Edwards v District Court, Dunedin [2014] NZCA 276 (26 June 2014)

Last Updated: 4 July 2014

IN THE COURT OF APPEAL OF NEW ZEALAND
CA851/2013 [2014] NZCA 276
BETWEEN	JOHN ANTHONY EDWARDS Appellant
AND	THE DISTRICT COURT, DUNEDIN First Respondent THE DISTRICT COURT, OAMARU Second Respondent WAITAKI DISTRICT COUNCIL Third Respondent

Hearing:	16 June 2014
Court:	Ellen France, Venning and Mallon JJ
Counsel:	Appellant in person P G Hope for Third Respondent
Judgment:	26 June 2014 at 3 pm

JUDGMENT OF THE COURT

1. The appeal is dismissed.
2. The appellant must pay the respondent costs for a standard appeal on a band A basis uplifted by 50 per cent together with disbursements to include reasonable travel and accommodation costs of counsel as fixed by the Registrar.

____________________________________________________________________

REASONS OF THE COURT

(Given by Venning J)

[1] John Edwards appeals from a decision of Panckhurst J dismissing his application for judicial review of decisions or directions made by District Court Judges sitting in the District Courts at Dunedin and Oamaru.^[1]
[2] As they did in the High Court the first and second respondents abide the decision of the Court. The third respondent opposes the appeal.

Background to the District Court proceedings

[3] We take the summary of the background to the District Court proceedings from Panckhurst J’s decision:^[2]

[4] In May 2009 the Council filed a claim in the District Court seeking judgment for unpaid rates, penalties and interest relating to two properties in Oamaru of which Mr Edwards is the registered owner. The arrears had accrued over the six previous years. Mr Edwards filed a statement of defence by which he challenged that the arrears were payable.

[5] On 21 September 2009 the proceeding was transferred from Oamaru to the Dunedin District Court. On 29 October 2009 Judge Kellar presided at a settlement conference. Settlement of the case did not result. Administrative directions were then made for the case to be set down for hearing and a fixture was allocated for 1 March 2010. On 27 November 2009 Mr Edwards advised the Court that there was “no possibility whatever”, that he would be in a position to proceed to trial on the allocated date. This was not accepted, and normal pre-trial directions were made for the exchange of evidence and the like.

[6] Judge Doherty was to preside at the substantive hearing in Dunedin on 1 March 2010. One working day prior to the hearing Mr Edwards filed an interlocutory application raising nine concerns about previous steps in the proceeding. These arose from a scheduling conference in September 2009, the settlement conference and exchanges surrounding the allocation of, and continuation with, the 1 March 2010 hearing date. The Judge heard submissions concerning this application at the outset. He delivered a brief oral judgment beginning with the observation that leave was required to bring the application because the case had been set down for hearing. Judge Doherty then noted that the application sought to re-litigate past matters about which Mr Edwards was dissatisfied. He found:

At this late stage, and bearing in mind the nature of the applications with the matter having been set down, I decline leave for the filing of the notice of interlocutory application and the matter ought to proceed today.

[7] Mr Edwards then applied for an adjournment of the case. Following inquiry of counsel, Mr Hope, and Mr Edwards the Judge expressed himself satisfied that there had been adequate time for an exchange of briefs of evidence and that he could see no basis for the concern that Mr Edwards would be prejudiced in the conduct of his defence. He noted that there had been a settlement conference and added “there can be no sense of complaint of ambush”. The application for an adjournment was denied.

[8] At this point Mr Edwards withdrew. Correctly, Judge Doherty noted the need for formal proof of the claim, and a council officer gave evidence to establish Mr Edwards’ ownership of the rateable land and the passing of Council resolutions by which rates were struck for each of the six relevant years. Further, the evidence established that rates assessments had been sent to Mr Edwards, but no payment had resulted. Accordingly, the Judge entered judgment for $9,871.55 together with interest from the filing of the claim.

[9] Costs were reserved, since the Council wished to seek increased costs on account of what the Judge termed the “many twists and turns” in the procedural history of the case. On 9 April 2010 Judge Doherty delivered a costs decision. The Council had filed submissions, whereas Mr Edwards declined to do so as he was by then intent on an appeal. Indemnity costs were sought, but the Judge concluded that while Mr Edwards conduct “might be seen as attempting to prolong the inevitable” it was not “so egregious or out of the ordinary” as to justify indemnity costs. Instead costs on scale 1A were awarded. These, with Court fees and disbursements, totalled $4,379.20.

