Osborne v Auckland City Council [2012] NZCA 199; (2012) 21 PRNZ 76 (17 May 2012)

Last Updated: 27 May 2012

IN THE COURT OF APPEAL OF NEW ZEALAND

CA841/2011 [2012] NZCA 199

BETWEEN JOHN ANTHONY OSBORNE AND HELEN OSBORNE Applicants

AND AUCKLAND CITY COUNCIL (NOW AUCKLAND COUNCIL) Respondent

Hearing: 3 April 2012

Court: Ellen France, Harrison and White JJ

Counsel: T J Rainey and J P M Wood for Applicants C R Goode for Respondent

Judgment: 17 May 2012

JUDGMENT OF THE COURT

1. The application for leave to appeal is dismissed.
   
2. The applicants must pay the respondent its costs for a standard application on a band A basis together with usual disbursements.
   

___________________________________________________________________

REASONS OF THE COURT

(Given by White J)

Table of Contents

Para No

Introduction [1]

Background [5]

Appeals to the Court of Appeal [18]

An appeal to the Court of Appeal under the WHRS Act? [36]

Summary [59]

Result [61]
Result

Introduction

[1] Mr and Mrs Osborne have applied for leave to appeal to this Court under s 67(2) of the Judicature Act 1908 against a decision of the High Court[1] on appeal from the Weathertight Homes Tribunal.[2] Their application for leave is made to this Court because the High Court has already refused leave.[3]
[2] The High Court refused leave on the ground that Mr and Mrs Osborne had no right of appeal to this Court because s 95(2)(b) of the Weathertight Homes Resolution Services Act 2006 (the WHRS Act) provides that the determination of the High Court is “a final determination” of a claim under the Act.
[3] In support of Mr and Mrs Osborne’s application for leave to appeal to this Court, it was argued that:

(a) s 95(2)(b) of the WHRS Act does not preclude a second appeal to this Court;

(b) Mr and Mrs Osborne were therefore entitled to pursue their appeal under either s 66 or s 67 of the Judicature Act; and

(c) if they were only entitled to proceed under s 67, leave to appeal ought to be granted.

[4] As, in our view, it is clear that s 95(2)(b) of the WHRS Act does preclude a second appeal, we summarise the background briefly before referring to the submissions for Mr and Mrs Osborne in the context of the reasons for our decision.

Background

[5] On 14 February 2007 Mr and Mrs Osborne filed a claim under the WHRS Act in respect of their leaky home. In a series of decisions the Chair of the Tribunal decided that their claim was ineligible in respect of the construction of their house because it was not built within the 10 year limitation period under s 14(1) of the WHRS Act, but that it was eligible in respect of subsequent remedial work.
[6] On 8 June 2010 Mr and Mrs Osborne filed an amended claim in adjudication proceedings under the WHRS Act against a number of parties, including the Auckland City Council. Their claim against the Council was in both negligence and negligent misstatement in respect of the Council’s inspections of the building work carried out under its building consent and the Council’s issue of code compliance certificates in 1997.
[7] The Tribunal in its decision of 10 September 2010 granted an application by the Council that it be removed from the proceeding on the grounds that:

(a) by virtue of the decisions of the Chair of the Tribunal the claims against the Council in respect of the construction of the house were statute-barred; and

(b) the Council had had no role in the subsequent remedial works.[4]

[8] Mr and Mrs Osborne then took two steps in the High Court:

(a) they issued a judicial review proceeding under the Judicature Amendment Act 1972 challenging the decisions of the Chair of the Tribunal and the Tribunal that their claim against the Council was ineligible because their house had not been built within the 10 year limitation period; and

(b) they lodged an appeal under s 93 of the WHRS Act against the decision of the Tribunal removing the Council as a party to the proceeding.

