TSB Bank Limited v Burgess

[2013] NZHC 578

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2010-009-002978 [2013] NZHC 578

BETWEEN  TSB BANK LIMITED Plaintiff

ANDGARY OWEN BURGESS Defendant

Hearing:         25 March 2013

(Heard at Christchurch)

Appearances: N R W Davidson QC  for Plaintiff/Respondent

G O Burgess as Defendant/Applicant on his own behalf

Judgment:      25 March 2013

JUDGMENT OF ASSOCIATE JUDGE OSBORNE [as to validity of third party notice]

[1]      Mr Burgess makes two applications.  First, he applies for review of a decision or Minute which I issued in Chambers on 16 November 2011.  Alternatively, he applies for leave to issue a third party notice out of time.

Background to the application

[2]      At the time he was served with this proceeding, Mr Burgess wanted to join his former wife (Ms Beaven) as a third party in the proceeding.  The Christchurch earthquakes  were at that time affecting many buildings in Christchurch and this in turn affected the operation of the Christchurch Registry of this Court.  The Registry, for much of 2011, was relocated from the central city to Sockburn.

[3]      Mr Burgess under r 4.4(2) was entitled to file his third party notice within 10 working days after the expiry of the time for the filing of his Statement of Defence.

TSB BANK LIMITED V BURGESS HC CHCH CIV-2010-009-002978 [25 March 2013]

[4]      As  the  website  operated  by  the  Ministry  at  the  time  indicated  was appropriate, Mr Burgess elected to file his third party notice and other associated documents by mail.  A difficulty arose in that he mailed the documents to the Court after the expiry of the 10 working day period provided by the Rules.  The documents arrived at the Registry at Sockburn some days later.

[5]      At  the  time  of  the  November  2011  case  management  conference,  I  was alerted to the timing issue.   On the position as I then understood it, I made observations as to the third party notice being out of time and as to Mr Burgess requiring leave to issue it.

[6]      Mr Burgess promptly applied to the Court for me to review the decision as to his third party notice being out of time. Alternatively, he applied for leave to issue it. These are the applications now before me.

[7]      Since Mr Burgess filed this application, he and his former wife have been engaged in litigation over relationship property.   That litigation ultimately became the  subject  of  a  Supreme  Court  judgment  on  9 August  2012.[1]      That  judgment contains findings which may be highly relevant to Mr Burgess’s third party claim in this proceeding.   Mr Davidson submits that the nature of the intended third party claim – relating to relationship property matters – means it falls within the exclusive jurisdiction of the Family Court.   He submits furthermore that the Supreme Court judgment renders the claim hopeless or at least unmeritorious.

[1] Burgess v Beaven [2012] NZSC 71.

[8]      The matter came before me this morning on the basis that I was to consider first the review application.  If I was against Mr Burgess on that, I had to consider his application for leave to issue the third party notice.

[9]      The key issue relates to the functioning of the Christchurch Registry in the period immediately after the earthquake.  Mr Burgess has taken me to the rules for computation of time under the High Court Rules.  Rule 1.18 refers to the concepts of an open or closed registry.   Mr Burgess has also put in evidence a printout of the

website  maintained  by  the  Ministry  of  Justice  through  late-2011.    The  website

indicated that documents required to be filed in the Christchurch Registry could be filed in Court either by sending them by post to the Wellington Registry of the Court or by courier to the (temporary) Registry at Sockburn. No provision was made in the Ministry announcement for the physical filing of documents.

[10]     I  am  informed  from  the  Bar  that  the  plaintiff,  by  its  solicitor,  has subsequently made its own enquiries of the Registry.  The solicitor was advised by the Registrar that the Registry had remained open through the period in question. The decision I have come to is no reflection on the enquiries understandably made by the plaintiff through counsel, but it may be that the question and answer between counsel and the Registry missed the real point in issue.  Mr Burgess’s argument ultimately turns on whether a Registry, able to accept documents only by mail or by courier, can be said to be truly “open” in terms of the Rules.  Put another way, is the Registry “closed”?

[11]     The Commentary in McGechan on Procedure has this observation at HR

1.18.02 under “Registry closed” –

HR1.18.02     Registry closed

In order for the rule to operate, the particular registry of the Court must be closed. The days on which the Court is closed are specified in rr 1.3 and 3.2.

The references to rr 1.3 and 3.2 are to the rules which deal with when the Court is closed (my emphasis).

[12]     Rule 3.1 provides that:

3.1      Registry hours

The court's registries must be open from 9 am to 5 pm on every day that is not a court holiday.

[13]     Rule 3.1 (and equally rr 1.3 and 3.2) are prescriptive rules as to when the Court’s registries must be open or closed.  They do not inform the situation where – as in a civil emergency – the Court’s registry is not physically open.

[14]     I am inclined to the view that to be considered “open” in terms of the Rules for the purposes of computation of time, a Registry has to be open physically to members of the public and the profession to accept documents in its own city.  While I do not decide the point finally, it appears to me that one purpose of the Rules must be to allow a person to physically file up to the last minute of the last day for filing the document which he or she needs to file.  The mail or courier option is not the only method of filing in a Registry.  The plaintiff in effect asks the Court to interpret the rule as to an open registry as not requiring a physically accessible registry.  That would potentially deprive a party of the primary means of filing his or her document in time. As I say, I do not decide that point finally.

