OSBORNE AND OSBORNE V AUCKLAND CITY COUNCIL HC AK CIV-2010-404-006582

OSBORNE AND OSBORNE V AUCKLAND CITY COUNCIL HC AK CIV-2010-404-006582 30 November 2011IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2010-404-006582IN THE MATTER OF an appeal pursuant to s 93 of theWeathertight Homes Resolution ServicesAct 2006BETWEEN JOHN ANTHONY OSBORNE ANDHELEN OSBORNEApplicantsAND AUCKLAND CITY COUNCILRespondentHearing: 7 November 2011Counsel: T Rainey and J Wood for ApplicantsC Goode for RespondentJudgment: 30 November 2011 at 4:30 PMRESERVED JUDGMENT OF WOOLFORD JThis judgment was delivered by me on Wednesday, 30 November 2011 at 4:30 pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors/Counsel:Rainey Law, PO Box 1648, Shortland Street, AucklandHeaney & Co., DX CP18503, AucklandIntroduction[1] On 9 September 2011, I dismissed the applicants' appeal against a decision of the Weathertight Homes Tribunal (WHT) removing the respondent as a party in their leaky home proceedings.1 In the same judgment I also dismissed their applicationfor judicial review of the Tribunal's decision.2[2] The basis for my decision, in summary, was that:(a) One of the eligibility criteria for bringing a claim before the WHT isthat the claimants' dwellinghouse must have been ―built within theperiod of 10 years immediately before the day on which the claim is brought;3(b) A dwellinghouse is ―built when the physical construction has beencompleted to the extent required by the building consent issued in respect of that building work;4(c) Although the respondent issued a code compliance certificate within the 10 year limitation period, because the claimants' dwellinghousewas built beyond 10 years of the claim being brought before the WHT, their claim against the respondent could not stand.5[3] The applicants have already filed an appeal against my decision on their application for judicial review, pursuant to s 66 of the Judicature Act 1908. They now seek leave to appeal my decision dismissing their appeal from the WHT, pursuant to s 67 of the Judicature Act.[4] The respondent opposes the granting of leave. It says that s 95 of the Weathertight Homes Resolution Services Act 2006 (WHRS Act) bars any second1 Osborne v Auckland City Council HC Auckland CIV-2010-404-6582, 9 September 2011 at [60]–[63].2 At [57]–[59].3 At [28]; Weathertight Homes Resolution Services Act 2006, s 14(a).4 At [39], [57].5 At [6], [59].right of appeal. In any event, the respondent submits that the threshold for obtaining leave to appeal under s 67 of the Judicature Act is not met in this case, as the applicants' leave application fails on the merits.Does the WHRS Act preclude appeals to the Court of Appeal?[5] The application for leave to appeal to the Court of Appeal is brought under s 67 of the Judicature Act, which relevantly provides:67 Appeals against decisions of High Court on appeal(1) The decision of the High Court on appeal from an inferior court is final, unless a party, on application, obtains leave to appeal against that decision—(a) to the Court of Appeal; or(b) directly to the Supreme Court (in exceptional circumstances as provided for in section 14 of the Supreme Court Act 2003).(2) An application under subsection (1) for leave to appeal to the Court of Appeal must be made to the High Court or, if the High Court refuses leave, to the Court of Appeal.[6] The respondent submits that s 95(2)(b) of the WHRS Act overrides s 67 of the Judicature Act and bars any further right of appeal from the High Court. That is because s 95(2)(b) states that a determination of the High Court hearing an appealfrom the WHT ―is a final determination of the claim to which the appeal relates.[7] Section 95 of the WHRS Act provides:95 Determination of appeal(1) In its determination of any appeal, the court may do any 1 or more of the following things:(a) confirm, modify, or reverse the determination or any part of it:(b) exercise any of the powers that could have been exercised by the tribunal in relation to the claim to which the appeal relates.(2) A determination under subsection (1)—(a) has effect as if it were a determination made by the tribunal for the purposes of this Act; and(b) is a final determination of the claim.(3) Subsection (2)(b) does not prevent any proceedings between the claimant and respondent to the adjudication to which the appeal relates from being heard and determined at the same time as the appeal.[8] The respondent submits that provisions similar to s 95(2)(b) are not unusual in legislation, and points to examples in other statutes where a second tier of appeal is similarly restricted or removed altogether.6 It refers to statements in two decisions of this Court confirming that a determination of the High Court hearing an appealunder the WHRS Act ―is a final determination of the claim.7 The respondent submits that, in the absence of any express provision in the WHRS Act prescribing a right to appeal from decisions of the High Court, s 95(2)(b) must be afforded its plain meaning, which is that the Court of Appeal has no jurisdiction to hear a further appeal.