Skelton v Bird

[2015] NZHC 1434

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-185

CIV-2015-404-778 [2015] NZHC 1434

BETWEEN

BEVIN HALL SKELTON

Appellant

AND

CHARLES HENRY BIRD Respondent

Hearing:	23 June 2015
Appearances:	Appellant in person Respondent in person (together with McKenzie Friend)
Judgment:	24 June 2015

JUDGMENT OF BREWER J

This judgment was delivered by me on 24 June 2015 at 10:30 am pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:             Barter and Company Ltd (Auckland) for Appellant

Counsel:               C S Henry (Auckland) for Appellant

Copies to:            Appellant and Respondent in person

SKELTON v BIRD [2015] NZHC 1434 [24 June 2015]

Introduction

[1]      Mr Skelton appeals two decisions of the District Court.  The first is a refusal by Judge C S Blackie on 23 December 2014 to transfer a civil proceeding to the High Court.1     The second is the judgment of Judge G M Harrison delivered on

10 March 2015 in which he decided the civil proceeding against Mr Skelton.2

Background

[2]      Mr Bird sued Mr Skelton in the District Court for the outstanding balance of a loan, plus interest thereon.   After a long while, Mr Skelton sued Mr Bird for monies he claimed had been overpaid on the loan.  Eventually (over four years had passed), the parties were told by the District Court that a hearing date would be allocated in March 2015.

[3]      In December 2014,3  Mr Skelton applied to have the proceedings transferred to the High Court.  Pursuant to s 43 of the District Courts Act 1947, that required leave of a Judge.  Judge Blackie, on the papers, refused leave in these terms:

[1]       The applicant, B H Skelton, has filed an application seeking that these proceedings be transferred to the High Court.  Whereas his application is dated 30 October 2014, it was received by the Court on 12 December

2014.

[2]       Jurisdiction to transfer proceedings from the District Court to the High Court vests under s 43 of the District Courts Act.  However, the Act provides that notice seeking a transfer must be filed by the defendant no later than five working days after service of the notice of proceeding, including the day of service.

[3]       These proceeding (sic) have reached the stage whereby they have been allocated a fixture early in March 2015.

[4]       The application to transfer at this very late stage is misconceived and is, therefore, dismissed.

[4]      On 4 February 2015, Mr Skelton filed an appeal in this Court against Judge

Blackie’s ruling.  As part of his appeal, he sought a stay of the trial in the District

1      Skelton v Bird DC Manukau CIV-2011-092-3862, 23 December 2014, Ruling of Judge C S Blackie on application to transfer proceedings to the High Court.

2      Bird v Skelton DC Manukau CIV-2011-092-3862 10 March 2015; Skelton v Bird DC Manukau

CIV-2011-055-24 10 March 2015.

3      Mr Skelton says that it was actually 31 October 2014.

Court until the outcome of the appeal.  These matters came before Katz J through the duty list on 24 February 2015.   Her Honour was not prepared to order that the District Court proceedings be stayed pending appeal.  Instead, her Honour offered to determine  the  appeal  against  Judge  Blackie’s  decision  at  the  conclusion  of  the appeals list that day.  This would have enabled a decision to be made prior to the scheduled  hearing  in  the  District  Court.    Mr Bird  accepted  Katz  J’s  offer  but Mr Skelton did not.

[5]      Mr Skelton then applied to the District Court for a stay of the hearing of the trial pending the determination of his appeal to this Court.  This was dealt with on the papers by Judge Harrison who, in a Minute on 2 March 2015, directed:

Adjournment refused. The application for stay which is effectively an application for adjournment of the hearing set for 3 and 4 March is declined.

The application to transfer to the High Court was made well beyond the time permitted  by  r 5.2  as  noted  by  Judge  Blackie.     The  issues  in  these proceedings appear to be relatively straightforward.

[6]      At  the  commencement  of  the  trial  on  3  March  2015,  Mr  Skelton  was represented initially by Mr Henry.  Mr Henry sought to persuade Judge Harrison that a stay or adjournment should be granted.  Judge Harrison decided to proceed with the trial and Mr Henry, his instructions being limited to the making of the argument, was  granted  leave  to  withdraw.    Judge  Harrison  then  turned  to  the  substantive hearing, but Mr Skelton left the Court and did not return.  Having heard Mr Bird in support  of  his  claim,  the  Judge  reserved  his  decision.    When  he  delivered  his decision, the Judge was satisfied that Mr Bird had proved his claim.  Mr Skelton’s claim was struck out because he had failed to appear in support of it.

