Accolade Autohire Limited v Aeromax Limited CA275/97 [1998] NZCA 275; [1998] 2 NZLR 15; (1998) 11 PRNZ 653 (23 February 1998)

Last Updated: 30 December 2023

IN THE COURT OF APPEAL OF NEW ZEALAND CA 275/97

BETWEEN ACCOLADE AUTOHIRE LIMITED

First Appellant

AND JOHN RUSSELL McKAY AND BARBARA GAIL McKAY

Second Appellants

AND AEROMAX LIMITED

First Respondent

Coram: Gault J Henry J Keith J

AND PHILIP MILES PARKER and BARBARA ANN PARKER

Second Respondents

Hearing

and Decision: 16 February 1998

Counsel: A G MacLean for the appellants

W D Duggan for the respondents

Reasons for

Judgment: 23 February 1998

REASONS FOR

JUDGMENT OF THE COURT DELIVERED BY KEITH J

At the end of the hearing the Court announced its decision that the appeal had been filed within time. This judgment sets out the reasons for that decision.

The judgment under appeal, dismissing the plaintiffs’ proceedings, was given in the High Court on 9 September 1997 and was sealed on 15 September 1997. The appeal was filed on 5 December 1997, that is within three months of the judgment and its sealing.

In terms of RR 27(1) and 28(a) of the Court of Appeal Rules 1955 the appeal was filed in time, within three months of the dismissal of the action. But on 1 October 1997, after the date of the dismissal and before the filing of the appeal, the Court of Appeal (Civil) Rules 1997 came into force. They revoked the 1955 Rules (R 28(1)) and made no relevant transitional provision (compare RR 10(3) and 28(2)). With irrelevant exceptions, the new Rules apply, according to R3, to all proceedings of the Court. In particular, they provide a new, shorter time for appeal. An appeal is now to be brought within 28 days (unless special leave is given), RR 5(1) and 6(1)(a). In the present case that would be by 7 October. (Counsel for the respondents gave the date of 28 October 1997, but that cannot be correct in terms of R 6(1)(a) which requires the period to be measured from the date of the decision.)

Accordingly the respondents argue that this appeal is out of time. As indicated, we decided that the appeal was filed within time. In brief the reasons for that conclusion are

• that the parties’ right of appeal was established at the latest by the date of the judgment

• that that right included the three month time limit

• that the revocation of the 1955 Rules did not remove that right unless the new Rules made it plain that they operated retrospectively so as to deprive the parties of that right and

• that the 1997 Rules contain no such provision.

Underlying those reasons is the principle or presumption that legislation should have prospective effect only. Retrospective laws are in general seen as unjust and unfair. As well, they may thwart reasonable expectations established on the basis of the law in force at the critical time.

The principle of non-retrospectivity is given a relevant particular statement in

s20(e)(iii) of the Acts Interpretation Act 1924 which provides that the revocation of a rule shall not affect any right already acquired, accrued, or established - unless the object, intent or context of the legislation requires a different result (see also s2).

As that qualification indicates, there are of course exceptions to the principle of non-retrospectivity, especially those based on effective administration and responsibilities for government. So it is often said that the principle does not apply to legislation concerned merely with procedural matters. Maxwell on the Interpretation of Statutes (12th ed 1969) 222 is sometimes cited:

No person has a vested right in any course of procedure, but only a right of prosecution or defence [or, it might be added, appeal] in the manner prescribed for the time being ... and if an Act of Parliament alters that mode of procedure, he can only proceed according to the altered mode. (References omitted)

It might be said that the time limits in the present case are matters of procedure, prescribed by rules of court for the time being. The parties to court process must adjust their conduct accordingly. That argument would however attach too much force to labels. As well the Courts in various contexts have applied the principle or presumption of non-retrospectivity to changes in time periods relating to judicial process and to changes in rights of appeal - the matters in issue in this case.

In Yew Bon Tew v Kenderaan Bas Mara [1983] 1 AC 553, 558-559, a limitation case, the Privy Council having stated a proposition like that in Maxwell immediately suggested caution about the words “retrospective” and “procedural”:

Though useful in a particular context, they are equivocal and therefore can be misleading. ... an Act which is procedural in one sense may in particular instances do far more than regulate the course of proceedings because it may, on one interpretation, revive or destroy the cause of action [or, here, the right of appeal] itself.

More recently the House of Lords has similarly declined to characterise a particular right as substantive or procedural

partly because the distinction ... may be misleading, since it leaves out of

the account the fact that some procedural rights are more valuable than some substantive rights, and partly because I doubt whether it is possible to assign rights such as the present unequivocally to one category rather than another. Thus, whilst keeping the distinction well in view, I prefer to look to the practical value and nature of the rights presently involved as a step towards an assessment of the unfairness of taking them away after the event. L’Office Cherifien des Phosphates v Yamashita-Shinnihon Steamship Co Ltd [1994] 1 AC 486, 528.

In the Yew Bon Tew case, while accepting that a limitation provision in a personal injury case is procedural in the sense that it goes only to the conduct of the suit and leaves the right otherwise untouched in theory, the Privy Council held that a new longer limitation period did not revive the possibility of a proceeding and deprive the defendants of limitation defences they already possessed:

an accrued right to plead a time bar, which is acquired after the lapse of the statutory period, is in every sense a right, even though it arises under an act which is procedural. (563) See similarly Zainuddin Dato Seri Paduka Haji Marsal v Penigran Putera Negara, judgment of 18 February 1998, Privy Council Appeal No 63 of 1997.

Consistently with principle and in accordance with the Interpretation Act 1889, this Court a century ago similarly held that the introduction of a new shorter period did not disadvantage a person who had acquired rights under the earlier law, Falvey v Tregoweth (1897) 16 NZLR 341.

While the cases just mentioned concern the running of time relating to or during a legal process, the same principle and approach have been applied to legislation creating or abolishing rights of appeal. So a party could not take advantage of a newly created right of appeal if that right did not exist at the time of the relevant proceeding and decision, R v Kelly [1922] NZGazLawRp 78; [1923] NZLR 234. But if it did exist at the time when proceedings were commenced, it remained available to the parties even though it had been abolished by the time the decision was given, Colonial Sugar Refining Co Ltd v Irving [1905] UKLawRpAC 29; [1905] AC 369 (JC) and Re an Appeal by Parekaiura Parekura [1912] NZGazLawRp 172; (1912) 31 NZLR 1074.

To summarise and apply the principle and precedents in this case, the parties in this case had a right, in terms of the Judicature Act 1908 s66 and the 1955 Rules, in respect of proceedings in the High Court to appeal to this Court within three months of the decision given while the 1955 Rules were still in force. It would be unfair and unjust to deprive the appellants of the right they had acquired. The new Rules show no intent to retrospectively revoke that right. The appellants in the present case were able to exercise that right within three months of the High Court dismissing their proceedings. That is exactly what they did.

In the circumstances we make no order for costs.

Solicitors

Castle Brown, Auckland for Appellants

Bell Gully Buddle Weir, Auckland for Respondents