[9] The applicants' response is that s 95(2)(b) was never intended to override s 67 of the Judicature Act. Their submission, as I understand it, is that s 95(2)(b) includes the word ―final to contrast the right of appeal to the High Court from adjudications in construction contract matters where the purpose of adjudications was not to produce a final determination of the rights of parties. This arose because the original Weathertight Homes Resolution Services Act 2002 was introduced as part of the Construction Contracts Bill which already had adjudication procedures built in which were adapted for use in weathertight homes matters. That interpretation does not prohibit the Court from granting leave to appeal on a question of law raising a matter of general importance. For Parliament to remove appeal avenues altogether, clear words must be used. As an example, the applicants contrast6 Namely, s 19 of the Broadcasting Act 1989, s 84(2) of the Immigration Advisers Licensing Act 2007, s 67(2) of the Motor Vehicle Sales Act 2003, and s 119 of the Real Estate Agents Act 2008.7 Kells v Auckland City Council HC Auckland CIV-2008-404-1812, 30 May 2008, Asher J at [53];Hartley v Balemi HC Auckland CIV-2006-404-2589, 29 March 2007, Stevens J at [37].s 95(2)(b) of the WHRS Act to s 242 of the Electoral Act 1993,8 which unmistakably bars any appeal.Decision[10] The Court must determine what is meant by s 95(2)(b) — that thedetermination of the High Court hearing an appeal from the WHT ―is a final determination of the claim. The meaning of that provision is to be ascertained from its text and in the light of its purpose.9[11] Section 95 governs the Court's procedure and powers when determiningappeals from the WHT; that is, when the Court is making its substantive decision on the appeal before it. That is apparent from s 95(1). The corollary is that the section is not concerned with decisions or orders of the High Court that are of an interlocutory nature (made before the Court determines the appeal).[12] Section 95(2)(b) states that, upon making its substantive decision, the Court's decision ―is a final determination of the claim. I do not agree with the applicantthat ―final should be read to mean ―substantive. First, that is not the ordinary use of the word ―final as commonly understood or as used in equivalent legislative provisions. Secondly, the applicant's interpretation would render s 95(2)(b) redundant. It is already patent from subsection (1) that the Court is making a substantive decision when confirming, modifying, or reversing a determination on appeal. In my view, the phrasing is unambiguous: the decision of the High Court determining an appeal is the end of the matter.[13] It is not uncommon for legislation to remove a second tier of appeal. The purpose of such provisions is to bring finality to disputes and to avoid the cost and delay, both to the parties and to the court system, that result from further appeal. Parties have had their dispute heard and determined by (at least) two bodies exercising judicial functions. There is no need or right to have their case placed8 ―All decisions of the High Court under this Part of this Act shall be final and conclusive and without appeal, and shall not be questioned in any way.9 Interpretation Act 1999, s 5(1). See Commerce Commission v Fonterra Co-operative Group Ltd[2007] NZSC 36, [2007] 3 NZLR 767 at [22].before a third. While the applicants have explained in some length the genesis of the WHRS Act (and s 95 in particular), they have not, in my view, demonstrated why it would offend the purpose of the statute to take s 95(2)(b) at face value and treat a substantive determination of the High Court hearing an appeal from the WHT asfinal. It seems to me that the text and purpose are aligned: ―final means final.[14] Section 67 of the Judicature Act is a statute of general application. Its purpose was briefly considered in a recent obiter statement of the Supreme Court inSiemer v Heron:10The evident policy of s 67 is that when a litigant has had one appeal already against a decision made below the level of the High Court, there should be no second appeal without a screening process.[15] That screening process refers to the jurisdiction of the Court under s 67(1) to grant an application for leave to appeal to the Court of Appeal. The WHRS Actprescribes no such screening process. It simply states that the High Court'sdetermination is final. In that material respect the two sections differ. Heeding the maxim generalia specialibus non derogant,11 s 67 of the Judicature Act does not apply.[16] I do not think it is appropriate to approach this application applying the principles for interpreting (and reading down) privative clauses (being clauses thatpurport to oust the Court's supervisory jurisdiction altogether).12 Section 95(2)(b) is not a privative clause. There is a right of appeal to the High Court. But that is the extent of the right.[17] Judicial comment on equivalent legislative provisions is also informative. Section 19 of the Broadcasting Act 1989 provides that ―The determination of the High Court on any appeal under section 18 of this Act shall be final. The Court of Appeal in Comalco New Zealand Ltd v Television New Zealand Ltd, (although in the10 Siemer v Heron [2011] NZSC 133 at [34].11 ―General provisions do not derogate from specific ones. See Auckland Gas Co Ltd v Auckland City Council [1990] 2 NZLR 420 (CA) at 425.12 See Zaoui v Attorney-General (No 2) [2005] 1 NZLR 690 (CA) at [101]; O'Regan v Lousich[1995] 2 NZLR 620 (CA) at 626.context of an application to appeal interlocutory orders of the High Court), stated unequivocally that:13The intent of s 19 is clear. In our view the High Court is the Court of last resort.