BEVIN HALL SKELTON v CHARLES MICHAEL HOWCROFT [2018] NZSC 67

BEVIN HALL SKELTON v CHARLES MICHAEL HOWCROFT [2018] NZSC 67 [3 August 2018]IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUISC 45/2018[2018] NZSC 67BETWEEN BEVIN HALL SKELTONApplicantAND CHARLES MICHAEL HOWCROFTFirst RespondentDARAN NAIRSecond RespondentCHARLES HENRY BIRDThird RespondentCourt: William Young, O'Regan and Ellen France JJCounsel: Applicant in personB M Cunningham for First RespondentE J L Werry for Second RespondentJudgment: 3 August 2018JUDGMENT OF THE COURTThe application for leave to appeal is dismissed.____________________________________________________________________REASONS[1] The applicant (Mr Bevin Skelton as the trustee of a family trust) and the firstand second respondents (Messrs Charles Howcroft and Daran Nair) have beeninvolved in various proceedings. The first was settled. The second was struck out byAsher J, primarily on the basis that the claims were precluded by the settlementagreements.1 Mr Skelton appealed against this decision to the Court of Appeal, but1 Skelton v Nair [2015] NZHC 832.this appeal did not proceed because he did not provide security for costs.2 The thirdwas against Mr Howcroft and this was struck out by Associate Judge Sargisson asprecluded by the settlement agreements and barred by the Limitation Act 1950.3Mr Skelton applied to review this decision but eventually withdrew this application.[2] Mr Skelton was adjudicated bankrupt on the application of Mr Howcroft forunpaid costs relating to the strike out proceedings heard by AssociateJudge Sargisson.4[3] Mr Skelton wishes to issue further proceedings against Messrs Howcroftand Nair and also a third person, Mr Charles Bird, who has been named as the thirdrespondent. In anticipation of doing so, he has sought pre-commencement discoveryagainst all three. Messrs Howcroft and Nair responded by seeking security for costs.At this point, the costs awarded against Mr Skelton in respect of the earlierproceedings are still unpaid and amount to $42,562.62.[4] Mr Bird did not participate in the application for security for costs or the laterappeal and thus is not party to the current dispute. Accordingly he ought not to havebeen named as a respondent to this application.[5] In a judgment delivered on 30 May 2017, Paul Davison J ordered Mr Skeltonto provide security for costs in the sum of $30,000.5 He noted that the claims whichMr Skelton wishes to advance against Messrs Howcroft and Nair cover very much thesame ground as the earlier proceedings which were struck out but also containallegations of fraud. He described the allegations of fraud as "speculative" and lackingappropriate particulars.6 More generally, he was of the view that the proposed claimsfaced "significant and probably insurmountable obstacles" and had "little prospect ofsuccess".7 He also referred to Mr Skelton's "dogged persistence in pursuing2 See the decision of the Court of Appeal dismissing an application for review of the Registrar'sdecision refusing to dispense with security for costs: Skelton v Nair [2015] NZCA 343.3 Skelton v Howcroft [2015] NZHC 1313.4 Howcroft v Skelton [2016] NZHC 1389.5 Skelton v Howcroft [2017] NZHC 1149.6 At [21].7 At [48].unmeritorious claims"8 against Messrs Howcroft and Nair and described his conductas "having the hallmarks of being frivolous and vexatious".9[6] Mr Skelton applied on 1 September 2017 for an extension of time to apply forrescission of the order made on 30 May 2017. This application was dismissed byPaul Davison J on 4 October 2017.10 Mr Skelton then applied for leave to appeal tothe Court of Appeal against the 4 October judgment which was dismissed on29 November 2017 by the same Judge.11[7] On 9 January 2018, Mr Skelton applied to the Court of Appeal for leave toappeal against the judgments of 30 May 2017, 4 October 2017 and 29 November 2017.This application, along with the earlier application to Paul Davison J, for leave toappeal were filed on the assumption that the Senior Courts Act 2016 (which requiresleave to appeal to the Court of Appeal from interlocutory orders) applied toMr Skelton's proceedings.12 But when the case came before the Court of Appeal,Mr Skelton argued that his proceedings remained subject to the Judicature Act 1908(as they had been commenced before the Senior Courts Act came into effect) whichmeant he had a right of appeal13 and thus all that was required for his challenge to beheard in the Court of Appeal was an extension of time.