Ipsofactoj.com: International Cases [2001] Part 2 Case 10 [NZCA]


COURT OF APPEAL, NEW ZEALAND

Coram

White

- vs -

N.Z. Stock Exchange

GAULT J

THOMAS J

KEITH J

21 DECEMBER 2000


Judgment

Gault & Keith JJ

(delivered by Gault J)

  1. On 14 August 2000 Mr. White filed and served a Notice of Appeal against the judgment of the High Court (Gendall J) delivered on 17 February.

  2. The New Zealand Stock Exchange as first respondent applies to strike out the appeal on the ground that it was brought outside the 28 day time limit for appealing. Mr. White opposes that application but, in case it should succeed, applies for special leave to appeal out of time.

  3. Rule 6 of Appeal (Civil) Rules 1997 reads:

    6.

    Commencement of time for appeal

    (1)

    If—

    (a)

    An action is dismissed or a judgment of non-suit is pronounced; or

    (b)

    An application is refused; or

    (c)

    The order is one to which rule 268 of the High Court Rules applies, -

    The period referred to in rule 5(1) begins when the decision appealed from is given, irrespective of whether reasons for the decision are given then or at a later date and irrespective of whether any formal steps to sign, enter, or otherwise perfect the decision are necessary or are afterwards taken

    (2)

    In all cases other than those referred to in subclause (1), the period referred to in rule 5(1) begins when the judgment or order is signed, entered, or otherwise perfected

  4. It is common ground that the appeal is within time if the 28 day period runs from the date on which the High Court judgment was sealed, but is out of time if the time runs from the date on which the judgment was delivered.

  5. In his judgment Gendall J found against Mr. White’s application for judicial review of decisions of the Board of the Stock Exchange and of its Appeal Committee (the second respondents, who abide the decision of this Court). He ordered judgment for the defendants.

  6. For the Stock Exchange it was submitted that the result in the High Court was that the action was dismissed in terms of para 1(a) of r 6 so that the time for appeal began to run on 17 February.

  7. For Mr. White it was submitted that the determination of a proceeding by an order for judgment for the defendant does not come within the words "an action is dismissed". Those words, it was argued, refer to dismissal on interlocutory application as for example where a proceeding is struck out for failure to disclose a valid cause of action. The submission was based upon the decision of Thomas J in the High Court in Nimmo v Westpac Banking Corp [1994] 1 NZLR 472.

  8. In his judgment in this Court in the present case Thomas J has traced the history of the rule and of the approach to it and its predecessors by this Court. The expression "an action is dismissed" was introduced in 1955 when wording substantially the same as that in the current rule was adopted, though the structure of the rule was different.

  9. Up to that time, by reference to the earlier wording "the refusal of an application", this Court had taken the view in, and since, McPhee v Wright, Stephenson, & Co (1900) 19 NZLR 321 that where a plaintiff failed in an action the time for appeal ran from the date of pronouncement of the decision. That continued to be the case on the wording of r 19 introduced in 1908 and which provides an interesting comparison with the present rule. It imposed a 28 day time limit for an appeal from "any interlocutory orders, or from any order, whether final or interlocutory, in any matter not being an action" and a four month limit for any other appeal. It then provided that the respective periods were to be calculated from when judgment was perfected or "in the case of a refusal of an application from the date of such refusal".

  10. On that wording, in the case of an appeal from the refusal of an application, whether final or interlocutory, in an action, the time ran from pronouncement. That would seem to have been confirmed when in the 1955 rule the same applied "where an action is dismissed".

  11. It has been the consistent interpretation and practice of this Court for a century to measure the time for appeal from the date of pronouncement of judgment for the defendant. That was the established interpretation at the time of the adoption in 1955 of the wording "where an action is dismissed" expressly in addition to where "an application is refused". There was no indication then that it was intended to be confined to dismissals in limine. While there is considerable strength in the arguments set out in the judgment of Thomas J, we consider we should adhere to the construction that has applied over the years with the exception of the decision in Nimmo. It follows that decision is overruled and there will be a need to correct the commentaries in the leading procedure texts which cite that case as representing the law.

  12. The appeal was therefore filed out of time. However, we have no doubt that this is an appropriate case for special leave to appeal. The evidence establishes that there was the intention to appeal and reliance on a misunderstanding of the effect of the rule. That misunderstanding was consistent with the clear statements in the two leading texts McGechan on Procedure and Sim’s Court Practice, which are set out in the judgment of Thomas J. The solicitor for Mr. White has said, on oath, he relied on the Nimmo decision in advising Mr. White.

  13. Mr. Hodder submitted that even taking account of the mistake, overall the Court should refuse leave because Mr. White has had his complaint fully investigated twice already and the point has been reached where the matter should be closed off. While we agree that leave is not to be given automatically where it is shown that a mistake has been made by a legal adviser, we consider in this case that Mr. White should have the opportunity to have the High Court judgment reviewed. There is no real prejudice to the respondents.

  14. Special leave to appeal out of time is granted.

  15. Mr. White has secured an indulgence and must meet an award of costs on both applications. We fix costs, in favour of the first respondent, at $2000, together with disbursements including the reasonable travel and accommodation expenses of counsel approved, if necessary, by the Registrar.

    Thomas J

    INTRODUCTION

  16. The question in issue in this case is whether, for the purpose of r 6(1) of the Court of Appeal (Civil) Rules 1997, the time within which an appeal may be brought where judgment is entered for the defendant begins when the decision is given or when the judgment is sealed.

  17. There is no question that, where judgment is for the plaintiff, time begins to run from the date when the judgment is sealed. There may be a question whether time begins to run from this point where judgment for the defendant includes a positive order (other than an order for costs). Mr. Hodder, who appeared for the respondent, took this position. The question must remain open, however, because the plaintiff’s claim is dismissed no less than is the case when judgment for the defendant does not include a positive order. (See paras [47] to [49] below). Essentially, however, the question is whether judgment for the defendant, without more, comes within the expression "an action is dismissed" in r 6(1)(a).

  18. I anticipate that this judgment will be unduly long, particularly having regard to the fact that it relates to a procedural matter. But there are reasons for this undue length.

    • First, the only decision directly in point is a decision which I delivered in the High Court. I am anxious to demonstrate that in this Court I have reappraised the issue objectively.

    • Secondly, procedural rules have the potential to cause grave injustices. Parties may be deprived of their day in Court or defeated without a trial on the merits by a procedural edict. The olden times when civil proceedings were dominated by complex and technical requirements must not be revisited.

    • Thirdly, it may well be that, whatever the outcome, the Rules Committee will wish to review the rule. A thorough judgment setting out the opposing points of view should be of assistance to the Committee if it decides to undertake such a review.

