Napier v Auckland District Court

[2022] NZHC 234

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-1576

[2022] NZHC 234

UNDER

the Judicial Review Procedure Act 2016

IN THE MATTER

of an application for Judicial Review of North Shore District Court Judge G

Harrison’s Minute 18 June 2021 CIV-2019-
044-000173

BETWEEN

MARTIN NAPIER

Applicant

AND

AUCKLAND DISTRICT COURT

First respondent

LANDSEER MOTOR INVESTMENTS AUCKLAND LIMITED

Second respondent

Judicial review list:

On the papers

Appearances:

Applicant in person

D Jones and A P Lawson for first respondent

L M Van and R A Idoine for second respondent C T Patterson to assist the Court

Date of judgment:

21 February 2022

JUDGMENT OF JAGOSE J

[Leave to appeal]

This judgment was delivered by me on 21 February 2022 at 3.00pm.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Counsel/Solicitors:

Chris Patterson, Barrister, Auckland Anthony Harper, Auckland

Crown Law, Wellington

Copy to:
The applicant

NAPIER v AUCKLAND DISTRICT COURT [2022] NZHC 234 [21 February 2022]

[1]    Mr Napier applies for leave to appeal my 7 December 2021 decision to stay this proceeding,1 which seeks judicial review of the District Court’s refusal to permit him to bring a strike out application in another proceeding between the parties,2 ahead of that Court’s determination of the other proceeding. He contends priority should have been given to this proceeding.

[2]    By informal application of 17 August 2021, the second respondent sought this proceeding be stayed. It subsequently and alternatively proposed this proceeding run concurrently with the District Court proceeding. The District Court had deferred allocating a hearing date for the substantive proceeding (although it was progressing with other interlocutory matters), pending my decision on how the proceeding in this Court should proceed.

[3]My reasons for staying the proceeding were:3

Mr Napier’s most advantageous decision from this Court on the strike out only would be to quash the District Court’s decision. Irrespective, the grounds for strike out can be argued on the substantive proceeding in the District Court, subject to any appeal right as may exist. There is no benefit in the two proceedings running concurrently.

[4]    Mr Napier then sought I recall that decision, as made without knowledge of (or despite) steps taken by the active parties and counsel assisting to obtain determination of this proceeding in advance of that in the District Court, as recorded in a joint memorandum dated 18 November 2021. I declined to do so, as Mr Napier had not established the necessary “demonstrable injustice”.4

Approach to applications for leave to appeal

[5]    Section 56(3) of the Senior Courts Act 2016 prohibits appeals of orders or decisions on interlocutory applications in civil proceedings without this Court’s leave.

1      Napier v Auckland District Court HC Auckland CIV-2021-404-1576, 7 December 2021.

2      Landseer  Motor  Investments  Auckland  Ltd  v  Napier  DC  Auckland   CIV-2019-044-0173, 18 June 2021.

3      Napier v Auckland District Court, above n 1, at [3].

4      Napier v Auckland District Court HC Auckland CIV-2021-404-1576, 8 December 2021 at [7], citing Zhang v Yu [2020] NZCA 592 at [9] (citing Unison Networks Ltd v Commerce Commission [2007] NZCA 49 at [23] and [34] and Nottingham v Real Estate Agents Authority [2017] NZCA 145 at [9]).

By ‘interlocutory’ is meant “for some relief ancillary to that claimed in a pleading”; here, for stay of the proceeding.5

[6]The object of requiring such leave is:6

… to limit the cases which may go on appeal in the interests of finality of litigation and the workload of the [appellate] Court while preserving the integrity of the law and the interests of justice.

The Court of Appeal recently endorsed this Court’s approach to leave as a “filtering mechanism”,7 noting its own approach to be similar:8

… leave to appeal should only be granted where the significance or implications of an arguable error of fact or law, either for the particular case or for the applicant or as a matter of precedent, warrants the further delay which the appeal process would involve.

There is no reason for this Court’s approach to be seen any differently, and it is not.9 The question is if there is something justifying interlocutory appeal.

Discussion

[7] Mr Napier’s grounds for leave to be granted, first, are there was no application for stay; and second, repeat those advanced for recall. He is wrong on the first, as I have explained at [2] above. And my reasons for stay are not undermined “by either the consent position reached or the consequent inconvenience to which Mr Napier [had] been put”, as I previously explained.10

[8]    The error for which Mr Napier would argue thus has no material significance or implications, either for him or more generally. There is nothing justifying interlocutory appeal. If I am wrong in that, leave is available directly from the Court of Appeal.11

5      Senior Courts Act 2016, s 4(1) definition of “interlocutory application”.

6      Sandle v Stewart [1982] 1 NZLR 708 (CA) at 715.

7      Greendrake v District Court of New Zealand [2020] NZCA 122 at [6], citing Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [13].

8      At [7], citing Ngai Te Hapu Inc v Bay of Plenty Regional Council [2018] NZCA 291 at [17]; and Meates v Taylor (1992) 5 PRNZ 524 (CA) at 526. See, most recently, Doyle v Commissioner of Police [2022] NZCA 2 at [4]–[5].

9      Jones v New Zealand Bloodstock Finance and Leasing Ltd [2022] NZHC 93 at [18]–[19].

10     Napier v Auckland District Court, above n 4, at [7].

11     Senior Courts Act 2016, s 56(5).

Result

[9]I refuse Mr Napier leave to appeal my decision of 7 December 2021.

—Jagose J