DAVID JOHN YOUNG V NEW ZEALAND POLICE AND ORS CA CA50/05

DAVID JOHN YOUNG V NEW ZEALAND POLICE AND ORS CA CA50/05 1 June 2006IN THE COURT OF APPEAL OF NEW ZEALAND CA50/05BETWEEN DAVID JOHN YOUNG Appellant AND NEW ZEALAND POLICE First Respondent AND LAND TRANSPORT SAFETY AUTHORITY Second Respondent AND THE DISTRICT COURT Third Respondent AND THE HIGH COURT OF NEW ZEALAND Fourth Respondent AND DENNIS ROBERTSON Fifth Respondent AND BRIAN KENNETH STUART HAWKINS Sixth Respondent AND STEWART EDWARD GUY Seventh Respondent AND JOHN WILLIAM DOHERTY Eighth Respondent Hearing: 15 February 2006 Court: O'Regan, Goddard and Chisholm JJ Counsel: D J Young Appellant in person A M Toohey for First, Second, Fifth, Sixth and Seventh Respondents W L Aldred for Fourth Respondent S J Hembrow for Eighth Respondent Judgment: 1 June 2006JUDGMENT OF THE COURT A The appeal is dismissed. B There will be no award of costs. REASONS(Given by O'Regan J) [1] This is an appeal against a decision of Associate Judge Christiansen, in which the Associate Judge ordered that Mr Young's proceeding in the High Court against the respondents be struck out: Young v New Zealand Police & Ors HC CHCH CIV 2004-409-2406 8 March 2005. [2] In his decision, the Associate Judge ruled that all of the pleadings contained in Mr Young's statement of claim ought to be struck out either on the basis that no reasonable cause of action was disclosed or because of an abuse of process (at [26]). He determined that the pleadings were incapable of remedy and that it was therefore appropriate to strike the whole proceeding out. [3] Mr Young filed a notice of appeal in this Court in which he set out 12 points on appeal, and, as had been the case in the High Court, he represented himself at the hearing in this Court. [4] At the outset of the hearing in this Court, Ms Toohey, counsel for the first respondent (the Police), the second respondent (LTNZ) and the fifth, sixth and seventh respondents, all LTNZ personnel, raised a jurisdictional issue. The issue had not been raised in the High Court or in the written submissions filed in this Court. It concerned the jurisdiction of the Associate Judge to deal with the application for strike out in the High Court.[5] By way of background, Mr Young's statement of claim is intituled STATEMENT OF CLAIM FOR JUDICIAL REVIEW and STATEMENT OF CLAIM FOR COMPENSATION. On the first page, the heading is:In the matter of Section 48 (s48) of the CRIMES ACT 1961 and Sections 21 (s21), 22 (s22), 27 (s27) of the NZ BILL OF RIGHTS ACT 1990[6] It seems clear that the submissions for all parties in the High Court, and indeed the Associate Judge's judgment, proceeded on the basis that the reference to judicial review in the intituling was an indication that Mr Young's claim was made pursuant to the Judicature Amendment Act 1972 (the 1972 Act). Some of the written submissions filed by Ms Toohey in this Court also referred to the 1972 Act. [7] If Mr Young's proceedings were proceedings seeking judicial review under the 1972 Act, there is a question as to whether the Associate Judge had jurisdiction to deal with the strike out application. If he did not have jurisdiction, his decision would be a nullity and there would be no basis for the appeal to this Court. It was for this reason that Ms Toohey raised the issue with us at the commencement of the hearing. [8] Ms Toohey pointed out that, if the claim made in the High Court by the appellant was made subject to the 1972 Act, then the Associate Judge would not have had jurisdiction to strike out the claim: Reid v NZ Fire Service Commission(1995) 8 PRNZ 550. [9] Ms Toohey submitted at that time that, although the Associate Judge had characterised the appellant's claim as being a claim seeking judicial review under the 1972 Act, this was not in fact the nature of the claim made in the High Court. Rather, she said that the appellant sought judicial review in terms of s 27 of the New Zealand Bill of Rights Act 1990. The appellant confirmed that that was the basis of his claim in the High Court. That being the case, it appeared that the decision inReid was not applicable on the present facts, and that the Associate Judge therefore had jurisdiction to make the decision which is under appeal. [10] After the hearing we were concerned that, if the Associate Judge did have jurisdiction to make the decision under appeal, then the appropriate method of challenging the decision was to apply to the High Court for review of the decision by a High Court Judge under s 26P(1) of the Judicature Act 1908. We therefore sought further