[9] At no stage did the Council suggest that the decision of the Tribunal removing it as a party from the adjudication proceeding was not a decision capable of being the subject of an appeal under s 93 of the WHRS. The parties have proceeded on the basis that as the Tribunal’s decision determined Mr and Mrs Osborne’s claim against the Council, it was susceptible to appeal under that provision. The fact that their claim against other parties remained unresolved did not prevent them from pursuing their appeal. A later submission for Mr and Mrs Osborne that they had one claim only, which had not yet been determined, was inconsistent with their appeal against the Tribunal’s determination of their claim against the Council.
[10] Although it was open for them to do so,[5] Mr and Mrs Osborne did not at any time issue a civil proceeding in negligence in the High Court against the Council for issuing the code compliance certificates.[6] By the time of the hearing of their appeal against the Tribunal’s decision in the High Court in April 2011, such a claim was time-barred by ss 393(2) and (3) of the Building Act 2004, which provides that no relief can be granted after 10 years or more from the issue of a code compliance certificate.
[11] In the High Court Woolford J upheld the decisions of both the Tribunal Chair and the Tribunal and dismissed the application for judicial review and the appeal.[7] Applying the plain meaning of the word “built” in s 14(a) of the WHRS Act, in accordance with its context and purpose, Woolford J held that a house was “built” when the building work, that was the physical construction, was completed to the extent required by the building consent issued in respect of that work.[8] This meant that Mr and Mrs Osborne’s house was “built” by 15 August 1996 and their claim lodged some 10 and a half years later on 14 February 2007 was outside the limitation period.[9] While expressing sympathy for the position of Mr and Mrs Osborne,[10] Woolford J was satisfied that the conclusion he reached flowed from a proper construction of the WHRS Act.
[12] Mr and Mrs Osborne then filed an appeal to this Court against Woolford J’s decision dismissing their application for judicial review. At the same time they also sought leave from the High Court to appeal to this Court under s 67 of the Judicature Act against Woolford J’s decision dismissing their appeal.
[13] The judicial review appeal is brought under s 66 of the Judicature Act. There is no dispute that Mr and Mrs Osborne have a right of appeal to this Court under s 66 in respect of Woolford J’s decision on their application for judicial review. That appeal is not before us on the present application for leave to appeal against Woolford J’s decision dismissing their appeal to the High Court. Nor is the question whether the pursuit of that appeal is affected in any way by our decision on the present application.[11]
[14] As required by s 67(2) of the Judicature Act, Mr and Mrs Osborne’s application for leave to appeal to this Court against Woolford J’s decision dismissing their appeal was made in the first instance to the High Court.[12] The application was declined by Woolford J on the ground that in terms of s 95(2)(b) of the WHRS Act his decision on the appeal from the Tribunal was “a final determination” of their claim against the Council and there was therefore no further right of appeal to this Court.[13]
[15] In reaching this conclusion, Woolford J considered that the text and purpose of s 95(2)(b) were clear and unambiguous. He said:

[12] Section 95(2)(b) states that, upon making its substantive decision, the Court’s decision “is a final determination of the claim”. I do not agree with the applicant that “final” should be read to mean “substantive”. First, that is not the ordinary use of the word “final” as commonly understood or as used in equivalent legislative provisions. Secondly, the applicant’s interpretation would render s 95(2)(b) redundant. It is already patent from subs (1) that the Court is making a substantive decision when confirming, modifying, or reversing a determination on appeal. In my view, the phrasing is unambiguous: the decision of the High Court determining an appeal is the end of the matter.

[13] It is not uncommon for legislation to remove a second tier of appeal. The purpose of such provisions is to bring finality to disputes and to avoid the cost and delay, both to the parties and to the court system, that result from further appeal. Parties have had their dispute heard and determined by (at least) two bodies exercising judicial functions. There is no need or right to have their case placed before a third. While the applicants have explained in some length the genesis of the WHRS Act (and s 95 in particular), they have not, in my view, demonstrated why it would offend the purpose of the statute to take s 95(2)(b) at face value and treat a substantive determination of the High Court hearing an appeal from the WHT as final. It seems to me that the text and purpose are aligned: “final” means final.

[16] Woolford J considered that s 67 of the Judicature Act as a general provision did not derogate from s 95(2)(b) as a specific provision.[14] He also found support for his conclusion in judicial comment on equivalent legislative provisions.[15] He respectfully did not agree with another decision of the High Court[16] where leave had been granted to appeal to this Court against a decision of the High Court dismissing an appeal from the Tribunal on the ground that he had had the benefit of further submissions on the issue.[17]
[17] We now turn to consider the question of rights of appeal to this Court generally and then the specific question whether there is an appeal to this Court under the WHRS Act.

Appeals to the Court of Appeal

[18] As this Court is not a court of general jurisdiction, its jurisdiction must be conferred by enactment.[18] The jurisdictional basis for civil appeals from the High Court to this Court is therefore conferred by s 66 and s 67 of the Judicature Act and specific provisions in other statutes expressly conferring further rights of appeal from the High Court, with or without requirements for leave. Significant examples of statutes conferring specific rights of appeal are the Accident Compensation Act 2001,[19] the Employment Relations Act 2000,[20] the Immigration Act 2009,[21] and the Resource Management Act 1991.[22]
[19] Section 66 and s 67 of the Judicature Act read as follows:

66. Court may hear appeals from judgments and orders of the High Court

The Court of Appeal shall have jurisdiction and power to hear and determine appeals from any judgment, decree, or order save as hereinafter mentioned, of the High Court, subject to the provisions of this Act and to such rules and orders for regulating the terms and conditions on which such appeals shall be allowed as may be made pursuant to this Act.

