The Party Bus Company Limited v Attorney-General

[2012] NZHC 445

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-1319 [2012] NZHC 445

BETWEEN  THE PARTY BUS COMPANY LIMITED Applicant

ANDTHE ATTORNEY-GENERAL Respondent

Hearing:         Heard at Wellington

Counsel:         S Carey for Applicant

D Harris for Respondent

Judgment:      16 March 2012

JUDGMENT OF MILLER J

[1]      The applicant applies to recall my judgment of 16 December 2011 refusing leave to appeal to the Court of Appeal and to correct a clerical mistake.   That judgment was preceded by my decision on 30 September refusing the applicant’s applications to set aside an arbitral award and for leave to appeal the award.  This decision must be read in conjunction with these earlier judgments.

[2]      The test for recalling a judgment is still that expressed by Wild CJ in Horowhenua County v Nash (No. 2), and the application in this case is made on the ground that for a “very special reason justice requires” the recall.[1]     The special reason advanced is that there was no oral hearing for the application for leave.

[1] Horowhenua County v Nash (No. 2) [1968] NZLR 632 (SC) at 633.

[3]      The applicant and respondent agree that the application for leave was to be treated as an interlocutory application and Part 7 of the High Court Rules applied.[2]

[2] Andrew Beck and others McGechan on Procedure (online looseleaf ed, Brookers) at [26.14.01].

The applicant points to r 7.33, which states that on or following the filing of the

application the Registrar must allocate a hearing date if the application is on notice.

THE PARTY BUS COMPANY LIMITED V THE ATTORNEY-GENERAL HC AK CIV-2011-404-1319 [16

March 2012]

The applicant claims that both it and the respondent anticipated that a hearing would occur, and that neither party requested that the application be determined on the papers or were aware that I intended to determine the matter on this basis.  Further, neither party filed full written submissions.  The applicant argues that to determine a matter on the papers in these circumstances contravenes its right to natural justice.

[4]      The respondent submits that a recall is not warranted.  Rule 7.43(3) makes it clear that a hearing is only required if a judge makes an interlocutory order of his or her own initiative.  There is no requirement to have a hearing if one of the parties has made the application.   Rule 7.34(1) provides the mode of hearing for applications “for which a hearing is required”, implicitly indicating that a hearing is not required in all cases.   Rule 7.33 is tempered because frequently the date allocated by the Registrar under that rule is nominal, and moreover it does not conflict with r 7.43 because it does not prevent a judge determining an application on the papers.

[5]      The respondent further submits that the requirements of natural justice have been fulfilled in the circumstances of this case.  There was a hearing before me on the original  application,  and both parties were represented.   The applicant filed extensive submissions for this hearing, totalling 187 pages.  The 25 questions of law were all addressed in my decision of 30 September 2011 and with the exception of one question, the application for leave to appeal did not raise any new questions of law.  The respondent states that its notice of opposition fully set out its case.  I was fully aware of the arguments for the applicant and respondent on these 25 questions of law.  In relation to the new question of law raised, the respondent submits that I decided it correctly.   The respondent submits that I did not compromise the requirements of natural justice in this case, and that the applicant has failed to reach the threshold for a recall.

[6]      Rule 7.33 does contemplate that a hearing date will be allocated by the Registrar upon or following the filing of an interlocutory application on notice.  That did not happen in this case. As is customary with leave applications, no hearing date was endorsed on the application, rather the Registrar forwarded it to me to determine how it was to be dealt with.  I was not told of any request for a hearing.  For that reason and because the application was fully expressed, giving reasons why I had erred, I took it one was not wanted.

[7]      I accept that that was a mistake, in that the appellant’s counsel contemplated a hearing would be held.  However, a hearing is not always required for interlocutory applications.[3]   On occasions the objective of the Rules can be met by a decision on the papers.   A hearing is frequently unnecessary on a leave to appeal application because the judge is already familiar with the file and such applications are usually of narrow compass.  They turn on the usually straightforward question whether there is an issue of sufficient importance to warrant the attention of the Court of Appeal.[4]

[3] I note r 7.37 which provides specifically that a hearing is not required if a respondent consents or does not oppose the making of an order.

[4] The  test  in  this  case  is  found  in  Downer  Construction  (New  Zealand)  Ltd  v  Silverfield

Developments Ltd [2007] NZCA 355.

[8]      In terms of fulfilling the requirements for a recall, the question in this case is whether the requirements of natural justice necessitated a hearing.   They would ordinarily do so, especially where counsel had not filed submissions.

[9]      But the original application was expressed in substantial terms, providing me with an adequate basis to determine it given my history with the proceeding.  The general question – whether there was an error of law which justified an appeal – is the same, and with one exception, the application raised the same specific questions of law that were raised in the applications to set aside the arbitral award and for leave to appeal to this Court, for which there was a hearing and substantial written submissions.   The reserved judgment required a careful review of the record.   I understood the case for both the applicant and respondent.  I was not satisfied that these questions were seriously arguable for leave to appeal to this Court, and was similarly not satisfied that they were both seriously arguable and of sufficient importance to warrant a second appeal.

[10]     For  these  reasons,  I  was  not  prepared  to  grant  the  recall  application summarily.  On 31 January a teleconference was held, at which I inquired whether Party  Bus  could  say  anything  more  about  the  merits  of  the  proposed  appeal. Mr Carey, who was not counsel at the original hearing, submitted that he could. Accordingly, I invited written submissions on both sides and gave both counsel an opportunity to ask for an oral hearing after considering one another’s submissions.

As it happens neither sought an oral hearing.

[11]     In due course an amended application for leave to appeal was filed, with submissions in support and in opposition.  I am grateful to Mr Carey for the focus he has brought to the case.   The amended application reduced from 25 to two the number of questions of law.  Indeed, in his submissions Mr Carey reduced those two to one general question; whether the four buses in question were “ordered off the road by a Vehicle Safety Officer of the New Zealand Police Commercial Vehicle Inspection Unit” for purposes of clause 87.3 of the contract.  The argument is that this clause must be construed strictly and that, so construed, a VSO did not order the buses from the road.  Specifically, the contract requires that the ordering from the road be effected by notice written, signed or issued by a VSO.  In fact the notices were issued by a constable, albeit after a VSO had inspected the buses and made the decision that they should be ordered from the road.

[12]     This  issue  was  addressed  at  [22]  and  [34]-[37]  of  my  judgment  of  30

September 2011.  The short point is that the argument assumes that a VSO must sign the  notices  pursuant  to  which,  by  regulation,  enforcement  officers  may  order vehicles from the road.  The contract, however, says nothing about such notices.  It simply asks whether a VSO has ordered a vehicle off the road for one of four key safety defects.  The arbitrator found as a matter of fact that a VSO did so, having correctly identified qualifying safety defects.  I remain of the view that the proposed question of law is not seriously arguable.

[13]     Accordingly, I refuse the application to recall my judgment of 16 December

2011.  In the circumstances I make no order as to costs.

Miller J

Solicitors:

Kumeu-Huapai Law Centre, Kumeu for Applicant

Crown Law Office, Wellington for Respondent