Tucholski v Dunedin City Council

[2013] NZHC 767

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV2013-412-000088 [2013] NZHC 767

BETWEEN  MARIO GERD TUCHOLSKI Appellant

ANDDUNEDIN CITY COUNCIL Respondent

Hearing:         10 April 2013

Counsel:         D J More for Appellant

A M Cunninghame and S L McNeill for Respondent

Judgment:      16 April 2013

JUDGMENT OF WHATA J

[1]      Mr Tucholski’s dog is classified as a menacing dog.  Menacing dogs are not allowed to be at large in any public space without being muzzled.  One morning the dog, Kaiser, slipped away from Mr Tucholski in breach of this control.  Mr Tucholski was charged for this for failure to retain control and his dog was impounded pending trial.  Mr Tucholski fearing that his dog might be put down under s 33EC of the Dog Control Act  1996  commenced  civil  proceedings  challenging  the  legality  of  the impoundment.  Mr Tucholski pleaded guilty to the offence and lost his civil claim. An order, among others, was made requiring him to pay the impoundment fee.

[2]      Mr Tucholski filed a notice of appeal challenging the civil finding and contending that the Council never had the power under s 33EC to seize the dog and seeking that the order making him pay for the impounding fees to be quashed.

[3]      In a minute dated 7 March 2013 security of costs was ordered to be paid within ten working days of the minute.  Mr More acting for the appellant overlooked the date for payment and the Dunedin City Council filed a memorandum with the

Court seeking costs in relation to the appeal on the basis that it now should be treated

TUCHOLSKI V DUNEDIN CITY COUNCIL HC DUN CIV 2013-412-000088 [16 April 2013]

as abandoned pursuant to r 2.13 of the High Court Rules and s 74 of the District Courts Act 1947.  The Council’s memorandum about this was the first notice that Mr More had of his lapse and he immediately sought an interlocutory application for extension of time for paying security of costs.

[4]      In argument before me, Mr More conceded that in light of the juxtaposition of s 74 and r 20.13, it was not available to me to extend the time for security of costs on the basis that the appeal in fact is deemed to have lapsed by operation of law.

[5]      He then made an oral application that I reinstate the appeal pursuant to my inherent jurisdiction to do so and given that a miscarriage of justice would occur if I did not.

[6]      I do not propose to dwell on the full effect of r 20.13 and s 74 of the District

Courts Act.  Under s 74(2):

74       Security for appeal

...

(2)       If any security required is not given within the time required by the High Court Rules, the appellant's appeal must be treated as having been abandoned.

[7]      Rule 20.13(5) then states:

20.13   Security for appeal

...

(5)       Except in the case of an appeal under the District Courts Act 1947 (where non-compliance with the security order results in a deemed abandonment of the appeal under section 74), if the security is not paid within the time specified under subclause (4), the respondent may apply for an order dismissing the appeal.

[8]      On their face the rules assume that s 74 applies, such that on failure to make security for costs an appeal is deemed to be abandoned.   I say no more than this, because I think I would need to hear more argument before I concluded that there never could be a situation where time for lodgement of security for costs could be

extended. The High Court Rules provide for extensions of time.  It could be said that s 74 contemplates such an outcome.

[9]      In any event, given the circumstances of the failure, it seems to me that there would be a miscarriage of justice if the appellant were not permitted to reinstate his appeal.  There must nevertheless be an award of costs in favour of the Dunedin City Council to reflect the fact that in a technical sense they have been successful in relation to the appeal filed, but moreover that the granting of relief in the circumstances is an indulgence to the appellant.

[10]     The Council sought indemnity costs.  I can see no basis for such an award. The failure to comply with the security for costs order was short lived, and indeed as soon as Mr More became aware of it, he attended to payment.

[11]     I also, on reflection, consider that the order for payment of costs should lie in Court pending the final determination of the proceedings.  While liability has been established in the Council’s favour, I think the fairer result in the circumstances is that payment should occur following the conclusion of the proceedings and when the final outcome is known.  As this option was not put to the parties, they have leave to make submissions within five working days.

Solicitors:

David More, Dunedin

Anderson Lloyd, Dunedin