submissions from the parties which we have now considered. Having done so, we are satisfied that this Court does not have jurisdiction to hear the present appeal and the appropriate method of challenging the Associate Judge's decision was review under s 26P(1). Our reasons follow. [11] We are satisfied that Mr Young's claim was not made under the 1972 Act, even though it was called a claim for "judicial review". Mr Young accepted this at the hearing. His written submissions contested the point, but it is clear from the pleadings that he was not seeking to invoke the 1972 Act. This means that Reid does not apply. It is not therefore necessary for us to determine whether Reid is correctly decided and we express no view. [12] The Associate Judge's jurisdiction to consider the application to strike out the appellant's claim was founded on s 26J(1) of the Judicature Act and r 61A(1) of the High Court Rules. The combined effect of those provisions is to give jurisdiction to an Associate Judge to exercise a power which could be exercised by a High Court Judge sitting in chambers. The application to strike out Mr Young's claim was an interlocutory application seeking an order which a High Court Judge could make in chambers. The Associate Judge's jurisdiction did not arise under s 26I of the Judicature Act, and it does not appear that s 26IA of the Judicature Act confers jurisdiction on Associate Judges: rather, it provides that they may make orders or exercise any authority or jurisdiction in cases which are properly before them. [13] We have considered Mr Young's submission that the Associate Judge heard the case in a courtroom, and that it was therefore not heard in chambers. We reject that submission: the physical location of the hearing is not a determinant of the nature of the proceeding: Re Profcom Systems Ltd [1989] 2 NZLR 63. We aresatisfied that the present case was heard in chambers as under r 251 of the High Court Rules an interlocutory application is heard in chambers unless the court directs otherwise. There was no such order in this case. That is clear from the decision of this Court in Talyancich v Index Developments Ltd [1992] 3 NZLR 28 at 37-38. [14] Decisions made by Associate Judges under s 26I can be the subject to an appeal directly to this Court under s 26P(2). But where the Associate Judge is sitting in chambers, as is the case where the Associate Judge has jurisdiction by virtue of s 26J(1), there is no right of appeal to this Court: s 26P(1) applies. [15] This means that this Court does not have jurisdiction to deal with Mr Young's appeal. His challenge to the Associate Judge's decision ought to have been by way of an application for review of the Associate Judge's decision by a High Court Judge under s 26P(1) and r 61C of the High Court Rules. [16] We have considered whether we should deal with the substantive issues raised on the appeal in our capacity as High Court Judges, effectively treating the appeal as if it were an application for the review under s 26P(1) and r 61C. This Court was prepared to adopt that course in Nottingham v Registered Securities Limited (1998) 12 PRNZ 625 but it was clear that it was influenced by the fact that all parties consented to its doing so. And the Court commented (at 628):This is an exceptional course unlikely to be followed on future occasions. Appellate jurisdiction ought to be specifically checked by both parties on every occasion.[17] In this case, counsel for the fourth respondent opposed the adoption of the same course as in Nottingham. And in the present case we would need to also give leave to Mr Young to commence his application for review out of time. We have not heard argument on the appropriateness of doing so, or even the jurisdiction to do so. [18] We do not propose to treat the appeal as an application for review. If we were to do so and the unsuccessful party sought leave to appeal to this Court, the panel of this Court considering that application would be required to deal with a challenge to a decision of the present panel (albeit that the present panel would be acting, in effect as a full court of the High Court). We do not think that would bedesirable. We note that this Court declined to deal with a similar appeal as an application for review in Talyancich at 37. [19] As the Court has no jurisdiction to consider the appeal, we dismiss it.Solicitors: Raymond Donnelly & Co, Christchurch for First, Second, Fifth, Sixth and Seventh Respondents Crown Law Office, Wellington for Fourth Respondent Nick Rout, Christchurch for Eighth Respondent