Sutcliffe v Tarr

Case [2017] NZCA 360

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA208/2017
[2017] NZCA 360
BETWEEN

DOUGLAS JOHN SUTCLIFFE
First Applicant

TERENCE SUTCLIFFE AND BRADEN MATSON AS PARTNERS OF FROST & SUTCLIFFE LAWYERS
Second Applicants

AND

PHILIP CLAUDE TARR
Respondent
Hearing:

10 July 2017

Court:

Winkelmann, Brown and Clifford JJ

Counsel:

J Heard for Applicants
G Curry and M C Kilham for Respondent

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.

____________________________________________________________________

REASONS OF THE COURT

Introduction

  1. 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] 

  2. 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

  1. 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.

  1. 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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Sutcliffe v Tarr [2017] NZCA 360
Case
[2017] NZCA 360
Decision Date

CaseChat Overview and Summary

In Sutcliffe v Tarr, the applicants sought to appeal from decisions made by an Associate Judge in the High Court. The nature of the dispute centred on the jurisdiction of the Court of Appeal to hear appeals from interlocutory decisions made by Associate Judges and High Court Judges, and the procedural changes introduced by the Senior Courts Act. The case was heard in the Court of Appeal, which was required to determine whether the Senior Courts Act applied and, if so, whether the applicants had the right to appeal certain interlocutory decisions without leave.

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

Orders of the court

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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

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.

Ratio Decidendi

Legal Principle Established

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