Purau Moorings Association Inc v Canterbury Regional Council

[2018] NZHC 462

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2017-409-000762 [2018] NZHC 462

UNDER

the Bylaws Act 2010 and the Judicial Review Procedure Act 2016

IN THE MATTER

of an application to quash a bylaw and for Judicial Review

BETWEEN

PURAU MOORINGS ASSOCIATION INCORPORATED

Plaintiff

AND

CANTERBURY REGIONAL COUNCIL

Defendant

Hearing:	12 March 2018
Appearances:	J V Ormsby for Defendant/Applicant N Till QC for Respondent/Plaintiff
Judgment:	19 March 2018

JUDGMENT OF ASSOCIATE JUDGE OSBORNE

on security for costs

[1]                 The Canterbury Regional Council (the Council) as defendant in judicial review proceedings seeks security for costs and an order staying the proceeding if security is not provided.

The proceeding

[2]                 Purau Moorings Association Incorporated (the Association) seeks orders quashing parts of the Canterbury Regional Council Navigational Safety Bylaw 2016

PURAU MOORINGS ASSOCIATION INCORPORATED v CANTERBURY REGIONAL COUNCIL [2018] NZHC 462 [19 March 2018]

(“the Bylaw”).1 In particular, the Association seeks the quashing of parts 6 and 9 of the Bylaw.

[3]                 The Association represents members who hold approximately 95 moorings in Purau Bay.

[4]                 The Association alleges that the process of creating and passing the Bylaw was flawed and that the Council, in passing the Bylaw, exceeded its jurisdiction under the empowering legislation. It pleaded six causes of action. One alleging non- consultation with the Director of Maritime (New Zealand) is now abandoned by the Association.

[5]                 The statement of claim was filed in September 2017. The Council filed its defence in November 2017.

[6]                 At the first call, directions were made by consent which included a requirement that any interlocutory applications be filed by 22 December 2017.

Application for security

[7]                 On 19 December 2017, the Council filed this application for security for costs. The Council seeks:

(a)Security in the sum of $76,489 based on a 2B calculation of costs;2

(b)An order that security be provided within 10 working days of the order;

(c)An order that the proceeding be stayed until security is provided;

(d)An order that the Association pay the costs of the security application.

1      The Bylaw was promulgated under s 33M Maritime Transport Act 1994. In 2013, there had been a change to the Maritime Safety Bylaw-making powers of Regional Councils which meant that navigation safety bylaws had to be made under s 33M of the Maritime Transport Act (instead of s 684 Local Government Act 1974 which had previously applied).

2      High Court Rules, Category 2 under r 14.3(1) and band B under r 14.5(2).

[8]                 The Council has (by affidavit) since amended its calculation of approximate scale costs to $91,379 (calculated mainly on a 2B basis but partly, for discovery, evidence and preparation of the bundle, on a 3C calculation.3 At the hearing, Mr Till made an application that the security figure sought be amended to $91,379.

[9]The Council cites five grounds for its application:

(a)The Association is an incorporated society and there is reason to believe that it will not be able to pay the Council’s costs if the Association is unsuccessful;

(b)The estimated (2B) costs of the proceeding are $76,489, with actual costs likely to exceed that amount;

(c)The merits of the Association’s claims are weak;

(d)A stay of the proceeding (until security is provided) would be appropriate in the Court’s discretion.

The Association’s opposition

[10]The Association opposed the application on six grounds:

(a)The Association’s proceeding raises matters of substance which are arguable and are raised bona fide;

(b)The Council is a public body with a duty to act within its statutory authority. The rule of law requires control on the exercise of power. The question of whether a statutory authority has acted outside its powers is in the public interest and of public importance;

(c)An award of security is exceptional and in this case the security sought would deprive the Association of the capacity of advancing a prima facie meritorious public interest claim;

3      High Court Rules, Category 3 under r 14.3(1) and band C under r 14.5(2).

(d)The amount of security sought is excessive given the nature of the claim, the estimated duration of the trial, the principle that security should be in respect of future costs and that a discount of costs is likely to be awarded if the claim were to fail;

(e)The Council has delayed in making its application for security if fairness and access to justice favours declining the security application.

Evidence

[11]Both parties provided detailed evidence in support of their positions.