    RULE 6

  19. Rule 6 reads as follows:

    6.

    Commencement of time for appeal

    (1)

    If—

    (a)

    An action is dismissed or a judgment of non-suit is pronounced; or

    (b)

    An application is refused; or

    (c)

    The order is one to which rule 268 of the High Court Rules applies, -

    The period referred to in rule 5(1) begins when the decision appealed from is given, irrespective of whether reasons for the decision are given then or at a later date and irrespective of whether any formal steps to sign, enter, or otherwise perfect the decision are necessary or are afterwards taken

    (2)

    In all cases other than those referred to in subclause (1), the period referred to in rule 5(1) begins when the judgment or order is signed, entered, or otherwise perfected

  20. Notwithstanding the order of the subclauses, the cases contained in r 6(1) are expressed as exceptions to the general rule set out in r 6(2). In accordance with this general rule, time begins to run where the judgment or order is signed, entered or otherwise perfected.

  21. For completeness, r 5(1) may be set out:

    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.

  22. In the result, the period within which an appeal can be brought is 28 days from the date when time begins to run, whatever that date may be.

  23. It is convenient at this point to refer to the relevant commentary to r 6 in McGechan on Procedure and Sim’s Court Practice.

  24. McGechan states (at CA6.05):

    CA6.05 ‘Action [proceeding] is dismissed’

    (1)   

    Application

    The phrase "action is dismissed" applies to a claim for relief made and dismissed. Such a claim may arise on a statement of claim, counterclaim, third party notice, or originating application. The essential feature is dismissal of a claim by a plaintiff or a person in like position. A proceeding is dismissed when it is struck out, for example, for failing to disclose a valid cause of action (r 477) or for want of prosecution (r 478).

    The phrase does not apply when a defendant succeeds and judgment is entered in its favour. Nimmo v Westpac Banking Corp [1994] 1 NZLR 472; (1993) 7 PRNZ 118 (declining to follow McPhee v Wright Stephenson & Co (1900) 19 NZLR 321 (CA)). This situation is within r 6(2).

  25. Sim states (CAR 6.6):

    If a proceeding is dismissed, the period referred to in R 5 begins when the decision appealed from is given.

    A proceeding is dismissed when it is struck out for, say, failing to disclose a valid cause of action or for want of prosecution. A proceeding is not "dismissed" when a defendant succeeds on the merits and there is judgment for the defendant: Nimmo v Westpac Banking Corporation [1994] 1 NZLR 472, 477. Where, therefore, the Court gives judgment for the defendant, time for appeal runs from when the judgment is sealed.

    THE FACTUAL SETTING

  26. Mr. White is a licensed sharebroker. Early in 1997 he sought associate membership of the Exchange. The Board of the Stock Exchange declined his application. He appealed against that decision to the Membership Appeal Committee of the Exchange. In a written decision dated 18 June 1997, the Appeal Committee dismissed Mr. White’s appeal. Mr. White then brought proceedings seeking judicial review challenging the validity of the decisions of both the Board of the Exchange and the Appeal Committee. It was alleged that both bodies acted in breach of the rules of natural justice, that the Appeal Committee erred in law and that the Appeal Committee’s decision was tainted through bias on the part of two of its members. The Stock Exchange brought a counterclaim against Mr. White seeking judgment in the sum of $30,001.95, being the amount of the order for costs made by the Appeal Committee in its decision, together with interest.

  27. The hearing took place before Gendall J on 2 February 2000. On 17 February, the learned Judge delivered a judgment in which Mr. White was unsuccessful. The Judge dismissed the plaintiff’s claim stating that there would be judgment for the defendants. He ruled that the Stock Exchange was entitled to costs which he would fix if agreement could not be reached. In respect of the counterclaim, the Judge directed that the claim proceed as an ordinary civil action. He clarified that it had not been dismissed, but rather adjourned, to enable the parties to determine their future course.

  28. Neither party sealed the judgment. Costs had been left outstanding and as Mr. Hodder, who appeared for the Stock Exchange, advised the Court, it was thought that the counterclaim would be heard relatively quickly. It was not until 13 April that Mr. White’s solicitors advised they were considering an appeal and were seeking expert opinion on one issue in relation to that appeal. On 14 August the solicitors filed and served a notice of appeal. They advised that they were contemporaneously arranging with the High Court to seal the judgment.

  29. On 17 August Mr. Hodder advised Mr. White’s solicitors that the notice of appeal was a nullity. He claimed that time had commenced to run on 17 February, being the date of Gendall J’s decision. Nor was it considered that there was any available basis for special leave to be granted. Any leave application, it was said, would be opposed.

  30. The Stock Exchange’s solicitors duly filed an application to strike Mr. White’s notice of appeal out on the ground that it was commenced out of time. Without acceding to this point, Mr. White’s solicitors filed an application seeking special leave to appeal in the event that the notice of appeal is struck out.

    THE HISTORY OF THE RULE

  31. The genesis of the present rule is to be found in r 15 of the Schedule to the Court of Appeal Act 1882. The operative part of the rule reads:

    15.

    No appeal from any interlocutory order shall, except by special leave of the Court of Appeal, be brought after the expiration of thirty days, and no other appeal shall, except by such leave, be brought after the expiration of one year. The said respective periods shall be calculated from the time at which the judgment or order is signed, entered, or otherwise perfected, or in the case of the refusal of an application from the date of such refusal.

  32. The structure of the rule would suggest that the words "refusal of an application" refer to an appeal from an interlocutory order. In all other cases, then, time would commence to run only when the judgment is perfected, including judgments against an unsuccessful plaintiff.

  33. The wording of r 15 was amended by the Judicature Act 1908. Rule 19 of the Third Schedule to that Act reads:

    19.

    No appeal to the Court of Appeal from any interlocutory order, or from any order, whether final or interlocutory, in any matter not being an action, shall, except by special leave of the Court of Appeal, be brought after the expiration of twenty-eight days; and no other appeal shall, except by such leave, be brought after the expiration of four months. The said respective periods shall be calculated from the time at which the judgment or order is signed, entered, or otherwise perfected, or in the case of a refusal of an application from the date of such refusal.

    [emphasis added]

  34. Again, the inference is that in the case of an order, whether final or interlocutory, "not being an action", time was intended to run from the date of the order. In all other cases, which would necessarily include an "action", time runs from the date the judgment or order is perfected.

  35. The Court of Appeal Rules 1955 were introduced at the same time as the Code of Civil Procedure of that year. Rules 27 and 28 replaced r 19 and took a more elaborate form. Rule 27 provided that, except by special leave, no appeal from any interlocutory judgment or order in proceedings between parties could be brought after the expiration of 28 days and no other appeal in proceedings between parties could be brought after the expiration of three months. Rule 28 then read:

    28.