[15]     It is sufficient for the purposes of resolving the matter today to invoke r 1.19

High Court Rules.   Mr Davidson properly drew my attention to this jurisdiction. Rule 1.19 provides:

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.

[16]     In addition, Mr Burgess referred me also to a parallel power of extension of time under s 82 of the Canterbury Earthquake Recovery Act 2011 (“the CER Act”). By s 82(1) Parliament provided:

Power of courts to extend or shorten time

(1)       In relation to any proceeding before it, a court may, in its discretion, extend or shorten the time appointed by rules of court or other enactment, or fixed by any court order, for doing any act or taking any step on such terms (if any) as the court thinks just if satisfied that it is necessary to do so because of circumstances relating to any Christchurch earthquakes.

…

[17]       Section 82(1) must be taken to cover extensions in relation to procedural deadlines.  I note the decision of Associate Judge Matthews in Pickering v Straubel.[2]

In that case, his Honour found that s 82(1) did not permit the extension of time which would have had the effect of altering substantive rights (in that case, by overriding a limitation period).  His Honour observed:

A limitation period in the Limitation Act 1950 is not a procedural time limitation.  It enshrines this substantive right.[3]

[2] Pickering v Straubel [2012] NZHC 695.

[3] At [29].

[18]    I respectfully adopt that distinction.   I find that s 82(1) of the CER Act authorises an extension of time in relation to the filing of a third party notice.

[19]     Accordingly, an extension is available under both r 1.19 High Court Rules and s 82(1) of the CER Act.

[20]     The justice of this situation lends itself to Mr Burgess’s having an extension of time to the date on which his document was physically received by the Registry, namely 3 November 2011.

[21]     I reach that decision in terms of the justice of the situation.  The plaintiff has not formally abandoned its position based on the Registry confirmation received by the plaintiff’s solicitor.  The plaintiff maintains that it did appear that the Registry may have been open on all the days involved in the computation of time for Mr Burgess’s third party notice.

[22]     Secondly, I record Mr Davidson’s submission that there is no evidence in this case that Mr Burgess sought to effect service within the required 10 working days. As Mr Davidson has properly recognised, given that I had indicated I would find that the Christchurch Registry was closed in a relevant sense throughout the time for

filing, this point necessarily fell away.

Conclusions

[23]     It is appropriate that the Court extend the time for Mr Burgess’s application.

[24]     It is also appropriate that the Court abridge the period for the filing of the third party defence or any application for strike out. Abridgement is just for practical reasons, namely that the plaintiff will itself have the right to apply for the strike out of the third party claim under r 4.16(2) High Court Rules.  The reference in that rule to an application by a party to a proceeding served with a third party notice under that sub-rule is clearly a reference to any party in the proceeding as against simply the third party who is, for instance, referred to in r 4.15(1) in specific terms.

[25]     The merits of Mr Burgess’s third party claim have already been explored for the purposes of the alternative joinder application before the Court.  That application is now in a sense to be turned around and to become the plaintiff’s application for strike out.  The Court will, on such an application, be taken to the merits of the third party claim as it was today in relation to a third party joinder application.  I consider it appropriate that the proposed third party have 15 working days as an abridged period for filing any defence or alternatively for filing her strike out application.

[26]     I will be directing the plaintiff to file shortly before that date any application of its own to strike out.  For that reason, I will be reserving leave to the third party to file, rather than a pleading or a formal application, simply a memorandum reserving her position, so that the plaintiff’s strike out application may proceed economically and efficiently.

Orders

[27]     I order:

(a)      The  time  for  the  filing  of  the  third  party  claim  and  associated documents is extended to 3 November 2011, which timetable I record has already been met by the defendant;

documents identified under r 4.12 High Court Rules together with a copy of this judgment;

(c)      The   defendant   is   to   notify  the   plaintiff   in   writing   by   email immediately he has effected service of the third party notice on the third party;

(d)The date for the filing of the third party’s defence or any application to strike out is abridged to 15 working days after service of the third party proceedings upon her with leave to the third party, instead of filing either of those documents, to file a memorandum reserving her position with reference to any application for strike out filed in the meantime by the plaintiff;

(e)      Any application to strike out by the plaintiff is to be filed and served within 13 working days after service of the third party notice on the third party ;

(f)       The parties in relation to any strike out application have leave to rely on any evidence previously filed in this proceeding to the extent that it is  expressly  adopted  in  the  notice  of  application  or  notice  of opposition filed by that party. Any additional evidence to be relied on by either party is to be filed and served with the notice of application or the notice of opposition as the case may be;

(g)The defendant is within five working days after receipt of any strike out application to file and serve his notice of opposition;

(h)Upon the filing of such opposition, counsel for the plaintiff is to confer with Mr Burgess with a view to agreeing a timetable for the exchange of any supplementary submissions;

determined at the conclusion of the next hearing.

Adjournment

[28]     I adjourn the proceeding for the hearing of interlocutory applications to 10.00 am, 13 May 2013.

Solicitors:

Clendons, PO Box 1305, Auckland

Counsel: NRW Davidson QC, PO Box 825, Christchurch

Mr Gary Burgess, PO Box 107, Waipara 7447

Associate Judge Osborne