Legal principles

[12]              Rule 5.45 High Court Rules provides for the making of orders for the giving of security for costs. Rule 5.45(1) contains what is generally referred to as the “threshold” requirement; Rule 5.45(2) provides that a Judge may, if the Judge thinks it is just in all the circumstances, order the giving of security for costs.

[13]              As the plaintiff in this case is an incorporated society, s 17 Incorporated Societies Act 1908 provides a parallel jurisdiction.

[14]              The general approach to the discretion under r 5.45 (as previously contained in r 60) was described by the Court of Appeal in McLachlan v MEL Network Ltd:4

[13]      Rule 60(1)(b) High Court rules provides that where the Court is satisfied, on the application of a defendant, that there is reason to believe that the plaintiff will be unable to pay costs if unsuccessful, “the Court may, if it thinks fit in all the circumstances, order the giving of security for costs”. Whether or not to order security and, if so, the quantum are discretionary. They are matters for the Judge if he or she thinks fit in all the circumstances. The discretion is not to be fettered by constructing “principles” from the facts of previous cases.

[14]      While collections of authorities such as that in the judgment of Master Williams in Nikau Holdings Ltd v Bank of New Zealand (1992) 5 PRNZ 430, can be of assistance, they cannot substitute for a careful assessment of the circumstances of the particular case. It is not a matter of going through a check list of so-called principles. That creates a risk that a factor accorded weight in a particular case will be given disproportionate weight, or even treated as a

4      McLachlan v MEL Network Ltd (2002) 16 PRNZ 747 (CA).

requirement for the making or refusing of an order, in quite different circumstances.

[15]      The rule itself contemplates an order for security where the plaintiff will be unable to meet an adverse award of costs. That must be taken as contemplating also that an order for substantial security may, in effect, prevent the plaintiff from pursuing the claim. An order having that effect should be made only after careful consideration and in a case in which the claim has little chance of success. Access to the courts for a genuine plaintiff is not lightly to be denied.

Threshold – inability to meet costs

[15]For the Association, Mr Till QC concedes that the threshold test is established

– there is a reason to believe the Association will not be able to pay costs if unsuccessful. Ian McFarlane, a deponent for the Association, has confirmed that that is the case.

Balancing of the parties’ interests – the exercise of the discretion to award security

The plaintiff’s ability to pursue its claim

[16]              The balancing of the interests of the plaintiff and the defendant is the overriding consideration in the exercise of the discretion.5 Critical to the plaintiff is its ability to pursue the proceeding to trial, often identified in terms of access to justice.

[17]              The Association has not in this case, by its notice of opposition or its evidence, suggested that an order of security would stifle its claim (through financial inability to proceed). The highest it was put was in Mr Till’s written synopsis where he made the submission that:

…the barrier of an order for security for costs should not, in the public interest, be placed in the way of this meritorious challenge to an abuse of power.

The Association has not given evidence that an award of security (whether set at the proposed 2B level or otherwise) is likely to be an insuperable barrier. There is no evidence as to an unwillingness on the part of members to respond to a call for

5      Highgate on Broadway Ltd v Devine [2012] NZHC 2288, [2013] NZAR 1017, at [24](c).

additional funds if necessary to pursue the litigation. Access to third party funding (from persons such as members or shareholders) is relevant.6

[18]              The Association cannot point to any evidence that its right to be heard will be affected by an order that it provide security. Access to justice issues do not need to be taken into account in this case in the exercise of the Court’s discretion.

The nature of the plaintiff

[19]              In Highgate on Broadway Ltd v Devine, Kós J recognised that it might tend in favour of an order of security that the plaintiff is “nominal” in the sense that it is in effect representing the interests of others who will thus be spared exposure to costs.7 Such an incorporated body may gain an unfair advantage when its shareholders or members who benefit from the litigation are immune to its liability for costs.

[20]              Here, the Association’s three deponents have each given evidence as to the acquisition of their moorings. It is stated that the average price of moorings in Purau Bay is between $2,000 and $6,000.

[21]              There is no suggestion the Association was established to be a “nominee” of its members for the specific purpose of this litigation. The Association was formed in 1984 and has a role in laying and servicing moorings as well as dealing with insurance. But in relation to this litigation, it has the “nominal” role referred to by Kós J in Highgate on Broadway. This factor favours a provision of security.