    The periods referred to in rule 27 shall be computed—

    (a)

    Where an action is dismissed or a judgment of non-suit is pronounced or an application is refused, or in the case of an order falling within the provisions of rule 425 of the Code, from the time when the decision of the Court is given, irrespective of whether reasons for the decision are given at a later date and irrespective of whether any formal steps to sign, enter, or otherwise perfect the decision are necessary or are afterwards taken:

  36. This rule was the first time the phrase "action is dismissed" appeared in the relevant provision. The original phrase relating to the refusal of an application was expanded to embrace cases where an action is dismissed or where judgment of non-suit is pronounced or an order is made under r 425, the forerunner to the present r 268. In such cases time ran from the date the decision was given. As before, in all other cases, time ran from the date the judgment is perfected.

  37. The substance of this rule was carried forward into the present r 6. In this rule, however, the draftsperson has used paragraph numbers to describe the three categories to which r 6(1) applies. The phrase "an action is dismissed" is coupled in para (a) with the pronouncement of judgment of non-suit.

  38. On its face, therefore, although expanded, the rule perpetuated the distinction which appears to have been intended from the outset. Time commences to run in the case of the refusal of applications from when the decision is given. Similarly, where a proceeding is dismissed as, for example, where it is struck out on the ground that the statement of claim fails to disclose a reasonable cause of action or whether the proceeding comes to a halt because the plaintiff elects to be non-suited, time runs from the date of the decision. In such cases, the instant proceeding is brought to an end by an interlocutory application, including an application for a non-suit, but the issue between the parties is not necessarily finally resolved. Res judicata, for example, will not lie if the plaintiff is able to plead a different cause of action or presses ahead with the claim following a non-suit.

  39. Interpreted in this way there would have been little room for confusion. Time would run from the date of the decision or order bringing a proceeding to an end by way of an interlocutory application, including the election of a non-suit. Time would also run from the date of the decision where the decision was the refusal of any interlocutory application or from the date orders are made in matters specified in r 268. In all other cases the judgment or order would need to be sealed before time would run.

  40. Confusion did arise, however, and it arose because of the adherence of this Court in 1900 to an English decision, which a majority of the Court nevertheless considered to be in error.

    THE CASE LAW

  41. The case in question, McPhee v Wright, Stephenson & Co (1900) 19 NZLR 321, was the mainstay of Mr. Hodder’s argument. In that case two questions were in issue. The first question was whether a judgment for the defendant is "the refusal of an application" in terms of r 15, the rule which was then in force. The second question was whether, assuming an affirmative answer to the first question, when there is judgment for the defendant on the plaintiff’s claim and, in the same action, a judgment for the defendant for damages on a counterclaim, the judgments are to be treated separately. If they are divisible time would run against the plaintiff on his or her unsuccessful claim from the date of the decision, irrespective that time would not begin to run on the defendant’s judgment on the counterclaim until that judgment was sealed. If the claims are not divisible, time would begin to run on both the judgment on the plaintiff’s claim and judgment on the defendant’s counterclaim at the same time.

  42. Following an 1877 decision of the English Court of Appeal in The International Financial Society v The City of Moscow Gas Co (1877) 7 Ch D 241, this Court held, in respect of the first question, that judgment for the defendant in an action is "a refusal of an application" and that time runs from the date on which such a judgment is pronounced. In respect of the second question, it held that where the defendant obtains judgment on the plaintiff’s claim and also on its counterclaim there is only one judgment and it is not "a mere refusal of an application". In the result time runs from the date of entry of the judgment.

  43. This Court’s decision was undoubtedly dictated by the decision of the English Court of Appeal. In the International Financial Society case, it was held, in respect of two equity suits that were heard together, one decree being pronounced, that the judgment against the plaintiff dismissing his suit was a "refusal of an application" in a rule similar to r 15 in New Zealand. This Court held in McPhee that, as the English rule was indistinguishable from r 15 and had been adopted "in this colony" by the Court of Appeal Act 1882, it was obliged to follow that decision. The dictum of Edwards J reflects the attitude of the Court in 1900 (at 331):

    Even if it were otherwise proper (which I doubt) to question the authority of the English Court of Appeal upon the meaning of the rule, it appears to me to be plain, upon a well-known principle of interpretation, that our Legislature, in adopting the rule after a judicial interpretation had been placed upon its meaning in England, must be held to have adopted it in the sense in which it had been so interpreted. Further, I entertain no doubt whatever that the words used in the rule, in common with the rest of the English language, must be read in the same signification in this colony as in the Mother country. The case is therefore, in my opinion, clearly binding upon this Court, and must regulate the decision of all Courts in this colony upon matters which come within its authority.

  44. It is doubtful if the deference apparent in this quotation would be shown to the Court of Appeal of England by any Judge in this country today. (See Nimmo v Westpac Banking Corp [1994] 1 NZLR, 472, at 475-476). The deference is even more marked than is apparent from the language which was used as the Court clearly thought the English decision wrong. Stout CJ had this to say (at 324):

    If it had not been for the decision of the English Court of Appeal I should have interpreted this rule in quite a different manner. I suppose we are bound by the decision of the English Court. No one in New Zealand, lawyer or layman, ever speaks of a trial of an action as an application to the Court.

  45. Elsewhere the learned Chief Justice noted (at 325) that in r 15 the word "application" is used along with other words, "judgment and order", and it seemed to him that it was not intended to include in "refusal of application" what is ordinarily meant by a "judgment". The word "judgment", he said, is the proper word to express the refusal of an application for relief when made to the Court in form of a statement of claim or counterclaim.

  46. Connolly J took the same view. He said (at 329):

    It to me certainly appears strange that a judgment for the defendant in an action should be deemed to be a refusal of an application; and probably it would not have occurred to any one to treat it as such in an action in this colony but for the decision of the English Court of Appeal in the case which I have cited, and in which the meaning of the words "refusal or an application" was much considered. But I hold that we are bound by the decision of that Court on the subject, and that it is not competent to us to apply those words differently, and to say that they have a different meaning in this colony.

    ....

    Now, I find in the case cited that counsel for the appellants argued that the word "application", as used in the rule, and as it is commonly understood, means an application on motion or summons, and that the decision of the Court on the hearing of a cause is always called in the rules a "judgment." If the matter had now to be decided for the first time, I should have been strongly disposed to agree with this interpretation of the word; but the learned Judges of the Court of Appeal held otherwise.

