Samoilov v Burley

[2007] NZCA 162

IN THE COURT OF APPEAL OF NEW ZEALAND

CA250/06
[2007] NZCA 162

BETWEENALEXANDRE SAMOILOV

Appellant

ANDNICHOLA ANN BURLEY AND PATRICK CHARLES STUART

Respondents

Hearing:16 April 2007

Court:O'Regan, Robertson and Wilson JJ

Counsel:Appellant in person

D D Vincent for Respondents

Judgment:30 April 2007 at 11 am

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by O’Regan J)

Issue

[1]       This is an appeal against a judgment of Associate Judge Doogue striking out the appellant’s counterclaim against the respondents: HC TAU CIV-2003-070-123 19 October 2006.  The issue before us is whether this Court has jurisdiction to consider the appeal.

Background

[2]       The dispute between the parties has its origins in a property transaction in which the respondents acted as solicitors for the appellant.  The respondents undertook the conveyancing, and also acted for the appellant in relation to various disputes that broke out in relation to the property. 

[3]       The appellant did not pay fees charged by the respondents.  They sued in the District Court for payment of those fees, and sought summary judgment.  The appellant counterclaimed, seeking unquantified damages.  The summary judgment was granted in relation to a portion of the outstanding fees, but not the major portion.  The substantive claim in relation to the balance of the fees was adjourned. 

[4]       The appellant then quantified the damages which he sought in relation to his counterclaim at a sum in excess of $8 million, and the proceedings were transferred to the High Court.  The respondent applied for summary judgment in respect of its claim, summary judgment dismissing the appellant’s counterclaim, or alternatively an order striking out the appellant’s counterclaim.

[5]       In the High Court, the Associate Judge was dealing only with the respondent’s application for summary judgment dismissing the appellant’s counterclaim and the respondent’s application for an order striking out the appellant’s counterclaim.  He decided to deal with the application to strike out first, and determined that the counterclaim should be struck out.  The appellant filed an appeal to this Court against that decision.

The Associate Judge’s jurisdiction

[6]       The Associate Judge’s jurisdiction to consider the application to strike out the appellant’s counterclaim was founded on s 26J(1) of the Judicature Act 1908 and Rule 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 the appellant’s counterclaim was an interlocutory application seeking an order which a High Court Judge could make in chambers.  Under r 251(1) of the High Court Rules, every interlocutory application (except an application for summary judgment) must be heard in chambers unless the court otherwise directs.  No such direction was given in this case.  In the absence of such a direction, by definition the matter was dealt with in chambers: Sutton v New Zealand Guardian Trust Co Ltd (1989) 2 PRNZ 111 at 115.

[7]       The matters dealt with by Associate Judge Doogue were dealt with in a courtroom, and the appellant argued that, for that reason, the matter was not dealt with “in chambers”.  A similar argument was made in Young v Police [2007] NZAR 92. In that case this Court said (at [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 (see Re Profcom Systems Ltd [1989] 2 NZLR 63). We are satisfied 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 pp 37-38.

Application should have been made to the High Court

[8]       Under s 26P(1) of the Judicature Act, any party seeking review of a decision made by an Associate Judge in chambers must apply to the High Court.  That means that, in the present case, this Court does not have jurisdiction to hear an appeal against the decision of Associate Judge Doogue, but the High Court has jurisdiction to consider an application for review. 

[9]       We acknowledge that for a litigant in person, the situation is confusing because there is a right of appeal to the Court of Appeal against some decisions of Associate Judges, namely those made in the exercise of the powers set out in s 26I of the Act (Talyancich v Index Developments Ltd at 36) but not others, namely decisions made in chambers. We can understand how a litigant in person has become confused as to the appropriate appeal path. The appellant has some difficulty with English which may have compounded the problem. He had the assistance of a Russian interpreter before us. We understand that in this case that confusion may have been exacerbated by the fact that a High Court official advised the appellant that, if he wished to challenge the decision of Associate Judge Doogue, he should appeal to this Court.

This Court has no jurisdiction

[10]     As this Court has no jurisdiction to hear the appellant’s appeal, we must dismiss it.  If the appellant wishes to pursue his challenge to the decision of Associate Judge Doogue, he will need to apply to the High Court for a review of that decision by a High Court Judge.  As he will now be outside the timeframe for the making of such an application, he will need to seek the leave of the High Court to make such an application out of time.  If he does so, he should draw the High Court’s attention to the fact that the reason that his application is being made out of time is that he mistakenly sought to appeal to this Court, as he had been advised to do by a Court official. 

Result

[11]     The appeal is dismissed because the Court has no jurisdiction to hear it.

Solicitors:
Nikki Burley & Associates, Tauranga for Respondents