Napier v Auckland District Court
[2022] NZCA 293
•5 July 2022 at 9.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA125/2022 [2022] NZCA 293 |
| BETWEEN | MARTIN NAPIER |
| AND | AUCKLAND DISTRICT COURT |
| AND | LANDSEER MOTOR VEHICLE INVESTMENTS AUCKLAND LIMITED |
| Court: | French and Dobson JJ |
Counsel: | Applicant in Person |
Judgment: | 5 July 2022 at 9.30 am |
JUDGMENT OF THE COURT
The application for leave to appeal is declined.
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REASONS OF THE COURT
(Given by Dobson J)
The applicant (Mr Napier) has sought leave to appeal a decision of the High Court which stayed the applicant’s judicial review proceeding.[1] The judicial review proceeding was of the District Court decision refusing to strike out proceedings brought against Mr Napier in the District Court by the second respondent (Landseer).[2] The District Court proceedings were commenced by Landseer to recover the balance of monies allegedly owing by Mr Napier for the purchase of a motor vehicle. Mr Napier or a party associated with him who was using the vehicle had rejected it as being unfit for purpose and had returned the vehicle to Landseer. It appears that Landseer obtained approval to re-sell the vehicle, however, it is unclear whether it has been sold yet.
[1]Napier v Auckland District Court HC Auckland CIV-2021-404-157, 7 December 2021 [Stay decision].
[2]Landseer Motor Investments Auckland Ltd v Napier DC Auckland CIV-2019-044-173, 18 June 2021.
The District Court proceedings have a somewhat complicated history. Mr Napier had made two applications to strike out Landseer’s claim against him. Both were dealt with by District Court Judge G Harrison, and both were declined. At the time of filing his application for leave in this Court, there were still interlocutory applications requiring resolution before the substantive District Court proceeding could be set down for hearing.
Mr Napier commenced judicial review proceedings in the High Court to challenge the District Court’s decision to refuse to strike out Landseer’s proceedings against him. That proceeding also has a somewhat complicated history. Mr Napier cited the Auckland District Court as first respondent and Landseer as second respondent. When neither respondent filed a timely defence, the High Court appointed counsel to assist. The appointment was in essence to provide a contradictor to Mr Napier’s challenge to the lawfulness of the District Court’s refusal to strike out Landseer’s proceeding against him. Mr Chris Patterson, a barrister in Auckland, was appointed as counsel to assist. He proposed a joint memorandum in November 2021 seeking directions that the judicial review proceedings be determined as efficiently as possible in advance of the substantive hearing in the District Court. Mr Patterson’s memorandum included a timetable for steps to have the proceeding prepared for hearing. With the District Court (first respondent) abiding, the memorandum was duly signed by Mr Napier, counsel for Landseer and Mr Patterson.
Without seeing the joint memorandum which had by then been filed, Jagose J, on 7 December 2021, considered the future of the judicial review proceeding in light of the unresolved substantive proceeding between the parties in the District Court. Jagose J decided there was no benefit in the two proceedings running concurrently.[3] Taking the view that the grounds for Mr Napier’s application to strike out the proceeding could be argued at the substantive hearing, the Judge determined that it was appropriate for the District Court proceeding to progress to a substantive determination irrespective of the judicial review proceedings. He accordingly stayed Mr Napier’s application for judicial review.
[3]Stay decision, above n 1, at [3].
Mr Napier very promptly sought recall of that decision, raising his concern that it had been made without knowledge of the agreement reflected in the joint memorandum. Jagose J issued a further minute declining to recall his decision and stating that his decision on staying the judicial review would not have been affected had he taken into account the content of the joint memorandum and Mr Napier’s submissions.[4]
[4]Napier v Auckland District Council HC Auckland CIV-2021-404-1576, 8 December 2021.
Mr Napier then sought leave to appeal the stay decision, and on 21 February 2022 Jagose J declined leave, finding that the alleged error in his stay decision had no material significance or implications either for him or more generally.[5]
[5]Napier v Auckland District Court [2022] NZHC 234 at [7]–[8].
Mr Napier then sought leave directly from this Court. The provision for granting leave is specified at s 56(5) of the Senior Courts Act 2016. They have recently been addressed in Greendrake as reflecting the following:[6]
(a)a high threshold exists;
(b)the applicant must identify an arguable error of law or fact;
(c)the alleged error should be of general or public importance warranting determination or otherwise of sufficient importance to the applicant to outweigh the lack of general or precedential value;
(d)the circumstances must warrant incurring further delay; and
(e)the ultimate question is whether the interests of justice are served by granting leave.
[6]Greendrake v District Court of New Zealand [2020] NZCA 122 at [6].
The essence of Mr Napier’s concern is that the District Court will not hear his preferred form of disputing Landseer’s claim against him. As has been recognised by the High Court, if the grounds for his claim are valid then they will avail him in successfully defending Landseer’s claim. His concerns as a defendant appear to include a wish to dictate the form in which the issues between him and Landseer are to be argued. There have been a number of procedural missteps not of his making which might justify a level of frustration on Mr Napier’s part, but which in the end cannot add weight to any ground which would justify leave to appeal to this Court.
Mr Napier’s first criticism was that Jagose J ordered a stay of the judicial review proceeding without any application that he should consider doing so. Mr Napier subsequently acknowledged that the Judge did have an informal application before him to take that step. Mr Napier is also critical of the stay decision having been made without regard to his filed submissions and the content of the joint memorandum which was inconsistent with any stay. However the Judge has subsequently confirmed that those documents would not have made a material difference to his evaluation of the prospects for a stay.
Mr Napier also wishes to argue that rejection of his second application filed in the District Court to strike out Landseer’s claim against him ought not to have been determined by Judge Harrison, who had dealt with the first application. Mr Napier seeks to invoke the so-called “prior involvement principle” that suggests a different judicial officer ought to consider a matter involving the same facts or law as one previously determined between the parties.[7]
[7]See Redcliffe Forestry Venture Ltd v Commissioner of Inland Revenue (No 2) (2010) 24 NZTC 23,991 (HC) at [17]–[20].
There could be no matter of general or public importance arising in the context of the present proposed appeal, from a consideration of the so-called “prior involvement principle” to the present circumstances. It is entirely routine for the same judicial officer to make successive determinations of the type sought to be challenged in this case.
We are satisfied that Mr Napier’s concerns do not raise any material error of law or fact and that to entertain an appeal would contribute to further delay that is clearly not warranted. It is not in the interests of justice to grant leave and it is accordingly declined.
Solicitors:
Crown Law Office, Wellington for First Respondent
Anthony Harper, Auckland for Second Respondent
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