TONI COLIN REIHANA V CROWN ISLAND ADMINISTERING BODY (FORMERLY RAKIURA TITI COMMITTEE) And Anor CA CA94/03

TONI COLIN REIHANA V CROWN ISLAND ADMINISTERING BODY (FORMERLY RAKIURA TITI COMMITTEE) And Anor CA CA94/03 18 February 2004IN THE COURT OF APPEAL OF NEW ZEALAND CA94/03BETWEEN TONI COLIN REIHANA Appellant AND CROWN ISLAND ADMINISTERING BODY (FORMERLY RAKIURA TITI COMMITTEE) First Respondent AND TE RUNANGA O NGAI TAHU BODY CORPORATE Second Respondent Hearing: 8 December 2003 Coram: Tipping J McGrath J Anderson J Appearances: T C Reihana (in person) J G O'Connell for First and Second Respondents Judgment: 18 February 2004JUDGMENTS OF THE COURT Tipping & McGrath JJ [1] Anderson J [10] TIPPING AND MCGRATH JJ (DELIVERED BY TIPPING J)[1] The circumstances in which this application for recall arises are fully set out in the judgment to be delivered by Anderson J which we have read in draft. The key issue is whether in granting special leave to appeal under r5, the Court of Appeal may make it a condition of the grant that the appellant provide security for costs.Anderson J has come to the conclusion that such a condition cannot be imposed. We are unable to agree with that conclusion. In our view a grant of special leave can be made subject to any condition which is reasonably related to the appeal or its due prosecution. A condition requiring the provision of security for costs, in whatever form the Court considers appropriate, is such a condition. [2] Rule 5(1) of the Court of Appeal (Civil) Rules 1997 provides:5 Time for appeal(1) Except by special leave of the Court below or by special leave of the Court of Appeal, and unless the enactment conferring the right of appeal otherwise provides, no appeal may be brought after the expiration of 28 days.Thus the Court of Appeal has power to grant special leave to appeal if an appeal is not brought within the prescribed period of 28 days. There is no express provision in r5 allowing the Court to make its grant of special leave subject to the fulfilment of conditions. It has, however, long been accepted that such a power is implicit in the notion that the power to grant special leave is a discretionary power. Nearly 100 years ago in Reed v Equitable Life Assurance Society of the United States (No. 2)(1912) 32 NZLR 480, the Court of Appeal accepted it had power, when granting special leave to appeal, to impose a condition that the appellant pay costs in any event. [3] In their commentary to r5, the learned authors of McGechan on Procedure say, under the heading Conditions:CA5.07 ConditionsThe Court may impose conditions when granting special leave to appeal. Generally, conditions should relate to the appeal or the conduct of the appeal; a condition requiring the intending appellant first to pay costs fixed in the High Court will seldom be appropriate: Nimmo v Westpac Banking Corp [1994] 1 NZLR 472; (1993) 7 PRNZ 118. Examples of conditions are: (a) Speed: Conditions directed toward the prompt dispatch of the appeal. For example, in Hetherington Ltd v Carpenter (1995) 9 PRNZ 1 (CA), the notice of motion on appeal and the case on appeal and a memorandum of grounds on appeal had to be filed by specified dates.(b) Costs: A condition that the intending appellant pay the full costs of the appeal irrespective of the outcome: Chiswick Investments Ltd v Pevats (1989) 3 PRNZ 232; Commissioner of Stamp Duties v NZ Insurance Co Ltd [1956] NZLR 335; State Insurance Ltd v Brooker (2001) 15 PRNZ 493 (CA).[4] If, as now seems firmly established, the Court of Appeal may impose a condition on a grant of special leave that the appellant must pay the costs of the appeal in any event, it is very difficult to see why, in principle, the potentially less onerous condition of providing security for costs should be viewed as being outside the Court's powers. In the case of an appeal brought within time, the requirement to provide security is mandatory under r11 unless it is waived. It would, in our view, be highly anomalous and highly unsatisfactory if the Court of Appeal did not even have a discretionary power to order security when granting special leave to appeal out of time. Indeed, as already noted, once the power to impose a condition of one kind regarding costs is found to exist, it is hard to see any reason why there should be no power to impose a somewhat different condition regarding costs of a potentially less onerous kind. [5] We cannot agree with the view implicit in Anderson J's judgment that a r5 grant of special leave is necessarily governed or influenced by the r11 regime. Rule 11(1)(a), which is the immediately relevant part of that rule, provides that unless the Court of Appeal otherwise directs, an appellant must give security for the respondent's costs in the Court of Appeal. Rule 11(3) then provides:(3) If security is not given in accordance with this rule, the notice of appeal or application for special leave to appeal is to be treated as having been abandoned; but a fresh notice of appeal may be given if rule 5 can be and is complied with.