  47. McPhee was then followed in three later cases. Pitcher v Dimock [1913] 32 NZLR 1127; Boardman v Minister of Stamp Duties [1922] NZLR 987 and Wilson v NZ Loan and Mercantile Agency Co Ltd (No 2) [1934] NZLR SC 115. The Court in Pitcher’s case directly followed McPhee, and the Court in Wilson v New Zealand Loan and Mercantile Agency Co Ltd then followed McPhee and Pitchers case. McPhee is not referred to in Boardman v Minister of Stamp Duties, but the outcome is consistent with that case. Two points, however, may be noted.

    • First, in none of these cases was McPhee reviewed or questioned.

    • Secondly, all three cases related to r 19 of the Third Schedule of the Judicature Act 1908, a rule which did not contain the words "action is dismissed", the words on which Mr. Hodder primarily relied.

  48. Apart from Nimmo v Westpac Banking Corp, supra, which I will discuss under a separate heading, the Court was referred to three cases which might be said to raise the application of the pertinent rules since their reformulation in 1955. None are directly in point. The first is Petersen v Petersen [1981] 1 NZLR 35, which involved an application to strike out an appeal against a High Court decision in a matrimonial dispute. The Judge at first instance dealt with a wide range of property, in the course of which he decided that a farm which was in dispute was the separate property of the husband. The wife appealed against the decision. The husband argued that, although the judgment disposed of other property in dispute, that part of the decision declaring the farm to be separate property could be severed. Time would therefore run on this part of the decision from when the decision of the Court was given as distinct from being sealed. This Court disagreed, and rejected any suggestion that the judgment could be severed for the purposes of an appeal. It applied (at 39) the second finding in McPhee’s case, pointing out that the judgment read as a whole was definitive of the rights and obligations of the parties and could not be divided into a number of parts with the rights of appeal differing according to whether an applicant’s claim for specific items of property had been declined or allowed.

  49. The next case is Langridge v Wilson [1989] 3 PRNZ 341. This case was solely concerned with the Court’s discretion to allow leave to appeal out of time. In reciting the time within which the appellants in that case were required to appeal, the Court referred to the date judgment had been delivered. The reference is brief and it cannot be said that the rule was in issue.

  50. Finally, mention may be made of Accolade Autohire v Aeromax Ltd [1998] 2 NZLR 15. The issue in this case was whether the earlier three month period or the amended 28 day period for appeals against substantive decisions applied to an unsuccessful plaintiff who had filed a notice of appeal against a decision after the amendment but in respect of a judgment delivered before the amendment. The Court held that the relevant time was that in force when the decision was delivered, which was three months. Keith J, delivering the judgment of the Court, stated in passing that the appeal was filed in time, that is, "within three months of the dismissal of the action", and that "the parties’ right of appeal was established at the latest by the date of the judgment". Again, it is to be observed that the comments are obiter and were made without argument or elaboration of the point now in issue.

  51. To sum up. The case law is of indirect assistance only. Cases prior to the modern formulation of the rule related to the phrase "application is refused". The view that this phrase included actions in which judgment is entered for the defendant was adopted by this Court in McPhee on the basis that the Court was obliged to follow an English Court of Appeal decision. Two of the three Judges openly declared that, but for this perceived obligation to follow the English decision, they would have come to the opposite conclusion. The deference shown to the English Court of Appeal by this Court in 1900 would not be repeated today, and it is not necessary for this Court to feel constrained to unquestionably adhere to the earlier decision, even if it is considered in point. The subsequent decisions also dealt with the rule prior to the modern formulation and followed McPhee without re-examination or elaboration, or dealt with a different issue. Since 1955 and the introduction of the words "an action is dismissed", the question whether judgment for the defendant falls within that phrase has not been directly in issue in this Court and certainly has not been addressed.

  52. In my decision in Nimmo v Westpac Banking Corp, however the issue was addressed, and that decision must now be examined.

    NIMMO’s CASE

  53. Nimmo v Westpac Banking Corp, was an oral decision which I delivered in the High Court on 16 August 1994. Blanchard J had delivered a reserved judgment in the substantive hearing on 3 March 1993. He concluded the judgment by stating: "There will be judgment for the defendant. Counsel may file memoranda concerning costs." Both parties subsequently filed memoranda relating to costs. Judgment was sealed on 11 March. Mr. Nimmo filed a notice of appeal and an application to fix security for costs on 8 June. The Registrar heard argument on the question whether the appeal had been brought within the time prescribed by r 27. He concluded that the appeal had been brought in time. Westpac applied to the Court to review the Registrar’s decision on the basis that the power conferred on the Registrar to fix security for costs could only be exercised if the appeal had been brought in time.

  54. Thus, the question whether time began to run against an unsuccessful plaintiff as from the date the judgment was delivered was squarely in issue. If time commenced to run on that date, the appellant was eight days out of time. I held that where judgment is given for the defendant the appeal period begins on the date upon which the judgment is sealed or otherwise perfected.

  55. I declined to follow McPhee’s case. It seemed to me then (at 475-476), as it seems to me now, that the deference shown to the English Court of Appeal was unwarranted. Consequently, I was readily able to conclude that the interpretation of the words "refusal of application" to cover a case where judgment is given for the defendant is so strained that it must be rejected. As Connolly J said, (supra, para [30]), it probably would not have occurred to anyone to treat a judgment for a defendant in an action as a refusal of an application but for the English decision.

  56. But counsel for Westpac also submitted that the words "an action is dismissed" were utilised, in addition to the words "an application is refused", to make it clear that judgment for a defendant was intended to be covered by r 28(1). I rejected this submission, holding that the rule should be given an interpretation which is sensible and which would best serve the objectives of the rule. A summary of my reasons is as follows:

    • The plain meaning of the words "an action is dismissed" refer to a proceeding which has been struck out, say, for failing to disclose a valid cause of action or for want of prosecution. Nor is it the ordinary usage to speak of judgment for the defendant as the dismissal of an action.

    • Such a construction of r 28 leads to a closer correlation with r 27 in that the category of proceedings contemplated in the opening part of r 28 coincides with the interlocutory applications dealt with in the opening part of r 27.

    • Rules 477 and 478 of the High Court Rules are the only rules which characterise the disposition of an action as a dismissal. These rules relate to the summary stay or dismissal of a proceeding where no reasonable cause of action is disclosed, where the proceeding is frivolous or vexatious or an abuse of process, or for want of prosecution. In all other cases where the rules deal with the disposition of a proceeding they speak about the entry of judgment.

    • The Judge at first instance is not functus officio until his or her judgment is sealed. By virtue of r 540(6), a judgment may be recalled by a Judge at any time before a formal record of it has been drawn up and sealed. The judgment can be altered and, theoretically, even reversed.

