He v Bai [2016] NZCA 616 (16 December 2016)

Last Updated: 6 January 2017

IN THE COURT OF APPEAL OF NEW ZEALAND
CA589/2016 [2016] NZCA 616
BETWEEN	JUN HE Appellant
AND	CYNTHIA BAI First Respondent THE TENANCY TRIBUNAL Second Respondent THE DISTRICT COURT AT WAITAKERE Third Respondent

Counsel:	K E Hogan (Counsel Assisting the Court)
Judgment: (On the papers)	16 December 2016 at 1.00 pm

JUDGMENT OF MILLER J

1. The appellant’s application for leave to appeal is to be deemed a notice of appeal.
2. The application to review the Registrar’s decision is declined.

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REASONS

Introduction

[1] On 24 November Mr He filed an application for leave to appeal against a minute of Peters J.^[1] He wishes to appeal the orders made at [3] and [10] of that minute: that the District Court at Waitakere be joined to the proceedings as the third defendant and that the matter be set down for hearing at a one day fixture on 9 February 2017. The Registry mistakenly treated his application for leave as an application for an extension of time under r 29A of the Court of Appeal (Civil) Rules 2005.
[2] On 1 December, realising the error, the Deputy Registrar emailed Mr He informing him that no leave is required to appeal against a judicial review where the appeal is filed in time, so his application was incorrectly accepted for filing. Mr He was informed that if he were to urgently file a notice of appeal, the date on which he filed his erroneous application for leave would remain the filing date on his appeal. He was notified that security for costs was set at $6,600, with the date for compliance being 20 working days later (19 January 2017).
[3] Mr He responded that an application for leave was the correct document to file, citing r 28(b) of the Court of Appeal (Civil) Rules. Rule 28 states that pt 3 of the Rules — the part governing appeals — applies to as-of-right appeals and appeals where leave has been granted, except where otherwise provided. He also cited rr 13, 14 and 15. He also stated that because leave had not yet been granted, security for costs was not due.
[4] On 6 December Mr He filed an application to review the conduct of the Registry in processing his application for leave. He detailed the contact he had with both the Deputy Registrar and the Registrar and applied for relief in the form of immediate acceptance of his application for leave.

The filing issue

[5] Mr He was incorrect in his assertions that all appeals from the High Court to this Court require leave. Section 66 of the Judicature Act 1908 gives this Court jurisdiction to determine appeals from any order of the High Court. This includes interlocutory decisions.^[2] Mr He does not need leave to appeal Peters J’s minute.
[6] Mr He was labouring under an error when he filed the leave application and has not taken the advice of the Registry, which would have remedied that error. He has so far refused to file the correct material. Considering the application that has been filed provides sufficient detail to serve as a notice of appeal, I am willing to give a direction under r 5(2) that Mr He’s application for leave to appeal be treated as a notice of appeal.
[7] I note that the Registry has warned Mr He that his appeal will not be heard before 9 February 2017, the date on which the substantive judicial review will be heard in the High Court. Mr He should be aware that the filing of an appeal does not mean that the High Court fixture will be adjourned. If he wants an adjournment he must apply to the High Court for one.

The application for review of Registrar’s decision

[8] Rule 7(2) of the Rules allows a judge to review any decision of the Registrar under these rules. I interpret Mr He’s “request for review of the conduct of the Court of Appeal Registry’s processing of his application for leave” as an application to review the decision by the Deputy Registrar to require he file a notice of appeal rather than an application for leave.
[9] I have reviewed the decision, such as it is, made by the Registry. As will already be clear, I agree there is no requirement for leave to appeal an interlocutory order in a judicial review proceeding. The Deputy Registrar correctly identified and applied the relevant Rules. She provided Mr He with ample opportunity to correct the error, recognising that the Registry itself had made an error in allowing him to file the incorrect document.
[10] I conclude the Deputy Registrar’s decision was correct. The application to review the decision is accordingly declined.

Security for costs

[11] As noted above, Mr He mistakenly stated that security for costs is not yet owing because no substantive appeal has yet been filed. As I am treating his application for leave as a notice of appeal, security for costs — set at $6,600 in accordance with r 35 of the Rules — is due. I am willing to give Mr He a two-week extension from his former deadline to recognise the time taken to release this decision. That means it is required to be paid by 2 February 2017.

Solicitors:
Crown Law Office, Auckland for Second and Third Respondents

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^[1] He v Bai HC Auckland CIV-2015-404-2943, 27 October 2016 (minute of Peters J).

^[2] Siemer v Heron [2011] NZSC 133, [2012] 1 NZLR 309 at [31].