[8] The Court of Appeal, following its earlier decision in Sutcliffe v Tarr,14accepted that the case fell to be determined under the Judicature Act and that thequestion for determination was whether an extension of time should be granted.15 Thisissue was addressed in terms of the principles discussed in Almond v Read16 and wasrefused because of:8 At [51].9 At [54].10 Skelton v Howcroft [2017] NZHC 2425, [2017] NZAR 1614.11 Skelton v Howcroft [2017] NZHC 2941.12 Senior Courts Act 2016, s 56(3).13 Judicature Act 1908, s 66.14 Sutcliffe v Tarr [2017] NZCA 360, [2018] 2 NZLR 92.15 Skelton v Howcroft [2018] NZCA 140 (French, Cooper and Winkelmann JJ) [Skelton (CA)].16 Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801.(a) The significance of the relevant delay between 30 May 2017 (when thejudgment ordering security for costs was released) and1 September 2017 (when the rescission application was filed).17(b) The proposed appeal being manifestly without merit.18[9] In his submissions in support of the application for leave to appeal, Mr Skeltonchallenges the approach adopted by the Court of Appeal to delay, contending that theprimarily relevant period is between the date of the last High Court judgment(29 November 2017) and when the application for leave to appeal was filed in theCourt of Appeal (9 January 2018). He says that his delay was explicable as he did nothave ready access to legal authorities. He also asserts that there is no jurisdiction toorder security for costs in respect of an application for pre-trial discovery. Thisargument proceeds on the basis that: (a) r 5.45 of the High Court Rules 2016 whichprovides for security for costs can be exercised only in respect of a "proceeding";(b) "proceeding" is defined in r 1.3 so as to exclude an "interlocutory application";and (c) r 8.20 requires an application for pre-trial discovery to be brought by way of"interlocutory application".[10] As to delay, there was inaction on the part of Mr Skelton from the delivery ofthe judgment of 30 May until the application seeking an extension of time to apply forrescission was filed on 1 September. Mr Skelton's substantive complaint beingdirected at the 30 May judgment, the Court of Appeal was entitled to place primaryreliance on the delay between those dates. The Court also expressly consideredwhether that delay was excusable on the basis that Mr Skelton is unrepresented andconcluded that it was not.19[11] There are two possible responses to Mr Skelton's argument as to jurisdictionto order security for costs. The first is that the r 1.3 definition of proceeding appliesonly if the context does not otherwise require. Where the only proceeding before thecourt is commenced by interlocutory application, the context requires that the word17 Skelton (CA), above n 15, at [12].18 At [20].19 At [13]."proceeding" in r 5.45 encompass applications for pre-commencement discovery. Theother is that if security for costs is not expressly authorised by r 5.45, the courtnonetheless has jurisdiction to order security, as is contemplated by r 1.6(1) whichprovides:Cases not provided forIf any case arises for which no form of procedure is prescribed by any Act orrules or regulations or by these rules, the court must dispose of the case asnearly as may be practicable in accordance with the provisions of these rulesaffecting any similar case.[12] Arguments substantially similar to that advanced by Mr Skelton havepreviously been rejected by the High Court in Nelson v Dittmer20 (in respect of costsfollowing the determination of an application for pre-trial discovery) andHetherington Ltd v Carpenter21 (application for security for costs in respect of suchan application). Further, this argument was squarely addressed by the Court of Appealon appeal.[13] It may be nonetheless that the jurisdiction to order security for costs on aninterlocutory application may raise a question of public or general importance. Butwe do not see this case as an appropriate one to address the point. The present case isvery particular to its facts as it involves proceedings covering the same ground asearlier unsuccessful claims against Messrs Howcroft and Nair in respect of which thereare unpaid costs. The issues which Mr Skelton wishes to raise are also very particular,being his complaint about the way the Court of Appeal dealt with delay andjurisdiction. Having considered these issues carefully, we do not see an appearance ofa miscarriage of justice.[14] Accordingly, the application for leave to appeal is dismissed. The respondentsnot having taken active steps to oppose the application, there is no order for costs.Solicitors:BSA Law, Auckland for First and Second Respondents20 Nelson v Dittmer [1986] 2 NZLR 48 (HC).21 Hetherington Ltd v Carpenter (1993) 7 PRNZ 218 (HC).