The merits

[22]              The Council has invited this Court on this application to engage with the merits (or lack of merit) of the Association’s six causes of action. The affirmation of Captain James Dilley, the Regional Harbourmaster, after five introductory paragraphs, deals with the “merits of the proceeding” in 107 paragraphs. Just under 300 pages of exhibits follow.

6      Highgate on Broadway Ltd v Devine, above n 5, at [22](d).

7      At [22](a).

[23]              There is a complexity to the issues involved – particularly in relation to the extent of consultation and the addressing of safety issues. Mr Ormsby, through adoption of a six-page schedule of the detail of the causes of action, sought to demonstrate that the Association’s claim is without merit. I am not persuaded that the Council has established a prima facie case that the claim is unmeritorious. I will now explain why. The Court’s view in this regard is necessarily a matter of impression.

[24]              Of the Association’s five causes of action which remain, it appears from the supporting evidence that matters which most concern its deponents are alleged ulterior or collateral purposes in the promulgation of the Bylaw (first and second causes of action) and an alleged lack of consultation on the part of the Council with the Association (fourth cause of action).

[25]              Mr Till submitted that the causes of action pursued by the Association are matters of substance which are arguable and are raised bona fide. He submitted that the following factual propositions, supported in each case by evidence filed in opposition, establish the Association’s arguable case particularly in relation to ulterior or collateral purposes:

(a)Before the introduction of the Bylaw, transfer of moorings occurred by negotiation between transferor or transferee with informal notice or formal notice by the Council’s own “Transfer of Ownership Swing Mooring” form to the Harbourmaster’s office.

(b)When the Harbourmaster convened a discussion meeting in mid-2014, the Harbourmaster did not give members of the Association or other members of the public attending the meeting notice of any thought or intention of changing the existing practice.

(c)When the Council produced on 26 January 2015 a paper entitled “the scoping exercise for new Environment Canterbury Navigation Safety Bylaw” (an internal document) the first matter recorded under the heading “Swing Mooring and Licencing (sic) regulations” reads:

The Harbourmaster expresses the view of inserting a mooring section that includes regulating the mooring licences to prevent potential profiteering of mooring licence assignments…

(d)The Bylaw was subsequently promulgated on 22 September 2016 and became operative on 10 October 2016.

[26]              The Association, for evidence pointing to the purposes of aspects of the Bylaw, relies also upon statements made after the Bylaw was promulgated. Mr McFarlane deposes that at a meeting between the Harbourmaster and the Association’s representatives convened on 2 December 2016, Captain Dilley stated that he intended to stop “profiteering by rich people” and to “drive down prices of moorings”. Mr McFarlane states that a waiting list of 200 people in Canterbury was mentioned (as it had been in the mid-2014 meeting). In the absence of Captain Dilley, who is overseas, the Acting Regional Harbourmaster, Ian Fox, filed a reply affidavit. He deposes that he was at the meeting but does not recall the words in quotation marks being said. He nonetheless goes on to recognise that the term “profiteering” had appeared in the passage which I have quoted from the January 2015 scoping document (above at [25](c)).

[27]              Mr Till refers also to a letter addressed to each mooring owner by Captain Dilley dated 22 September 2016 (the date on which the Bylaw was promulgated). Captain Dilley stated that:

As a mooring owner the Bylaw may affect you: If you currently maintain and inspect your mooring, pay your annual fee and keep your contact details up to date, you will notice no change.

[28]              The thrust of the Association’s members’ evidence is that they did thereafter notice a change. One deponent, Tui Scott, had listed his mooring for sale on Trade Me in September 2016. He states that around December 2016, he received a phone call from Captain Dilley. He deposes that Captain Dilley said that he had seen the mooring listed on Trade Me and assumed that Mr Scott had “finished with the mooring”. Captain Dilley said Mr Scott therefore had to surrender the mooring to the Harbourmaster’s office. He said that Mr Scott could no longer sell the mooring privately, citing “a new 2016 bylaw” as authority for that proposition.