[18] Similarly, s 117(6) of the (now repealed) Immigration Act 1987 provided that―The decision of the High Court on any such appeal shall be final. In Vilceanu v Minister of Immigration, the High Court heard an appeal and judicial review against a decision of the Deportation Review Tribunal. The High Court allowed the appeal but dismissed the judicial review. The Court of Appeal accepted that pursuant to s117(6) it had no jurisdiction to entertain an appeal from the High Court's appealdecision.14 The Court went on to dismiss the appeal against the High Court's judicialreview decision, commenting:[26] The legislature has decided that the judgments of the High Court in relation to appeals from the Tribunal are final. Section 117(6), which contains this restriction, was inserted in 1991 and must be taken to mean what it says. The judgment of Miller J allowing the appeal is thus final. It is generally an abuse of process to use collateral proceedings to impeach a judgment. The reasons why this is so apply in this case. In substance, the appellants are seeking to appeal a judgment of the High Court in respect of which there is no right of appeal.[19] Again, s 135 of the (now repealed) Employment Contracts Act 1991 providedthat ―The determination of the Court of Appeal on any appeal under this section shall be final and conclusive. The Privy Council in De Morgan v Director-General of Social Welfare accepted that that section overrode its jurisdiction to entertain an appeal on a question of law:15Express words are not required to limit or abolish the right to entertain [appeals to the Privy Council]. It is enough if the statute excluding or limiting the right of appeal to the Privy Council shows either expressly or by necessary intendment that the power to entertain such appeals is to be limited or abolished.In the present cases the New Zealand legislature has, on the true construction of the statutes, provided that the decision of the Court of Appeal shall be13 Comalco New Zealand Ltd v Television New Zealand Ltd [1997] NZAR 145 (CA) at 146.14 Vilceanu v Minister of Immigration [2008] NZCA 486 at [21]. See also Faavae v Minister of Immigration [2000] NZAR 177 (CA) at 178; Rajan v Minister of Immigration [1996] 3 NZLR 543 (CA) at 545.15 De Morgan v Director-General of Social Welfare [1997] 3 NZLR 385 (PC) at 391.final. Since the Court of Appeal is the ultimate Court of Appeal locally situate in New Zealand, the only possible intendment of such words is to exclude the only remaining right of appeal ie appeal by special leave to the Privy Council. That being so, and there being no challenge to the powers of the New Zealand legislature to pass such legislation, the statutes effectively exclude any appeal to the Privy Council.[20] By contrast, s 211(4) of the Building Act 2004 provides that ―The decision of the District Court on an appeal is final. The learned authors of Building Law in New Zealand suggest that:16Despite the wording of s 211(4), in certain circumstances, a District Court decision on an appeal could be reviewed by the High Court.The commentary provides no case authority, however. I do not think it can stand in light of the case law noted above.[21] On 13 October 2011, in somewhat related proceedings, Allan J granted an application for leave to appeal to the Court of Appeal a decision of this Court, dismissing an appeal from the WHT.17 It appears from the judgment that no submissions were made on s 95(2)(b) of the WHT, both sides assuming that s 67 of the Judicature Act governed the application.[22] However, having now had the benefit of full submissions on the issue in this proceeding, I respectfully do not agree that the Court of Appeal has jurisdiction to entertain a further appeal. I interpret s 95(2)(b) of the WHRS Act as barring any second appeal from determinations of the WHT. The High Court is the Court of last resort. The Court of Appeal has no jurisdiction to hear a further appeal from theHigh Court's substantive decision, whether generally or on a question of law.[23] That is not to say that the Court of Appeal never has jurisdiction to hear matters arising out of an appeal from the WHT to the High Court. As discussed, s 95(2)(b) applies only to the Court's substantive decision determining an appeal fromthe WHT. It does not oust appeal rights under s 66 of the Judicature Act challenging16 Building Law in New Zealand (online looseleaf ed, Brookers) at [BL211.03].17 Barnes v QBE Insurance (International) Ltd HC Auckland CIV-2010-404-5651, 13 October2011, Allan J.decisions or orders of the High Court that are of an interlocutory nature.18 Nor does it prevent the process adopted by the High Court from being judicially reviewed.Result[24] The application for leave to appeal under s 67 of the Judicature Act is dismissed on the basis that s 95(2)(b) of the WHRS Act precludes any further appeal..Woolford J18 Siemer v Heron at [31].