NORTH HOLDINGS LIMITED V THE RODNEY DISTRICT COUNCIL CA CA194/03

NORTH HOLDINGS LIMITED V THE RODNEY DISTRICT COUNCIL CA CA194/03 27 April 2004IN THE COURT OF APPEAL OF NEW ZEALAND CA194/03BETWEEN NORTH HOLDINGS LIMITED Appellant AND THE RODNEY DISTRICT COUNCIL Respondent Hearing: 19 April 2004 Coram: McGrath J Hammond J O'Regan J Appearances: K R M Littlejohn for Appellant J F Verry and A W Braggins for Respondent Judgment: 27 April 2004JUDGMENT OF THE COURT DELIVERED BY O'REGAN J[1] The appellant, North Holdings Limited, has applied for an extension of the time limit for filing of the case on appeal and applying for a fixture in relation to this matter. The application is opposed by the respondent, The Rodney District Council. [2] The application is made under r10 of the Court of Appeal (Civil) Rules 1997. Rule 10(1) says that an appeal is treated as if it has been abandoned if the appellant does not, within six months after the appeal is brought, either – a) Apply for a fixture and file the case for an appeal; or b) Apply for an extension of time for applying for a fixture and filing the case for appeal.[3] In this case the application for extension of time was made within the six month period referred to in r10(1). Under r10(2) the Court may, where an application for an extension of time has been made, extend the time by such period as it thinks fit. [4] The approach to be taken to applications under r10 was described in the following terms in the judgment of this Court delivered by Blanchard J in Airwork (NZ) Limited v Vertical Flight Management Limited [1999] 1 NZLR 29 at page 31: "where an application has been made under R10(2) within the six-month period and the Court is satisfied that there is sound reason for allowing further time and that the appeal is not devoid of merit, the Court will grant the indulgence of an extension of time as a matter of normal practice." [5] There are some unusual features in the present case. The appeal relates to a decision of Venning J in the High Court dismissing the appellant's application for judicial review of the decision made by the respondent that a resource consent application made by the appellant would be processed on a notified basis. The judicial review application was based on four separate grounds, but only one is to be pursued on appeal if the present application is granted. That ground is an allegation that the respondent failed to comply with the requirements of the rules of natural justice in the process leading to its decision to notify the resource consent application. Venning J held that the principles of natural justice did not apply to a decision to notify a resource consent application under s94 of the Resource Management Act 1991. [6] After the respondent's decision to notify its original resource consent application, the appellant applied for another resource consent for the same subdivision proposal on similar terms. This second application was processed on a notified basis and was initially declined by the respondent. The appellant then appealed to the Environment Court and, prior to the hearing in the Environment Court, a settlement was reached which led to a resource consent being granted. The appellant has since acted on that resource consent and commenced the development to which the resource consent related.[7] In view of the fact that the appellant had obtained resource consent for the development to which the original resource consent application related, Venning J concluded that there was a real issue as to whether there was any point in granting the relief sought by the appellant, namely a declaration that the decision to notify the original resource consent application was invalid because that decision had been overtaken by the subsequent grant of a consent for the same development. Venning J noted that it was accepted that a court would not grant a remedy if it would be pointless to do so. [8] The concern by the appellant and its advisers that this Court may take a similar stance in relation to an appeal against Venning J's decision led the appellant to seek the advice of senior counsel. In an affidavit filed in this Court by a representative of the appellant's project management consultants, it is stated that the advice from senior counsel was sought in early October and the appeal was filed at about the same time. The appeal was received in this Court on 7 October 2003. The decision of Venning J was dated 11 September 2003. The advice from senior counsel was received in early December 2003 but because of the absence of directors of the appellant and the intervention of the Christmas holidays, the decision to proceed with the appeal on the limited basis referred to above was not made until late January. Since that time there were delays in progressing the matter because of other legal issues occupying the appellant and its counsel and other engagements occupying the senior counsel who had been instructed to advise on the appeal. Subsequently, the senior counsel was appointed to the High Court bench. [9] The Registrar of this Court advised the appellant in early March that the six month period set out in r 10 was about to expire and this application for extension was made on 29 March 2004. In addition the appellant's counsel filed a memorandum seeking pre-trial directions from this Court as to whether the Court regards the issue to be argued on the appeal as academic in the circumstances, having regard to the comments of Cooke J in Finnigan v The New Zealand Rugby Football Union Inc (No 3) [1985] 2 NZLR 190 at 197. [10] On behalf of the appellant, Mr Littlejohn argued that the extension of time should be granted because the reasons for the delays in pursuing the appeal weresound reasons in terms of the Airwork NZ decision and the appeal is not devoid of merit. On behalf of the respondent Mr Verry argued that the reasons for delay were merely the everyday realities faced by litigants and their competent counsel. He said that the directions which the appellant now seeks from the Court ought to have been applied for some time ago, and that it was disingenuous for the appellant to apply at the last minute for directions of that type. He also argued that the appeal was without merit because the issues were largely academic for the reasons outlined in the judgment of Venning J. In that respect he relied on the decision of the House of Lords in Sun Life Assurance of Canada v Jervis [1944] AC 111 in which the House of Lords declined to hear an appeal because the issues involved were academic. Mr Verry's argument on this point led to some discussion with the bench concerning more recent cases considering this principle. [11] In our view, this Court should not determine at this preliminary stage whether the arguably academic nature of the appeal would make it inappropriate for the Court to determine the appeal. If an extension of time is granted, that issue will need to be argued at the substantive hearing. It is not appropriate for the Court to resolve one of the issues on the appeal in advance of the substantive hearing. We are, however, satisfied that the potentially academic nature of the appeal does not render it "devoid of merit" in terms of the Airwork (NZ) decision. [12] We are also satisfied that the reasons for the delay in pursuing the appeal in this case are not such that the Court should refuse to grant the indulgence of an extension of time. We accept that the potentially academic nature of the appeal made it appropriate to seek advice from senior counsel and that the need to do so has contributed in some part to the delays which have eventuated. Counsel for the respondent accepted that there was no prejudice to the respondent from the delay in pursuing the appeal. In the circumstances, therefore, we are prepared to grant an extension of time as sought by the appellant. We direct that the period of time for filing of the case on appeal and for a time for a fixture in relation to this appeal be extended to 30 April 2004. [13] The appellant has applied for leave to adduce fresh evidence on the appeal, and that application is set down for hearing on 17 May 2004. We indicated tocounsel that efforts should be made to obviate the need for that fixture so that the application to adduce further evidence can be heard at the same time as the substantive appeal. We understand from counsel that the application, if successful, would require the respondent to recover possession of a computer hard drive from a third party and provide it to a computer consultant so that information can be recovered from it. While we recognise the potential difficulties involved we urge both parties to co-operate if at all possible to facilitate the hearing of the application for leave to adduce further evidence at the same time as the substantive appeal. [14] Mr Verry sought costs for the respondent. He sought an award of costs equal to the respondents actual costs, but that application was made on the basis that the respondent's opposition to the application for extension of time would be successful. Although we have determined to grant the extension of time sought by the appellant we are satisfied that it is appropriate that the respondent be awarded costs, in view of the fact that the appellant has sought an indulgence from the Court. We therefore award costs to the respondent of $1,500, with disbursements (including the travel and accommodation costs of one counsel) to be determined by agreement of counsel or if necessary by the Registrar.Solicitors: Fisher Lamberg, Auckland for Appellant Rodney District Council, Orewa for Respondent