Roe v Auckland District Health Board

[2021] NZHC 3530

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-248

[2021] NZHC 3530

BETWEEN

KELLY ALEXANDRA ROE

Applicant

AND

AUCKLAND DISTRICT HEALTH BOARD

Respondent

Hearing:	On the papers
Judgment:	17 December 2021

JUDGMENT OF WYLIE J

This judgment was delivered by me

on 17 December 2021 at 4 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors:           Auckland District Health Board, Auckland Copy To:     The Applicant

ROE v AUCKLAND DISTRICT HEALTH BOARD [2021] NZHC 3530 [17 December 2021]

[1]                  I refer to my substantive judgment dated 15 July 2021.1 I declined to strike out the proceedings as sought by the Auckland District Health Board, and gave Ms Roe the opportunity to file an amended statement of claim. I stayed the proceedings in the interim. I recorded that the Auckland District Health Board had substantially succeeded in its application even though the proceedings had not been struck out. I noted that it was forced to proceed with the application because Ms Roe refused to file an amended statement of claim despite being put on notice of the defects in her pleading at case management conferences, and despite being asked to rectify the position.

[2]                  I subsequently gave a costs judgment in favour of the Auckland District Health Board in the sum of $5,616.50 on 18 August 2021.2

[3]                  Ms Roe seeks leave to appeal my costs judgment. She earlier sought to appeal the judgment to the Court of Appeal, but the Registrar declined to accept the appeal because leave to appeal first had to be applied for from this Court pursuant to s 56(3) of the Senior Courts Act 2016. Ms Roe then sought to review the Registrar’s decision, but on 7 September 2021 Clifford J delivered a judgment upholding that decision.3 Ms Roe then filed an appeal against the judgment of Clifford J with the Supreme Court. The Supreme Court declined leave to appeal on 15 November 2021.4

[4]As a result, Ms Roe now comes back and seeks leave to appeal from this Court.

[5]Both parties have agreed that the application can be dealt with on the papers.

Analysis

[6]                  Ms Roe’s substantive proceedings had been brought pursuant to the Judicial Review Procedure Act 2016. The Auckland District Health Board sought to strike them out. That was an interlocutory application, and my costs decision arose out of that application. It seems clear that s 56(3) of the Senior Courts Act 1981 applies.

1      Roe v Auckland District Health Board [2021] NZHC 1780.

2      Roe v Auckland District Health Board [2021] NZHC 2162.

3      Roe v Auckland District Health Board [2021] NZCA 441.

4      Roe v Auckland District Health Board [2021] NZSC 158.

[7]                  This Court has considered s 56(3) on various occasions. It has observed that the requirement for leave to appeal interlocutory decisions is intended to filter out appeals advanced on unmeritorious grounds or which deal with insignificant or immaterial matters.5

[8]                  In the present case, the proposed costs appeal does not raise an issue of sufficient significance to the parties, or a question of law or general principle of sufficient importance, to outweigh the costs and delay of the proposed appeal. The costs award is modest. It followed from a straightforward application of well accepted principles. There is nothing in Ms Roe’s notice of application supporting the contention that any appeal would be based on bona fide and serious argument.

[9]                  There is no proper basis on which to grant leave to appeal. Ms Roe’s application is declined.

Costs

[10]               If the Auckland District Health Board wishes to seek costs in resisting the application, I direct as follows:

(a)Any application for costs and disbursements is to be filed and served within 10 working days of the date of this judgment;

(b)Any opposition to any such application is to be filed and served within a further 10 working days.

(c)Memoranda are not to exceed three pages.

5      Li v Chief Executive, Ministry of Business, Innovation and Employment) [2018] NZHC 1171 at [20]-[22].

[11]               I will then deal with the issue of costs and disbursements on the papers, unless I require the assistance of counsel and Ms Roe.

Wylie J