67 Appeals against decisions of High Court on appeal

(1) The decision of the High Court on appeal from an inferior court is final, unless a party, on application, obtains leave to appeal against that decision—

(a) to the Court of Appeal; or

(b) directly to the Supreme Court (in exceptional circumstances as provided for in section 14 of the Supreme Court Act 2003).

(2) An application under subsection (1) for leave to appeal to the Court of Appeal must be made to the High Court or, if the High Court refuses leave, to the Court of Appeal.

(3) An application under subsection (1) for leave to appeal directly to the Supreme Court must be made to the Supreme Court.

(4) If leave to appeal referred to in subsection (1)(a) is obtained, the decision of the Court of Appeal on appeal from the High Court is final unless a party, on application, obtains leave to appeal against that decision to the Supreme Court.

(5) Subsections (1), (3), and (4) are subject to the Supreme Court Act 2003.

[20] The Supreme Court has held in Siemer v Heron that s 66 gives an appeal as of right against decisions of all kinds made in the High Court, including interlocutory decisions, unless the Judicature Act itself or a rule or order made pursuant to the Act creates a restriction.[23] The Supreme Court has also held that s 67 applies only to a substantive determination of an appeal from “an inferior Court” such as the District Court and has no application to any interlocutory decision made by the High Court in the course of such an appeal.[24] Delivering the judgment of the majority of the Supreme Court, Blanchard J said:

[2] Section 66 is a general provision which permits appeals from the High Court to the Court of Appeal as of right, subject to other provisions of the Act and to any rules of court and Orders in Council made pursuant to the Act “regulating” the terms and conditions which are to apply to the appeals. Section 66 has, however, to be read subject to the special provision in s 67 governing appeals against decisions of the High Court on appeal from an “inferior court”, which require leave from the High Court or, if it refuses, from the Court of Appeal.

[21] While emphasising the broad scope of the general right of appeal without leave conferred by s 66, the Supreme Court made it clear that s 66 does not apply to the High Court’s final determination of an appeal from an “inferior court”. In that case the leave requirements of s 67 apply. The Supreme Court therefore recognised that in that sense the specific provisions of s 67 prevailed over the general provisions of s 66. In the words of Woolford J, the general provisions of s 66 did not derogate from the specific provisions of s 67.
[22] The Supreme Court did not, however, address the question that arises in the present case, namely whether a specific provision in another statute precluding or limiting a right of appeal to this Court (by requiring leave to be obtained or limiting the appeal to a question of law) prevails over or excludes the application of the general right of appeal to this Court conferred by s 66 of the Judicature Act or the specific right to apply for leave to appeal against a decision of the High Court on appeal from “an inferior court” conferred by s 67 of the Judicature Act.
[23] As Mr Rainey was disposed to accept in the course of argument before us, there is little doubt that the answer to this question is that legislation other than the Judicature Act may confer, preclude or limit rights of appeal from the High Court (or from other courts such as the Employment Court and the Maori Appellate Court)[25] to this Court. There are three reasons for this answer.
[24] First, in constitutional terms, Parliament has authority to expand or restrict the statutory jurisdiction of this Court to hear and determine appeals because this Court is not a court of general jurisdiction and its jurisdiction must be conferred by an enactment.[26] This does not mean that this Court does not have power on appeal to review the exercise by the High Court of its inherent jurisdiction, a critically important jurisdiction in constitutional terms,[27] and, in doing so, to make any order that the High Court ought to have made in exercising its inherent jurisdiction.[28] It simply means that the jurisdiction of this Court to do so arises from and is limited by statute.[29]
[25] Second, it is a well established principle of statutory interpretation that a specific statutory provision may qualify or override a general statutory provision. This principle is succinctly explained by J F Burrows and R I Carter, Statute Law in New Zealand:[30]

If a general provision is followed by a later special one that is inconsistent with it, the effect of that special statute is to engraft an exception onto the general one. It takes away part of its subject-matter and deals with it specially. The general provision remains intact, for not a word of it is truly repealed or changed, but it is now inapplicable to one of the situations that it previously covered. The second provision is sometimes said to impliedly repeal the first “pro tanto”, as far as its subject-matter extends.

