Ross v Southern Response Earthquake Services Limited
[2019] NZHC 495
•19 March 2019
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2018-409-000361
[2019] NZHC 495
BETWEEN BRENDAN MILES ROSS and COLLEEN ANNE ROSS
Plaintiffs
AND
SOUTHERN RESPONSE EARTHQUAKE SERVICES LIMITED
Defendant
Hearing: 19 March 2019 (Leave to appeal application on the papers) Counsel
P G Skelton QC and K M Quinn for Plaintiffs
T Weston QC, W J Palmer and O D Peers for Defendant
Judgment:
19 March 2019
JUDGMENT OF ASSOCIATE JUDGE MATTHEWS
[1] The Court issued a judgment on 13 December 2018 on the plaintiffs’ application for a representation order and directions in relation to an opt-out/opt-in procedure. On 31 January 2019 the plaintiffs filed a notice of application for leave to appeal.
[2] On 4 February the Court issued a Minute directing that any notice of opposition was to be filed and served by 15 February. The defendant has not filed a notice of opposition. Rather, counsel for the defendant has filed a memorandum dated 14 February. This has been referred to me today, on my return to the court after a period of leave.
ROSS v SOUTHERN RESPONSE EARTHQUAKE SERVICES LTD [2019] NZHC 495 [19 March 2019]
[3] Counsel for the defendant takes issue with the terms of the Notice of Appeal and records that after correspondence between counsel, the plaintiffs have elaborated on the basis of their appeal in the following terms:
In summary, the plaintiffs say that there is an arguable error, that ought to be considered by the Court of Appeal, namely arising from the Judge’s decision to follow Houghton, when Houghton was wrongly decided with respect to the court’s power to make an opt-in order.
[4] Counsel for the defendant have formulated its position in relation to the plaintiffs’ application for leave to appeal on the basis that this paragraph accurately states the plaintiffs’ position in relation to their intended appeal. On that basis the defendant does not oppose the granting of leave. I refer to its position after noting the approach the Court is to take to an application of this kind.
[5] It is generally accepted that the legal test to be applied for this application, which is brought under s 56 of the Senior Courts Act 2016, requires the Court to consider three guiding principles:
(a)A high threshold exists for the granting of leave. A mere allegation of error of law or fact will generally be sufficient – an arguable error should be identified.
(b)Leave should only be granted where the circumstance warrants further delay in disposition of the proceeding being incurred.
(c)The alleged error by the Court should be of general or public importance, or otherwise be of sufficient importance to the applicant to warrant an appeal being permitted to proceed.
[6] The defendant adopts a neutral position on the second and third of these principles, and specifically recognises the plaintiffs’ argument that the issues on appeal may raise matters of general or public importance, though it does not agree that this is in fact the case.
[7] So far as the first guiding principle is concerned the defendant does not accept that an arguable error of law arises. However, it takes the view that given the broader
summary of the plaintiffs’ ground of appeal recorded above, it cannot, by opposing the application, “realistically assist the Court in determining whether an arguable error arises”. On that basis the defendant does not oppose the application, but it does not consent either. It abides the decision of the Court, reserving its position in all respects. It accepts that the application will be dealt with on the papers.
[8] The error of law alleged is in fact an error by this Court in deciding Houghton v Saunders, which the Court followed in reaching its decision in the present case.1 I am satisfied that this amounts to an argument that by following Houghton an error of law has occurred in the present case, and equally satisfied, given the other authorities referred to in the judgment of 13 December, that the error is arguable and opportunity should be given for argument to be presented to the Court of Appeal.
[9] So far as the second and third criteria are concerned, I consider that the circumstances do warrant the incurring of further delay in this case. Further, whilst representative actions are not frequently filed in this Court, neither are they a rarity. By definition they involve numerous plaintiffs and frequently arise out of events involving, in one way or another, significant numbers of members of the public. This case, itself, is an example of this.
[10] For these reasons I am satisfied that the issue raised on the intended appeal in this case is of general or public importance. It follows that I am satisfied that leave should be granted to appeal the judgment dated 13 December 2018 to the Court of Appeal, and I so direct.
[11]Costs are reserved.
[12] In their memorandum, counsel for the defendant suggest, after conferring with counsel for the plaintiffs, that the reference in paragraph [33] of the principal judgment to paragraph (g) of a table set out in paragraph [24] of the judgment should in fact have been a reference to paragraph (h). Counsel advise that they are agreed that this seems to them to be more likely, for reasons which they state.
1 Houghton v Saunders (2008) 19 PRNZ 173 (HC).
[13] I am satisfied that this is the case, and formally record that paragraph [33] of the judgment should be read to make a reference to paragraph (h) in the table appearing in paragraph [24] of the judgment. If counsel require the judgment to be recalled and reissued in amended form they may so advise the Court and this will follow.
J G Matthews Associate Judge
Solicitors:
GCA Lawyers, Christchurch Buddle Findlay, Christchurch