    • Unappealing anomalies are avoided. Different bases for the computation of time, depending on whether judgment is given for the plaintiff or defendant, are avoided. I also said that a defendant who fails in a proceeding is given three months to consider whether an appeal is to be brought, whereas a plaintiff who fails is given 28 days to consider whether he or she should appeal. (But see below para [41]).

    • In practice, defendants who are successful in obtaining judgment almost invariably seal the judgment. This step provides protection for the defendant in that the plaintiff cannot apply to recall judgment. Nor is there anything to prevent a defendant sealing the judgment proper prior to costs being fixed so that the time within which the plaintiff can bring an appeal begins to run.

  57. On the further reflection which this appeal has engendered, I consider that some of these arguments can be stated more strongly than was the case then. New arguments which I did not address have also emerged. On the other hand, some reasons appear weaker than I thought at the time. And one point is incorrect: it was not the case that a defendant who failed in a proceeding had three months to consider whether an appeal should be brought whereas an unsuccessful plaintiff had only 28 days. The same period applied for both parties. But if Mr. Hodder’s argument is accepted, the period would begin to run at different times.

  58. In the circumstances, I consider that the question in issue can and should be looked at afresh.

  59. In re-examining the issue, I propose to first set out the reasons which support the view that time begins to run for both plaintiffs and defendants as from the date when the judgment is sealed or otherwise perfected. I will then expound the arguments in favour of the view that in the case of unsuccessful plaintiffs where judgment is given for the defendant, time should begin to run from the date when the decision is given. The two competing lines of argument can then be assessed.

    FROM THE DATE OF SEALING?

  60. I would now reduce to three the reasons which favour the interpretation that time runs from the date of sealing. These reasons are that the words "an action is dismissed" do not in their ordinary meaning extend to a judgment for the defendant; that the preference for the date of sealing to start time running provides certainty and consistency; and the fact that, until the judgment is sealed, the trial Judge is not functus officio.

    (1) The ordinary meaning

  61. The ordinary meaning of the words "an action is dismissed" do not encompass a judgment for the defendant on the cause in dispute. It is to be noted that in the High Court Rules the term "action" has been replaced by the word "proceeding". In ordinary parlance a proceeding is not said to be dismissed unless it is struck out on one or other of the recognised grounds and the proceeding is brought to a halt. It is in this respect that the phrase "an action is dismissed" is associated with the pronouncement of a non-suit. Both relate to interlocutory applications which terminate proceedings.

  62. It is straining the phrase to extend it to the substantive determination of a proceeding on the merits. In such cases either the plaintiff or the defendant are successful in obtaining judgment. The proceeding is "dismissed" if it is dismissed by an order of the Court following an application made before trial or before judgment is entered. The addition of the words "an action is dismissed" serve to do no more than make it clear it is not only applications that are "refused", but also applications to dismiss a proceeding that are granted, on which time runs from the date of the decision or order.

  63. Reference has already been made to Mr. Hodder’s acknowledgement that time would not begin to run from the date of decision where the defendant obtains judgment and a further step is required or contemplated as a result of the decision. This acknowledgement sounds sensible. Yet, as a matter of interpretation, a plaintiff’s proceeding would be "dismissed" just as much where a step is required or contemplated by the judgment entered for the defendant as it would be where no further step is required or contemplated. The qualification that time will only run from the date of delivery where the judgment does not incorporate a positive step must represent a judicial gloss on the words "action is dismissed" if they are to be construed to mean or include a judgment for the defendant against an unsuccessful plaintiff.

  64. Presumably, Mr. Hodder would argue that a judgment for the defendant "dismissing" the plaintiff’s claim but requiring a positive step on the part of the defendant would be covered by the finding of this Court in McPhee and Petersen v Petersen. But that argument falters in logic in so far as the question is one of interpretation as to the meaning of the words "an action is dismissed", and the plaintiff’s proceeding is "dismissed" irrespective whether any step is required on the part of the defendant. Both McPhee and Petersen v Petersen involved an unsuccessful claim and a successful counterclaim. In the present case, the only action is the action which is dismissed and there is no obvious scope for the "one judgment" rule.

  65. This logic is reflected in r 6(1) itself. Time begins to run when the decision appealed from is given, "irrespective of whether any formal steps to sign, enter or otherwise perfect the decision are necessary ...." In other words, the words "an action is dismissed" apply even though it may be necessary to take formal steps to perfect the decision. The decision for the defendant may contain a positive order, but the rule quite clearly contemplates that time will nevertheless run from the time the proceeding is dismissed. Thus, it is not possible to separate judgments "dismissing" an action into those where no further action is required and those where a further step is necessary.

  66. This perception of the ordinary meaning is reinforced by reference to the language used in the High Court Rules.

    • Rule 131(3) permits a defendant who has filed an appearance under protest to jurisdiction to "apply to the Court to dismiss the proceeding". If the application is granted, the proceeding against the defendant is brought to an end. No substantive determination on the cause or merits will or can eventuate.

    • Under r 152, in any case in which the defendant sets up a counterclaim against the plaintiff and the proceeding of the plaintiff is dismissed, the defendant may nevertheless proceed with his or her counterclaim. In its context, the word "dismissed" can only plausibly refer to the dismissal of the plaintiff’s claim prior to a substantive hearing.

    • By virtue of r 259, in cases where service of an application is required but has not been effected, the Court may "dismiss" the application. This use is the conventional use of the word "dismiss".

    • Again, where in terms of r 277 a party is in default of an interlocutory order, the Court may under subcl 277(2)(a) dismiss the proceeding in whole or in part. The proceeding, or that part which is dismissed, is never determined substantively.

    • Rule 477 applies to a proceeding where no reasonable cause of action is disclosed, or the proceeding is frivolous or vexatious, or the proceeding is an abuse of the process of Court. In any of these circumstances the Court may order that the proceeding be "dismissed". Any such ruling follows an interlocutory application and puts paid to the substantive claim.

    • The same use of the word "dismissed" is adopted in r 478 relating to the dismissal of a proceeding for want of prosecution.

    • Rule 485 is one rule where the word "judgment" and the phrase "dismissing the proceeding" is used in conjunction. Where the defendant appears but the plaintiff does not, the defendant is entitled to "judgment dismissing the proceeding". The proceeding, however, is not dismissed on the merits; the judgment does not take the form of judgment entered for the defendant, but "dismissed for want of appearance of the plaintiff at the trial". See McGechan HR485.04 (2)(b).

    • Rule 532 enables the Court to "dismiss the proceeding" following judgment for the plaintiff where the judgment directs that accounts, inquiries or other steps be taken. Where the plaintiff or another party having the conduct of the proceeding does not take the necessary steps, the defendant may "apply to dismiss the proceeding". In such cases the "proceeding is dismissed" but the defendant did not, and does not, obtain judgment.