[26] Third, in the present context of civil appeals to this Court, there are many examples of other specific statutes which expressly confer, preclude or limit rights of appeal from the High Court. Examples of statutes expressly conferring further rights of appeal have already been noted.[31]
[27] When Parliament decides in a particular statutory context that there should be no further right of appeal from the High Court, the statute will usually contain a provision simply describing the decision of the High Court as “final”.[32] Examples of statutes containing such provisions are the Broadcasting Act 1989,[33] the Citizenship Act 1977,[34] the Motor Vehicle Sales Act 2003,[35] and the Tuberculosis Act 1948.[36] Under these specific statutory provisions, notwithstanding the general provisions of s 66 and s 67 of the Judicature Act, there is no further right of appeal from the High Court to this Court. A similar approach is usually adopted when Parliament decides that a District Court decision should be “final” and there should be no further right of appeal.[37]
[28] The statutory description of the High Court determination as “final” in s 19 of the Broadcasting Act was held by this Court in Comalco New Zealand Ltd v Television New Zealand Ltd to mean that it was “final”.[38] Delivering the judgment of the Court (Richardson P, Gault, McKay, Henry and Blanchard JJ), Henry J said:[39]

First, s 19 of the Broadcasting Act stipulates that the determination of the High Court on any appeal under s 18 shall be final. Section 66 [of the Judicature Act] cannot possibly apply to provide a right of appeal against the High Court’s final determination of the present s 18 proceeding, and counsel did not contend otherwise. The general provisions of s 66 must be read in the light of the subsequent express and particular provisions of the 1989 legislation. As noted by the author of McGechan on Procedure in his commentary on s 66, the legislative practice is not to graft exceptions on to s 66 but to specify in the particular later legislation any limitation to a right of appeal. There are many examples of this practice. It would therefore be extraordinary, to say the least, if there were to be a right of appeal on an ancillary or interlocutory matter, yet no right of appeal against a substantive decision. The intent of s 19 is clear. In our view the High Court is the Court of last resort.

[29] When Parliament decides in a particular statutory context that there may be a further appeal from the High Court, but only with leave being first obtained, the statute may contain a provision similar to s 67(1) of the Judicature Act stating that the decision of the High Court is “final” unless leave to appeal is obtained from the High Court or the Court of Appeal. Examples of statutes containing such provisions are the Designs Act 1953,[40] the Employment Relations Act 2000,[41] and the Telecommunications Act 2001.[42]
[30] Alternatively, a statute may provide that a decision of a court is “final”, but nonetheless subject to a right of further appeal on a question of law without the need for leave to be obtained. Examples of such statutes are the Immigration Advisers Licensing Act 2007[43] and the Real Estate Agents Act 2002.[44]
[31] In other cases when Parliament decides that there may be an appeal from the High Court the statute may say nothing about the finality of the appeal to the High Court and may simply contain a provision permitting a restricted appeal on a question of law with leave being first obtained. Examples of statutes containing such provisions are the Accident Compensation Act 2001,[45] the Arbitration Act 1966,[46] the Commerce Act 1986,[47] the Human Rights Act 2006,[48] the Immigration Act 2009,[49] the Land Valuation Proceedings Act 1948,[50] the Lawyers and Conveyancers Act 2006,[51] and the Resource Management Act 1991.[52]
[32] For completeness we note that there are also statutes which are silent on the question of a further appeal from the High Court. In such cases the provisions of s 66 or s 67 of the Judicature Act will apply. Examples of such statutes are the Copyright Act 1994[53] and the Trade Marks Act 2002.[54]
[33] There are a number of good reasons why Parliament may decide to preclude further rights of appeal. As Woolford J pointed out in his leave judgment,[55] Parliament may decide that the need and desirability of bringing finality to disputes and the avoidance of further cost and delay, both to the parties and to the court system, outweigh the granting of a further right of appeal. Parliament’s policy decisions recognise the importance of the finality and conclusiveness of judicial decisions.[56]
[34] There are also good reasons why Parliament may decide to limit rights of appeal by requiring leave to be obtained. As the majority of the Supreme Court pointed out in Siemer v Heron in relation to the leave requirement under s 67 of the Judicature Act:

[34] ... The evident policy of s 67 is that when a litigant has had one appeal already against a decision made below the level of the High Court, there should be no second appeal without a screening process ... .

[35] Whether in any particular case a specific statute has precluded a further right of appeal will therefore depend on the language of the particular provision; its text and purpose in the context of the particular statute. We turn to the specific provision in this case in the context of the WHRS Act.

An appeal to the Court of Appeal under the WHRS Act?

[36] In order to determine whether there may be a further appeal, with or without leave, to this Court under the WHRS Act, it is necessary to refer first to the relevant provisions of the Act. The starting point is s 3, the “purpose provision”, which reads:

3 Purpose of this Act

The purpose of this Act is—

(a) to provide owners of dwellinghouses that are leaky buildings with access to speedy, flexible, and cost-effective procedures for the assessment and resolution of claims relating to those buildings; and

(b) to provide for certain matters relating to the provision of a package of financial assistance measures to facilitate the repair of those buildings.

