University of Canterbury v Insurance Council of New Zealand Limited
[2013] NZCA 609
•3 December 2013 at 3.15 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA127/2013 [2013] NZCA 609 |
| BETWEEN | UNIVERSITY OF CANTERBURY |
| AND AND AND | THE INSURANCE COUNCIL OF NEW ZEALAND INCORPORATED CHRISTCHURCH CITY COUNCIL BODY CORPORATE 423446 (OXFORD BODY CORPORATE) |
| Court: | Harrison, White and Asher JJ |
Counsel: | T C Weston QC, D A Webb and D McBeath for Appellant |
Judgment: (On the papers) | 3 December 2013 at 3.15 pm |
JUDGMENT OF THE COURT
AThe application for recall of this Court’s judgment [2013] NZCA 471 is dismissed.
BThe appellant is ordered to pay the first respondent costs on a band A basis on a standard application for recall together with usual disbursements.
____________________________________________________________________
REASONS OF THE COURT
(Given by Harrison J)
Introduction
On 8 October 2013 this Court dismissed an appeal by the University of Canterbury against a decision delivered by Panckhurst J in the High Court at Christchurch on 4 February 2013,[1] declaring unlawful a policy adopted by Christchurch City Council enabling it to require building owners to strengthen existing buildings following earthquake damage to a capacity of up to 67 per cent of the current building code requirements.[2]
[1]University of Canterbury v The Insurance Council of New Zealand Inc [2013] NZCA 471.
[2]The Insurance Council of NZ Inc v Christchurch City Council [2013] NZHC 51, [2013] NZRMA 113.
The University has applied for leave to appeal against the decision and contemporaneously applied to recall our judgment on the grounds that this Court either failed to address a substantive argument which was put to it or misstated or misunderstood the University’s argument. It is noted that in his written submissions on appeal Mr Weston QC made a similar criticism of the High Court judgment.
The first respondent, the Insurance Council of New Zealand Inc (the ICNZ), opposes.
Principles
The principles relating to recall of judgments are well settled. The jurisdiction is to be exercised sparingly. An applicant must satisfy a very high threshold. Significantly, this Court has previously held:[3]
[34] ... that the Court’s reasons and the issues it chooses to address are within the discretion of the Court. It will often be unnecessary to deal with all of the submissions presented because of the way in which a case is finally resolved. The Court plainly is able to address submissions in the manner it chooses. While a decision may be recalled where a material issue properly put before the Court is not addressed, excluding a slip or minor error, the cases in which justice will require a recall on this basis are likely to be rare.
...
[40] The applicant’s argument, on analysis, is a criticism that the Court has misunderstood Unison’s argument and so has conflated the two issues. Accepting for the purposes of argument (but without deciding) that the applicant is right about what has happened, any omission has arisen because there has been a misunderstanding and the process issue treated as a subset of the legality issue. If we were wrong in doing that, the matter is properly remedied on appeal. This is not an omission that should be dealt with by way of recall but rather would be an error.
[3]Unison Networks Ltd v Commerce Commission [2007] NZCA 49.
The ultimate question is whether the decision is correct: if incorrect, the losing party is entitled to apply for leave to appeal.[4]
Decision
[4]R v Nakhla (No 2) [1974] 1 NZLR 453 (CA) at 456 and Calibre Financial Services Ltd v Mortgage Administration Services (Calibre) Ltd [2013] NZCA 565 at [3].
In support of the University’s application, Mr Weston advances these grounds.
First, Mr Weston submits that the University put its case on the basis that the definition of an earthquake prone building in s 122(1) of the Building Act 2004 (the Act) identifies unsafe buildings as a first step. The next and secondary step is for the territorial authority to act under s 124 to ensure that the building is made safe on a case by case basis. His written submission was that the first limb of the statutory definition of an earthquake proof building does not “mechanistically determine the extent of the remediation” but rather the s 122(1) definition is a threshold or triggering device to identify unsafe buildings. Accordingly Mr Weston says, by characterising the University’s argument as one of whether s 122(1) should be interpreted conjunctively or disjunctively, the Court failed to address its argument at all.
This submission is misdirected. The way the University framed its written submissions and Mr Weston developed his argument orally was analogous to promoting a disjunctive interpretation. The transcript of argument before us records that Mr Weston said this:
... my submissions are largely written on the basis that there is this broad divide between the first and second limb. But what my learned friend is now doing and I will come to this ... is to try and bring the two together and I will be addressing that;
Moreover, at one stage Mr Weston expressly agreed with the Court that the two limbs in s 122 were to be read conjunctively; and described s 122 as being directed towards triggering the remedial provisions of s 124. Both counsel addressed the question of whether a conjunctive or disjunctive interpretation was appropriate. It cannot be claimed that the Court’s characterisation of its argument in these terms therefore led to its failure to address the argument at all.