    • Finally, under r 788 the Court may "dismiss" the proceeding of a plaintiff who does not properly file and serve a statement of claim in accordance with the rules. The proceeding is again brought to an end in limine.

  67. The same distinction in principle is apparent in cases where judgment is entered: whereas the words "dismiss" or "dismissed" are used where the determination relates to an interlocutory application, the word "judgment" is used in respect of a substantive determination on the cause or merits.

  68. "Judgment" is defined cursorily in r 539. Rule 541 then requires "every" judgment to be drawn up in a form approved by the Registrar and sealed. The rule does not, however, indicate which party is to be responsible for drawing up and sealing the judgment. Under r 542, subject to r 6 of the Court of Appeal (Civil) Rules 1997, a judgment takes effect when it is given but, despite that stipulation, no step may be taken on a judgment until it has been sealed. As McGechan points out (HR542.06), until sealing there is scope for argument as to the exact terms of the judgment involved, and the possibility at least in theory that judgment may be recalled under r 540(6).

  69. The distinction may be illustrated by reference to the summary judgment procedure. Under r 136 the Court may give judgment against a defendant or against a plaintiff where the defendant has no defence to a claim or the causes of action in the plaintiff’s statement of claim cannot succeed respectively. If the plaintiff’s application for summary judgment is unsuccessful, the application is refused or dismissed. See McGechan HR136.01-136.14. Indeed, this must be so if the plaintiff is required to proceed to a substantive hearing. If the application is granted, however, the Court gives "judgment against [the] defendant". The plaintiff in such circumstances has succeeded on the cause.

  70. Other rules perpetuate the use of the word "judgment" where either party succeeds on the cause. For example, r 525 allows a Judge after taking a jury verdict to "give judgment for either party", and r 529 allows a party who considers a judgment to be other than in accordance with a verdict to apply to have it set aside and then to apply for "any other judgment". Rule 529 permits an application for judgment following a special verdict. Where this procedure is used, "either party may apply for .... such judgment as he considers himself entitled to". Rule 530 which deals with this application speaks of both parties applying for judgment. Finally, r 537, which relates to judgments involving third parties, uses the phrase "such judgment as the nature of the case may require to be entered for or against the defendant".

    (2) Certainty, consistency and uniformity

  71. The second reason for preferring the date of sealing as the critical date where the defendant obtains judgment is that it provides certainty: it accords with the practice of the profession; it provides consistency as between plaintiffs and defendants; and it establishes a uniform system as between appeals from the District Court and appeals from the High Court. The parties know where they stand and the scope for confusion which will otherwise inevitably arise is avoided.

  72. Take practice first. In practice, prudent counsel or solicitors who have acted for successful defendants almost invariably seal the judgment. In large part this step may be taken in order to secure a judgment on which an order for costs can be enforced. But sealing the judgment also makes the Judge at first instance functus officio thereby restricting the time during which an application may be made for the judgment to be recalled. It also puts beyond controversy the fact that time for an appeal has begun to run.

  73. This practice has been reinforced by the commentary in McGechan and Sim referred to above. On such information as is available, McGechan’s endorsement of sealing as the date on which time runs for a successful defendant was first published sometime in 1994. Sim’s endorsement was first published in or about September 1994. If there was any doubt as to what the practice of the profession was, the practice of sealing judgments for defendants as soon as possible after judgment was cemented in place by these procedural texts. Indeed, in the present case the only reason the judgment in favour of the Stock Exchange was not sealed is that it was thought that the hearing on the counterclaim would proceed promptly.

  74. Next, take consistency. There is a real advantage in having an explicit date such as the date of sealing fixed, and then applying that date to both plaintiffs and defendants. Certainty is promoted and confusion is avoided.

  75. It is difficult to predict the exact way in which uncertainty and confusion will be manifest in practice if a constant date is not selected. Time, experience confirms, has a habit of delivering on forebodings in an unforeseen way. Some possible causes of confusion, however, may be indicated. The plaintiff, or his or her adviser, could be unaware that time was running because of the unusual wording of the costs order, or where costs in the High Court remain to be revisited in that Court as a result of the Court’s judgment. Doubt may also arise as to whether the "one judgment" rule in McPhee and Petersen v Petersen applies. Where a counterclaim is pleaded, but is adjourned, as in the present case, time runs on the plaintiff’s claim from the date judgment is delivered. But where the claim and counterclaim are disposed of in the same judgment time will not run until the judgment is sealed. In yet other cases it may not be clear, if Mr. Hodder’s qualification on the words "action is dismissed" is accepted, whether the judgment for the defendant requires a step to be taken which will preclude time running until the judgment is sealed.

  76. Nor may it be clear what the position is when a defendant succeeds against the plaintiff but fails against a co-defendant or third party. Does time run from the delivery of judgment for the defendant in respect of an appeal by the plaintiff but from the date of sealing the judgment in respect of an appeal by the defendant against the judgment entered for the co-defendants or third parties? Or does the one judgment rule apply? Some forms of judgment may also cause confusion. Thus, is a declaration of rights in favour of the defendant "an action [which] is dismissed"? The luckless plaintiff who fails in an interim judgment, or where a judgment is entered for the defendant with reasons to be given later, may be uncertain whether time is running or not. As an example, see the confusion which gave rise to the appeal in Kasuya v Ho Wah Genting International Ltd (CA253/99, 23 March 2000) relating to the question as to when an "application is refused" for the purpose of r 6(1)(b). Similarly, if notwithstanding judgment for the defendant, leave is reserved to apply, the parties may be unclear as to whether time is running prior to an application for leave being made or, if a time is fixed, the expiry of the time for such an application. Again, although successful, if the defendant seeks to recall the judgment for some reason unrelated to the result, does time run from the date of the delivery of the original judgment or the date on which the judgment is either amended or, if it is not amended, from the date of the refusal of the amendment?

  77. The firm impression created by these examples is that, while a construction which permitted time to run from the date of delivery where the plaintiff is unsuccessful would be workable in relatively simple and straightforward cases, it has the certain potential to give rise to doubt in the many and possibly increasing number of commercial cases which simply do not fit that description. The advantage of a common date for both plaintiffs and defendants fixed to a deliberate and closing step, such as sealing the judgment, is that there is no room for confusion. The rules cease to be a trap for the unwary.

