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Angus v Angus [2005] NZCA 161 (22 June 2005)

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Angus v Angus [2005] NZCA 161 (22 June 2005)

Last Updated: 29 June 2005

IN THE COURT OF APPEAL OF NEW ZEALAND

CA210/03

BETWEEN SARAH GWYNNE ANGUS
Appellant

AND WARWICK JOHN ANGUS
Respondent

Hearing: 20 June 2005

Court: Anderson P, Hammond and Robertson JJ

Counsel: R K M Hawk for Appellant
A S McIntyre for Respondent

Judgment: 22 June 2005

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS

(Given by Robertson J)

[1] This is an appeal about the strike out of an appeal to the High Court against a decision delivered in the Family Court at Wellington on 15 May 2003.
[2] Ellen France J held that because the appellant had not complied with s 73 of the District Courts Act 1967, relating to security for costs, and the Registrar of the District Court had so informed the Registrar of the High Court, the appeal was deemed to be abandoned and the appeal was formally dismissed.
[3] There was then an application for extension of time to appeal to this Court and to adduce further evidence. That was heard by this Court on 19 July 2004.
[4] The Court concluded that there was a proposition of law which arose, namely:

The short issue is whether or not an appeal from the Family Court to the High Court is deemed to be abandoned for non-payment of security in circumstances where the application for aid had not been finally determined and was eventually granted.

[5] Although the legislation has changed, the Court was persuaded this was still a matter of public importance which could be answered without recourse to further evidence. Accordingly the Court granted an extension of time but refused leave to adduce further evidence.
[6] The substantial issue now before the Court is the interpretation of s 73(2) and (3) of the District Courts Act 1947 which at the relevant time stated:

(2) Except where the appellant is granted legal aid under the [Legal Services Act 2000], the appellant shall give security to the satisfaction of the Registrar of the Court appealed from to abide the event of the appeal. The security shall be for such amount as may be prescribed in the rules or (as the case may require) in rules made under the Family Courts Act 1980.
(3) If no such security as is required under the last preceding subsection is given within 7 days of the service of the notice of appeal, or within such further time as in special cases the Registrar of the Court appealed from may permit, that Registrar shall notify the Registrar of the [High Court] of the failure, and the notice of appeal shall be deemed to be abandoned.

[7] After the delivery of the Family Court decision on 15 May 2003 a notice of appeal to the High Court was filed on 11 June 2003 by Mrs Angus. A week later the Family Court judgment was sealed.
[8] By letter dated 26 June 2003 the case file manager of the Family Court wrote extending time for the payment of security for costs to 28 July 2003. Nothing further happened prior to that date.
[9] On 8 August Mrs Angus was advised that her application for legal aid had been declined. She was advised that she had 20 working days to apply for reconsideration of this decision.
[10] On 15 August 2003 the Deputy Registrar of the Family Court wrote to the High Court advising that security for costs had not been paid. This letter was copied to the solicitor who was then acting for Mrs Angus.
[11] That solicitor immediately wrote to the Family Court seeking a further extension of time for payment of security of costs to 22 August 2003.
[12] On 19 August $750 was paid by the appellant to the Family Court.
[13] On 5 September 2003 Mrs Angus filed an application for reconsideration of the decision of the Legal Services Agency.
[14] On 9 September 2003 Mr Angus applied to the High Court to strike out the appellant’s appeal.
[15] On 18 September 2003 the appellant was granted legal aid.
[16] As previously noted on 8 October Ellen France J dismissed the appeal.
[17] On 4 November 2003 a notice of appeal against that decision was filed. On 4 May 2004 the appellant applied for leave to extend time and to adduce further evidence. That was granted in part on 19 July and this current fixture was applied for on 9 December 2004.
[18] The short point is the regime in s 73(2) and (3) which applies where an application for legal aid has been filed but not finally determined at the time that the Registrar of the Court appealed from advises the Registrar of the High Court that no security has been given.
[19] Mr Hawk’s argument is that there are two regimes which apply as far as security for costs are concerned; the general situation and one which applies where a person has been granted legal aid.
[20] In the general situation there was no argument that failure to give security within the seven days had major consequences (Harmos v Lambert High Court Auckland M626/82 1 November 1982, Holland J.) followed in Rotorua District Council v Schuter High Court Rotorua AP44/91 24 August 1992, Penlington J.
[21] In Nicholson v Brown (1993) 7 PRNZ 310 Barker J took the view that the appeal was not deemed abandoned after seven days but remained on foot until the Registrar gave notice to the High Court under s 73(3). This approach was followed by Hammond J in Gordon v Registrar, District Court Hamilton (1994) 8 PRNZ 27.
[22] That line of reasoning was influential with Tompkins J in Toussaint v Mainline Cars Limited (In Rec) (1995) 8 PRNZ 527 in respect of a case where by the time the application to strike out was heard legal aid had been granted. His Honour said:

Adopting the approach of Barker J in Nicholson and Hammond J in Gordon, an appeal is not deemed abandoned until the Registrar of the District Court has notified the Registrar of the High Court of the failure to pay security within 7 days. If legal aid be granted after 7 days but before the appeal is deemed abandoned, that deeming provision can no longer apply since once legal aid is granted security is no longer required.
Although I need not decide it the position may well be different once the Registrar of the District Court has notified the Registrar of the High Court. The appeal is then deemed to be abandoned. It is my present view that such an abandoned appeal cannot be resuscitated by a subsequent grant of legal aid.