[29]              Mr Till in his submissions explored not only what was contained in the evidence but what the Council’s discovered documentation does not contain. Mr Till points to a lack of documentation dealing with a history of safety issues arising; any analysis of safety issues which might arise; options for ameliorating safety issues; assessments of the benefits and disadvantages of such options; recommendations as to the bylaw to be proposed; and consultation with mooring holders on specific recommendations. He contrasted the lack of reference on such subject-matters in the Council’s documentation to the references which are made specifically to the Harbourmaster’s concerns over such matters as “profiteering”. Mr Till notes that Captain Dilley, in his affidavit dealing with preparation of the Bylaw, continued to express concern at commercial aspects of mooring transfers, with references to purchasers having “paid a significant amount of money” and one particular transfer fee which he understood to have been $20,000 being “unacceptable given that brand new mooring equipment costs approximately $5,000”.

[30]              On the basis of this evidence, the Association’s proceeding raises, in relation to the purposes of parts 6 and 9 of the Bylaw, matters of substance which are arguable and appear of bona fide concern to the Association. Whether the Association’s case will be made out to the required standard at trial is not for determination here.

[31]              I therefore note only briefly aspects of the competing evidence relied upon by the Council. Mr Ormsby, in his submissions as to a complete lack of merit in the Association’s case, relied heavily upon the extensive affidavit of Captain Dilley. Mr Ormsby referred to the evidence as to an early period of consultation (which was not required under the Maritime Transport Act 1994, but took place in 2014 to 2015) and then the required phases of pre-consultation in 2015 and formal consultation in 2016. Mr Ormsby placed particular emphasis upon detailed advice given to the Deputy Harbourmaster by Wynn Williams (above Mr Ormsby’s own signature) on 1 December 2015. The Council’s letter of instruction to Wynn Williams is not included in the evidence. It is implicit in the Wynn Williams’ letter that the firm was requested to advise specifically whether the Council could regulate matters under the Maritime Transport Act 1994 “for environmental purposes”. Wynn Williams’ advice was that, if it were later established that certain matters had been included for environmental purposes rather than maritime safety, then those provisions within the Bylaw would

be held to be invalid and could be set aside by the High Court on judicial review. The advice added that:

Navigation safety bylaws must only include provisions that have the dominant purpose of ensuring maritime safety within the region.

[32]              By virtue of the fact that this written advice was given to the Council on 1 December 2015, the effective import of Mr Ormsby’s submission was that the Council would not have finalised and promulgated a Bylaw which dealt with matters for environmental purposes rather than for maritime safety.

[33]              In the present interlocutory setting, these matters are simply matters of argument. The competing argument – that the Harbourmaster was intending through the Bylaw to promote a fairer availability and allocation of resource rather than focussing on safety issues – remains arguable.

[34]              The Association’s case as to invalidity of parts of the Bylaw by reason of ulterior or collateral purposes is not so clearly devoid of merit or lacking in bona fides as to have a substantial influence on whether and at what figure security might be set. It therefore is unnecessary to explore the Association’s alternative causes of action, including as to a lack of consultation.

Public interest considerations

[35]              The extent to which a proceeding involves public interest considerations may be a factor against the award of security. Mr Ormsby and Mr Till presented contrasting submissions as to whether this is a public interest case at all. Mr Till characterises the public interest involved as:

…a strong public interest in ensuring that [the Council] administers its powers of maritime safety within its powers and that it does so fairly for that reason only and not for ulterior motives or at the whim of the Harbourmaster.

[36]              Mr Ormsby characterises the Association as a “single-issue society” and categorises the proceeding as one in which the plaintiff pursues “the private and financial interests of a very small cross-section of society”. On the other hand, the Association here was established for a range of purposes (as summarised at [21]

above) well before the Bylaw was prepared and promulgated. To that extent, the Association cannot be said to have a narrow focus on a single issue such as bylaws affecting moorings.

[37]              When a plaintiff opposes a security application, partly on the basis that the proceeding involves public interest litigation, the interlocutory judge is in a sense asked to anticipate the probable costs outcome in the event the plaintiff fails at trial. As explained in New Health New Zealand Inc v South Taranaki District Council, the Court is in that context required to determine whether the litigation involves a matter of genuine public interest and importance beyond the interests of the particular unsuccessful litigant.8

[38]              It cannot be said in this case that the litigant has no personal interest at stake. The Association represents the interests of mooring holders who have a concern as to the continued use of the moorings which they paid for and as to their ability to transfer their moorings at their location. While, as Mr Till submits, there is a public interest in ensuring that the decision-maker exercises its powers lawfully and fairly, (as in any judicial review proceeding concerning the validity of legislation or exercise of other powers) there is also here a distinct and motivating personal interest for members of the Association in the outcome.