Background to the High Court proceedings

[4] Mr Edwards filed an appeal against the decision in the District Court. However, as he failed to pay security for costs, the appeal was dismissed. In January 2013, almost three years after the District Court decision, Mr Edwards filed the application for judicial review in the High Court at Dunedin against the decisions of the District Court.
[5] At a directions hearing convened by teleconference, Chisholm J made a number of directions including the joinder of the Council as third respondent. In February 2013 Whata J determined an application concerning cross-examination of a deponent and directed the issues for determination be agreed and recorded in a joint memorandum.^[3] As Panckhurst J noted:^[4]

In two respects the directions were in error; a misunderstanding concerning the identity of the deponent to be cross-examined and Mr Edwards was omitted as a party to help define the issues in the case.

[6] Mr Edwards filed an appeal to this Court from Whata J’s decision. Made aware of the errors Whata J recalled the judgment and addressed them. Mr Edwards’ appeal was deemed to have been abandoned when a case on appeal was not filed within three months.^[5] This Court then declined Mr Edwards’ application for an extension of time.^[6] Mr Edwards’ subsequent application to the Supreme Court for leave to appeal was dismissed with costs.^[7]

The High Court decision

[7] In his judgment Panckhurst J recorded that as best he could tell the first grounds of review were that a Registrar convened a settlement conference without Mr Edwards’ input and complaints concerning the settlement conference itself.^[8] The Judge considered that neither of those complaints were relevant:^[9]

The rights and wrongs of the settlement conference, and how it eventuated, did not influence the final decisions in the District Court, namely that Mr Edwards was liable for the rates arrears and costs.

[8] In relation to the substantive District Court decision Panckhurst J identified two possible grounds of review, namely that insufficient notice was given of the substantive hearing on 1 March 2010 and that Judge Doherty should have dealt with Mr Edwards’ interlocutory application before he gave judgment.^[10]
[9] Panckhurst J rejected both of those grounds. He accepted that Mr Edwards’ interlocutory application was dismissed by Judge Doherty on the basis it was a delaying tactic. He concluded there was nothing inappropriate in relation to the manner in which the case was handled in the District Court.
[10] Panckhurst J then identified what he considered to be Mr Edwards’ underlying concern about the rates arrears, namely the actions of an immediate neighbour to Mr Edwards’ land.^[11] The Judge considered that to be irrelevant to the judicial review application. He dismissed the application for judicial review.
[11] In addition the Judge went on to make the following administrative direction:

[29] In light of the difficulties with the statement of claim in this proceeding and the history of the District Court claim and of this proceeding, I make an administrative direction that if a Pt 18 proceeding is filed by Mr Edwards, as he indicated, it be received for filing only with the leave of a Judge. If such a proceeding has already been filed the direction cannot apply.

“Pt 18” is a reference to pt 18 of the High Court Rules.

[12] Subsequently, on 10 February 2014, Panckhurst J issued a further judgment in which he fixed costs and declined Mr Edwards leave to file a further proceeding concerning the same subject matter raised in the application for judicial review.^[12]

The appeal

[13] In the course of the written abridgement of his oral submissions Mr Edwards stated that one question alone remains to be addressed on this appeal:

In the District Court hearing conducted at Oamaru on 1st March 2010, was Judge Doherty lawfully entitled, for the reason(s) he gave, to refuse to address my interlocutory application for directions?

[14] Despite that encouraging start, Mr Edwards raised a number of other issues during the course of the hearing before the Court. As best we can, we have identified the following issues as arising from Mr Edwards’ documents and submissions:

• (a) A procedural complaint as to the settlement conference in the District Court, which Mr Edwards argued led to the proceedings being a nullity.
• (b) Judge Doherty’s treatment of Mr Edwards’ interlocutory application.
• (c) Judge Doherty and Panckhurst J’s finding that Mr Edwards had applied for an adjournment.
• (d) The involvement of the Waitaki District Council as a third respondent in the judicial review proceedings.
• (e) Whether Panckhurst J had jurisdiction to make the order he made in relation to the pt 18 proceeding and whether the proceeding which Mr Edwards purported to file was subject to that order.

