Stemson v AMP General Insurance (NZ) Ltd [2004] NZCA 98; (2004) 17 PRNZ 203 (23 June 2004)

Last Updated: 18 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA93/02

BETWEEN MICHAEL DAVID STEMSON
Appellant

AND AMP GENERAL INSURANCE (NZ) LIMITED
Respondent

Hearing: 21 June 2004

Coram: McGrath J William Young J O'Regan J

Appearances: C S Henry for Appellant
M G Ring for Respondent

Judgment: 23 June 2004

JUDGMENT OF THE COURT DELIVERED BY WILLIAM YOUNG J

[1] This is an application for final leave to appeal to the Privy Council against a judgment of this Court delivered on 18 March 2003. In that judgment, this Court dismissed an appeal from a decision of Hammond J in which he found against the appellant on his claim on an insurance policy associated with the destruction, by fire, of his house. The proposed appeal to the Privy Council challenges concurrent findings of fact to the effect that the appellant started the fire. In the course of the hearing, Mr Henry for the appellant courteously declined an invitation from the bench to explain the merits of the appeal. His position was that if the appellant was entitled to an order granting him final leave to appeal, the strength of the arguments which he proposes to advance to the Privy Council are irrelevant.
[2] Conditional leave to appeal was granted on 21 May 2003. The conditions required the appellant, by 18 August 2003, to “take the necessary steps to procure preparation of the record and its despatch to England”. This condition followed the language of Rule 5(b) of the Privy Council Rules 1910.
[3] The contents of the record had been settled and its printing commissioned before 18 August 2003. Indeed the record had been substantially completed, albeit with a number of defects, by 18 August 2003. This Court was not prepared to certify the record until 3 March 2004. This delay occurred for two broad reasons, infelicities in the preparation of the record and difficulty in obtaining possession of an audio-tape of a discussion involving the appellant which had been produced as an exhibit in the High Court trial. Since then there has been confusion (now resolved) as to the whereabouts of a video tape of the fire.
[4] On the basis of the authorities cited by Mr Henry, Gisborne Harbour Board v Lysnar [1923] NZLR 345 and Miller v Minister of Mines [1962] NZLR 275, the appellant had done enough, prior to 18 August 2003, to satisfy the relevant condition. On those authorities, there is no requirement for the record, in final form, to be completed by the time specified in the order granting conditional leave to appeal.
[5] The instructions given to the printer should be appropriate so that if carried out, the result will be a record in appropriate form. The number of defects in the record as prepared may suggest fault on the part of the appellant’s then solicitors. We were not invited to analyse closely responsibility for defects as between the appellant’s solicitors and the printers and we doubt if such an exercise would have been helpful. The fact that the record as completed does not fully meet all requirements and that this is attributable to the fault of an appellant cannot sensibly be treated as determinative of whether the condition as to preparation of the record has been complied with. Indeed Mr Ring for the respondent accepted that if Gisborne Harbour Board and Miller still represent the law, the appellant is entitled to final leave.
[6] Mr Ring’s argument to us was that the law on this point had been changed by reason of the approach taken in this Court in Mobil Oil New Zealand Ltd v Bagnall [2001] NZCA 12; (2001) 14 PRNZ 666. We have read carefully the passages in that judgment relied upon by Mr Ring and we accept that they provide some support for the proposition which he advanced. In those passages the Court was discussing what would satisfy the requirements of Rule 5(b) rather than declaring what would not suffice. There is nothing explicit in the judgment to suggest that the approach formerly taken by this Court in the Gisborne Harbour Board and Miller cases was not to be followed.
[7] At this late stage in the relationship between this Court and the Privy Council, we do not propose to make new law on this point. We therefore follow the approach taken in Gisborne Harbour Board and Miller and, accordingly, conclude that the appellant is entitled to final leave.
[8] We therefore grant final leave to appeal to the Privy Council. The appellant has, however, been dilatory and there will be no order for costs on the present application.

Solicitors:
Short & Co, Warkworth for Appellant
McElroys, Auckland for Respondent