Sutcliffe v Tarr
[2017] NZCA 360
•11 September 2017 at 3 pm
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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]
[1]Tarr v Sutcliffe [2017] NZHC 547.
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 leave (or the High Court refuses leave, but the Court of Appeal gives special leave) to appeal from it to the Court of Appeal.
…
(2)Any party to any proceedings may appeal to the Court of Appeal against any order or decision of an Associate Judge in those proceedings (other than an order or decision made in chambers).
…
This provision, in combination with the provisions of rr 7.34 and 7.36 of the High Court Rules, created procedural complexity. Decisions by an Associate Judge following an “in chambers” hearing, which by virtue of r 7.34 included decisions on almost all interlocutory applications, including those for strike-out, were subject to the review appellate pathway. This pathway provided for review of the Associate Judge’s decision before a single Judge of the High Court. An appeal against that review decision could be brought to this Court only with the leave of the High Court or, if the High Court declined leave, with special leave from this Court. In contrast, decisions of an Associate Judge following a hearing “in court”, which by virtue of r 7.36 included decisions on applications for summary judgment, were to be appealed directly to this Court.
The Senior Courts Act addresses these issues in a number of ways. First, challenges to decisions of Associate Judges are to follow the same appeal pathways as decisions of High Court Judges. Section 27 of the Senior Courts Act provides:
27 Appeals against decisions of Associate Judges
(1)A party to any proceedings may appeal to the Court of Appeal against any order or decision of an Associate Judge in those proceedings.
(2) Section 56 applies to an appeal under subsection (1).
Second, the scope of appeal rights from decisions of the High Court on interlocutory matters to this Court is reduced. The general jurisdiction of this Court to hear and determine appeals “from a judgment, decree or order of the High Court” is retained.[3] However, leave is now required for appeals from all decisions made on interlocutory applications, whether that decision is made by a High Court Judge or an Associate Judge. That general rule is then subject to two exceptions: the granting of either strike-out or summary judgment. Section 56 thus provides:
[3]Senior Courts Act, s 56(1). The analogous provision in the Judicature Act 1908 was s 66.
56 Jurisdiction
(1) The Court of Appeal may hear and determine appeals—
(a) from a judgment, decree, or order of the High Court:
(b) under the Criminal Procedure Act 2011:
(c) from any court or tribunal under any other Act that confers on the Court of Appeal jurisdiction and power to hear and determine an appeal.
(2) Subsection (1) is subject to subsections (3) and (5) and to rules made under section 148.
(3) No appeal, except an appeal under subsection (4), lies from any order or decision of the High Court made on an interlocutory application in respect of any civil proceeding unless leave to appeal to the Court of Appeal is given by the High Court on application made within 20 working days after the date of that order or decision or within any further time that the High Court may allow.
(4) Any party to any proceedings may appeal without leave to the Court of Appeal against any order or decision of the High Court—
(a) striking out or dismissing the whole or part of a proceeding, claim, or defence; or
(b) granting summary judgment.
(5) If the High Court refuses leave to appeal under subsection (3), the Court of Appeal may grant that leave on application made to the Court of Appeal within 20 working days after the date of the refusal of leave by the High Court.
(6) If leave to appeal under subsection (3) or (5) is refused in respect of an order or a decision of the High Court made on an interlocutory application, nothing in this section prevents any point raised in the application for leave to appeal from being raised in an appeal against the substantive High Court decision.
The Senior Courts Act thus represents a significant change in procedure and procedural rights. This is exemplified in the instant case: if the Judicature Act continues to apply, the applicants will be able to seek a review of the decision regarding strike-out and have a right of appeal to this Court in respect of the decision on the application for summary judgment; if the Senior Courts Act applies, leave of the High Court (or this Court, if the High Court were to decline) will be required before either decision can be appealed to this Court. In this way, the applicants can be seen as having lost the ability to challenge the Associate Judge’s decision declining summary judgment as of right.
Because of implications such as this, Parliament provided for the transition between the two regimes.
The transitional provisions
Schedule 5 to the Senior Courts Act sets out the transitional provisions. Clauses 10 and 11 apply to proceedings pending or in progress when the Senior Courts Act came into force on 1 March 2017 and provide as follows:
10 Proceedings, etc, continue under relevant Act
(1)All proceedings pending or in progress in a court operating under the relevant Act immediately before the commencement of this clause may be continued, completed, and enforced only under the relevant Act (including the relevant rules of court) as if that Act had not been repealed by this Act.