In any event we are satisfied that the Court’s construction of s 122 addresses the substance of the University’s argument.[5] The University has a statutory right to apply for leave to appeal, which it has exercised, against our decision.
[5]University of Canterbury v The Insurance Council of New Zealand Inc, above n 1, at [24]–[34].
Second, Mr Weston adds that contrary to para [35] of the judgment the University did not argue that a territorial authority could:
... issue a written notice in relation to a building that was dangerous in an earthquake whether nor not it met the definition of earthquake prone.
He says that the University’s argument was to the opposite.
In effect, Mr Weston argues that, once a building has been found to be earthquake prone under s 122, the only step required by the council is to consider each case on an independent or individual basis under s 124. For that reason, councils should be allowed to set their own standards for addressing that “danger”, requiring work above the statutory standards set in s 122.
This submission was squarely considered and dismissed in the judgment as follows:
[32] However, the legislature has chosen in subpt 6 to set out specific definitions of dangerous, earthquake-prone and insanitary buildings. Section 122 defines an earthquake-prone building in a precise way, and the section contemplates that there will be regulations stating what will be a moderate earthquake. It has taken this precise course, rather than leaving the definition of “dangerous” and “earthquake-prone” undefined. There is no inconsistency with the purpose of enabling people to safely use buildings, in treating s 122(1)(a) and (b) as conjunctive requirements setting out a clear and predictable test.
...
[36] This submission overlooks the overarching requirement under s 124(1) that the territorial authority must be satisfied that a building is “… dangerous, earthquake-prone, or insanitary …” and the separate definitions of those words provided at ss 121, 122 and 123 of each of these types of building. The words of s 124(1)(c)(i) enabling the territorial authority to give written notice to reduce or remove “the danger” refer back to those initial words “... dangerous, earthquake-prone ...”. The words “the danger” are a compression referring to the concepts of both “dangerous” and “earthquake-prone”.
Third, Mr Weston submits that the Court failed to address factual evidence adduced in order to place s 122(1)(a) of the Act in context. Para [10] of the substantive judgment reads:
There was affidavit evidence filed on behalf of the parties recording the background, the history of the 2010 policy, the efficacy of the standard and the City Council’s approach. There were also affidavits filed as to the impacts upon the parties and the effects on individual building owners. However, none of this factual material was the subject of detailed oral submissions before us, and like Panckhurst J we see no need to refer to the detailed history or the practical merits of the policy. If Parliament has clearly imposed a standard, it is not for the courts to second-guess the merits of that standard.
The Court did not state that it had not received any submissions at all on the evidence. Instead, it stated that oral submissions on the point were limited. It was plain that the Court regarded the affidavit evidence as being of little assistance in its exercise of statutory construction.
Fourth, Mr Weston submits that this statement from the judgment dealing with costs is incorrect:
[53] The City Council did not support the appeal and in the end did not oppose the cross-appeal and there is no order for costs against it.
We agree with Mr Goddard QC for the ICNZ that there is no issue arising from this statement which might warrant recall of the costs orders given that the parties had reached an agreed position on costs. There is no issue as to costs arising from the judgment. Accordingly this ground fails also.
The University’s application is misconceived. A supplementary memorandum filed by Mr Weston only serves to confirm that it is an attempt to reargue and challenge the substantive grounds for this Court’s decision. The University fails to recognise the role of oral argument in determining an appeal. Written submissions are also relevant but they are not decisive where this Court is satisfied that a party’s case has been developed or recast during interchanges with counsel. What matters is whether the Court’s construction of the relevant statutory provisions is correct, taking account of the principal arguments advanced by both sides.
The University’s right to apply for leave to appeal to the Supreme Court is not adversely affected in any sense by the defects and omissions which it says characterise this Court’s judgment. Mr Weston’s argument falls well short of the threshold of establishing a very special reason which justice requires if a judgment is to be recalled.
Result
The application for recall is dismissed.
The parties have been on notice since this Court’s decision in Erwood v Maxted that they are at risk of orders for increased indemnity costs where an application for recall is without merit.[6] The University is fortunate that the ICNZ did not seek increased or indemnity costs. The University is ordered to pay the ICNZ costs on a band A basis on a standard application for recall together with usual disbursements.
[6]Erwood v Maxted [2010] NZCA 93, (2010) 20 PRNZ 466 at [23].
Solicitors:
MDS Law, Auckland for Appellant
Jones Fee, Auckland for First Respondent
Simpson Grierson, Wellington for Second Respondent
GCA Lawyers, Christchurch for Third Respondent
2