Wilson v ANZ National Bank Limited HC Auckland CIV-2010-404-5025
[2011] NZHC 1328
•22 July 2011
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2010-404-5025
BETWEEN WARREN WILSON Plaintiff
ANDANZ NATIONAL BANK LIMITED Defendant
Hearing: 22 June 2011
Appearances: The Plaintiff in Person
D J Friar for the Defendant
Judgment: 22 July 2011 at 4:00 PM
RESERVED JUDGMENT OF PETERS J
This judgment was delivered by me on 22 July 2011 at 4:00 pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date: ........................................
Copy to:
W Wilson – (email: [email protected])
Solicitors/Counsel:
Bell Gully, Solicitors, Auckland – (email: [email protected])
WILSON v ANZ NATIONAL BANK LIMITED HC AK CIV-2010-404-5025 22 July 2011
Introduction
[1] The plaintiff (“Mr Wilson”) has applied to the Court to review decisions of Associate Judge Matthews dated 10 May 2011. ANZ National Bank Limited (“ANZ”) disputes the Court’s jurisdiction to hear Mr Wilson’s application.
Background
[2] Mr Wilson issued proceedings against ANZ in August 2010. ANZ filed a defence to the proceedings in September 2010. By application dated
17 February 2011, ANZ sought leave to file a counterclaim out of time, leave to apply for summary judgment on part of that counterclaim and for summary judgment on that part of the counterclaim. Mr Wilson opposed the applications. On
26 January 2011, Associate Judge Sargisson had allocated a one day fixture of
6 May 2011 for the hearing of ANZ’s applications, which plainly had been
foreshadowed by that date.
[3] Associate Judge Matthews heard the applications on 6 May 2011. In a decision dated 10 May 2011, he granted ANZ’s applications for leave to file a counterclaim out of time and, if required, leave to apply for summary judgment (“leave decisions”). Associate Judge Matthews also granted summary judgment on the relevant part of ANZ’s counterclaim.
[4] On 24 May 2011, Mr Wilson applied to this Court to review all of
Associate Judge Matthews’ decisions, pursuant to s 26P(1) of the Judicature Act
1908 (“the Act”).
[5] The application was called in the Duty Judge’s list on 16 June 2011. Counsel for ANZ submitted that the Court had no jurisdiction to entertain Mr Wilson’s application for review and submitted that the only means of challenging a decision of an Associate Judge on an application for summary judgment is by appeal to the Court of Appeal. I informed Mr Wilson that the ANZ’s submission appeared to have merit and that time for him to appeal as of right against the Associate Judge’s
determination of the application for summary judgment would expire shortly, if it had not already done so. Mr Wilson advised, however, that he proposed to pursue his application for review.
Submissions
[6] I heard further submissions on the matter of jurisdiction on 22 June 2011. At that hearing, it was common ground that an Associate Judge determines an application for summary judgment in Court (s 26I(1)(a) of the Act) and, as a result, the only recourse against that decision is by appeal to the Court of Appeal (s 26P(1) and (2) of the Act).
[7] Mr Wilson advised that he had decided not to pursue that part of his application for review which challenged the award of summary judgment. I strike out that part of the application accordingly. That left only the leave decisions in question, and Mr Wilson said he did wish to pursue his application for review of those decisions. Mr Wilson submitted that those decisions were made on interlocutory applications, that as such they had been made in Chambers (High Court Rules, r 7.34), that an Associate Judge’s decisions in Chambers were subject to review and so the application for review was a proper one.
[8] ANZ submitted that the leave decisions themselves were not subject to review because they fell within s 26I(3) of the Act. ANZ submitted the leave decisions were “incidental” to a matter over which an Associate Judge has jurisdiction pursuant to s 26I(1) and (2) of the Act, that is incidental to an application for summary judgment, and that they must be taken to have been determined in Court and because of that not subject to review but to appeal to the Court of Appeal.
Decision
[9] Section 26I(3) reads as follows:
(3) An Associate Judge shall have and may exercise all the jurisdiction and powers of the Court to deal with costs and other matters incidental to the matters over which an Associate Judge has
jurisdiction pursuant to subsection (1) or subsection (2) of this section.
[10] ANZ’s submission is that because Associate Judge Matthews made the leave decisions at the time he decided an application in Court (being the application for summary judgment), he was not exercising his jurisdiction in Chambers. I do not accept that submission for two reasons.
[11] First, I am not satisfied that the leave decisions fall within s 26I(3) of the Act. Section 26I(3) concerns “costs and other matters incidental” to the matters referred to in s 26I(1) and (2) of the Act. ANZ’s application for leave to file a counterclaim out of time was not incidental to its application for summary judgment. As for the application for leave to apply for summary judgment, Associate Judge Matthews questioned whether this was required given that he had granted leave to the filing of the counterclaim. I agree that leave may not have been required. Even if it was, I do not consider it is incidental in the sense of s 26I(3). Any need for leave in this case arose on the circumstances which prevailed. Such an application would not usually be part and parcel of an application for summary judgment.
[12] Even if I am wrong in this, I do not consider that s 26I(3) affects the nature of the jurisdiction which the Associate Judge is exercising when determining an incidental matter. Section 26I(3) confers a jurisdiction but does not speak to the nature of that jurisdiction. The focus must be on the nature of the jurisdiction which is exercised.[1]
[1] Re Profcom Systems Ltd [1989] 2 NZLR 63
[13] In my view, Associate Judge Matthews executed his Chambers jurisdiction in making the leave decisions. If Mr Wilson had challenged the decision to grant summary judgment by appealing to the Court of Appeal, then it is possible that the Court of Appeal would have dealt with all matters at the same time.[2] That would
[2] See: Vero Liability Insurance Ltd v Symphony Group Ltd [2008] NZCA 419
have been a matter for the Court of Appeal.
Additional comments
[14] Mr Wilson has succeeded in this matter but he will need to consider the following.
[15] First, one factor which the Court considers in determining an application for leave is the merits of the underlying application, in this case the merits of ANZ’s application for summary judgment. On the basis of Mr Wilson’s present stance, he is making no challenge to the decision on the summary judgment application and that is a matter which may be relevant to the Court’s determination of his application for review.
[16] Secondly, Mr Wilson will need to consider whether pursuing the application for review might be pointless. Mr Wilson should not assume that, even if he succeeds, the judgment against him necessarily will fall away.
Result
[17] I dismiss ANZ’s application. Mr Wilson’s application for review of the
Associate Judge’s leave decisions remains on foot for determination.
Costs
[18] Costs are awarded to a litigant in person only in exceptional circumstances. The circumstances of this case are not exceptional. Mr Wilson is entitled to the reasonable disbursements which he properly incurred in responding to ANZ’s application. Those disbursements are to be fixed by the Registrar but ANZ may if it wishes refrain from paying them until final determination of the application for review, so as to enable a set off if necessary.
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PETERS J
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