ARSHAD MAHMOOD CHATHA V THE ATTORNEY-GENERAL AND ORS CA CA739/2008

ARSHAD MAHMOOD CHATHA V THE ATTORNEY-GENERAL AND ORS CA CA739/2008 15 December 2009IN THE COURT OF APPEAL OF NEW ZEALAND CA739/2008 [2009] NZCA 594BETWEEN ARSHAD MAHMOOD CHATHA Appellant AND THE ATTORNEY-GENERAL First Respondent AND LESLIE STRINGER Second Respondent AND THE NEW ZEALAND POLICE Third Respondent AND LAND TRANSPORT NEW ZEALAND Fourth Respondent AND GRAHAM TOPPING Fifth Respondent AND JOHN HUTTON Sixth Respondent Hearing: 1 December 2009 Court: William Young P, Chambers and Ellen France JJ Counsel: Appellant in person J K Gorman for 1st, 3rd, 4th and 6th Respondents No appearance for 2nd Respondent D G Dewar for 5th Respondent Judgment: 15 December 2009 at 3 pmJUDGMENT OF THE COURTA The appeal is dismissed for want of jurisdiction. B No order as to costs.REASONS OF THE COURT(Given by Ellen France J)Introduction[1] Mr Chatha seeks various procedural orders. His applications are made in the context of an appeal against decisions culminating in the strike out by the High Court of the majority of the causes of action in these proceedings. There is, however, an initial question as to whether Mr Chatha has a right of appeal to this Court or whether he first needs to seek leave to appeal from the High Court. [2] As will be seen, we have concluded Mr Chatha has filed his appeal in the wrong court. If he wishes to pursue this matter, he will first have to seek leave to appeal out of time in the High Court.Chronology[3] We need to briefly set out the events leading up to the applications currently before the Court. [4] In October 2006, Mr Chatha began proceedings against the six respondents. His claim included allegations of malicious prosecution and misfeasance in public office. All but the third respondent applied to have the proceedings struck out. [5] In a decision delivered on 2 May 2008, Associate Judge Gendall struck out the causes of action except those relating to the third respondent: HC PMN CIV 2006-454-868. Mr Chatha was ordered to give security for costs to the third respondent in the sum of $20,000. Security for costs has not been paid. [6] Mr Chatha applied for a review of Associate Judge Gendall's decision on 9 May 2008.[7] The application for review was set down for hearing on 21 November 2008. On 12 November 2008, Ronald Young J considered and declined Mr Chatha's application for the Judge to recuse himself from hearing the application for review. The following day, Ronald Young J declined Mr Chatha's application to adjourn the review hearing which, by then, had been moved to 19 November 2008. [8] On 17 November 2008, Mr Chatha sought to file a notice of appeal against Ronald Young J's two decisions. The notice was rejected because it had been filed by email. The registry officer also advised Mr Chatha that this Court's jurisdiction depended on the matter having been dealt with by the Associate Judge in open court not in chambers. [9] Ronald Young J heard the application for review of the Associate Judge's decision and, on 20 November 2008, delivered judgment upholding the decision of Associate Judge Gendall: HC PMN CIV 2006-454-868. [10] Mr Chatha then filed a notice of appeal dated 26 November 2008 in this Court against the Judge's decision not to recuse himself and not to adjourn the hearing. Security for costs was set by the Registrar but has not been paid by Mr Chatha. Nor has the case on appeal been filed.The current procedural applications[11] Mr Chatha has latterly filed a memorandum which the respondents are prepared to treat as an application to review the Registrar's decision relating to security for costs. In addition, he seeks to amend the notice of appeal to include Ronald Young J's substantive decision. Further, Mr Chatha has applied for an extension of time for filing documents which, presumably, relates to the failure to file the case on appeal. [12] Finally, Mr Chatha sought an adjournment of the hearing before us on 1 December 2009. The adjournment application was brought on the basis that Mr Chatha, having recently been released from prison, had not had sufficient time to prepare because of problems getting a computer up and running, because he wasotherwise engaged with some High Court proceedings, and in attending to health issues (both his and those of his parents), and because he was awaiting legal material on recusal.Jurisdiction[13] At the hearing, we canvassed with Mr Chatha and counsel for the respondents the question of this Court's jurisdiction to hear the appeal. This was the issue foreshadowed by the registry officer in rejecting Mr Chatha's first notice of appeal. The proposition put to Mr Chatha and to counsel was that the effect of s 26P(1AA) of the Judicature Act 1908 was that any appeal to this Court required leave from the High Court or, if leave from that Court was refused, special leave from this Court. [14] Section 26P(1AA) provides that a High Court review of a decision of an Associate Judge made in chambers is final unless the High Court gives leave or the Court of Appeal gives special leave for an appeal. [15] As to whether the Associate Judge struck out the