[39]              The course of litigation in Friends of Houghton Valley Inc v Wellington City Council is instructive.9 In that case, the members of an incorporated society also pursued judicial review against a council. The members of the Society were mainly owners of properties in and around a site affected by a residential subdivision development.  On an application for security for costs, Collins J ordered security of

$10,000 (as against the $24,278, based on a 2B calculation, sought by the Council). His Honour partly took into account an element of public interest associated with the application for judicial review.10 The judicial review application was ultimately unsuccessful. Brown J found there to be no basis for reducing costs below a 2B calculation  whether  on  account  of  the  suggested  public  interest  character  of the

8      New Health New Zealand Inc v South Taranaki District Council [2014] NZHC 993 at [8] – [10].

9      Friends of Houghton Valley Inc v Wellington City Council (2015) 22 PRNZ 65 (HC).

10 At [36].

plaintiff or otherwise.11 In a supplementary judgment, Brown J noted (by way of reasons) that he considered that there was merit in the submission that the primary aim of the plaintiff was to protect the views of a core group of founding members who were mainly owners in and around the site.12

[40]              Mr Till cited Friends of Turitea Reserves Society Inc v Palmerston North City Council as authority for the proposition that a case retains its character as a public interest case even if some members of the applicant Society have concern for their own property.13 The Council respondent in that case had decided to change the purpose of a (flora and fauna) reserve under the Reserves Act 1977 to add as a purpose “renewable electricity generation”. The generation in question was to take the form of a wind farm. Associate Judge Gendall dismissed an application for security partly by reason of the fact that the proceeding had public interest aspects.14 That approach was taken notwithstanding the request of counsel for the respondent to infer that the notice of the Society’s members were not purely derived from a disinterested concern for the welfare of the general public but rather stemmed from a “not in my back-yard” stand-point.15 The Turitea Reserves decision is distinguishable in that, unlike the inferences of self-interest submitted to exist in that case, the personal interest of the members pursued in this case are clear through the evidence filed. The Association’s members identify the motivating interest which they have in protecting the value of the moorings which they hold, including the ability to transfer the moorings for value.

[41]              In these circumstances, this litigation cannot properly be categorised as public interest litigation in the sense established by the cases as relevant in the determination of costs issues.

Delay

[42]              The Association’s fifth ground of opposition is that the Council has “delayed in making application for security”.

11     Friends of Houghton Valley Inc v Wellington City Council [2016] NZHC 880.

12     Friends of Houghton Valley Inc v Wellington City Council [2016] NZHC 1122 at [5].

13     Friends of Turitea Reserves Society Inc v Palmerston North City Council HC Palmerston North CIV-2006-454-879, 23 February 2007 at [48] – [56].

14 At [56].

15 At [49].

[43]              Mr Till identified the delay by reference to the date of the Association’s filing of the proceeding (11 September 2017), its prompt service thereafter, and the fact the application for security was not filed until 19 December 2017.

[44]              I do not find there to be any relevant delay. Counsel responsibly filed a joint memorandum on 27 October 2017 before the statement of defence was filed. By the memorandum, the parties agreed to a timetable which required the defence to be filed by 3 November 2017 (as done), provided for discovery, and required any interlocutory applications to be filed by 22 December 2017 (with the security application subsequently filed on 19 December 2017). The Council’s security application was supported by detailed evidence which indicates that Council’s suggested period (to 22 December 2017) for the filing of interlocutory applications was reasonable.

[45]              This is not a case in which there has been delay in making the application which should count either for or against the ordering of security.

[46]              I am equally unpersuaded that the time involved between the commencement of the proceeding and 19 December 2017, when this application was filed, should affect the items to be taken into account for calculation of any security sum. Mr Till submitted that the items for the statement of defence and for discovery ought to be omitted because the Council had ample warning before commencement that a claim was likely to be made and that discovery would be requested. This, he submitted, should have allowed the Council to file its security application before the other steps (defence and discovery) ensued. Such analysis obscures the promptness with which the Council pursued its security application. It also acted in accordance with an agreed timetable. There is no justification by reason of delay for reducing any otherwise appropriate sum of security.