Decision

The settlement conference

[15] Mr Edwards submitted that District Courts Rules 1992 (DCR 1992) applied to the District Court proceedings and that there was no jurisdiction in the Rules for a settlement conference so that the procedure followed in the District Court was a legal nullity.
[16] We understood Mr Hope to accept that as the District Court proceedings were commenced on 8 May 2009, before the District Courts Rules 2009 (DCR 2009) came into effect on 1 November 2009, the proceedings should have been conducted under the provisions of the DCR 1992.^[13]
[17] However, Mr Edwards is incorrect in his submission that there was no jurisdiction for a settlement conference under the DCR 1992. Rule 438 of the DCR 1992 provided that:

438 Judge may assist in negotiations for settlement

(1) A Judge may, at any time before the hearing commences, convene a conference in chambers of the parties for the purpose of negotiating for a settlement of the proceeding or of any issue, and may assist in the negotiations; ...

[18] While we acknowledge that it appears the Registrar of the District Court directed the settlement conference at the request of counsel for the Council and that Mr Edwards did not join in the request for the allocation of a settlement conference, Mr Edwards attended the conference. The time to object to the jurisdiction for the conference was at the conference. Further, r 5 of the DCR 1992 provides that a failure to comply with the requirements of the Rules is treated as an irregularity and does not nullify the proceedings or any steps taken in the proceedings.
[19] The short point is, as Panckhurst J found, that neither Mr Edwards’ complaint about the jurisdiction for the settlement conference nor the conduct of the conference were relevant once the conference concluded without a resolution. The outcome of the conference and how it came to be held in the first place did not influence the final decision in the District Court that Mr Edwards was liable for the rates arrears, penalties and costs.

Mr Edwards’ interlocutory application

[20] As matters were not resolved at the settlement conference the Registrar then gave notice on 17 November 2009 of the substantive fixture for the case on 1 March 2010 at 10.00 am in the District Court at Dunedin. In a letter of 27 November 2009 Mr Edwards wrote to the Registrar noting he was opposed to Judge Kellar’s further involvement and stating:

... I cannot see any possibility whatever that I will be in a position to proceed to trial on 1 March 2010.

[21] Then, in a memorandum for a pre-trial conference on 9 December 2009, Mr Edwards sought to have the directions for the fixture on 1 March 2010 and for the conference callover on 9 December set aside.
[22] Mr Edwards’ continued communications with the Registry in the early part of 2010 show that he was aware the fixture was to proceed on 1 March 2010. For example, on 10 February 2010 Mr Edwards wrote and confirmed that he had received a further notice from the Court dated 27 January 2010 confirming the fixture on 1 March at 10.00 am.
[23] Mr Edwards then filed the notice of interlocutory application ex parte dated 26 February 2010. In it Mr Edwards sought the following orders:

Order 01: That there was neither legal or equitable basis for Oamaru District Court Registrar Peter Bond to arbitrarily and unilaterally determine the outcome of a timetabling conference eighteen minutes prior to the time notified to the defendant by notice dated 17 August 2009, namely 2.15 pm on 21 September 2009.

Order 02: That the “conferences” which the defendant was required to attend on 21 September and 29 October 2009 be reheard, with the proviso that he be directed to the precise basis of whatever rules he is obliged to observe.

Order 03: That His Honour Judge Kellar be invited to waive privilege in respect of the “settlement conference” which he presided over on 29 October 2009.

Order 04: That the plaintiff be enjoined from engaging in opportunistic tactics which are inimical to the principles espoused by the rules.

Order 05: That the oath be administered to the defendant and he be required to attest to his claimed facts.

Order 06: That the offer in settlement made by defendant on 21 September 2009 to the plaintiff via its Chief Financial Officer Mr Paul Hope was properly made and should have been neither abrogated or misrepresented by plaintiff’s counsel.

Order 07: That the defendant as property owner was entitled to request an audience with the plaintiff council with a view to seeking settlement, and he was entitled to receive a response to that request.

Order 08: The defendant is entitled, if he so chooses, to mount an action for recovery of his land in terms of Part 13 of the High Court Rules, Judicature Amendment Act 2008.