causes of action in open court or in chambers, the position in this respect is still as decided by this Court inTalyancich v Index Developments Ltd [1992] 3 NZLR 28. Although decided before changes to the relevant provisions of the Judicature Act, those changes are not material. Talyancich involved a strike out application. The effect of the decision is that where an Associate Judge is exercising the powers of a Judge sitting in chambers under s 26J of the Judicature Act, the matter must be regarded as having been dealt with in chambers: at 37 to 38. The power to strike out is in this category. [16] The question, then, is whether Mr Chatha's attempt to appeal Ronald Young J's refusal to recuse himself or to adjourn the hearing of a review of the Associate Judge's decision, falls outside this section. [17] Mr Chatha's position was that he had tried to appeal Ronald Young J's recusal and adjournment decisions before the substantive matter proceeded. He said it was, essentially, unfair that he could not effectively challenge those decisionsbecause the Judge had rejected his arguments and so gone on to deal with the matter substantively. [18] Ms Gorman for the first, third, fourth and sixth respondents drew the Court's attention to Muir v Commissioner of Inland Revenue [2007] 3 NZLR 495 (CA) as an example of a case where an appeal against recusal was dealt with separately from any consideration of the substantive decision. However, Ms Gorman accepted the policy considerations underlying this Court's decision in Friends of Pakiri Beach v McCallum Bros Ltd [2008] 2 NZLR 649 applied equally here. [19] Mr Dewar for the fifth respondent made no submissions on the point. [20] It seems to us that any right of appeal from these two interlocutory steps in the review proceedings must also be subject to obtaining leave. The logic of that approach is explained by this Court's decision in Friends of Pakiri Beach. That case considered appeal rights in relation to a decision by the High Court to strike out an appeal. The Court concluded that the strike out decision was not appealable as of right under s 66 of the Judicature Act. Rather, the Court said that the strike out decision should be treated as one amenable to appeal only if leave was granted under the provision in the Resource Management Act 1991 equating to s 26P(1AA) of the Judicature Act. As this Court said at [23]:Neither party to an appeal should get a forensic advantage or suffer a forensic disadvantage from the procedural route followed. The parties' positions vis-à-vis the possibility of appeal should be identical whether the strike-out application is heard at the same time as the appeal or at different times and whether the respondent takes a point that a proposed question is not a question of law by strike-out procedure or simply by way of defence to the appeal itself.[21] It would be odd if a party had to seek leave in relation to the substantive decision but could appeal as of right against the earlier, interlocutory type, decision not to recuse or adjourn. The recusal decision here, for example, could have been dealt with as part of the substantive decision in which case, plainly, leave would be required. There is no unfairness in this result because, presumably, Mr Chatha's argument on any appeal would be that the recusal decision has in fact tainted the substantive decision and, similarly, that the refusal to adjourn affected thesubstantive decision. In other words, Mr Chatha's complaint ultimately relates to the substantive decision to which s 26P(1AA) applies. That point is emphasised by Mr Chatha's application to amend the notice of appeal to include Ronald Young J's substantive decision. [22] We see the position as different from that in Muir. There, the recusal decision was linked to a substantive decision for which there was a right of appeal under s 66 of the Judicature Act. Further, the Court expressly left the point open, noting at [4] that there was "room for argument" as to whether there was "a right of appeal at all ..., at least at this particular juncture" (see also the discussion at [111] to [118]). [23] For similar reasons, the discussion in Association of Dispensing Opticians of New Zealand Inc v Opticians Board [2000] 1 NZLR 158 (CA) does not assist because that case, too, involved rights of appeal under s 66 of the Judicature Act.Disposition[24] For these reasons, we consider the Court does not have jurisdiction to entertain the appeal and it is dismissed. We do not need to consider the other applications made by Mr Chatha. We add that we did not consider an adjournment of the present hearing was appropriate. The matters raised by Mr Chatha in support of an adjournment are not such as to warrant an adjournment in circumstances where there have already been considerable delays in relation to the appeal. [25] The question of jurisdiction was raised by the bench not counsel. In those circumstances, we consider costs should lie where they fall. We make no order for costs.Solicitors: Crown Law Office, Wellington for First, Third, Fourth and Sixth Respondents Thomas Dewar Sziranyi Letts, Lower Hutt for Fifth Respondent