[37] It is clear from s 3 that the principal purpose of the Act is to provide for the speedy and cost-effective resolution of claims relating to leaky buildings. The expression “claim” is defined broadly in s 8 of the Act as follows:

claim means a claim by the owner of a dwellinghouse that the owner believes—

(a) has been penetrated by water because of some aspect of its design, construction, or alteration, or of materials used in its construction or alteration; and

(b) has suffered damage as a consequence of its penetration by water

[38] The Act then contains a series of provisions relating to the lodging of claims and the expeditious assessment, evaluation, adjudication, mediation and determination of claims by the tribunal.[57] In adjudicating on claims, the tribunal has wide and flexible powers of investigation under s 73.
[39] It is noteworthy that the tribunal has power in the course of its adjudication to refer questions of law to the High Court for its opinion.[58] The High Court must give its opinion on the question and the tribunal must then continue the adjudication in accordance with the opinion.[59]
[40] Significantly, for present purposes, the tribunal also has power under s 119 to transfer a claim to a District Court or to the High Court in its ordinary civil jurisdiction if, in the tribunal’s view, it is more appropriate for a court to determine the claim. The reasons for doing so are set out in s 119, namely the claim presents undue complexity or novelty or the subject matter of the claim is related to the subject matter of proceedings that are already before the court.
[41] Similarly, the District Court and the High Court have power to transfer proceedings relating to a claim to adjudication by the tribunal under s 120 either on the application of any party or on the Judge’s own motion. The order may be made, however, only if the parties to the proceedings agree to the transfer or the Judge making the order believes that the transfer is in the best interests of justice.
[42] The Act then contains provisions relating to appeals from determinations of the tribunal. Under s 93 a party to a claim that has been determined by the tribunal may appeal on a question of law or fact that arises from the determination. The appeal must be filed in the District Court if the amount at issue does not exceed $200,000 and in the High Court if the amount at issue exceeds $200,000. Then s 95 provides:

95 Determination of appeal

(1) In its determination of any appeal, the court may do any 1 or more of the following things:

(a) confirm, modify, or reverse the determination or any part of it:

(b) exercise any of the powers that could have been exercised by the tribunal in relation to the claim to which the appeal relates.

(2) A determination under subsection (1)—

(a) has effect as if it were a determination made by the tribunal for the purposes of this Act; and

(b) is a final determination of the claim.

(3) Subsection (2)(b) does not prevent any proceedings between the claimant and respondent to the adjudication to which the appeal relates from being heard and determined at the same time as the appeal.

