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| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA208/2017 [2017] NZCA 360 |
| BETWEEN | DOUGLAS JOHN SUTCLIFFE TERENCE SUTCLIFFE AND BRADEN MATSON AS PARTNERS OF FROST & SUTCLIFFE LAWYERS |
| AND | PHILIP CLAUDE TARR |
| Hearing: | 10 July 2017 |
Court: | Winkelmann, Brown and Clifford JJ |
Counsel: | J Heard for Applicants |
Judgment: | 11 September 2017 at 3 pm |
JUDGMENT OF THE COURT
AThe question of jurisdiction is answered as follows:
(a)The applicants’ challenge to Associate Judge Christiansen’s decision on their strike‑out application is to be commenced in the High Court by way of review under s 26P(1) of the Judicature Act 1908.
(b)The applicants’ challenge to Associate Judge Christiansen’s summary judgment decision may be filed in this Court by way of an appeal, without leave being required, under s 26P(2) of the Judicature Act 1908.
B There is no order as to costs.
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REASONS OF THE COURT
Introduction
In 2016 the respondent, Philip Tarr, commenced proceedings in the High Court at Auckland against the applicants, Mr Sutcliffe and the partners of Frost & Sutcliffe Lawyers (the Firm). Mr Sutcliffe and the Firm applied for summary judgment on, or strike-out of, those proceedings. Associate Judge Christiansen heard those applications on 20 March 2017 and declined them both in a judgment dated 24 March.[1]
On 19 April Mr Sutcliffe and the Firm filed a notice of appeal in this Court against both those decisions. A jurisdictional issue has arisen which has implications for how, and in which court, these decisions are able to be challenged.
Jurisdictional issue
The issue of jurisdiction which arises is whether the Senior Courts Act 2016 or the Judicature Act 1908 applies to this proposed appeal. The Senior Courts Act came into force on 1 March 2017.[2] The High Court proceedings the subject of this proposed appeal were commenced prior to that date, but the Associate Judge’s judgment was delivered after 1 March and thus the proposed appeal was filed after that date as well.
Appellate pathways under the Judicature Act and the Senior Courts Act
[2]Senior Courts Act 2016, s 2.
Prior to the Senior Courts Act, a challenge to the decision of an Associate Judge was made under by s 26P of the Judicature Act. This provided:
26P Review of, or appeals against, decisions of Associate Judges
(1) Any party to any proceedings who is affected by any order or decision made by an Associate Judge in chambers may apply to the court to review that order or decision and, where a party so applies in accordance with the High Court Rules, the court—
(a) must review the order or decision in accordance with the High Court Rules; and
(b) may make such order as may be just.
(1AA)The determination of the High Court on a review under subsection (1) is final, unless the High Court gives…
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- AGLC
- Sutcliffe v Tarr [2017] NZCA 360
- Case
- [2017] NZCA 360
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included the interpretation of sections 27 and 56 of the Senior Courts Act, and the extent to which these provisions altered the existing procedural rights regarding appeals from interlocutory decisions. The court had to consider whether the changes introduced by the Senior Courts Act applied to the applicants' case and, if they did, whether the applicants had lost their right to appeal certain interlocutory decisions without leave. This required a detailed analysis of the statutory language and the legislative intent behind the Senior Courts Act.
The court held that the Senior Courts Act applied to the applicants' case, significantly altering their procedural rights. Under the new regime, the applicants would require leave from the High Court to appeal decisions made on interlocutory applications, regardless of whether the decision was made by an Associate Judge or a High Court Judge. This meant that the applicants had lost their right to appeal the decision regarding the application for summary judgment without leave. The court noted that the Senior Courts Act represented a clear departure from the previous regime, under which the applicants could have appealed directly to the Court of Appeal. The court emphasised the importance of the legislative changes and the need for parties to be aware of their altered procedural rights.
The final orders of the court were that the Senior Courts Act applied to the applicants' case and that leave would be required to appeal the interlocutory decisions in question. The applicants were thus unable to appeal the Associate Judge's decision declining summary judgment without leave from the High Court or, if leave were refused, from the Court of Appeal.
Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
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