Solicitor-General of New Zealand v Bujak

[2012] NZHC 2312

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2007-485-000522 [2012] NZHC 2312

BETWEEN  THE SOLICITOR-GENERAL OF NEW ZEALAND

Applicant

ANDSLAWOMIR RYSZARD BUJAK First Respondent

ANDDANUTA ALEKSANDRA ZALWOWSKA-SPISAK Second Respondent

CIV-2008-409-001901

AND BETWEEN            MARCOS ERIK MONASTERIO AND MARIA JOSE MARCOS MOYA Plaintiffs

ANDSLAWOMIR RYSZARD BUJUK First Defendant

ANDDANUTA ALEKSANDRA ZALWOWSKA-SPISAK Second Defendant

ANDHUGH SHEARER Third Defendant

Hearing:         4 September 2012

Appearances: M F Laracy for Solicitor-General

R Johnson for Plaintiffs
No Appearance for First and Second Respondents or First, Second and
Third Defendants
F C Deliu Appears in Person

Judgment:      4 September 2012

ORAL JUDGMENT OF FOGARTY J

THE SOLICITOR-GENERAL OF NEW ZEALAND V BUJAK HC CHCH CIV-2007-485-000522 [4 September

2012]

[1]      Mr  Deliu  opposes  Mr  Monasterio  being  heard  through  his  counsel  on Mr Deliu’s  application  for  review  of Associate  Judge  Matthews’ decision.    The application for review on the part of Mr Deliu was served on Mr Monasterio on

15 May by way of an email, Mr Monasterio having previously provided his email address as the address for service.

[2]      Under the High Court Rules Mr Monasterio had 10 working days (which calculates at approximately 29 May) to file a notice of opposition.  That step was not taken.   On 25 July a notice of opposition was filed by Wynn Williams & Co.   In paragraph 2 of that notice of opposition there was an application to extend time. Under the Rules, however, that application should have been by way of a notice of motion.    It  is  not  the function  of notices  of  opposition  to  contain  within  them applications for review.

[3]      The argument therefore this morning is that this Court has no power to hear that application for review as it was not made in accordance with the Rules and it is now too late for any further application to be made.  Mr Deliu has been relying on the proposition that the Court must give effect to the word “must” in the appropriate rules which govern the procedure that I have mentioned so far.

[4]      The question really comes down to whether or not the Court has power and, secondly, whether it is just that the Court use rule 1.19(2).

1.19     Extending and shortening time

(1)       The court may, in its discretion, extend or shorten the time appointed by these rules, or fixed by any order, for doing any act or taking any proceeding or any step in a proceeding, on such terms (if any) as the court thinks just.

(2)       The court may order an extension of time although the application for the extension is not made until after the expiration of the time appointed or fixed.

[5]      This is a power which is intended to be used in the Court’s discretion.  It is a power which does confer an unfettered discretion to extend or shorten time.   The other rule which needs to be considered in this case is rule 1.7 which allows oral

applications for relief and that power requires the condition precedent “if the case is urgent”.

1.7      Oral applications for relief

(1)      A Judge may grant relief on an oral application if the case is urgent and the interests of justice so require.

(2)      This rule applies despite any rule requiring a written application. (3)        Relief may be granted on terms and conditions considered just.

[6]      The  first  question  is  whether  or  not  there  is  any  urgency,  which  is  a jurisdictional fact, governing the exercise of this power.   Mr Deliu argued that it would be quite wrong to use this power today to give effect to an oral application by Mr  Johnson  for  an  extension  of  time.    Mr  Johnson  in  his  main  submissions effectively asked for that, and,  I think as a precaution, just before I adjourned, formally asked for that.

[7]      The phrase “if the case is urgent” is clearly not confined to the hearing, for example, of the trial of the main hearing.   In my view it applies to any issue of urgency.  I am not inclined to the view that urgency should be read down.  It does, however, call for an examination of the context.

[8]      Mr  Monasterio  had  originally  instructed  Wynn  Williams  &  Co  in  his proceedings for negligence and other causes of action against Mr Bujak.   He was represented  by  Mr  Grant  Slevin,  a  senior  solicitor  for  Wynn  Williams  &  Co. Mr Slevin  left  that  firm  and  Mr  Monasterio  obviously  for  some  time  was representing himself.  For example, he appeared before Associate Judge Matthews in the continued application by Mr Deliu for relief.  I had adjourned that application in an earlier hearing before me in November, because I apprehended there was a risk that the application was against Mr Monasterio’s interests and Mr Monasterio may not have appreciated that.   I had been told from the bar that Mr Monasterio had turned up at the start of the hearing but not put in an appearance.

[9]      I do regard this question of whether or not I hear Mr Johnson as “urgent”, because we are all gathered here today on a fixture.  Mr Deliu himself has already had his earlier application adjourned, against his wishes, back in November.  For him

the amount at stake is not large.   It is approximately $30,000.   Ms Laracy is here from Wellington and Mr Johnson from Wynn Williams.  The fixture was set down for half a day.  We have occupied more than a quarter of the day on this application, as to the entitlement of Mr Johnson to be heard.

[10]     The second limb of Rule 1.7(1) is “in the interests of justice to so require”. As Mr Deliu rightly points out, the interests of justice require a consideration of justice for all the parties, not just for Mr Monasterio.  I need to consider Mr Deliu’s interests for justice as well.  It is a fundamental duty of a Judge to do justice to all the parties. That is at the core of the judicial oath.

[11]     I do not see any prejudice to Mr Deliu in my hearing Mr Johnson.   The reason is that this is a statutory interpretation issue.  It does not turn in any way on evidence.  There is a presumption, to be taken in favour of Mr Deliu that Mr Bujak owes Mr Deliu for legal fees, and that it is the approximate sum of $30,000. There is no dispute today about that.  The only issue is whether or not the Polish charging order and perhaps the domestic freezing order prevent Mr Deliu being paid from a sum sufficient to meet his legal fees, which I understand to be held by the Official Assignee as a consequence of the sale of one or two of Mr Bujak’s properties pursuant to the freezing order.

[12]     Mr Deliu has concerns that Mr Johnson is opening up the question of the validity of his legal fees in the last paragraph of his submissions.  I do have some reservations at this stage as to whether or not it is appropriate in these proceedings for Mr Johnson, on behalf of Mr Monasterio, to raise that issue and I do not intend by this judgment to be agreeing that that issue can be raised today.  That is if there was to be any consideration of that it would be at a later time, but, whether or not there should be any consideration of that at a later time is something that I will be examining carefully if Mr Johnson is pursuing it.

[13]     For  these  reasons  I  think  that  because  there  is  no  actual  prejudice  to Mr Deliu, the hearing of this issue this morning is sufficiently urgent that it should be heard, and that I will hear Mr Johnson.   I will grant his oral application made

under rule 1.19.  I will grant an extension of time so that Mr Monasterio and his wife are parties to this application for review.

[14]     I reserve the question of cost.  I would indicate that I am minded to the view that it is very unlikely that Mr Monasterio would be awarded costs should this application for review by Mr Deliu be unsuccessful.  In other words, if the Crown, for example, were entitled to costs on this application today I am currently of the view it would be very unlikely that I would award costs in favour of Mr Monasterio. However, because I have not heard full argument on that at this stage I am not making a ruling, just merely an indication.

[15]     For these reasons Mr Deliu’s application that Mr Monasterio not be heard through counsel, Mr Johnson, is dismissed.  I will now proceed to hear Mr Deliu on the application for review of the decision of Associate Judge Matthews.

Solicitors:

Crown Law, Wellington,  [email protected]

Wynn Williams, Christchurch,  [email protected]