[43] There is therefore a statutory right of appeal from the tribunal’s determination to the District Court or the High Court, depending on the amount at issue, on a question of law or a question of fact. The court on appeal may confirm, modify or reverse the tribunal’s decision and exercise any of the tribunal’s powers. The court’s determination of the appeal is “a final determination of the claim”.
[44] It is clear from all of these provisions that Parliament has implemented the purpose of the Act by providing for the speedy and cost-effective resolution of claims. At the same time it is recognised that claims may give rise to questions which should be considered by the High Court as questions of law or in its civil jurisdiction because of the claim’s complexity or novelty, in which case there would be a further right of appeal to this Court under s 67 of the Judicature Act. There is also a right of appeal under the WHRS Act to the District Court or the High Court on questions of law or fact. The issue is whether Parliament intended the decision of the court on appeal to be final or whether there could be a second appeal.
[45] In considering this issue, we start with the text of s 95(2)(b). We consider that its meaning is clear and consistent with the provisions in those statutes where Parliament has decided there should be no further appeal from the High Court (or the District Court). A determination of an appeal from the tribunal by the High Court (or by the District Court) is “a final determination of the claim”. The absence of any provision providing for a right of appeal to this Court or any provision similar to s 67(1) of the Judicature Act providing for an appeal with leave reinforces this interpretation.
[46] Contrary to Mr Rainey’s first submission, the “determination” that is “final” is the determination of the appeal referred to in s 95(1), that is the appeal brought under ss 93(1) and 93(2) to the District Court or the High Court on a question of law or fact that arises from the tribunal’s determination. We do not agree with Mr Rainey that the adjective “final” is used to modify the compound “determination of the claim” so that while the “claim”, as defined in the WHRS Act, is at an end, the question of whether there is any appeal from the decision of the High Court is not addressed. In our view Mr Rainey’s argument overlooks the cross-reference in subs (2) to subs (1), which makes it plain that it is the determination of the appeal that is the final determination of the claim. If the “claim” as defined is finally determined by the determination of the appeal to the High Court (or to the District Court), there is no further appeal from the High Court to this Court. We therefore agree with Woolford J’s approach to the text of s 95(2)(b).
[47] Nor do we agree with Mr Rainey’s second submission that his interpretation of s 95(2)(b) is supported by the context of the WHRS Act as a whole and its purpose. The purpose of the WHRS Act is prescribed by s 3: “to provide owners of dwelling houses that are leaky buildings with access to speedy, flexible, and cost-effective procedures for the assessment and resolution of claims relating to those buildings.” Restricting appeals from the tribunal to either the District Court or the High Court under s 93(2) is consistent with that purpose. Allowing further appeals from the District Court to the High Court (and then beyond) and from the High Court to this Court, and possibly with leave to the Supreme Court, would be inconsistent with that purpose. A leaky home owner has a choice between a claim before the Tribunal and a civil proceeding in the District Court or High Court. The former is designed to provide a speedy and cost effective resolution of the claim. The potential for further appeals may delay resolution under the latter.
[48] A leaky home owner who chooses the speedy process under the WHRS Act will run the risk of a final determination of the claim by the District Court or the High Court. The possibility of this outcome has been recognised by the High Court in Hartley v Balemi[60] and Kells v Auckland City Council.[61] While an application for leave to appeal to this Court against a decision of the High Court dismissing an appeal from the Weathertight Homes Tribunal was granted in Barnes v QBE Insurance (International) Ltd,[62] it is apparent that it was assumed that s 67 of the Judicature Act governed the application.[63]
[49] It is true that, as Mr Rainey submitted, under the WHRS Act the tribunal has wide powers of investigation and adjudication and flexible procedures, and that on appeal the High Court may exercise similar powers, but the existence of these powers does not mean that a further right of appeal should be implied because the High Court’s functions are not truly appellate. This Court has similar broad powers on appeal. It may make any orders that the High Court could have made.[64] The ability to exercise such powers does not derogate from the appellate function of the court.
[50] Our conclusion is also supported by the requirement under s 93(1) of the WHRS Act that an appeal from the tribunal be limited to “a question of law or fact” that arises from the tribunal’s determination. It would be surprising if Parliament had intended to permit a second general appeal under s 66 or s 67 of the Judicature Act when the first appeal is limited to specific identified questions. We do not agree with Mr Rainey that the interpretation we prefer requires the reading in of the words “and there shall be no further appeal from that determination”. The addition of those words would have been superfluous in this case. And extra words of that nature were not used in the other statutes which simply describe the decision of the High Court as “final”.
[51] In view of the conclusion we have reached on the basis of the text and purpose of s 95(2)(b) it is, strictly speaking, not necessary to refer to the legislative history of the provision. But, because Mr Rainey submitted that it supported his interpretation, we do so briefly. As Mr Rainey pointed out, the WHRS Act, including s 95, began life as an amendment to the Construction Contracts Bill. The Bill contained a provision (cl 37F(3)(b))[65] that a construction contract adjudication was “not” a final determination of the dispute between the parties to the adjudication under review. When the clause was copied to the WHRS Bill, the word “not” was omitted. On this basis Mr Rainey submitted that the word “final” in s 95(2)(b) was intended to convey the meaning that the substantive matter might not be revisited in another forum, not that the High Court was to be the ultimate forum in a dispute. Mr Rainey also referred to the relevant Cabinet papers which he said showed that the Government intended to emulate appellate oversight akin to decisions from the District Court.
[52] We do not agree that the legislative history of s 95 supports Mr Rainey’s interpretation of the provision. On the contrary, further examination of the legislative history establishes that a deliberate decision was made by Parliament when enacting the WHRS Act to preclude any further appeal from the Court making the “final” determination of the claim. During the Committee stage of the passage of the legislation, Dr Wayne Mapp, then in opposition, proposed an amendment which would have provided for an appeal with leave from the High Court to this Court.[66] The proposal was not accepted and instead s 95(2)(b) was enacted in its present form.[67]
[53] The decision to separate the WHRS Act from the Construction Contracts Act 2002 and the omission of the word “not” from the parallel provisions relating to determinations on appeal reflects the different nature of the adjudication procedures under the two statutes. As Mr Rainey correctly recognised, adjudications under the Construction Contracts Act are designed to provide for the immediate freeing up of funds for contractors and are not intended to decide the underlying issues between the parties.[68] Under the WHRS Act, however, adjudications are intended to create enforceable rights in the substantive dispute and, on appeal, to constitute a final determination of those rights. A party who chooses to pursue a leaky home claim to final determination under the WHRS Act will be estopped from pursuing that claim in the courts once there is a final determination under the WHRS Act.[69]
[54] For completeness we note that in Lee v Ryang,[70] an application for leave to appeal against a decision of the High Court on appeal from the tribunal was declined on the basis that the proposed appeal did not raise a bona fide question of law. On the question of the ability to appeal, Fogarty J expressed the view that there were two further arguments as to the interpretation of s 95(2)(b) of the WHRS Act which had not been squarely placed before Woolford J in the present case and which were worthy of further consideration, namely:

(a) The word “final” had been selected and inserted into s 95(2)(b) to ensure that any appeals from a decision of the High Court from the tribunal are resolved under s 67 of the Judicature Act, not under s 66.

