DAVID DAWSON BRUNS v THE OFFICIAL ASSIGNEE AT AUCKLAND [1999] NZCA 123 (22 July 1999)

IN THE court of appeal of new zealand

ca115/99

	between	david dawson bruns
		Appellant

	and	the official assignee at auckland
		Respondent

Hearing:	19 July 1999
Coram:	Henry J Thomas J Tipping J
Appearances:	Appellant in person H B Rennie QC for the Respondent
Judgment:	22 July 1999

judgment of the court delivered by henry j

[1] The appellant was adjudicated bankrupt on 4 September 1992.On 22 January 1996 the Official Assignee disclaimed certain of the estate property.By proceedings instituted in February 1996, the appellant sought a series of orders relevant to the disclaimer.In a judgment delivered on 11 March 1996, Morris J refused the appellant his claimed relief, and vested the disclaimed property in the appellant.Judgment was sealed on 9 May 1996.On or about 10 April 1996 the appellant filed a notice of appeal in the High Court, and on 24 April 1996 Barker J made orders favourable to the appellant in respect of security for costs and the payment of certain filing fees.The Judge also ordered "the appeal be prosecuted diligently", reserving leave to the Official Assignee to apply.The Official Assignee now applies to strike out the appeal for want of prosecution.

[2] The appellant took no further steps to prosecute the appeal after 24 April 1996 other than to file a further notice of appeal in this Court on 12 May 1999, apparently in response to the Official Assignee's application of 14 April 1999 to the High Court to strike out a separate proceeding (CP613/98, Auckland Registry) instituted by the appellant.The appellant is also involved in other litigation, some of which is also presently in the appellate process. The reasons now put forward for the delay in prosecution include a perceived need to obtain further discovery on a number of matters, in CP613/98, but which appear to have little relevance to the judgment under appeal.Their relevance to the appeal itself is even less apparent, because that is to be determined on the material before the High Court unless there is leave to adduce fresh evidence, which will only be granted in accordance with established principles. Even if that procedure is intended to be invoked, it does not alter the obligation of an appellant to proceed with due expedition.

[3] The appellant also contends that the Official Assignee has consented to the delay, but patently that is not the case.Moreover, as the 1997 Rules expressly recognise, due prosecution of an appeal is always a concern of the Court and not the sole province of the parties.Reliance was also placed on the failure of the respondent to act earlier in this regard, but it is well established that no obligation rests on a respondent to promote action by an appellant, and failure to do so or to seek dismissal is not acquiescence.The other factors relied upon as excusing the delay were the financial constraints suffered by the appellant, and his inability to obtain acceptable legal representation.Neither have any significance in the present context.

[4] In Russell v Attorney-General CA253/94 24 May 1999, this Court again emphasised the importance of the principle that an appellant has a duty to prosecute an appeal promptly.The Court there noted that prejudice to a respondent is not a necessary element to support a strike out.The delay here is now in excess of three years, and the appeal has not been progressed in any way.The subject matter of the appeal is the disclaimer of property which formed part of the bankrupt's estate, administration of which is now complete and the appellant discharged from his bankruptcy.Further, the appeal has no obvious merit, and the delay itself would appear to cause problems as regards any possible relief which could be sought in the proceeding.It is also difficult to discern any significant relationship between the judgment under appeal and proceeding CP613/98.The three matters in respect of which Morris J refused relief in the High Court appear to have little remaining relevance which at best could only be peripheral.

[5] The appellant sought an adjournment of the present application.He has had ample time to present to the Court any matter relevant to its disposal, and his points of opposition have been identified and considered.In all the circumstances the only appropriate course is to dismiss the appeal.We observe that it appears desirable to try and collate all other outstanding appeals, and for that purpose the parties could usefully confer with the Registrar to seek appropriate orders at a miscellaneous motions hearing.

[6] The appeal is dismissed.The respondent is entitled to costs in the sum of $250, together with disbursements as approved by the Registrar.

Solicitors

G Caro, Auckland, for Respondent