...
(3) This clause is subject to clause 11.
11 Proceedings subject to former High Court Rules
(1)In this clause, former High Court Rules 2016 means the High Court Rules 2016 as in force immediately before 1 March 2017.
(2)A proceeding that is pending on 1 March 2017 must be continued, completed, and enforced under the High Court Rules 2016 as in force immediately after that date, except as provided in subclause (3).
(3)A proceeding that is pending on 1 March 2017 must be dealt with as if—
(a) Part 29 of the former High Court Rules 2016 (if applicable) were in force:
(b)the provisions of the former High Court Rules 2016 referring to section 26P of the Judicature Act 1908 were in force.
The critical issue which arises for determination in this case is the meaning of the expression “proceedings pending or in progress in a court operating under the relevant Act”. Several interpretations are available on the text of the legislation.
Does this mean that a proceeding commenced in the first instance court before 1 March 2017 is to be completed in accordance with the provisions of the Judicature Act, including any rights of appeal? On this analysis, a “proceeding” is only completed when all rights of appeal have been exhausted and the judgment enforced.
Or, is an appeal a new “proceeding” for the purposes of cl 10, so that any appeal filed in this Court after 1 March 2017 would be commenced and concluded in accordance with the Senior Courts Act?
There is also a third interpretation, which is the one urged upon us by the applicants in this case. For the applicants, Mr Heard advanced a complex argument as to the interpretation both of s 56(4) and the transitional provisions in sch 5 to the Senior Courts Act. His argument entailed an analysis of the various ways the terms “proceeding”, “action” and “matter” are used in the Senior Courts Act, the Judicature Act and the High Court Rules. This, he argued, supported the conclusion that a “proceeding” could be categorised as either an “action” or a “matter”. A “matter” was intended to mean interlocutory applications and other procedures within the jurisdiction of an Associate Judge. He submitted that the scheme of the legislation supported an interpretation that “matters”, such as interlocutory applications, were completed when determined, even though the underlying proceeding was ongoing. “Actions”, in contrast, was intended to mean proceedings (claims, originating applications and other proceedings) of any kind.
As we understood it, in the context of this proposed appeal, Mr Heard’s submission was that because Associate Judge Christiansen had made his decision on the strike-out and summary judgment applications after 1 March 2017, that “matter” (or proceeding) was completed and therefore not “pending or in progress” as at 1 March, meaning the correct procedure was to challenge his decision by way of appeal under s 56(4).[4]
Analysis
The interpretation of the transitional provisions
[4]We note that this last submission is incorrect; if the Senior Courts Act does apply to the applicants’ proceedings, they will be required to seek leave from the High Court in order to appeal to this Court because the applications were not granted.
The resolution of the issue of jurisdiction concerns the proper construction of the transitional provisions of the Senior Courts Act. As the Supreme Court said in Commerce Commission v Fonterra Co-operative Group Ltd:[5]
The meaning of an enactment must be ascertained from its text and in the light of its purpose. Even if the meaning of the text may appear plain in isolation of purpose, that meaning should always be cross-checked against purpose in order to observe the dual requirements of s 5.
[5]Commerce Commission v Fonterra Co-operative Group Ltd [2007] NZSC 36, [2007] 3 NZLR 767 at [22] (footnote omitted).
Our analysis of the text of the transitional provisions proceeds as follows. Clause 10 is the general provision. Proceedings pending or in progress in a court operating under the “relevant Act” as at 1 March 2017 must (may only) be continued under that Act (including the relevant rules of court) as if that Act had not been repealed by the passage of the Senior Courts Act. The phrase “the relevant Act” means the Judicature Act or the Supreme Court Act 2003.[6] So, any proceedings pending or in progress in the High Court, this Court or the Supreme Court as at 1 March 2017 are to continue under the formerly applicable jurisdictional statute (the Judicature Act or the Supreme Court Act) and the rules of those courts.
[6]Senior Courts Act, sch 5, cl 7.