  78. Finally, take uniformity. There is compelling strength in the point that the practice of all the Courts should be the same. For years, considerable confusion arose in the District Court. Sections 71A(4) and 73(1)(a) of the District Courts Act 1947, as amended in 1983, provided that every application for leave to appeal was to be filed within 21 days after the day on which the final order or the interlocutory order was made. The problems which arose are evident from such cases as Craig v Craig [1993] 1 NZLR 29; Harrison v Ancor Trading (NZ) Ltd (1998) 12 PRNZ 343; Brown v Chow Mein Fashions Ltd (1993) 7 PRNZ 43 and Bridge Wholesale Acceptance Corp (Australia) Ltd v Shores [1994] 2 NZLR 222. For this reason, ss 71A(4) and 73(1)(a) were amended by the District Courts Amendment Act 1995 to make time run from the date on which the orders are sealed and not the date on which they are given. This rule applies to all civil appeals from the District Court. The practical advantage of having a uniform rule for all appeals in the Court hierarchy is self-evident. As Wallace J observed in Brown v Chow Mein Fashions Ltd, supra, at 47, "it is desirable for the appeal rules to be similar in both Courts [that is, from the District Court and High Court] to avoid unnecessary traps for the unwary".

    (3) The trial Judge is not functus officio

  79. The third reason which may be advanced to support time running from the date of sealing the judgment is that the Judge at first instance is not functus officio until the judgment is perfected (although the Judge may subsequently amend clerical errors under the so-called "slip rule" in r 12). It is anomalous that during a period in which time for an appeal has commenced to run against the plaintiff, the plaintiff can nevertheless seek to recall the judgment. With the time for appeal limited to 28 days, it is not beyond the bounds of possibility that the appeal period could have expired before the plaintiff applies to recall the judgment or a decision has been given on that application. It is not just anomalous, but incongruous, when it is appreciated that time will be running during a period in which the Court may actually reverse the outcome or change the effect of the judgment in some significant way.

  80. I turn now to the arguments which support the view that time should begin to run from the date of delivery of judgment for the defendant where the plaintiff is unsuccessful.

    FROM THE DATE OF DELIVERY?

  81. Three reasons commend themselves in support of the proposition that time begins to run from the date of the decision where a plaintiff is unsuccessful. The first relates to the fact that the judgment which the defendant has obtained is effective from the date it was given and no more is required of, or contemplated by, the defendant; the second is that sealing is not necessary to determine exactly what it is that may be appealed against; and the final reason is that the case law supports this construction. No significance should be attached to the fact that the exposition of these arguments may take up less space than the arguments for the opposite conclusion set out above. The disparity arises from the need when dealing with the arguments in favour of the date of sealing as the critical date to undertake a survey of the usage of the relevant terms in the High Court Rules and to provide examples of the uncertainty and inconsistency which it is alleged would otherwise exist.

    (1) No further steps required by defendant

  82. Where the plaintiff is unsuccessful and nothing more remains to be done it is unnecessary to impose an obligation on the successful defendant to seal the judgment. He or she is content with the judgment as delivered. The judgment is effective from that date and the defendant does not need or propose to take any further steps. Interest accrues from the date of judgment. Costs may be pursued separately. But in so far as the substantive judgment is concerned, the defendant may rest upon his or her judgment.

    (2) Sealing not necessary for appeal

  83. It can be said that the purpose of requiring judgments to be sealed is to ensure that there is no confusion or ambiguity about the scope and content of the judgment which must be complied with or which will be subject to an appeal. This rationale does not apply to the successful defendant. By contrast, and paraphrasing the English Court of Appeal in the International Financial Society case, supra, at 244, sealing is only required where it is necessary to enable a person to see what he or she is appealing from. The judgment or order is required to be perfected so that he or she may see exactly the final form which it takes, and "by which he may be aggrieved". On the other hand, where the application for final judgment is simply refused, although refused with costs, the person knows exactly the fate of his or her application. In each case plaintiffs and defendants have the same effective time within which to consider their position, that is, from the point when they know exactly what they have to appeal against.

    (3) The case law and the 1955 amendment

  84. The case law, apart from Nimmo’s case, supports the construction that time runs against the unsuccessful plaintiff from the date of judgment. Ever since this Court’s decision in McPhee, the defendant in such cases has been in a position to rely upon the judgment without doing more in the knowledge that time was running against the plaintiff. It is true that the cases in which the question was in issue turned on the words "refusal of an application", which meant equating the plaintiff’s prayer for relief with an application for that relief. But the addition of the words "an action is dismissed" cannot have been intended to restrict that principle. On the contrary, the additional words tend to confirm the principle in so far as it is easier to characterise a judgment for the defendant as a dismissal of the plaintiff’s proceeding than it is to describe it as the refusal of an application. This meaning has since been assumed, or not questioned, in later decisions of this Court.

  85. Underlying this assumption is the fact that when, in 1955, the Rules Committee added the words "an action is dismissed", the Committee would have been familiar with the case law, and must have intended to clarify that cases which would previously have been covered by the phrase "refusal of an application" were now expressly provided for. In other words, the Rules Committee used the phrase "an action is dismissed" to confirm the position in McPhee in more direct and explicit language.

  86. In the result, Nimmo’s case should be overruled.

    FINAL ASSESSMENT

  87. As is often the case with judicial determinations, it would be open to the Court to decide this issue either way. It is not so much that the arguments for and against are finely balanced as that there are tenable arguments in both directions which make this choice possible. In such circumstances, I hold to the view that the interpretation which should be preferred is that which is sensible and will best serve the objectives of the rule.

  88. In essence, the choice is between the supposition that the amendment to the rule in 1955 confirmed the "reasoning" of an 1877 decision of the English Court of Appeal, which two of the three Judges sitting in this Court were prepared to openly condemn but felt bound to follow, and a construction which avoids confusion and which has caused no problems in practice for the past six years. Common sense would suggest that a rule which provides certainty, consistency and uniformity should prevail.

  89. Notwithstanding inquiries which have been made, no material has become available to establish what led the Rules Committee in 1955 to add the words "an action is dismissed" to the rule. As traversed above, the interpretation in McPhee has been accepted in the sense that it has not been questioned. When questioned, this assumption became the basis for the further assumption that the words "an action is dismissed" were added to confirm the interpretation in McPhee. But this is a boot-straps argument, and I seriously doubt that the 1955 phrase was introduced for this purpose. In the first place, I do not think that the deference to the English Court of Appeal displayed by this Court in McPhee in 1900 would be indicative of the legal climate in 1955. In the intervening years this country had matured to nationhood with the Royal Proclamation of 9 September 1907, the Statute of Westminster 1931 (UK), and the Statute of Westminster Adoption Act 1947. The country’s legal system had matured in parallel with these developments. Phrases used in McPhee such as "the Mother-country" when referring to England, and "colony" when referring to this country, had disappeared from the judicial lexicon. The Rules Committee cannot be thought to have been immune from this inevitable development. It would be surprising, if the Committee’s objective had been to address McPhee, for it not to have taken the opportunity of bringing the rule into line with this Court’s substantive thinking in that case.