[24] At the hearing on 1 March 2010 Judge Doherty advised Mr Edwards that he needed leave to bring the application for the orders because the matter had been set down for a hearing. The Judge then recorded the procedural background to the proceedings in the District Court and noted that the applications in the notice seemed to be an attempt to relitigate matters which were passed.^[14] Given the stage the proceedings had reached he declined leave for the filing of the notice of interlocutory application and directed the substantive matter proceed before him.^[15]
[25] Mr Edwards submits that Panckhurst J was wrong to conclude, after noting Mr Edwards’ contention that the DCR 1992 applied rather than the DCR 2009:^[16]

... whichever Rules applied interlocutory applications may only be filed with leave once a case has been set down for hearing. It follows that there was nothing inappropriate in relation to the manner in which the case was handled in the District Court.

[26] Mr Edwards drew our attention to r 431 of the DCR 1992, which provides an exception to the rule that once a proceeding has been set down for hearing no interlocutory application shall be made without leave of the Court. Rule 431(1) includes the following exemption:

... except an application for such leave or an application for directions under rule 434.

[27] Rule 434(1) of the DCR 1992 provides:

434 Directions affecting the hearing

(1) At any time after the proceeding is set down for hearing, any party may apply to the Court for an order for directions affecting the hearing, stating the directions sought.

[28] Mr Edwards submitted that the orders he sought were in the nature of an application under r 434, namely directions affecting the hearing. However, having reviewed the orders sought by Mr Edwards we are satisfied that Judge Doherty and Panckhurst J were right to categorise the orders sought as not being in the nature of directions affecting the hearing. The orders sought were an attempt by Mr Edwards to complain about and revisit earlier aspects of the District Court proceeding. Leave was required for the application. Leave was properly declined by Judge Doherty as confirmed by Panckhurst J.
[29] In summary, and returning to the one question that Mr Edwards indicated needed to be addressed on this appeal, the answer is that Judge Doherty was entitled, for the reasons he gave, to refuse to address the interlocutory application that Mr Edwards had filed.

The adjournment issue

[30] In his interlocutory and adjournment decision on 1 March 2010 in the District Court Judge Doherty went on to record:

[7] Mr Edwards also makes application for an adjournment of the case. He says that he is not ready to proceed because the second notice provided for exchanges of briefs of evidence which would clearly not be appropriate in the sense that they allow 21 clear days after the receipt of the plaintiff’s briefs for him to file his own briefs in reply.

[31] The Judge then noted Mr Hope’s advice that his firm had faxed the brief(s) of evidence to the solicitors then purporting to act for Mr Edwards on 11 February 2010. The Judge was satisfied that Mr Edwards had notice of the hearing and was aware of the issues. The matters had been before the parties for some time. There could be no complaint of ambush. Accordingly he declined the application for adjournment.
[32] Panckhurst J characterised this aspect of the matter as Mr Edwards complaining insufficient notice was given of the substantive hearing on 1 March 2010 and concluded that, for the reasons explained by Judge Doherty, the complaint was not valid.
[33] Mr Edwards complained before us that he had never asked for an adjournment and both Judges were wrong to characterise his actions as a request for an adjournment.
[34] From the record in Judge Doherty’s decision it appears Mr Edwards did make an application for adjournment. But even in the absence of a formal request by Mr Edwards for an adjournment, the Judge was entitled to treat Mr Edwards’ correspondence and stance before the Court as an application for adjournment. To treat it that way was entirely consistent with Mr Edwards’ earlier correspondence to the Registrar complaining that he would not be in a position to present his case or be ready for a hearing on 1 March 2010.
[35] In dealing with it as an application for adjournment Judge Doherty acted entirely appropriately. For the reasons given by him and as confirmed by Panckhurst J, Judge Doherty was quite right to decline to adjourn or put off the substantive hearing.

The involvement of the Waitaki District Council as a third respondent

[36] Mr Edwards also criticised the joinder of the Council as a respondent to the judicial review proceedings. He submitted the respondents should be restricted to the District Courts whose decisions were in issue. At the directions conference in the judicial review proceedings Chisholm J had directed the joinder of the Council as a respondent. That was undoubtedly correct given that the Council was a party which had a direct interest in the outcome of the judicial review proceedings.^[17] Mr Edwards sought to have declared as a nullity the District Court proceedings which led to the judgment in the Council’s favour against Mr Edwards.

Summary – judicial review

[37] The application for judicial review insofar as it sought to challenge the process adopted in the District Court was bound to fail. Panckhurst J was right to conclude there was nothing inappropriate in relation to the manner in which the case was handled in the District Court.

