O'Byrne v Waimakariri District Council [2012] NZCA 374; [2012] NZAR 848 (21 August 2012)

Last Updated: 31 August 2012

IN THE COURT OF APPEAL OF NEW ZEALAND

CA35/2012 [2012] NZCA 374

BETWEEN ROGER WILLIAM O'BYRNE Applicant

AND THE WAIMAKARIRI DISTRICT COUNCIL Respondent

Hearing: 17 July 2012

Court: Glazebrook, White and Simon France JJ

Counsel: Applicant in Person E D Peers and E M Ritchie for Respondent

Judgment: 21 August 2012 at 4.00pm

JUDGMENT OF THE COURT

1. The application for special leave to appeal against a refusal to extend the time for appealing against conviction is dismissed for lack of jurisdiction.
2. There is no order as to costs.

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REASONS OF THE COURT

(Given by Simon France J)

[1] Mr O’Byrne was charged under the Building Act 2004 with erecting a hay shed without a building consent. He was represented by counsel and pleaded guilty. He was fined $7,500 and court costs of $130.[1] On appeal the fine was reduced to $6,000.[2]
[2] Mr O’Byrne then sought leave to appeal his sentence to this Court. The High Court declined leave,[3] and the matter came to this Court by way of an application for special leave.[4] By then it was apparent that Mr O’Byrne, now acting for himself, wished to challenge his conviction. He considered he should not have pleaded guilty because he had available to him the statutory defence of necessity. Special leave was declined, with Mr O’Byrne being informed he would need to return to the High Court to seek an extension of time to appeal his conviction.
[3] Mr O’Byrne has now done that. Chisholm J reviewed the arguments Mr O’Byrne would make, and concluded they lacked merit. Accordingly, an extension of time was declined.[5] Mr O’Byrne again sought leave to appeal to this Court. Chisholm J declined the application.[6] Mr O’Byrne then sought special leave to appeal to this Court.
[4] Shortly before the scheduled hearing of this application, and after submissions had been filed, this Court of its own motion raised the issue of jurisdiction. Mr O’Byrne was unprepared for this and time was given for him to file submissions on the point. The Council accepted that the Court’s minute[7] raising the issue accurately stated the law and did not wish to be further heard.
[5] Mr O’Byrne filed written submissions. Whilst he has addressed the criteria relevant to a s 144 Summary Proceedings Act 1957 application, he has not been able to advance matters in relation to whether there is jurisdiction in a situation where an extension of time has been refused by the High Court.
[6] The issue has arisen previously in Taufoou v Department of Labour[8] and Tocker v Police.[9] Those cases confirm that jurisdiction under s 144 of the Summary Proceedings Act arises only when there has actually been an appeal heard in the High Court. It does not apply to an interlocutory matter. Here, Chisholm J declined to grant an extension of time. That is accordingly the final step available to Mr O’Byrne.
[7] The application for special leave to appeal must be declined for lack of jurisdiction.
[8] Costs were awarded against Mr O’Byrne in the High Court on his failed leave application. They have not been sought here in any written material filed by the respondent. Since the lack of jurisdiction was overlooked until raised by this Court, we make no order as to costs.

Solicitors:
Buddle Findlay, Christchurch for Respondent

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[1] Waimakariri District Council v O’Byrne DC Rangiora CRI-2009-061-1116, 21 October 2009, Judge Bisphan.

[2] O’Byrne v Waimakariri District Council HC Christchurch CRI-2009-409-188, 29 April 2010, Fogarty J.

[3] O’Byrne v Waimakariri District Council HC Christchurch CRI-2009-409-188, 13 August 2010, Fogarty J.
[4] O’Byrne v Waimakariri District Council [2011] NZCA 130.

[5] O’Byrne v Waimakariri District Council [2011] NZHC 951; [2011] NZAR 777 (HC).

[6] O’Byrne v Waimakariri District Council HC Christchurch CRI-2011-409-65, 13 December 2011, Chisholm J.
[7] O’Byrne v Waimakariri District Council CA35/2012, 16 July 2012.
[8] Taufoou v Department of Labour [1981] 1 NZLR 573 (CA).

[9] Tocker v Police CA127/94, 2 August 1994.