The exercise of the discretion – conclusion

[47]              The Court should in this case exercise its discretion to make an award of security.

The amount of the appropriate award

[48]              If a Judge decides (as I have) to order security, the amount of security is discretionary.16 In relation to the Court’s general approach, I accept as has previously been accepted,17 that the commentary in McGechan on Procedure accurately reflects the Court’s practice:18

Insofar as past awards of security are a legitimate guide, they generally represent some discount on the likely award of costs as calculated under sch 3.

[49]              For the reasons identified in my discussion of the Council’s argument as to delay,19 I am satisfied that the award of security should have regard to all steps required of the Council in this proceeding.

[50]              On the updated evidence provided by the Council as to a likely award of costs calculated on a mainly 2B but partly 3C basis, I am satisfied that a scale award to the end of a two-day trial may be approximately $91,000.

[51]              The Council also provided evidence of its actual solicitor/client costs and disbursements to date and an estimate of actual costs to completion. I disregard that evidence. The Council did not advance an argument that a sum of security should be set upon the basis that increased or indemnity costs were likely to be awarded. The thrust of Mr Ormsby’s oral submissions was that scale calculations in this sort of proceeding generally produce a figure which is well short of a party’s actual costs. The Court is unable to proceed on such an assumption. The aim of the scale in the High Court Rules is to allow two-thirds of costs considered reasonable for the proceeding, or particular step in the proceeding, as opposed to the actual costs incurred.20 I do not put any weight upon the Council’s expectation that it may end up paying its solicitors a figure representing more than 150 per cent of an appropriate scale award.

16     McLachlan v MEL Network Ltd, above n 4, at [13].

17     Westpac New Zealand Ltd v Adams [2013] NZHC 3112 at [35], Sisson v IAG New Zealand Ltd

[2014] NZHC 616 at [77].

18     McGechan on Procedure (online looseleaf ed, Thomson Reuters) at [HR 5.45.07].

19     Above at [42] – [46].

20     See especially r 14.2(d) and (e) High Court Rules.

[52]              The Association has not provided evidence of a difficulty it might have in raising funds from its members to meet a reasonable award of security. On the other hand, until Mr Till’s oral application was made at the hearing, the Association understood itself as facing an application for security of approximately $76,489.

[53]              I conclude that a just award of security in the circumstances of this case would be $60,000. This sum equates to approximately 80 per cent of the scale award as calculated in the Council’s application and approximately 66 per cent of the scale award as calculated in the Council’s reply evidence.

Stay

[54]              The Council seeks an order pursuant to r 5.45(3)(b) staying the proceeding until the security is provided.

[55]              Mr Till responsibly did not submit that a stay would be inappropriate in the event security was ordered.

[56]              A slightly complicating aspect to this proceeding is that the parties are now in a period during which their substantive affidavits are to be filed. (Association’s affidavits due 27 March 2018; Council’s affidavits due 30 April 2018; Association’s reply affidavits due 14 May 2018). If the Association were to fail to provide its security as directed, it would be inappropriate that a stay operate so as to not require the Association to complete its evidence. On the other hand, the Council (in the event of the Association’s non-compliance with the security order) should have the right either to proceed with its evidence on the timetabled date or to ask the Court to extend the timetable. This will be reflected in the order made.

Costs

[57]              Both counsel accepted that the costs and disbursements of this application should follow the event on a 2B basis. The Association will be ordered to pay costs on that basis.

Orders

[58]I order:

(a)The plaintiff shall provide security for the defendant’s costs of this proceeding in the sum of $60,000 (the security);

(b)The security is to be provided to the Registrar’s satisfaction within 15 working days;

(c)This proceeding will be stayed if the security is not provided within 15 working days, with leave reserved to the defendant by memorandum to request the Court to vary the stay so as to accommodate any appropriately amended timetable directions;

(d)The defendant is to pay to the plaintiff in any event the costs of this application on a 2B21 basis together with disbursements to be fixed by the Registrar (there being no certificate for second counsel).

Associate Judge Osborne

Solicitors:

Saunders Robinson Brown, Christchurch Counsel: N Till QC, Christchurch

Wynn Williams, Christchurch

21     High Court Rules, Category 2 under r 14.3(1) and band B under r 14.5(2).