|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Court of Appeal of New Zealand |
Last Updated: 4 December 2013
|
|
|
|
IN THE COURT OF APPEAL OF NEW ZEALAND
|
|
|
BETWEEN
|
Appellant |
|
AND
|
First Respondent
MICHAEL STIASSNY
Second Respondent
RUSSELL MCVEAGH
Third Respondent
FORCE 1 SECURITY
Fourth Respondent
SIONE
TANAKI
Fifth Respondent
PIO SAMI
Sixth Respondent |
JUDGMENT OF THE COURT
The appeal is dismissed for want of
jurisdiction.
____________________________________________________________________
REASONS OF THE COURT
(Given by Wild
J)
Introduction
[1] We need to decide whether this Court has jurisdiction to hear this appeal, which the appellant filed on 5 July, with an amended notice of appeal on 10 October.
[2] The respondents to the appeal assert the Court lacks jurisdiction.
What happened in the High Court
[3] On 18 April, in the High Court at Auckland, Associate Judge Sargisson heard an application by the respondents (the defendants in the High Court) to strike out the statement of claim the appellant (plaintiff in the High Court) had filed in a proceeding he brought on 5 November 2012.[1]
[4] Toward the start of the judgment she gave on 28 June the Associate Judge recorded the following:
[4] At the commencement of the hearing, Mr Siemer raised as a preliminary issue that the defendants’ strike out applications should be heard in open court and not in chambers to allow members of the public to attend should they so choose.
[5] After discussion with Mr Siemer and counsel I directed that the hearing proceed in open court for chambers to accommodate, as far as I am able within the limits of an Associate Judge’s jurisdiction, Mr Siemer’s request that the hearing be in open court. The direction was made with the consent of all of the defendants’ counsel.
[6] Mr Siemer has asked that I record that the above direction was made after 10 am. As I understand his concern, any members of the public who may have wished to attend the hearing would have left by the time the decision to sit in open court for chambers had been made.
[7] It is also appropriate to record that I am exercising the court’s chambers’ jurisdiction in dealing with the present applications. The parties’ rights of review are not therefore intended to be affected.
[5] In her judgment the Associate Judge struck out the appellant’s statement of claim “as it is an abuse of the process of the Court”.[2]
[6] On 3 July the appellant applied under s 29P(1) of the Judicature Act 1908 for a review of the decision. Section 26P provides:
26P Review of, or appeals against, decisions of Associate Judges
(1) Any party to any proceedings who is affected by any order or decision made by an Associate Judge in chambers may apply to the court to review that order or decision and, where a party so applies in accordance with the High Court Rules, the court—
(a) must review the order or decision in accordance with the High Court Rules; and
(b) may make such order as may be just.
...
(2) Any party to any proceedings may appeal to the Court of Appeal against any order or decision of an Associate Judge in those proceedings (other than an order or decision made in chambers).
[7] As we have mentioned the appellant then, on 5 July, filed this appeal.
Respondents’ position
[8] The respondents’ argument is this:
- (a) The Associate Judge was exercising the jurisdiction of a judge in chambers, provided for in s 26J of the Judicature Act.
- (b) The respondents’ application to strike out the appellant’s statement of claim was interlocutory in nature.
- (c) Any such application must be heard in chambers unless a judge otherwise directs: r 7.34 of the High Court Rules.
- (d) The Associate Judge could not, and did not, direct that the application be heard other than in chambers. The direction she recorded in [5] of her judgment is not such a direction. It is a direction that the hearing proceed “in open court for chambers”, so that members of the public could attend the hearing if they wished.
- (e) Accordingly, the appellant’s only avenue of challenge to the judgment is by way of an application for review under s 29P(1) – the very application he in fact filed on 3 July.[3]
Appellant’s position
[9] The appellant takes two points:
- (a) The Associate Judge did, as she records in [5] of her judgment, direct that the hearing proceed in open court. Section 26IA of the Judicature Act gave her the power to give that direction. That section provides:
26IA Ancillary powers of Associate Judge
(1) Subject to subsection (2) of this section, an Associate Judge shall have, in all proceedings (including proceedings on an interlocutory application) properly before the Associate Judge, jurisdiction to make any order or to exercise any authority or jurisdiction that might be made or exercised by a Judge of the High Court.
(b) As the Associate Judge’s decision was one made in open court and not in chambers, s 26P(2) gave the appellant a right to appeal to this Court against that decision.
Decision
[10] The position contended for by the respondents is correct, and the points advanced by the appellant incorrect.
