resident travels 242 kms. By comparison, that is more than the total distance between most other registries. The distances involved for Wanaka and Queenstown undoubtedly stem from a combination of the size of the South Island and spread of modest populations. The continued increase in the population in the Queenstown Lakes District Council area may warrant the authorities considering the gazetting of an office of the Court at Queenstown. The significance for residents of Wanaka and Queenstown would be dramatic. The lot of those in some other localities would also improve. Haast is an example. The present, nearest registry of Greymouth (316 km distant) would be
replaced by Queenstown (206 km distant).
Solicitors:
Preston Russell Law, Invercargill
Aspiring Law, Wanaka
Counsel: D G Hurd, Parnell
Associate Judge Osborne
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