T J & T F CORBETT v P A E HAMPTON & ORS & ANOR [1999] NZCA 302 (13 December 1999)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca222/96

	between	T J & T F CORBETT
		Appellants

	and	P A E HAMPTON & ORS
		First Respondents

	AND	PGG TRUST LIMITED
		Second Respondent

Hearing:	13 December 1999
Coram:	Richardson P Henry J Tipping J
Appearances:	N R W Davidson QC, for Appellants A J Forbes QC for First Respondents P F Whiteside for Second Respondent
Judgment:	13 December 1999

judgment of the court delivered by TIPPING J

[1] This appeal was filed as long ago as 18 September 1996.That was the last possible day for filing.Service took place a day or two later.Thus in terms of the 1955 Rules then in force, the appeal was not brought in time and the appellants needed special leave to proceed.If they had applied immediately all would no doubt have been well for them.In the event their solicitor did nothing to pursue the appeal for almost exactly three years, when on 17 September 1999 out of the blue, points on appeal were served.

[2] Realising that their original appeal was out of time the appellants have recently sought special leave to appeal out of time.That application is opposed and has additionally been met by an application by the second respondent to strike out the present appeal as a nullity or for non prosecution.If the appeal remains alive the second respondent seeks leave to cross-appeal.In the event that application needs no consideration.

[3] The substantial delay is explained on the basis:

[a] that discussions were taking place with the Inland Revenue Department about the effect of the judgment of the High Court on estate duty; and

[b] that on account of pressure of other work, the appellants' solicitor did nothing to advance the appeal.

The first reason accounts for the period from September 1996 to July 1997.It suggests the appellants were by no means fully decided whether to proceed with the appeal or not.The second reason accounts for the remaining period from July 1997 to September 1999.None of the delay is due to the conduct of the appellants personally.They are and have always been anxious to see the matter proceed.

[4] We have considered the submissions on both sides.Mr Davidson QC for the appellants did his best for his clients in unpromising circumstances.He argued that the solicitors had candidly admitted their default and the delay should not ultimately be held against the appellants.He further suggested that there was no such prejudice to the respondents to lead to any injustice if the appeal was allowed to proceed.Mr Whiteside outlined aspects of the matter which were said to cause prejudice.In summary Mr Davidson suggested that what should save his clients' position was the importance of the issues both to them and to the law generally.It must be said however that most appeals to this Court raise issues of importance to those involved and often to the law generally.

[5] The delay in this case is clearly inordinate and inexcusable.The appellants require special leave to appeal out of time.It is a fundamental requirement that those who wish to appeal to this Court do so with due diligence.Rule 10 of the 1997 Civil Rules of this Court which came into force during the currency of the delay, simply underlines what has always been judicial policy and is now the legislative policy.

[6] Having carefully weighed the competing contentions which were addressed to us, we are left in no doubt that the appellants have allowed their proposed appeal to become far too stale to contemplate the indulgence of giving them special leave to appeal now.Indeed if their original appeal had been brought in time, it would almost certainly have been struck out for want of prosecution on these facts.We therefore order:

(1) that the application for special leave to appeal be dismissed;

(2) that the purported extant appeal be struck out as not brought within time; and

(3) that the appellants pay costs to the First and Second Respondents in the sum of $1500 each plus disbursements including the reasonable travel expenses of counsel to be fixed if necessary by the Registrar.

Solicitors

White Fox & Jones, Christchurch, for Appellants

Duncan Cotterill, Christchurch, for First Respondents

Wynn Williams & Co, Christchurch, for Second Respondent