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High Court of New Zealand Decisions |
Last Updated: 1 June 2018
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IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
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CIV-2018-470-17
[2018] NZHC 1142 |
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BETWEEN
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NGAI TE HAPU INCORPORATED and NGA POTIKI A TAMAPAHORE TRUST
Applicants
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AND
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BAY OF PLENTY REGIONAL COUNCIL
First Respondent
ASTROLABE COMMUNITY TRUST
Second Respondent
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Hearing:
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21 May 2018
(Heard at AUCKLAND)
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Appearances:
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T Hovell for Applicants
M Casey QC for First and Second Respondents
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Judgment:
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22 May 2018
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JUDGMENT OF LANG J
This judgment was delivered by me on 22 May 2018 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date...............
NGAI TE HAPU INC v BAY OF PLENTY REGIONAL COUNCIL [2018] NZHC 1142 [22 May 2018]
[1] On 11 April 2018, I delivered a judgment in which I dismissed an application by the appellants for orders waiving the requirement that they provide security for the respondents’ costs (the security judgment).1 The appellants, Ngai Te Hapu Incorporated (Ngai Te Hapu) and Nga Potiki a Tamapahore Trust (Nga Potiki), now seek leave to appeal to the Court of Appeal against that decision.
[2] In addition, the appellants seek an order that the substantive appeal be stayed pending determination of the appeal to the Court of Appeal. This would necessarily require the vacation of a fixture of three days duration currently scheduled to commence in the High Court at Tauranga on 25 June 2018.
Relevant principles
[3] The appellants bring the application under s 56(3) of the Senior Courts Act 2016, which provides follows:
56 Jurisdiction
...
(3) No appeal, except an appeal under subsection (4), lies from any order or decision of the High Court made on an interlocutory application in respect of any civil proceeding unless leave to appeal to the Court of Appeal is given by the High Court on application made within 20 working days after the date of that order or decision or within any further time that the High Court may allow.
[4] There was no equivalent to s 56(3) under the Judicature Act 1908. The new section represents “a significant change in procedure and procedural rights”.2
[5] The procedure under s 56(3) has been described as a “filtering mechanism” designed to ensure civil proceedings are not unnecessarily delayed by unmeritorious appeals against interlocutory orders, or appeals against such orders on points that are of no general importance and/or of no great significance to the parties.3 In Finewood
1 Ngai Te Hapu Inc v Bay of Plenty Regional Council [2018] NZHC 643 [11 April 2018].
2 Sutcliffe v Tarr [2017] NZCA 360, [2018] 2 NZLR 92 at [8].
3 Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [13].
Upholstery Ltd v Vaughan, Fitzgerald J extrapolated4 the following principles from the earlier judgment of Dobson J in A v Minister of Internal Affairs:5
(a) A high threshold exists for the granting of leave. An allegation of error of law or fact is generally insufficient. An applicant should raise an arguable error.
(b) Leave should only be granted where the circumstances warrant incurring further delay.
(c) The alleged error should be of general or public importance that requires determination, or otherwise be of sufficient importance to the applicant to outweigh the lack of any general or precedential importance.
The proposed grounds of appeal
[6] The appellants contend the security judgment was erroneous in law or principle for the following reasons:
(a) The Court applied the wrong test in determining whether security should be waived.
(b) The Court had no jurisdiction to make an order requiring the appellants to provide two sets of security.
(c) The Court gave insufficient or inadequate consideration to the merits of the appeal.
(d) The Court erred in stating the number of grounds of appeal.
(e) The Court erred in concluding the appeal did not raise issues of public interest.
4 Finewood Upholstery Ltd v Vaughan, above n 3, at [9].
5 A v Minister of Internal Affairs [2017] NZHC 887 at [10]-[12].
Applying the wrong test?
[7] At the original hearing all counsel accepted that the test was as set out at [5] of the security judgment.6 Mr Hovell now submits that, having reflected on the issue, he considers all counsel posed the wrong test. He submits, relying on observations made by the Supreme Court in Reekie v Attorney-General, that the test is whether the appeal is one that a solvent appellant would reasonably wish to prosecute.7 If it is not, impecuniosity should not provide an advantage in permitting the appellant to prosecute the appeal.
[8] The passage from Reekie on which Mr Hovell relies is as follows:
[35] Against that background, we consider that the discretion to dispense with security should be exercised so as to:
(a) preserve access to the Court of Appeal by an impecunious appellant in the case of an appeal which a solvent appellant would reasonably wish to prosecute; and
(b) prevent the use of impecuniosity to secure the advantage of being able to prosecute an appeal which would not be sensibly pursued by a solvent litigant.