[11] That is succinctly demonstrated by the following passage from this Court’s judgment in Rewi v Attorney-General:[4]
[5] We are satisfied this Court has no jurisdiction to consider this appeal. In striking out the proceedings, the Associate Judge was exercising the powers of a Judge sitting in Chambers under s 26J of the Judicature Act 1908. The application to strike out the proceedings was interlocutory in nature. Any such application must be heard in Chambers unless a Judge otherwise directs. There is no suggestion that the Judge directed this matter be heard other than in Chambers. ...
[6] By virtue of s 26P(2) of the Judicature Act 1908 there is no right of appeal from a decision made in Chambers. If the applicant wished to challenge the decision of the Associate Judge her only recourse was to seek a review of the decision under s 26P(1). ...
(Footnotes omitted.)
[12] That an application to strike out a statement of claim (and thus a proceeding) is an interlocutory one has been firmly established at least since this Court’s judgment in Talyancich v Index Developments Ltd:[5] “Interlocutory application” and “interlocutory order” are defined in r 1.3 of the High Court Rules, the latter as including “an order striking out the whole or part of a pleading”.
[13] Contrary to the appellant’s submission, the Associate Judge did not hear the respondents’ strike out application in open court. She directed that the hearing proceed “in open court for chambers”. She immediately recorded that that was as far as she could go to accommodate the appellant’s request “within the limits of an Associate Judge’s jurisdiction”. That was a reference to the fact that an (open) court hearing of an interlocutory application is not within the jurisdiction of an Associate Judge, a point correctly noted by Associate Judge Bell in Mu v Body Corporate 31241.[6]
[14] In Talyancich this Court made it clear that exercise by an Associate Judge (formerly called a Master) of the s 26J jurisdiction is not altered or affected by the fact that the Associate Judge allows the public access to the courtroom:[7]
... Where a Master is exercising the powers of a Judge sitting in Chambers pursuant to s 26J of the Act, the matter should be dealt with in Chambers and the decision will then be subject to review under s 26P(1). If such a matter is in fact dealt with by a Master sitting robed in open Court, the Master is still exercising a personal jurisdiction conferred on Masters by s 26J, being a jurisdiction of a Judge sitting in Chambers, and is not exercising a jurisdiction or power of the Court under s 26I. The order is, therefore, an order made in Chambers for the purposes of s 26P regardless of matters of form such as the use of a courtroom, the wearing of robes, or the allowing of access to the public. ...
[15] Although the phrase is seldom heard nowadays, “open court for chambers” is a precise description of a court exercising its chambers jurisdiction, but doing so in a courtroom which the court has directed be open to members of the public. What the Associate Judge said in [7] of her judgment put beyond any doubt that she was exercising her chambers jurisdiction.
Non-appearance and recusal
[16] This judgment records “no appearance for appellant”. The hearing of the jurisdiction issue decided by this judgment was scheduled for 9.15 am on 26 November. Earlier that morning the appellant advised the Court by cellphone that he would not be able to get to this Court’s Hearing Centre in Auckland by 9.15 am, because of the blocked state of the Northern Motorway. Accordingly, when the Court convened at 9.15 am, after checking with counsel for the respondents, the Court adjourned the hearing until 3 pm. When advised of this the appellant said 3 pm did not suit him. The Court, in turn, confirmed to the appellant that the matter would be heard at 3 pm and invited the appellant, if he could not be present, to put any further submissions, in response to those of the respondents, in writing. The appellant did that in a further memorandum which was available to the Court and counsel for the respondents at the 3 pm hearing.
[17] Although not express in that further memorandum, the Court interpreted comments by the appellant as an application that Wild and Miller JJ recuse themselves. The Court is of the view that no proper grounds for recusal exist, and accordingly the recusal application is dismissed.
Result
[18] The Court lacks jurisdiction to hear this appeal. It is accordingly dismissed.
Costs
[19] The appellant is to pay the respondents’ costs of the jurisdiction hearing, as for a standard application on a band A basis with usual disbursements. Given their separate representation, we make three separate awards of costs, in favour of the first and third respondents, the second respondent, and the fourth to sixth respondents respectively.
Solicitors:
Bell Gully,
Auckland for First and Third Respondents
Lee Salmon Long, Auckland for
Second Respondent
Swarbrick Beck Mackinnon, Auckland for Fourth, Fifth and
Sixth Respondents
[1] Siemer v Heron & Ors HC Auckland CIV-2012-404-6587.
[2] Siemer v Heron & Ors [2013] NZHC 1604 at [69].
[3] We were informed that application stands adjourned, awaiting the result of this judgment.
[4] Rewi v Attorney-General [2010] NZCA 328.
[5] Talyancich v Index Developments Ltd [1992] 3 NZLR 28 at 36.
[6] Mu v Body Corporate 31241 [2012] NZHC 22 at [4].
[7] At 36–37.
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/cases/NZCA/2013/599.html