This general provision is subject to cl 11, which provides that proceedings, even though pending or in progress as at 1 March 2017, become immediately subject to the new High Court Rules 2016.[7] There are two exceptions to this, described in cl 11(3): a proceeding that is pending on 1 March must be dealt with as if pt 29 of the former High Court Rules (the rules applicable to proceedings in the commercial list) were in force, and also as if the provisions of the former High Court Rules that refer to s 26P of the Judicature Act were in force. The latter refers to the rules which regulate the twin appeal pathways that we have described at [5] above — rr 2.3, 2.4 and 7.50.
[7]Schedule 5, cl 11(2).
For our purposes then, a proceeding pending before 1 March 2017 continues under the Judicature Act and the relevant rules of court. However, in respect of the High Court Rules, it continues under the new High Court Rules 2016, subject to the cl 11(3) savings.
But, what constitutes a “proceeding” for the purposes of cl 10? This is the critical question in ascertaining when the Senior Courts Act is to apply to appeals (and applications for leave) sought to be filed in this Court. Specifically, is an appeal a fresh proceeding in this Court for the purposes of cl 10, or is an appeal to this Court merely a continuation of a proceeding that was already pending or in progress?
Appeals are commonly understood to form part of the proceeding originally initiated in the High Court (or other first instance jurisdiction). Whilst appeals do, when filed and processed have a different character (and filing number) from the initial proceeding, we consider that they are still part of that initial proceeding in the sense that the rights and interests at issue are the same. One way of testing this interpretation is to ask when a proceeding is determined. The answer is that a proceeding is not determined until all appeal rights are exhausted and all enforcement procedures at an end.[8]
[8]See for example cl 2(1) of sch 1AA to the High Court Rules 2016 which states that further transitional provisions are provided in the Senior Courts Act, setting out the High Court Rules under which proceedings begun before 1 March 2017 are to be “continued, completed, and enforced”. This supports our interpretation that “proceedings” encompass any appeals and enforcement procedures.
On this analysis, the first interpretation of the transitional provisions we set out above is the correct one.[9] Proceedings commenced in the High Court prior to 1 March 2017 will continue under provisions of the Judicature Act through all High Court stages of the proceeding, and through any appeals in this Court or the Supreme Court, to final disposition and enforcement.
[9]See [12] above.
This interpretation has the consequence that the procedural complexity as to appeal rights from decisions of Associate Judges will persist for some time yet. We acknowledge that the approach Mr Heard proposes has the attractive aspect that it more or less immediately eliminates the difficult bifurcated appellate pathway. Nevertheless, we consider that his preferred interpretation has two fatal flaws.
First, it requires such a semantic reading of several Acts of Parliament that it is unlikely that this was what Parliament intended. If the distinction Mr Heard urges between “matters” and “actions” was intended, we would expect to see that clearly expressed in the transitional provisions rather than the use of the broad term “proceedings”.
Second, if a proceeding, as his interpretation suggests, encompasses both actions and matters, then the greater absorbs the lesser. If the entire proceeding (or “action”) is to be completed in accordance with the Judicature Act, then it is difficult to see how an interlocutory application within that proceeding can be completed under the Senior Courts Act. In particular, the need for leave to be granted in the High Court under the Senior Courts Act before an appeal can be brought to this Court is troublesome if the High Court is still, in the proceeding as a whole, acting in accordance with the Judicature Act. We therefore put that possible interpretation to one side.
The interpretation we prefer is based upon the plain language of the transitional provisions. The next step is to test that against the scheme of the Senior Courts Act. We consider that the scheme of the Act, and in particular cl 11(3) of sch 5, supports our preferred interpretation.
The new High Court Rules 2016 no longer contain the procedural provisions for the bifurcated appeal pathway to challenge decisions of Associate Judges — rr 2.3 and 2.4. Nor do they contain pt 29, which regulated proceedings on the commercial list. Clause 11(3) was therefore necessary to preserve these provisions of the former High Court Rules because the Judicature Act continues to apply to proceedings in the High Court commenced there prior to 1 March 2017 and so the provisions of s 26P of the Judicature Act (creating the bifurcated appellate pathways), and the restrictions on appeal for commercial list proceedings[10] remain in force for those proceedings.
[10]Such as the requirement that any interlocutory application can only be appealed to this Court with leave of the High Court, and such leave must be applied for within seven days: see Judicature Act, s 24G.
