ALWYN KEITH CAIE & ANOR v THE ATTORNEY-GENERAL OF NEW ZEALAND & ORS [2001] NZCA 333 (20 September 2001)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca 108/01

	between	ALWYN KEITH CAIE
		Applicant

	and	THE ATTORNEY-GENERAL OF NEW ZEALAND sued in and on behalf of the New Zealand Police Department
		Respondent

Hearing:	20 September 2001
Coram:	Richardson P Tipping J Anderson J
Appearances:	J P Trehey and A D Mace for Applicant A R Burns for Crown
Judgment:	20 September 2001

judgment of the court delivered by RICHARDSON P

[1] This application seeks leave under r5 of the Court of Appeal (Civil) Rules 1997 to bring an appeal after the expiration of 28 days from the perfecting of judgment in the High Court proceeding.

[2] Mr Caie brought an action in the High Court against the Attorney-General sued on behalf of the New Zealand Police Department pleading false imprisonment, malicious prosecution and breach of the Bill of Rights and seeking some $1.5 m in damages.He succeeded in part on the false imprisonment cause of action and was awarded $10,000 damages.

[3] The judgment of Fisher J was delivered on 6 April 2001. Following receipt of the judgment Mr Caie, who by then was representing himself, approached the Court of Appeal Office saying he was appealing the judgment and was provided with a standard form Notice of Appeal template which he completed, dated 1 May 2001, and faxed to the Court Office on 2 May.He was advised by the Court Office that the appeal had been allocated a particular number and he would need to pay the filing fee, which he ultimately did.

[4] On its face the appeal form is addressed to the Registrar of this court, the Registrar of the court appealed from, and the respondent, but in his affidavit Mr Caie explains that he presumed the appeal had been properly filed and there was nothing more for him to do in that regard.In July it was drawn to his attention by the Court Office that notice had not been given to the Registrar of the High Court and to the Crown as respondent (r7).He consulted counsel and the present application for special leave was filed in this court on 31 July 2001 and served on the High Court and the respondent.An application to dispense with security for costs has also been filed in the High Court (r11).It transpires that the judgment was not sealed until 9 August and in terms of r6 the time for appeal did not expire until 6 September.To complete the narrative, we should add that the Crown has given notice of cross-appeal challenging the Judge's assessment of damages.

[5] Technically, what we have before the court is an application for leave to appeal in a situation where notice of appeal could properly have been given at that time.In any event, and had the judgment been sealed promptly, this would have been an entirely appropriate case in which to grant leave to appeal out of time in the interests of justice.

[6] In the result we consider that the appropriate course to take at this stage is to recognise the appeal as having been properly brought as at today, without any further filing of documents in this court.

[7] The Crown, as respondent, is of course aware of the position, as is the Registrar of the High Court and it will be necessary for Mr Caie to take the appropriate steps, with time running as from today, to meet the requirements of r11 as to the giving of security.

Solicitors

Crown Solicitor, Auckland