(b) As a matter of policy it is important that the same common law of negligence, which is not certain and which is undergoing considerable development, is applied to all cases. It would be of concern if a case under the WHRS Act could not be taken to the Court of Appeal by leave, should it turn out that the case was decided in the High Court according to an application of the law of negligence found to be in error by the Court of Appeal in a similar case.

[55] We agree that these two arguments are worthy of consideration. Having done so, however, we do not consider that they alter the conclusion which we have reached.
[56] In our view the policy argument is answered by the avenues available for issues relating to the development of the common law of negligence to be considered by the High Court in its civil jurisdiction thereby leaving open the opportunity for appeal to this Court and, with leave, to the Supreme Court. The avenues are:

(a) the ability of a claimant to issue proceedings in the civil jurisdiction of the High Court rather than claiming under the WHRS Act;

(b) the ability of the tribunal to refer questions of law to the High Court for its opinion under s 113; and

(c) the ability of the tribunal to transfer a proceeding to the High Court in its ordinary civil jurisdiction under s 119 in the case of complexity or novelty.

[57] Once the policy argument is answered in this way there is significantly less force in the argument based on the use of the word “final” in both s 92(5)(b) of the WHRS Act and s 67 of the Judicature Act. Furthermore, as the Supreme Court has held in Siemer v Heron, the reference in s 67 to a decision of the High Court being “final” is to distinguish “final” determinations of appeals from interlocutory decisions made in the course of such appeals.[71] If Parliament had intended to draw this distinction in s 92(5)(b), it would not have referred to the determination of the appeal as being “a final determination of the claim” and omitted any reference to a further appeal with leave. In the present case there is a statutory provision which makes it clear that the determination of the High Court is simply “final”.
[58] For all of these reasons therefore we are satisfied that the specific provisions of s 92(5)(b) of the WHRS Act prevail over and exclude both the application of the general right of appeal under s 66 of the Judicature Act and the right to apply for leave to appeal against a decision of the High Court conferred by s 67 of that Act.[72]

Summary

[59] Mr and Mrs Osborne’s claim against the Council under the WHRS Act was finally determined by the High Court judgment of Woolford J delivered on 9 September 2011. They have no second appeal to this Court against that judgment because the specific provisions of s 95(2)(b) of the WHRS Act prevail over the general provisions of s 66 and s 67 of the Judicature Act.
[60] In these circumstances it is unnecessary for us to address the further submissions in support of their application for leave to appeal to this Court based on s 66 and s 67 of the Judicature Act and the issue whether the Weathertight Homes Tribunal is “an inferior court” in the context of s 67.[73] Those provisions do not apply in this case.

Result

[61] The application for leave to appeal is dismissed.
[62] Mr and Mrs Osborne must pay the Council its costs for a standard application on a band A basis together with usual disbursements.

Solicitors:
Rainey Law, Auckland for Applicants
Heaney & Co, Auckland for Respondent

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[1] Osborne v Auckland City Council HC Auckland CIV-2010-404-6582, 9 September 2011 [the appeal judgment].

[2] Osborne v Auckland City Council WHT TRI-2010-100-24, 10 September 2010 [the Tribunal decision].

[3] Osborne v Auckland City Council HC Auckland CIV-2010-404-6582, 30 November 2011 [the leave judgment].
[4] The Tribunal decision at [19]–[34].

[5] Compare Body Corporate 188529 v North Shore City Council [2008] 3 NZLR 479 (HC), Body Corporate 189855 v North Shore City Council HC Auckland CIV-2005-404-5561, 25 July 2008 and North Shore City Council v Body Corporate 188529 (Sunset Terraces) 2010 NZSC 158, [2011] 2 NZLR 289; and McNamara v Malcolm J Lusby Ltd HC Auckland CIV-2006-404-2967, 3 July 2009, rev’d McNamara v Auckland City Council [2012] NZSC 34.

[6] The appeal judgment at [7].

[7] The appeal judgment at [58] and [60]–[62].
[8] At [39] and [56].
[9] At [59].
[10] At [47] and [63].

[11] Compare s 4(1) of the Judicature Amendment Act 1972; Wislang v Medical Council of New Zealand [2002] NZCA 39; [2002] NZAR 573 (CA) at [31]; Reid v Rowley [1977] 2 NZLR 472 (CA); Wislang v Medical Practitioners Disciplinary Tribunal [1974] 1 NZLR 29 (SC) at 44; and Tanadyce Investments Ltd v Commissioner of Inland Revenue [2011] NZSC 158, (2011) 25 NZTC 20–103.
[12] Meates v Taylor [1991] 2 NZLR 173 (CA) at 175.