[6] The reference in subclause (3) to an application for special leave to appeal is difficult to reconcile with the rest of the rules and with universal practice. There is no requirement that an applicant for special leave to appeal give security. Rule 5 does not require it and r11(1) refers to appellants not to applicants. Nevertheless it must be accepted that following the granting of special leave it is conventional for the appellant to file a notice of appeal unless the Court dispenses with that requirement. The Court may and often does so in order to avoid an appellant havingto pay the filing fee twice in a case where an earlier notice of appeal has been deemed abandoned under r11. [7] If the filing of a further notice of appeal is waived for this or any other reason, and r11 were the only basis for requiring security following the grant of special leave, there would be no effective provision for the giving of security for want of any notice of appeal capable of being deemed abandoned under r11(3). That would be a major anomaly and its existence supports the proposition that the Court of Appeal has the power to order security as a condition of the grant of special leave. If that were not so, there would, at least arguably, be the potential for no sanction for failing to give security when the filing of a second notice of appeal was not required. [8] While we agree with Anderson J that in ordinary circumstances the security for costs regime in the Court of Appeal engages the Registrar of the High Court, we do not share his view that this must always be the case. We do not consider r11 should be construed as having that effect and therefore implicitly depriving this Court of any power to make a grant of special leave conditional on the provision of security. Consistently with the authorities which accept that the Court of Appeal has power to impose conditions as to payment of costs on a grant of special leave, we consider a condition for the giving of security for costs can also be ordered as a condition of such a grant. Under r5 the question of whether or not to grant special leave is wholly in the discretion of the Court. It is inherent in that discretion that the prosecution of the appeal, if special leave is granted, can be made the subject of appropriate conditions. [9] For these reasons we do not regard the order made by this Court on 17 October 2003 as having been made per incuriam. There is, as Anderson J has noted, no other basis for the application for recall which we would accordingly dismiss, with costs to the respondents in the sum of $1,500.00 plus disbursements including counsels' reasonable travel and accommodation expenses, to be fixed if necessary by the Registrar. That being the view of the majority, the application is dismissed on that basis.ANDERSON J[10] On 17 October 2003 this Court granted to the appellant special leave, pursuant to r5 of the Court of Appeal (Civil) Rules 1997, to appeal against a decision of the High Court (William Young J) delivered on 1 April 2003. Mr Reihana had brought his appeal within the 28 days stipulated by r5(1) but he did not give security for costs in accordance with r11 and accordingly, by virtue of r11(3) his Notice of Appeal was required to be treated as having been abandoned. [11] It is convenient at this point to set out the terms of r11:11 Security for costs(1) Unless the Court below otherwise directs,— (a) An appellant must give security for the respondent's costs in the Court of Appeal; and (b) The Registrar of the Court below must be satisfied with the security; and (c) The security must be given within 14 days after the appeal has been brought. (2) If security is given in accordance with this rule, the Registrar of the Court below must confirm to the Registrar of the Court of Appeal that the security has been given. (3) If security is not given in accordance with this rule, the notice of appeal or application for special leave to appeal is to be treated as having been abandoned; but a fresh notice of appeal may be given if rule 5 can be and is complied with. (4) Unless the Court below otherwise orders, security may not be required to be given for costs allowable for any day of hearing after the first day. (5) An application to the Court below— (a) May be made under this rule before or after notice of the appeal has been served: (b) Must be made on notice to all parties directly affected by the appeal. (6) Security is not required for the performance of the judgment or order appealed from; but this subclause does not limit any power of the Courtbelow or Court of first instance to require security on granting a stay of execution.[12] None of the requirements of r11(1) was met but the reasons, which need not be examined in this judgment, were not such as to dissuade this Court from granting the application for special leave. But in granting leave this Court was of the view that it was not appropriate for security for costs to be waived and it fixed such security in the sum of $3,000. This Court said:There should be no scope for argument as to what constitutes appropriate security. In those circumstances, we direct that security be provided by paying three thousand dollars to the Registrar of the High Court at Christchurch On that basis, we grant leave to appeal but subject to the condition that security for costs in the sum of three thousand dollars is paid to the Registrar of the High Court at Christchurch within 21 days of today's date. A further condition of the grant of leave is that Notice of Appeal is to be filed and served within the same time period.