Because these provisions of the Judicature Act, together with their associated High Court Rules, are expressly preserved, we think it follows as a matter of necessary logic that the relevant provisions of the Judicature Act also continue to apply to any related appeal in this Court also. This is because, if the expression “proceedings pending or in progress in a court” was given the alternative, second interpretation we identify,[11] and the appeal was treated as a fresh proceeding, conflicting appellate pathways would be created by the overall legislative scheme, with the Judicature Act applying to a proceeding in some courts, but not in others.
[11]Set out at [13] above.
To illustrate the point, the effect of cl 11(3) is that parties who have succeeded or failed in a summary judgment application continue to have a right of appeal to this Court, while those who have succeeded or failed in a strike-out application must pursue the review pathway, because the Judicature Act continues to apply in the High Court. If, however, the parties could create a new “proceeding” in this Court by filing a notice of appeal after 1 March, they would thereby accrue an additional right of appeal against the judgment of the Associate Judge on strike-out. And while the Judicature Act provides for an appeal as of right in respect of all summary judgment decisions, if the Senior Courts Act were to apply once the appeal was filed in this Court, a requirement of leave from the High Court would spring up for appeals from decisions declining summary judgment.
There would also be difficulties with appeals from decisions on interlocutory applications in commercial list proceedings. While leave is required under both the Judicature Act and the Senior Courts Act,[12] there are conflicting time limits for obtaining leave.[13]
[12]Judicature Act, s 24G(1); and Senior Courts Act, s 56(3).
[13]Section 24G(1) of the Judicature Act provided that any application for leave to appeal must be made within seven days of the decision, while s 56(3) of the Senior Courts Act provides that any application for leave must be made within 20 working days.
Turning to the purpose cross-check, we consider that this interpretation is consistent with the general intention of transitional provisions, described in Hilder v Port Otago Ltd as evidencing:[14]
… the legislature’s desire to avoid the retrospective operation of legislation and ensure the activities of citizens are governed by the law which is current at the time. The interests of persons with existing rights, powers and privileges are thereby protected.
[14]Hilder v Port Otago Ltd [1996] 1 NZLR 289 (CA) at 295.
As this Court noted in the context of the transitional provision in the Criminal Procedure Act 2011, transitional provisions of this nature are consistent with the general principle of statutory interpretation that proceedings should continue to be determined in accordance with the law as it existed when they commenced.[15] We consider that an interpretation consistent with such a purpose is particularly important in the context of a statute that alters or removes the ability of parties to appeal or otherwise challenge judicial decisions as of right. While there is a convenience in the immediate application of the Senior Courts Act to appeals filed in this Court, it is unlikely that Parliament would intend for an immediate switch to the new regime where that may be apt to cause unreasonable or unjust outcomes.[16]
[15]Foodstuffs South Island Ltd v Queenstown Lakes District Council [2013] NZCA 458, (2013) 17 ELRNZ 367 at [16(a)].
[16]Foodstuffs (Auckland) Ltd v Commerce Commission [2002] UKPC 25, [2004] 1 NZLR 145 at [32] and [35].
This leads us to the conclusion that the transitional provisions of the Senior Courts Act have the effect that all proceedings commenced in the High Court prior to 1 March are to continue under the former Judicature Act regime, and that includes appeals from those proceedings to this Court or the Supreme Court.
Application to this proceeding
In the case of Associate Judge Christiansen’s decision not to grant strike‑out, any challenge by Mr Sutcliffe and the Firm is to be commenced by way of review in the High Court. By the same token, Mr Sutcliffe and the Firm may appeal the Associate Judge’s decision refusing to grant summary judgment to this Court.
Finally we record that Mr Heard argued that, were this the view we reached, this Court could deal with the appeal against both decisions on the basis that the parties consented. But we do not consider that jurisdiction for an appeal to an appellate court can be conferred through the consent of the parties when it has been previously been determined that, under the Judicature Act, this Court does not have jurisdiction to hear an appeal from a decision of an Associate Judge on strike-out.[17]
Result
[17]New Zealand Defence Force v Berryman [2008] NZCA 392 at [4].
The question of jurisdiction is therefore answered as follows:
(a)Mr Sutcliffe and the Firm’s 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.
(b)Mr Sutcliffe and the Firms’ 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.
On the basis of the approach taken by the parties, no question of costs arises. Accordingly, there is no order as to costs.
Solicitors:
McElroys, Auckland for Applicants
Anderson Creagh Lai Ltd, Auckland for Respondent
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