[9] I did not decide the application on the basis that this appeal has been brought by impecunious appellants. Mr Hovell acknowledged in his submissions at the original hearing that Nga Potiki will receive significant assets from a treaty settlement but the trustees are concerned at the prospect of using those funds in the prosecution of the present appeal. Ngai Te Hapu apparently has no assets. I did not consider these factors amounted to an argument that the appeals would not be able to proceed if security was ordered.8 Instead, I proceeded on the basis that the appellants “ought to have the collective means to find a way in which to provide the security required for an appeal of three days duration”.9 I do not consider the observations from Reekie on which Mr Hovell relies have any application in the present case.
6 Ngai Te Hapu Inc v Bay of Plenty Regional Council, above n 1.
7 Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737.
8 Ngai Te Hapu Inc v Bay of Plenty Regional Council, above n 1, at [26].
9 Ngai Te Hapu Inc v Bay of Plenty Regional Council, above n 1, at [35].
Two sets of security
[10] I directed that the appellants were to provide security calculated on a Category 2 basis in relation to the first respondent and security calculated on a Category 3 basis in relation to the second respondent.10 I did so because the second respondent would be shouldering the burden of the appeal and this involved complex and wide-ranging issues. Mr Hovell submits that this approach was arguably in error and that I did not have jurisdiction to direct the appellants to provide more than one set of security.
[11] Rules 20.13(2) and (3) of the High Court Rules 2016 provide as follows:
20.13 Security for appeal
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(2) The Judge must fix security for costs at the case management conference relating to the appeal, unless the Judge considers that in the interests of justice no security is required.
(3) The amount of security must be fixed in accordance with the following formula, unless the Judge otherwise directs:
(a ÷ 2) x b where—
...
[12] Mr Hovell submits that the combined effect of these rules is to prevent the Court from making an order that an appellant provide security for the costs of more than one respondent.
[13] I do not accept that this can be the case because such an interpretation would constitute a significant fetter on the words “unless the Judge otherwise directs”. In my view those words permit the Court to tailor security to the circumstances of the case.
10 Ngai Te Hapu Inc v Bay of Plenty Regional Council, above n 1, at [36].
This is consistent with the flexibility said by Ellis J to be inherent in the rule in
Clearwater Cove Apartments Body Corporate No 170989 v Auckland Council.11
[14] One of the circumstances of the present case is that the appeal affects two respondents, both of whom have separate interests and are entitled to be separately represented. I considered the appellants should be required to provide security for both respondents. I acknowledged, however, that the second respondent would be responsible for meeting most of the arguments to be advanced by the appellants. These were of sufficient breadth to warrant a Category 3 costs characterisation. I reduced the security to be provided in relation to the second respondent to reflect the lesser role it would be playing at the hearing of the appeal. I do not consider any arguable error of law arises in relation to that decision.
The merits
[15] Mr Hovell takes issue with my observation that it was neither possible nor appropriate for me to consider the merits of the appeal in any detail.12 He contends I ought to have engaged in a far more detailed consideration of the merits.
[16] I do not see how any Court considering an application for waiver of security can realistically be expected to engage in a detailed examination of the merits. The only documents on file at that time are likely to be the notice of appeal and any points on appeal. In the present case the submissions for the appellants had not been prepared at the time of the hearing and in fact were only filed on 18 May 2018. The respondents are still some weeks away from filing their submissions in response.
[17] The approach generally taken in relation to security is to assess the merits as a matter of broad impression.13 That is what I endeavoured to do based on my overall impression of the points raised in the notice of appeal and points on appeal. My conclusions were couched in very broad terms, as I considered was appropriate given the high level of generality at which the merits were being considered.
12 Ngai Te Hapu Inc v Bay of Plenty Regional Council, above n 1, at [15].
[18] I do not see any arguable ground of appeal under this head.
Factual error regarding number of grounds of appeal
[19] Mr Hovell rightly points out that I referred to the fact that the notice of appeal “contains more than 50 grounds of appeal”.14 Mr Casey QC for the respondents points out, this was a typographical error. The notice of appeal contains 15 separate grounds of appeal, several of which have several different or alternative bases. Given that the notice of appeal does not contain 50 grounds of appeal I consider Mr Casey’s submission must be correct.