[13] The matter comes back before this Court on an application by Mr Reihana seeking that the judgment granting leave be recalled and that an order granting leave without conditions as to security for costs should then issue instead. That application is opposed. [14] Several grounds were advanced in Mr Reihana's courteous and careful submissions but none of these was of a nature which would persuade us to take the unusual step of recalling a formal order of this Court. In the main, they seemed to be an attempt to relitigate the merits of the original application for special leave, which plainly is not permissible. A potential ground was apparent bias on the basis that William Young J, from whose judgment the appeal was intended to be brought was a member of the bench convened to hear the application for special leave. Also, in relation to apparent bias, Panckhurst J, another member of the Court hearing the application for special leave, had previously heard and determined substantive proceedings at the suit of Mr Reihana which had raised issues very similar to those in the judgment sought to be appealed against. In the usual course of events it would not have been desirable for either William Young J or Panckhurst J to sit on the application for special leave although they were not inherently disqualified. But the issue of apparent bias is rendered entirely moot by Mr Reihana's deliberate andunequivocal waiver of objection to those members of the Court when the issue was raised by the bench before undertaking the hearing of the application. [15] There is, however, one aspect of this case which warrants close consideration by this Court. Although potentially advantageous to Mr Reihana, the Court's concern was with an issue of more general importance. It relates to this Court's jurisdiction to impose, as conditions of special leave, stipulations as to the provision of security for costs. [16] There can be no doubt that this Court has jurisdiction to impose conditions of special leave relating to the payment of costs in this Court in any event (Reed v Equitable Life Assurance Society of the United States (No. 2) (1912) 32 NZLR 480) and timetable orders relating, for example, to the filing and service of a Notice of Appeal and the preparation and content of the Case on Appeal. Such matters are adjunctive to the substantive jurisdiction to hear and determine an appeal. [17] It is the case that security for costs could be ordered as a condition of leave to appeal to the Judicial Committee of the Privy Council as occurred, for example, in In re Lyon (deceased), Lyon v Public Trustee (No 2) [1934] NZLR s156. However, r5(a) of the Privy Council Rules stipulated security to the satisfaction of the Court of Appeal. The jurisdiction was express. [18] There is no such express jurisdiction of this Court contained in the Court of Appeal (Civil) Rules 1997. By virtue of r11(1)(b), which requires the Registrar to be satisfied with the security given by an appellant, there is an implied power to determine the nature and amount of any security. By virtue of r11(4) and (5) the Court whose decision is sought to be appealed against has a general power to vary the presumptive prohibition against the requirement of security for costs for any day of hearing after the first day. The scope of that power was examined by Thomas J inNimmo v Westpac Banking Corporation [1994] 1 NZLR 472. [19] In my view the Court of Appeal (Civil) Rules 1997 have the effect of characterising the settling of the nature and amount of security for costs on appeal to the Court of Appeal as an administrative act of a Registrar of the High Court, subjectto a limited power of review by a Judge of the High Court. I do not think this Court has power to fix the amount of security for costs on an appeal to its own jurisdiction. Such matters are for the High Court. If special leave were granted in a particular case, an appeal brought pursuant to such leave is then subject to the regime stipulated by r11. I do not accept that this Court can assume a power which has been expressly invested in another authority, particularly where the relevant regime accords a review right which would be pre-empted by this Court. [20] In my respectful opinion the order made on 17 October 2003 granting special leave to appeal was given per incuriam, in that leave was granted subject to a condition which this Court had no jurisdiction to impose. [21] I would therefore grant the application for recall of that judgment and issue another judgment granting special leave to appeal subject to the condition that any Notice of Appeal pursuant to such leave is to be filed and served within 21 days of the date of this judgment.Solicitors: Ngai Tahu Legal, Christchurch for First and Second Respondents