Navaratnam v High Court at Auckland
[2022] NZCA 156
•3 May 2022 at 9.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA152/2022 [2022] NZCA 156 |
| BETWEEN | VASHIHARAN NAVARATNAM |
| AND | HIGH COURT OF NEW ZEALAND AT AUCKLAND |
| Counsel: | Appellants in person |
Judgment: | 3 May 2022 at 9.30 am |
JUDGMENT OF COLLINS J
The application to review the Deputy Registrar’s decision is declined.
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REASONS
Introduction
Mr and Mrs Navaratnam apply for a review of a Deputy Registrar’s decision, in which the Deputy Registrar declined to accept for filing an application for a stay of High Court proceedings pending determination of appeals from two decisions of the High Court. The Deputy Registrar did not accept the application for stay because Mr and Mrs Navaratnam had not first sought stays in the High Court.
Background
On 23 April 2020, a Singaporean arbitrator ordered Mr and Mrs Navaratnam pay HG Metal Manufacturing Ltd (HG Metal) an arbitral award of SGD 404,736.10 and USD 1,230,187.73, plus interest.
Mr and Mrs Navaratnam now reside permanently in New Zealand.
On 4 August 2020, HG Metal applied to the High Court for enforcement of the arbitral award against Mr and Mrs Navaratnam in New Zealand.[1]
[1]Under the Arbitration Act 1996, sch 1, art 35.
The subsequent procedural history can be summarised as follows:
(a)Mrs Navaratnam did not defend HG Metal’s application, and Woolford J issued a minute enforcing the arbitral award against her.[2] Mr and Mrs Navaratnam filed an appeal against Woolford J’s minute, which this Court has yet to determine.[3]
(b)Mr Navaratnam defended HG Metal’s application, and Katz J issued a judgment enforcing the arbitral award against him.[4] Mr and Mrs Navaratnam filed an appeal against Katz J’s judgment out of time. This Court declined an extension of time.[5]
(c)Mr and Mrs Navaratnam applied for judicial review of the High Court’s decisions. Jagose J struck out their claim on the grounds that it disclosed no reasonably arguable cause of action and was an abuse of process.[6] Mr and Mrs Navaratnam filed an appeal against Jagose J’s judgment, which this Court has yet to determine.[7]
[2]HG Metal Manufacturing Ltd v Navaratnam HC Auckland CIV-2020-404-1955, 22 October 2020 at [8].
[3]CA692/2020 and CA93/2021.
[4]HG Metal Manufacturing Ltd v Navaratnam [2021] NZHC 1920 at [49].
[5]Navaratnam v HG Metal Manufacturing Ltd [2021] NZCA 704 at [33].
[6]Navaratnam v High Court of Auckland [2022] NZHC 371 at [8].
[7]CA152/2022.
On 11 November 2021, HG Metal applied to the High Court for an order that Mr Navaratnam be adjudicated bankrupt for failure to pay the arbitral award and costs. This application is to be heard on 11 May 2022.
On 29 March 2022, Mr and Mrs Navaratnam attempted to file in this Court an application for a stay of proceedings and execution, including a stay of the bankruptcy proceedings, pending the determination of the two remaining appeals.
The Deputy Registrar declined to accept Mr and Mrs Navaratnam’s stay application on the grounds that it should have been filed in the High Court. Mr and Mrs Navaratnam now apply for a review of the Deputy Registrar’s decision.
Legal principles
Rule 12(3)(a) of the Court of Appeal (Civil) Rules 2005 provides:
(3)Pending the determination of an application for leave to appeal or an appeal, the court appealed from or the Court [of Appeal] may, on an interlocutory application,—
(a)order a stay of the proceeding in which the decision was given or a stay of the execution of the decision; …
This Court and the court appealed from therefore have concurrent jurisdiction to determine an application for a stay pending an appeal.
However, this Court has consistently said that stay applications should be made to the court appealed from in the first instance, unless there are special circumstances.[8] The reasons for this approach are:[9]
(a)The court appealed from is already acquainted with the file, so it can determine the application more promptly.
(b)This Court’s resources should not be used on a stay application that can be better dealt with by the court appealed from.
[8]Salem Ltd v Top End Homes Ltd (2005) 18 PRNZ 122 (CA) at [15]; M v Hawke’s Bay Standards Committee [2014] NZCA 40, (2014) 21 PRNZ 717 at [11]; Gibson v Official Assignee [2016] NZCA 93 at [6]; and Pool v New Zealand Guardian Trust Co Ltd [2019] NZCA 571 at [11].
[9]Salem Ltd v Top End Homes Ltd, above n 8, at [15]; and M v Hawke’s Bay Standards Committee, above n 8, at [11]. Under the Judicature Act 1908, stay applications were determined by three judges, usually with an oral hearing: s 58B. Following the Senior Courts Act 2016, stay applications can be determined by one judge on the papers: s 49(3). However, the rule has continued to be applied. See Pool v New Zealand Guardian Trust Co Ltd, above n 8, at [11].
The approach summarised at [11] is based upon the Court’s inherent power to regulate its own practice and procedure.[10]
[10]Gibson v Official Assignee, above n 8, at [6].
This Court will normally reject stay applications for filing if no application has been made to the court appealed from in the first instance, and there are otherwise no special circumstances.
In M v Hawke’s Bay Standards Committee and Gibson v Official Assignee, the Deputy Registrar rejected stay applications for filing under this approach, and this Court declined to review the Deputy Registrar’s decisions.[11]
Analysis
[11]M v Hawke’s Bay Standards Committee, above n 8; and Gibson v Official Assignee, above n 8.
Mr and Mrs Navaratnam should file their stay application in the High Court in the first instance. Their reasons for not doing so may be dealt with briefly.
First, Mr and Mrs Navaratnam submit that the High Court cannot fairly determine their stay application because the High Court’s own decisions are being appealed. However, both the legislation and the case law recognise that a court appealed from can fairly determine applications for a stay pending appeal.[12]
[12]Court of Appeal (Civil) Rules 2005, r 12(3); and M v Hawke’s Bay Standards Committee, above n 8, at [12].
Second, Mr and Mrs Navaratnam submit that their stay application must be determined urgently because HG Metal’s application for Mr Navaratnam to be adjudicated bankrupt will be heard on 11 May 2022. However, this Court would not be able to determine the stay application more urgently than the High Court.
Third, Mr and Mrs Navaratnam submit that the Deputy Registrar initially gave them the impression that this Court would accept their stay application for filing. The Deputy Registrar says that this was because he did not know whether Mr and Mrs Navaratnam had filed their stay application in the High Court in the first instance. In any case, the Deputy Registrar could not be bound by this and was entitled to reject the stay application for filing once he had all the information.
Finally, I add that I do not see any merit in Mr and Mrs Navaratnam’s appeals. There is little scope to relitigate an arbitral award at this stage. When this Court declined an extension of time for Mr Navaratnam to appeal against Katz J’s judgment, it said that “[t]he proposed grounds of appeal have no apparent merit”.[13] It is therefore highly unlikely that a stay would be granted by any court.
Result
[13]Navaratnam v HG Metal Manufacturing Ltd, above n 5, at [32].
The application to review the Deputy Registrar’s decision is declined.
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