Nicholls v Victoria University of Wellington

[2001] NZCA 137

IN THE COURT OF APPEAL OF NEW ZEALAND CA62/01

BETWEEN	REX NICHOLLS AND MICHAEL ROBERT CAMP
Appellants

AND	VICTORIA UNIVERSITY OF WELLINGTON
Respondent

Hearing:	23 April 2001
Coram:	Richardson P Gault J McGrath J
Appearances:	G P Barton QC and H McQueen for Applicant W M Wilson QC and N M Gaffaney for Respondents
Reasons:	1 May 2001

REASONS FOR JUDGMENT OF THE COURT

DELIVERED BY GAULT J

1. Victoria University, as respondent, has applied for an order striking out this appeal on the ground that events since delivery of the judgment appealed from have rendered the relief sought by the appellants academic and there is no live issue for determination.  At the end of the hearing we dismissed the application with reasons to be given later.  We now give our reasons.

2. The appellants had sought judicial review of a decision of the Council of the University to sell certain land in Kelburn.  Ellis J in the High Court held that it was strongly arguable that the Council was not properly directed as to the decisions it had to make in relation to s40 Public Works Act 1981.  He held further that the University had breached an undertaking given to the appellants that it would not conclude a sale without giving them an opportunity to purchase two of the lots involved.  He went on, however, to decline relief to the appellants because it was unlikely that the outcome would have been different even if the University had approached the matter correctly and given the appellants the opportunity agreed.

3. The University supported its application to strike out the appeal with affidavit evidence.  The deponents say that since the date of delivery of the High Court judgment the University Council has expressly considered questions at issue pursuant to the Public Works Act and confirmed the earlier decision.  They say further that settlement of the sale of the properties has been completed.

4. The appellants oppose the application to strike out and have raised the preliminary point of whether there is any jurisdiction for this Court to strike out an appeal on an interlocutory application other than for want of prosecution (Rule 26, Court of Appeal (Civil) Rules 1997).  It is not suggested that there has been want of prosecution in this appeal.

5. To meet this point, Mr Barton relied on Rules 19(5) and 25 which read:

   19(5)The Court may give any judgment and make any order which ought to have been given or made, and make such further or other orders as the case may require.

   …

   25Orders and directors – The Court may in any case make such orders and give such directions as may, in the Court’s discretion, seem necessary for the just resolution of the case.

6. He argued for a broad application of these rules to provide a sufficient basis for the Court to control and manage appeals.  He pointed to the obvious time saving advantage in disposing promptly of appeals in which there is no live issue.  But he was not able to refer us to any case in which the Court has entertained an interlocutory application to dismiss an appeal other than on the ground of want of prosecution.  In the two cases referred to (Eketone v Alliance Textiles (NZ) Ltd [1993] 2 ERNZ 783 and Sun Life Assurance Company of Canada v Jervis [1944] AC 111) the point of absence of any live issue was taken at the beginning of the hearing of the substantive appeal.

7. Rule 19(5) forms part of the Rule headed “Powers of Court in hearing appeals” and is directed to the disposal of substantive appeals on or after hearing.

8. Rule 25 is in Part 4 of the Rules.  It is broad in its terms, but we are not persuaded that it should be applied to dispose of appeals substantively on interlocutory applications.  Mr Barton accepted that the Rule should not be construed as allowing applications to dismiss appeals on grounds such as lack of merit, and we do not consider it should be invoked in the circumstances with which we are presented in this case.

9. Accordingly, the ground advanced for dismissing the appeal, that there is no longer a live issue, should be advanced when the appeal is heard.

Solicitors

Simpson Grierson, Wellington, for Appellants

Chapman Tripp Sheffield Young, Wellington, for Respondent