AUCKLAND CAMPERVAN LIMITED v TRAVEL CARS NZ LIMITED [2018] NZHC 2195

AUCKLAND CAMPERVAN LIMITED v TRAVEL CARS NZ LIMITED [2018] NZHC 2195 [24 August 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2018-404-001786[2018] NZHC 2195BETWEEN AUCKLAND CAMPERVAN LIMITEDApplicantAND TRAVEL CARS NZ LIMITEDRespondentOn the papersJudgment: 24 August 2018JUDGMENT OF HINTON JThis judgment was delivered by me on 24 August 2018 at 11.30 ampursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy RegistrarSolicitors:Victoria Lawyers, Auckland[1] Auckland Campervan Limited applies for leave to bring proceedings by wayof originating application under r 19.5 of the High Court Rules 2016.[2] The originating application procedure commenced as a procedure to be usedwhere there was no opposing party. It now has much wider application, but itnonetheless remains, in relation to contested proceedings not listed in r 19.2, anexceptional procedure.1 It is limited to cases where it is not necessary, in the interestsof justice, for there to be the usual particularised pleadings, or interlocutory steps, suchas discovery, for the proper determination of the issues. A party should not treat theoriginating application as a short-cut for urgent cases.[3] In my view, the intended applicant is seeking precisely to treat the"application" as a short-cut, for what it says is an urgent case.[4] The proceeding pleads the wrongful use of a tradename and/or breach of theFair Trading Act 1986, which is alleged to be causing harm to the applicant'sreputation, goodwill, and business. The proceeding seeks orders preventing therespondent from using the tradename and directing the respondent to pay the applicantcompensation for loss of reputation and goodwill and all associated loss to thebusiness.[5] This proceeding does not fall within r 19.2, nor is it in any way exceptional orotherwise qualified under r 19.5.[6] It is an ordinary civil proceeding.[7] If, as the applicant says, there is deserved urgency, then the applicant can applyfor an interim injunction, or other interim relief. If, as the applicant intimates, it cannotmeet that test, then that is not a good reason for adopting a different procedure. It willneed to instead try other ways of speeding-up the process, including for example, anapplication to abridge time for service, and/or for urgent timetabling orders.1 Cunningham v Cunningham [2016] NZHC 1075 at [10].[8] The application for leave to proceed by way of originating application isdeclined.---------------------------------------------------Hinton J