JAMES ROBERT REID V THE ATTORNEY-GENERAL OF NEW ZEALAND COA CA236/2012

JAMES ROBERT REID V THE ATTORNEY-GENERAL OF NEW ZEALAND COA CA236/2012 [4 May 2012]IN THE COURT OF APPEAL OF NEW ZEALANDCA236/2012[2012] NZCA 174BETWEEN JAMES ROBERT REIDAppellantAND THE ATTORNEY-GENERAL OF NEWZEALANDRespondentHearing: 4 May 2012 (By teleconference)Court: O'Regan P, Arnold and White JJCounsel: Mr Reid in personD N Soper for RespondentF M R Cooke QC as counsel assisting the CourtJudgment: 4 May 2012 at 4 pmJUDGMENT OF THE COURTA We decline to hear the appeal in advance of the hearing in the HighCourt of the appellant's strike out application and the respondent'sapplication under s 88B of the Judicature Act 1908.B We decline to make an order in the nature of a stay preventing the hearing of the s 88B application in the High Court.C We make no order as to costs._______________________________________________________________REASONS OF THE COURT(Given by O'Regan P)Introduction[1] The Attorney-General has applied to the High Court for orders under s 88B of the Judicature Act against the appellant. Section 88B provides that the Court may order that a person who has persistently and without any reasonable grounds instituted vexatious legal proceedings be prevented from commencing civil proceedings without the leave of the Court or a Judge.[2] The appellant sought discovery against the Attorney-General, and also applied to the High Court to strike out the Attorney-General's application. In a minute dated 17 April 2012, Keane and Woodhouse JJ ordered limited discovery and directed that the application to strike out would be determined in conjunction with the substantive proceeding (that is, the Attorney-General's application under s 88B). They said that the strike out application would be determined, at least in principle, at the commencement of the hearing of the application under s 88B. That hearing is set down for five days commencing next Monday, 7 May 2012.Matters raised on appeal[3] The appellant has filed a notice of appeal against the decisions made in the minute of 17 April 2002. He argues that discovery of a broader class of documents than those covered by the High Court order should have been required. He also argues that the decision of the High Court Judges to hear the strike out application in conjunction with the substantive application under s 88B was wrong. In his oral submissions he expressed concern that the High Court Judges may not determine the strike out application prior to proceeding with the hearing of the s 88B application.[4] In his notice of appeal, the appellant seeks "injunctive relief from the hearing of the Attorney-General's substantive application pending resolution of allinterlocutory and procedural matters in accordance with Parts 7 and 8 of the HighCourt Rules". While not expressed as such, this is essentially an application for an order in the nature of a stay, directing the High Court not to proceed with the hearing of the s 88B application until this Court has dealt with the matters raised in the appeal.Jurisdiction[5] There is no doubt that this Court has jurisdiction to deal with the issues that the appellant wishes to raise on appeal, notwithstanding that they are interlocutory matters. That is clear from the recent decision of the Supreme Court in Siemer v Heron.1 However, the Supreme Court also made it clear that this Court may, in its discretion, decline to hear an interlocutory appeal in advance of the substantive hearing in the lower court if it considers that the issues raised on appeal may be overtaken by the substantive hearing or that the appellant is unlikely to be prejudiced by such a postponement of the hearing.2 The Court made it clear, however, that where the interlocutory decision which is the subject of the appeal would be dispositive of the case either in law or as a practical matter, then this Court would ordinarily proceed to hear and determine it before the substantive issue was addressed in the High Court.3Should this Court hear the appeal prior to the substantive hearing?[6] The issue before us at this stage is, therefore, whether this Court should in its discretion decline to set down the appeal for hearing prior to the proposed hearing in the High Court of the s 88B application. Applying the criteria in Siemer v Heron, this requires us to consider whether the decisions under appeal are dispositive of the High Court proceeding, whether the issues on appeal will be overtaken by the substantive hearing and whether there will be prejudice to the appellant if the hearing is deferred until after the High Court hearing.1 Siemer v Heron [2011] NZSC 133, [2012] 1 NZLR 309.2 Siemer v Heron at [32].3 Siemer v Heron at [33].[7] We are satisfied that the two interlocutory decisions to which the appeal relates (the discovery order and the timetabling order for the strike out application) will not be dispositive of the s 88B application. The issues raised on the appeal may well be overtaken by the substantive hearing, but we consider that the key issue for determination is whether the postponement of the hearing of the appellant's appealuntil after the High Court hearing will prejudice the appellant.Would deferral prejudice the appellant?Strike out timetabling order[8] Mr Reid did not object to the strike out application being heard on Monday: rather, his concern was that the substantive application would proceed immediately afterwards. At least in part, his concern appeared to be that the High Court Judges may not determine the strike out application prior to proceeding with the s 88B application.[9] We think it is clear from the terms of the minute issued by the High Court Judges that that is not their intention and we think it is clear that the Court will have to determine the strike out application before deciding whether to proceed with the s 88B hearing. The Court may announce its decision and reserve the giving of reasons. But it would not be appropriate to simply adjourn the strike out application and we think it is clear from the terms of the High Court's minute that it has nointention of doing so.[10] We do not see any prejudice to the appellant in deferring consideration of the appeal against the timetabling order in relation to the strike out matter until after the substantive hearing. If the appellant is right that the hearing of the s 88B application immediately after the strike out application causes the s 88B hearing to be unfair to him, that complaint can be raised and determined in relation to an appeal against any order made under s 88B.Discovery order[11] In relation to the discovery order, the question for determination is whether this Court can fairly deal with the point of appeal dealing with discovery after the substantive hearing.[12] The discovery point of appeal raises two issues, the first being the question of the privilege attaching to the documents in respect of which discovery is sought and the second being their relevance. Mr Cooke QC helpfully summarised those issues for us and indicated that he considered there was a genuine issue in relation to privilege, but also indicated that the question of relevance was more problematic.[13] We do not intend to express a view on either issue at this stage. However, we are satisfied that this Court can fairly and properly consider the issues raised about discovery in a substantive appeal after the High Court hearing. If this Court came to the view that matters which were not legally privileged and were relevant ought to have been discovered, and the non-discovery of those documents affected the outcome of the s 88B application, then it could allow the appeal against the s 88B order if it considered that the High Court process had miscarried. In those circumstances we do not see any prejudice to the appellant in deferring the hearing of the appeal until after the High Court hearing of the s 88B application.Result[14] We conclude that this Court should decide in its discretion to defer the setting down of the appellant's appeal until after the High Court hearing of the strike outapplication and, if required, the s 88B application. In light of that decision, the application for an order in the nature of a stay requiring the High Court not to proceed with the s 88B application is declined.Costs[15] We make no order as to costs.Solicitors:Crown Law Office, Wellington for Respondent