Panckhurst J’s administrative direction

[38] Mr Edwards also took issue with the administrative direction that Panckhurst J went on to make that the pt 18 proceeding that Mr Edwards had flagged be received for filing only with the leave of a judge. Mr Edwards submitted that he had in fact filed a pt 18 proceeding in the Dunedin High Court by post on 26 August 2013 but the pleadings had been rejected by the Registry on 4 September 2013 and returned to him on the basis that “the concessionary rate does not apply in this action”.
[39] The direction raises two issues. First the jurisdiction for the order the Judge made and second, whether or not the pt 18 proceeding had been filed at the time the Judge made the direction.
[40] As to jurisdiction, in the absence of any substantive argument on the point we are prepared to accept for present purposes that the Judge was exercising the inherent jurisdiction which the High Court has to control its own powers and processes to avoid an abuse of such processes. The proposed proceedings, which were clearly an attempt to relitigate issues which had already been determined in the District Court, then subject to an appeal (which had not been pursued) and then judicial review, were prima facie an abuse. We add that it is not at all clear that the proposed proceedings would be the type of proceeding that comes within pt 18 of the High Court Rules.
[41] As to the second issue, whether Mr Edwards had filed the proceedings prior to the Judge’s order, on the information before the Court we accept Mr Edwards had lodged the proceedings before the direction was made. But the proceedings were apparently returned to him as the fee he had presented was inadequate.
[42] We note that the High Court Rules provide that:^[18]

to file, in relation to any document, means to lodge the document in the form required by these rules in, or to send it by post or electronically in accordance with these rules to, the proper registry of the court, together with the fee (if any) payable for filing it.

So the filing of a document requires not only the lodging of the document but the payment of the appropriate fee. Although Mr Edwards believes otherwise, on the information currently before the Court it appears that did not occur in this case.

Result

[43] The appeal is without merit. It is dismissed.

Costs

[44] Mr Hope sought costs on an indemnity basis, noting the expense that the Council’s ratepayers had been put to. We note that in the High Court Panckhurst J considered that the threshold for indemnity or increased costs was not quite met and awarded costs on a 2B basis.^[19]
[45] In the present case we do not consider the threshold for indemnity costs is reached but, given the clear judgment of Panckhurst J and his note that the threshold for increased costs had “not quite” been met Mr Edwards was on notice and should have been aware that if this appeal was unsuccessful he was likely to face a request for indemnity or increased costs. We are satisfied that increased costs are appropriate in this case. Mr Edwards has contributed unnecessarily to the time and expense occupied by the Council in responding to this appeal by pursuing arguments that lacked merit. In addition Mr Edwards’ appeal documents, the issues, submissions and his written abridgement of oral submissions are all unnecessarily discursive.
[46] The appellant must pay the respondent costs for a standard appeal on a band A basis uplifted by 50 per cent together with disbursements to include reasonable travel and accommodation costs of counsel as fixed by the Registrar.

Solicitors:
Crown Law Office, Wellington for First and Second Respondents
Hope & Associates Legal, Oamaru for Third Respondent

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^[1] Edwards v District Court, Dunedin [2013] NZHC 3049.

^[2] In doing so we record that Mr Edwards did not necessarily accept Panckhurst J’s summary was accurate. In particular he does not accept he sought an adjournment of the hearing in the District Court.

^[3] Edwards v District Court, Dunedin [2013] NZHC 571.

^[4] Edwards v District Court, Dunedin, above n 1, at [13].

^[5] Court of Appeal (Civil) Rules 2005, r 43.

^[6] Edwards v District Court, Dunedin [2013] NZCA 382.

^[7] Edwards v District Court, Dunedin [2013] NZSC 124.

^[8] At [20].

^[9] At [21].

^[10] At [22].

^[11] At [24].

^[12] Edwards v District Court, Dunedin [2014] NZHC 94.

^[13] District Courts Rules 2009, r 17.2.2.

^[14] Waitaki District Council v Edwards DC Dunedin CIV-2009-045-63, 1 March 2010 [interlocutory and adjournment decision] at [3].

^[15] At [6].

^[16] Edwards v District Court, Dunedin, above n 1, at [23].

^[17] Judicature Amendment Act 1972, s 10(2)(b).

^[18] Rule 1.3(1).

^[19] Edwards v District Court, Dunedin, above n 12, at [4].