WISELINE CORPORATION & ANOR v LIMITED & ORS [2003] NZCA 110 (17 June 2003)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA245/02

BETWEEN WISELINE CORPORATION LIMITED

First Appellant

AND SPACEWAYS HOLDINGS LIMITED

Second Appellant

AND RITA HOCKEY AS EXECUTRIX IN THE ESTATE OF RUSSELL GARLAND HOCKEY

First Respondent

AND RITA HOCKEY

Second Respondent

Coram: Blanchard J

Tipping J

Anderson J

Appearances: J Toebes for Second Respondent

First Respondent abiding decision of Court

Judgment: (On the papers) 17 June 2003

JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J

[1]

There is considerable procedural confusion in this case largely generated, it would seem, from the fact that Wiseline Corporation Ltd and Spaceways Holdings Ltd (the appellants) are no longer represented by counsel and are attempting to conduct complex litigation through a director, Mr Darby, who is not a legal practitioner.One of the issues sought to be appealed is the refusal of the High Court to allow him to represent the appellants.

[2]

The application before the Court, which we have been expressly requested to deal with on the papers without appearance on behalf of the parties, having received written submissions from the appellants and counsel for the second respondent, takes the form of an application by the appellants for an order that the time for applying for a fixture and filing the case on appeal “be extended by such period as the Court thinks fit”.It does not indicate what appeal or appeals that order is intended to relate to but the intituling refers only to CA245/02.In the grounds stated in the application there is however reference to three appeals against interlocutory orders of Nicholson J in the High Court at Auckland:

(1) An appeal on 13 November 2002 against a decision on 26 July 2002.This is CA245/02.

(2) An appeal on 13 January 2003 against a decision on 26 November 2002.

(3) An appeal on 17 April 2002 against a decision on 20 March 2002.

[3]	On the face of it the appeal in CA245/02 was not brought within the 28 day period stipulated in r5(1) of the Court of Appeal (Civil) Rules 1997.No appeal is able to be brought after the expiration of the prescribed period (which disregards the period commencing on 20 December and ending with the close of 10 January) except with special leave of the Court below or special leave of this Court.It does not appear that special leave has been granted.
[4]	There are difficulties of which Mr Darby had been made aware by the Registrar in relation to the appeal of 17 April 2002: see Re Wiseline Corporation Ltd (2002) 16 PRNZ 347 at para [26].In his written submissions Mr Toebes, for the second respondent, advises that there was also a failure to pay security for costs in accordance with r11.That rule provides in subclause (3) that, if security is not given in accordance with the rule, the notice of appeal is to be treated as having been abandoned.A fresh notice of appeal is not able to be given unless r5 can be and is complied with, which except with special leave could not now be the case.As that appeal is not before us we merely note for the information of the appellants what Mr Toebes says and the consequences if he is correct.
[5]	We move now to r10.It requires that an appeal must be treated as abandoned if the appellant does not, within six months after the appeal is brought, either apply for a fixture and file the case on appeal or apply for an extension of time for applying for a fixture and filing the case on appeal.There is no provision permitting the Court to grant an extension unless the application for extension is made within the six month period from the bringing of the appeal.After an appeal is deemed to be abandoned special leave under r5 is unlikely to be granted save in exceptional circumstances: Airwork (NZ) Ltd v Vertical Flight Management Ltd [1999] 1 NZLR 29.If the appeal in CA245/02 has in fact been brought in time, the r10 application, on 13 May, was within the six month limit.(There does not appear to have been any attempt to comply with r10 in the appeal of 17 April 2002.)
[6]	We proceed on the assumption that CA245/02 was brought in time.It is well settled that an applicant must justify the extension of time under r10 by showing that there is good reason why the fixture has not been or cannot be applied for during the six month period and the case on appeal duly filed.The applicant must also show that the appeal is not devoid of merit: Airwork (NZ) Ltd v Vertical Flight Management Ltd.
[7]	We have not been satisfied that, even if the appeal of 13 November 2002 was brought in time, there would be any justification for granting an extension of time for pursuing it.The only reason for delay suggested by the appellants is an alleged need to hear all appeals together.In his written submissions Mr Toebes points out that they have not been consolidated.We fail to see why they need to be heard at the same time.
[8]	Counsel’s submissions then traversed the merits of the four matters which it is sought to appeal.The first was a refusal by Nicholson J of an enlargement of time and review of an order for removal of caveats made as long ago as 23 July 2001 by Master Gambrill.Mr Toebes pointed out that Master Gambrill’s order was made by consent and that there had previously been an unsuccessful attempt before Nicholson J to review it.
[9]	In respect of the second matter, a decision not to set aside Mrs Hockey’s statutory demand against Wiseline, counsel pointed out in his submissions that setting aside would be nugatory because the statutory demand has lapsed without winding up proceedings being commenced within the time specified in s288(1) of the Companies Act 1993.
[10]	The third matter intended to be challenged on appeal relates to timetable orders.We agree with Mr Toebes that there is no prospect of this Court intervening in a matter of that kind in the circumstances of this case.In any event, the matter to which the timetable related appears to have been the subject of a substantive order for the removal of the second set of caveats.That was made by Nicholson J in a decision on 26 November which is the subject of the separate appeal of 13 January.
[11]	The final matter sought to be challenged was the decision not to grant leave for Wiseline to be represented in the proceeding by Mr Darby.That application was properly declined for the reasons Nicholson J gave and in accordance with the authorities to which he referred: Re G J Mannix Ltd [1984] 1 NZLR 309 and Radford v Freeway Classics Ltd [1994] 1 BCLC 445.As Sir Thomas Bingham MR said in the latter case, the rule that a corporation which is not legally represented cannot be heard is rarely waived and has a solid basis in fairness and common sense.It is necessary only to look at the procedural dysfunction of this case to see how undesirable it would be if Mr Darby were permitted to continue to try to conduct it on behalf of his companies.That aspect of the proposed appeal, too, has no merit.
[12]	Accordingly the application for extension of time is dismissed.If the appeal of 13 November 2002 was brought in time, it is now deemed abandoned under r10.
[13]	The appeal of 13 January 2003 appears to have been brought in time.The six month period is still running.An application for an extension of time under r10 could, if necessary, therefore still be made but, without expressing any concluded view, we observe that the appellants might face some difficulty in meeting the requisite test of excusable delay and would also have to show apparent merit.

Solicitors:

Meredith Connell, Auckland for First Respondent

Buddle Findlay, Wellington for Second Respondent