ROSS v SOUTHERN RESPONSE EARTHQUAKE SERVICES LTD [2019] NZHC 495

ROSS v SOUTHERN RESPONSE EARTHQUAKE SERVICES LTD [2019] NZHC 495 [19 March 2019]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2018-409-000361[2019] NZHC 495BETWEEN BRENDAN MILES ROSS and COLLEENANNE ROSSPlaintiffsAND SOUTHERN RESPONSE EARTHQUAKESERVICES LIMITEDDefendantHearing: 19 March 2019 (Leave to appeal application on the papers)Counsel P G Skelton QC and K M Quinn for PlaintiffsT Weston QC, W J Palmer and O D Peers for DefendantJudgment: 19 March 2019JUDGMENT OF ASSOCIATE JUDGE MATTHEWS[1] The Court issued a judgment on 13 December 2018 on the plaintiffs'application for a representation order and directions in relation to an opt-out/opt-inprocedure. On 31 January 2019 the plaintiffs filed a notice of application for leave toappeal.[2] On 4 February the Court issued a Minute directing that any notice of oppositionwas to be filed and served by 15 February. The defendant has not filed a notice ofopposition. Rather, counsel for the defendant has filed a memorandum dated14 February. This has been referred to me today, on my return to the court after aperiod of leave.[3] Counsel for the defendant takes issue with the terms of the Notice of Appealand records that after correspondence between counsel, the plaintiffs have elaboratedon the basis of their appeal in the following terms:In summary, the plaintiffs say that there is an arguable error, that ought to beconsidered by the Court of Appeal, namely arising from the Judge's decisionto follow Houghton, when Houghton was wrongly decided with respect to thecourt's power to make an opt-in order.[4] Counsel for the defendant have formulated its position in relation to theplaintiffs' application for leave to appeal on the basis that this paragraph accuratelystates the plaintiffs' position in relation to their intended appeal. On that basis thedefendant does not oppose the granting of leave. I refer to its position after noting theapproach the Court is to take to an application of this kind.[5] It is generally accepted that the legal test to be applied for this application,which is brought under s 56 of the Senior Courts Act 2016, requires the Court toconsider three guiding principles:(a) A high threshold exists for the granting of leave. A mere allegation oferror of law or fact will generally be sufficient – an arguable error shouldbe identified.(b) Leave should only be granted where the circumstance warrants furtherdelay in disposition of the proceeding being incurred.(c) The alleged error by the Court should be of general or public importance,or otherwise be of sufficient importance to the applicant to warrant anappeal being permitted to proceed.[6] The defendant adopts a neutral position on the second and third of theseprinciples, and specifically recognises the plaintiffs' argument that the issues on appealmay raise matters of general or public importance, though it does not agree that this isin fact the case.[7] So far as the first guiding principle is concerned the defendant does not acceptthat an arguable error of law arises. However, it takes the view that given the broadersummary of the plaintiffs' ground of appeal recorded above, it cannot, by opposing theapplication, "realistically assist the Court in determining whether an arguable errorarises". On that basis the defendant does not oppose the application, but it does notconsent either. It abides the decision of the Court, reserving its position in all respects.It accepts that the application will be dealt with on the papers.[8] The error of law alleged is in fact an error by this Court in deciding Houghtonv Saunders, which the Court followed in reaching its decision in the present case.1 Iam satisfied that this amounts to an argument that by following Houghton an error oflaw has occurred in the present case, and equally satisfied, given the other authoritiesreferred to in the judgment of 13 December, that the error is arguable and opportunityshould be given for argument to be presented to the Court of Appeal.[9] So far as the second and third criteria are concerned, I consider that thecircumstances do warrant the incurring of further delay in this case. Further, whilstrepresentative actions are not frequently filed in this Court, neither are they a rarity.By definition they involve numerous plaintiffs and frequently arise out of eventsinvolving, in one way or another, significant numbers of members of the public. Thiscase, itself, is an example of this.[10] For these reasons I am satisfied that the issue raised on the intended appeal inthis case is of general or public importance. It follows that I am satisfied that leaveshould be granted to appeal the judgment dated 13 December 2018 to the Court ofAppeal, and I so direct.[11] Costs are reserved.[12] In their memorandum, counsel for the defendant suggest, after conferring withcounsel for the plaintiffs, that the reference in paragraph [33] of the principal judgmentto paragraph (g) of a table set out in paragraph [24] of the judgment should in facthave been a reference to paragraph (h). Counsel advise that they are agreed that thisseems to them to be more likely, for reasons which they state.1 Houghton v Saunders (2008) 19 PRNZ 173 (HC).[13] I am satisfied that this is the case, and formally record that paragraph [33] ofthe judgment should be read to make a reference to paragraph (h) in the table appearingin paragraph [24] of the judgment. If counsel require the judgment to be recalled andreissued in amended form they may so advise the Court and this will follow._______________________J G MatthewsAssociate JudgeSolicitors:GCA Lawyers, ChristchurchBuddle Findlay, Christchurch