  90. Secondly, if the Rules Committee had intended to promulgate a rule on the basis of McPhee, it need not have added the words "an action is dismissed" at all. It could simply have rested on the meaning given to the phrase "an application is refused" in that decision. The possibility that the Committee had a different objective in mind in promulgating the rule cannot be excluded.

  91. Thirdly, the Rules Committee would have been familiar with the phraseology of the High Court Rules. To the longer-term members of the Committee, at least, the wording of the Rules would have become second nature. Why, then, would the Committee opt for words which are strained and inappropriate to cover the situation where judgment is entered for the defendant? It is much more likely that the Committee would use the phrase "an action is dismissed" in the sense in which it is used throughout the High Court Rules, that is, in respect of the dismissal of an action other than on the cause or merits. Following a substantive hearing, judgment is entered. But judgment for the defendant is not ordinarily equated with the dismissal of an action. On the contrary view, one inapt phrase is deliberately supplemented by another. Moreover, if the Rules Committee had intended to make time run from the date of delivery when judgment is entered for the defendant, would it not have sought to be more precise? Some clarification would surely have been thought necessary to cover the situation where the defendant obtains judgment but a further step is required or contemplated as a result of the decision.

  92. Finally, the Committee had good reason to make the change. On the wording of the earlier rule, time would run from the refusal of an application. But the Court does not "refuse" an application when it dismisses a proceeding in limine. It grants the application. It was therefore a logical step to include the dismissal of a proceeding following an application to that effect. The election of a non-suit, with which the phrase "an action is dismissed" is linked, is in the same category. The promoters of the amendment were concerned to ensure that interlocutory steps, even where an action is dismissed in limine, would not be burdened by the requirement that the decision or order be perfected. Formal sealing would be reserved for judgment on the substantive cause or merits.

  93. Apart from the questions of certainty and consistency which are fully discussed above, I would place particular weight on two aspects. The first is the fact that it must be highly desirable to have uniformity as between appeals from the District Court to the High Court and from the High Court to this Court. Having different rules must constitute a "trap for the unwary", particularly as litigation lawyers are likely to initially practice in the District Court and, with experience, extend their practice to the High Court. That very experience may prove to be an impediment in meeting the 28 day time limit in respect of appeals from the High Court.

  94. The second aspect which I would particularly mention is the fact that the High Court Judge is not functus officio until a judgment is sealed and it is no longer possible for the parties to apply to recall judgment. More than just the anomalies referred to above are in point. An unsuccessful plaintiff intending to apply to recall the judgment will, in order to preserve his or her rights pending the hearing of the application, have little alternative but to file a notice of appeal. It is repugnant in both theory and practice that a High Court Judge should be called upon to determine an application to recall his or her judgment at a time when a notice of appeal against that judgment is extant.

  95. Before closing I should also note that the point raised in paras [48] to [50] above was never addressed by Mr. Hodder, and has not yet been answered. Reliance upon McPhee and the assumption implicit in later cases cannot obscure the basic flaw in his argument that time would not begin to run on a judgment for the defendant where a further step is required or contemplated as a result of the decision. The plaintiff’s proceeding is dismissed just as much where a step is required as it is where no further step is required. As I have indicated above (para [50]), the logic of this point is reflected in r 6(1) which provides that time begins to run when the decision appealed from is given, "irrespective of whether any formal steps to sign, enter or otherwise perfect the decision are necessary ...." Thus, "an action is dismissed" even though it may be necessary to take steps to perfect the decision. Mr. Hodder cannot have it both ways.

  96. Finally, it is appropriate to conclude by referring to r 4 of the High Court Rules. Certainly, this rule is contained in the High Court Rules but it represents the modern philosophy to the construction of procedural requirements. (See also r 1.1 of the Civil Procedure Rules 1998 (UK). Rule 4 states that the rules are to be so construed as to "secure the just, speedy, and inexpensive determination of any proceeding". Measured against that standard, it would seem to me to be beyond serious argument that time for both plaintiffs and defendants should run from the date when the judgment is sealed. Injustices may result where, due to a misunderstanding, a plaintiff or his or her adviser allows time for an appeal to expire, and grounds for special leave to appeal do not exist. Uncertainty or confusion may deprive a plaintiff of his or her day in Court and a determination of their cause on the merits. Nor will the speedy and inexpensive determination of proceedings be assisted. Interlocutory applications and appeals will at times be necessary to determine a dispute as to when time began to run or whether the Court’s decision is covered by the "one judgment rule" in McPhee and Petersen v Petersen and, if those issues are decided against the plaintiff, whether special leave to appeal should be granted.

  97. For the above reasons, I regard the appeal as having been brought in time, and would dismiss the application to strike the notice of appeal out.


Cases

Nimmo v Westpac Banking Corp[1994] 1 NZLR 472; McPhee v Wright, Stephenson, & Co (1900) 19 NZLR 321; The International Financial Society v The City of Moscow Gas Co (1877) 7 Ch D 241; Pitcher v Dimock [1913] 32 NZLR 1127; Boardman v Minister of Stamp Duties [1922] NZLR 987; Wilson v NZ Loan and Mercantile Agency Co Ltd (No 2) [1934] NZLR SC 115; Petersen v Petersen [1981] 1 NZLR 35; Langridge v Wilson [1989] 3 PRNZ 341; Accolade Autohire v Aeromax Ltd [1998] 2 NZLR 15; Kasuya v Ho Wah Genting International Ltd (CA253/99, 23 March 2000); Craig v Craig [1993] 1 NZLR 29; Harrison v Ancor Trading (NZ) Ltd (1998) 12 PRNZ 343; Brown v Chow Mein Fashions Ltd (1993) 7 PRNZ 43; Bridge Wholesale Acceptance Corp (Australia) Ltd v Shores [1994] 2 NZLR 222

Legislations

Court of Appeal (Civil) Rules 1997: R. 6

Court of Appeal Act 1882: R.15 (Sch)

Judicature Act 1908: R. 19 (Third Sch)

Court of Appeal Rules 1955: R. 27, R. 28

Authors and other references

McGechan on Procedure

Sim’s Court Practice

Representations

J G Miles QC for Appellant (instructed by Grove Darlow & Partners, Auckland)
J E Hodder & E S K Dalzell for First Respondent (instructed by Chapman Tripp Sheffield Young, Wellington)
M O’Brien for Second Respondent (instructed by Bell Gully, Wellington)


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