[13] The leave judgment at [22].

[14] At [14]–[15].

[15] At [17]–[19].

[16] Barnes v QBE Insurance (International) Ltd HC Auckland CIV-2010-404-5651, 13 October 2011.
[17] At [21]–[22].
[18] Siemer v Heron [2011] NZSC 133, [2012] 1 NZLR 309 at [15].
[19] Section 163.
[20] Section 214.
[21] Section 246.
[22] Section 308.
[23] At [2] and [31].
[24] At [2] and [14].

[25] Section 214 of the Employment Relations Act 2000 and s 58A of the Te Ture Whenua Maori Act 1993.
[26] Siemer v Heron above n 18, at [15].

[27] Section 16 of the Judicature Act 1908 and McGechan on Procedure (looseleaf ed, Brookers) at [J16.02]–[J16.05].

[28] Rule 48(4) of the Court of Appeal (Civil) Rules 2005. For the distinction between the inherent jurisdiction and the inherent powers of the court, see Siemer v Solicitor-General [2012] NZCA 188 at [16].
[29] Prior v Parshelf 45 Ltd (in rec) [2000] 1 NZLR 385 (CA) at [32]–[34].

[30] JF Burrows and RI Carter Statute Law in New Zealand (4th ed, LexisNexis, Wellington 2009) at 461.
[31] See above, at [23] and n 25.
[32] Siemer v Heron at [48] per William Young J.
[33] Section 19.
[34] Section 19(9).
[35] Section 72(4).
[36] Section 17(2).

[37] See, for example the Adoption (Intercountry) Act 1997, s 20(8), the Building Act 2004, s 211(4), and the Telecommunications Act 2001, ss141(4) and 147(4).
[38] Comalco New Zealand Ltd v Television New Zealand Ltd [1997] NZAR 145.
[39] At 146.
[40] Section 35.
[41] Sections 193 and 214.
[42] Section 60.
[43] Sections 84 and 85.
[44] Sections 119 and 120.
[45] Section 163.
[46] Schedule 2, cls 5(5) and 5(6).
[47] Section 97.
[48] Section 124.
[49] Section 246.
[50] Section 18A.
[51] Section 254.
[52] Section 308.
[53] Compare s 224.
[54] Compare s 173.
[55] At [13].

[56] See, for a detailed discussion of the importance of finality, KR Handley Spencer Bower and Handley Res Judicata (4th ed, LexisNexis, London, 2009) at [1.10].
[57] Subparts 2 to 7.
[58] Section 113(1).
[59] Section 113(2).
[60] Hartley v Balemi HC Auckland CIV-2006-404-2589, 29 March 2007 at [37].
[61] Kells v Auckland City Council HC Auckland CIV-2008-404-1812, 30 May 2008 at [53].

[62] Barnes v QBE Insurance (International) Ltd HC Auckland CIV-2010-404-5651, 13 October 2011. The appeal has been adjourned by consent until 21 working days after delivery of this judgment.

[63] As Woolford J noted at [21] of his leave judgment.
[64] Rule 48(4) of the Court of Appeal (Civil) Rules.

[65] Construction Contracts Bill 2001 (128–2). Enacted as s 54 of the Construction Contracts Act 2002.

[66] Supplementary Order Paper 2002 (6) Construction Contracts Bill (128-2) cl 50W.

[67] Supplementary Order Paper 2002 (34) Construction Contracts Bill (128-2) cl 100(2)(b), which, when the Bill was divided into the two Acts became s 42(2)(b) of the WHRS Act 2002, which was in turn re-enacted as s 95(2)(b) of the 2006 WHRS Act.

[68] Robert Smellie Progress Payments and Adjudication (LexisNexis, Wellington, 2003) at ch 7 and 8.
[69] Handley, above n 56, at [2.03].

[70] Lee v Ryang HC Auckland CIV-2011-404-2779, 7 December 2011 at [19]–[24]. An application to this Court for leave to appeal is pending.

[71] At [143] and see Murphy v Murphy [1989] 1 NZLR 204 (CA) at 206 per Richardson J and 208 per Bisson J.
[72] Compare Andrew Beck “Litigation” [2012] NZLJ 15 at 18.

[73] Compare Jacobs v Commissioner of Inland Revenue [2012] NZCA 30 and Andrew Beck “Litigation” [2012] NZLJ 15 at 18; and Andrew Beck “Litigation” [2012] NZLJ 91 at 93–94.