Issues

[7]      Mr  Skelton  relies  on  his  written  submissions  prepared  by  his  counsel, Mr Henry, and filed in this Court on 2 June 2015.   His challenges relate to the propriety of the exercise by Judge Blackie of his discretion to refuse the application to transfer the proceedings and the subsequent refusal by Judge Harrison to decline to stay or adjourn the District Court trial pending determination of Mr Skelton’s

appeal against Judge Blackie’s decision.  Mr Henry’s summary of his submissions is as follows:

Both judges who issued the challenged decisions in the Manukau District Court lamentably failed to observe even the most rudimentary requirements of  natural justice.  In  neither  case  was  the  governing law  or  regulations followed, and neither was the appellant provided with any opportunity to be heard on the two applications concerned. Under such circumstances, both decisions must be set aside. And given what has already occurred, this Court should take jurisdiction of the underlying disputes, to ensure that the rule of law prevails, and justice is done.

Discussion

The application to transfer proceedings

[8]      Mr Skelton’s  argument  (through  Mr Henry’s  written submissions) is that r 3.52.15 of the District Courts Rules 2009 required the Registrar to allocate his application a hearing so that Mr Skelton could be heard in support of it.

[9]      An appeal against a decision of a District Court Judge proceeds by way of general appeal.4   I must make my own decision on whether the Judge was correct in his decision.5   If I find that he was, then even if there were procedural infelicities, I will not interfere with the decision.

[10]     Mr  Henry,  in  his  written  submissions,  and  Mr  Skelton  before  me,  gave reasons why the proceeding should have been transferred to the High Court. Essentially, in July 2014, Mr Skelton commenced claims in this Court which could be said to be related to the proceeding in the District Court.  Mr Bird was not a party to the proceedings in this Court.  I note that these claims have since been struck out, although Mr Skelton told me that he has lodged an appeal with the Court of Appeal.

[11]   It might well be that Judge Blackie should have given Mr Skelton the opportunity to be heard on his application for leave.  However, this very experienced Judge,  who  knew  the  file,  decided  that  it  was  an  inevitable  outcome  that  a proceeding which had been in the District Court for over four years and which was

just over two months away from being heard must proceed.  Having read Mr Henry’s

4      District Courts Act 1947, s 76.

5      Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].

submission, and having heard from Mr Skelton, I am in full agreement.  Mr Bird had a right by that late stage to have his claim adjudicated, even if some of the issues might have been common to the proceeding filed by Mr Skelton in this Court in July

2014.

The refusal to stay/adjourn pending the appeal

[12]     The  challenge  to  Judge  Harrison’s  decision  is  that  he  should  not  have declined the application for stay without having heard from Mr Skelton.  Further, the Judge should have acceded to Mr Henry’s renewal of the application at the start of the substantive hearing.

[13]     Again,  it  might  have  been  that  Judge  Harrison  should  have  heard  from Mr Skelton before dismissing the application on the papers.  Perhaps he should also have given Mr Henry a greater chance to be heard at the commencement of the substantive hearing.  But in the circumstances I have outlined, there was no proper basis for a stay or an adjournment.  I note also that Judge Harrison was not told by Mr Skelton, or by Mr Henry (who I take it was unaware of the fact), that Mr Skelton had declined the opportunity offered by Katz J to have his appeal determined before the District Court trial date.  This notwithstanding, as Katz J noted, that both he and Mr Bird had filed comprehensive memoranda as to the issues and the point was a narrow one.

[14]     Mr Skelton was required to be in a position to argue his case in the District Court if his application for stay or adjournment were declined.  He was not entitled to assume that the application would be granted.   Certainly, when Judge Harrison declined his application on the papers, he knew that the likelihood was that the renewed application on the day of the trial would not succeed.  It was Mr Skelton’s choice not to be prepared for the hearing and to walk out of the Court as it commenced substantively.

[15]     The concept of natural justice is a concept of interwoven principles.6   In some situations the failure to hear from an applicant in person will be determinative of an

6      Royal Australasian College of Surgeons v Phipps [1999] 3 NZLR 1 (CA) at 16.

appeal.7   In other circumstances, and these are among them, the failure to hear from an applicant in person will not be determinative if the subject-matter of the applications and the decisions on them are entirely unremarkable.8

Decision

[16]     Mr Skelton’s two appeals are dismissed.

[17]     I award costs to Mr Bird.  Since Mr Bird is self-represented, these costs will be limited to reimbursement of his out-of-pocket expenses.  Mr Bird may submit a

claim to the Registrar who can decide whether or not to allow them.

Brewer J

7      R v Taito [2003] 3 NZLR 577 (PC).

8      See, for example, Laywood & Anor v Holmes Construction Wellington Ltd [2008] 2 NZLR 493 (HC).