Public interest
[20] I explained why I did not consider the appeal to raise issues of public interest at [29] to [33] of the judgment. Mr Hovell submits I erred in reaching that conclusion. The decision was an evaluative judgment based on my assessment of the factors the appellants relied on in support of their argument that the appeal raised significant issues of public interest. Any such assessment may be open to challenge on the ground that it has produced an erroneous outcome. For that reason I accept this ground of appeal is arguable.
Conclusion
[21] It follows that with one exception I do not consider any of the proposed grounds of appeal to be arguable.
[22] Furthermore, and regardless of whether the grounds of appeal are found to be arguable individually or collectively, I do not consider the proposed appeal raises issues of public or general importance. The issues arising out of the application for waiver of security relate exclusively to the particular circumstances of this appeal. They have no bearing or significance beyond the parameters of the present case. Although these issues are clearly important to the appellants, I do not consider they justify further consideration by the Court of Appeal.
14 Ngai Te Hapu Inc v Bay of Plenty Regional Council, above n 1, at [12].
[23] The application for leave to appeal to the Court of Appeal is therefore dismissed.
The application for stay of the substantive appeal
[24] The appellants now seek a stay of the substantive appeal even though the appeal to the Court of Appeal relates only to the order requiring them to provide security. For that reason I am not sure r 20.10, on which they rely, has any application. Rule 20.10(2) permits the Court to order a stay of proceedings in relation to the decision appealed against or a stay of enforcement of any judgment or order appealed against. The proposed appeal in the present case relates only to the order declining waiver of security and not to the substantive proceeding. Regardless of the jurisdictional basis, however, I consider this Court must have the ability to grant a stay of a substantive proceeding where the interests of justice require that to be done to enable a significant interlocutory order to be the subject of an appeal to the Court of Appeal.
[25] In the present case the appellants have now served their submissions and the respondents are in the process of preparing their submissions in response. Although the appellants’ submissions were late, the respondents have reluctantly agreed to prepare their submissions within a truncated timeframe. That being the case, there is nothing to prevent the fixture commencing as scheduled on 25 June 2018.
[26] Any delay to the fixture will have significant consequences because it means the orders made by the Environment Court remain stayed as a consequence. As a result, the wreck of the Rena remains on the reef in an unconsented state and the conditions imposed by the Environment Court relating to the monitoring of the discharge of contaminants remain unimplemented. To date these issues have been dealt with by way of agreement between the respondents, but it is important that the issue is finally resolved. This can only occur through resolution of the appeal.
[27] Secondly, several of the conditions imposed by the Environment Court relate to funding to be provided by the second respondent to various Iwi groups. These arrangements cannot be implemented until such time as the appeal has been resolved.
[28] Furthermore, a three-day civil hearing is a scarce commodity in the High Court at Tauranga. As matters presently stand it is unlikely that the appeal could be heard before December 2018 if it is now adjourned. I do not consider a delay of this magnitude would be in the interests of justice.
[29] It follows that I consider the interests of justice require the substantive appeal to proceed in this Court as presently scheduled. This does not leave the appellants without remedies. Section 56(5) of the Senior Courts Act permits the Court of Appeal to grant leave to appeal even after the High Court has declined an application for leave to appeal. Mr Hovell advises me that the appellants wish to avail themselves of this procedure if the present application is declined.
[30] I am aware that hearing time for this matter is available in the Miscellaneous Motions List to be conducted by the Court of Appeal on 11 June 2018 at 12.20 pm. Provided the appellants file their application for leave to appeal to the Court of Appeal promptly, they can have the Court of Appeal assess the matter afresh before the scheduled fixture commences in this Court on 25 June 2018. Furthermore, the Court of Appeal has the power to stay the order for security pending delivery of its decision. If the Court of Appeal assesses the appeal as having merit it may stay the order for security pending determination of the appeal by the Court of Appeal. This would not, however, prevent the fixture on 25 June from proceeding as scheduled.
[31] The application for stay of the substantive appeal is dismissed.
Application by respondents for order dismissing the appeal
[32] The respondents have applied for an order dismissing the appeal under r 20.13(5). They do so on the basis that the appellants have failed to provide the security directed to be paid by this Court. As I advised counsel during the hearing, I am not prepared to determine that application until the final outcome of any application for leave to appeal to the Court of Appeal is known.
Costs
[33] The respondents are the successful parties and are entitled to an award of costs. Mr Casey QC presented argument on behalf of both respondents at the hearing. The respondents are accordingly entitled to a single award of costs calculated on a Category 2B basis together with disbursements as fixed by the Registrar.
Lang J
Solicitors:
Atkins Holm Majurey, Auckland Cooney Lees Morgan, Tauranga Lowndes, Auckland
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