[23] There are a number of cases in the High Court which make it clear that in a procedural context where a statute is clear and unambiguous, the Court must give effect to its terms and purpose. These include Hall v Martelli McKegg Wells & McCormick (1996) 11 PRNZ 172; and the comparable situation with regard to s 72(6) of the District Courts Act (Director-General of Social Welfare v Cherrywood Retirement Home Limited (1994) 8 PRNZ 24; Hamson v Hill [2001] 21 FRNZ 570).
[24] Section 73(2) and (3) need to be read as a whole. There is a temporal connection between them which may be identified as follows:

• Any person wishing to appeal must give security within seven days or such further time as the Registrar may permit.
• If security is not given within the permitted time the Registrar of the Court appealed from shall notify the Registrar of the High Court of the failure and the notice of appeal shall be deemed to be abandoned.
• The requirement for security does not apply to an appellant who is granted legal aid. This exception can only apply to a person who has been granted legal aid before the Registrar of the appealed from Court advises the Registrar of the High Court that the permitted time has expired and no security has been given.

[25] In this case the Registrar granted one period of extension. No request was made for any further extension. At the time that the Registrar advised the High Court (as required) in terms of s 73(3) that no security for costs had been paid, the appellant was not in receipt of legal aid. The mandatory requirement therefore applied. Upon the Registrar of the Family Court advising the Registrar of the High Court, the notice of appeal was deemed to be abandoned.
[26] A subsequent grant of legal aid cannot have retrospective effect. The appeal was abandoned before the grant was made and in such circumstances cannot be resuscitated; Scenic Developments v Kelmarna Properties [2004] NZCA 271; (2004) 17 PRNZ 489 (CA).
[27] The argument that there is harshness in the rule that upon the Registrar of the appealed from Court giving notice to the Registrar of the High Court that the appeal is deemed to be abandoned, ignores the fact that there are proper avenues available within the statutory framework to ameliorate the situation.
[28] First there is provision for a Registrar to grant an extension of time. In this case one was sought and obtained. A further extension could have been similarly applied for to cover the period until there was certainty about legal aid.
[29] Secondly, security can be given to cover the period as was done belatedly in this case.
[30] Thirdly, there is specific power in s 39(3) of the Property (Relationships) Act 1976 for a person to make an ex parte application that security is not required to be given.
[31] Certainty and finality are important in litigation as are rights of appeal. Courts have consistently said that where the terms of a statute are clear and unambiguous they must be complied with. When this appeal was deemed to be abandoned there was no grant of legal aid so the exception did not apply. Security had not been given and the consequence was inevitable.
[32] The appeal is accordingly dismissed.

Solicitors:
Jackson Russell, Auckland for Appellant
Collins & May Law Office, Lower Hutt for Respondent

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[1]	This is an appeal about the strike out of an appeal to the High Court against a decision delivered in the Family Court at Wellington on 15 May 2003.
[2]	Ellen France J held that because the appellant had not complied with s 73 of the District Courts Act 1967, relating to security for costs, and the Registrar of the District Court had so informed the Registrar of the High Court, the appeal was deemed to be abandoned and the appeal was formally dismissed.
[3]	There was then an application for extension of time to appeal to this Court and to adduce further evidence. That was heard by this Court on 19 July 2004.
[4]	The Court concluded that there was a proposition of law which arose, namely:

[5]	Although the legislation has changed, the Court was persuaded this was still a matter of public importance which could be answered without recourse to further evidence. Accordingly the Court granted an extension of time but refused leave to adduce further evidence.
[6]	The substantial issue now before the Court is the interpretation of s 73(2) and (3) of the District Courts Act 1947 which at the relevant time stated:

[7]	After the delivery of the Family Court decision on 15 May 2003 a notice of appeal to the High Court was filed on 11 June 2003 by Mrs Angus. A week later the Family Court judgment was sealed.
[8]	By letter dated 26 June 2003 the case file manager of the Family Court wrote extending time for the payment of security for costs to 28 July 2003. Nothing further happened prior to that date.
[9]	On 8 August Mrs Angus was advised that her application for legal aid had been declined. She was advised that she had 20 working days to apply for reconsideration of this decision.
[10]	On 15 August 2003 the Deputy Registrar of the Family Court wrote to the High Court advising that security for costs had not been paid. This letter was copied to the solicitor who was then acting for Mrs Angus.
[11]	That solicitor immediately wrote to the Family Court seeking a further extension of time for payment of security of costs to 22 August 2003.
[12]	On 19 August $750 was paid by the appellant to the Family Court.
[13]	On 5 September 2003 Mrs Angus filed an application for reconsideration of the decision of the Legal Services Agency.
[14]	On 9 September 2003 Mr Angus applied to the High Court to strike out the appellant’s appeal.
[15]	On 18 September 2003 the appellant was granted legal aid.
[16]	As previously noted on 8 October Ellen France J dismissed the appeal.
[17]	On 4 November 2003 a notice of appeal against that decision was filed. On 4 May 2004 the appellant applied for leave to extend time and to adduce further evidence. That was granted in part on 19 July and this current fixture was applied for on 9 December 2004.
[18]	The short point is the regime in s 73(2) and (3) which applies where an application for legal aid has been filed but not finally determined at the time that the Registrar of the Court appealed from advises the Registrar of the High Court that no security has been given.
[19]	Mr Hawk’s argument is that there are two regimes which apply as far as security for costs are concerned; the general situation and one which applies where a person has been granted legal aid.
[20]	In the general situation there was no argument that failure to give security within the seven days had major consequences (Harmos v Lambert High Court Auckland M626/82 1 November 1982, Holland J.) followed in Rotorua District Council v Schuter High Court Rotorua AP44/91 24 August 1992, Penlington J.
[21]	In Nicholson v Brown (1993) 7 PRNZ 310 Barker J took the view that the appeal was not deemed abandoned after seven days but remained on foot until the Registrar gave notice to the High Court under s 73(3). This approach was followed by Hammond J in Gordon v Registrar, District Court Hamilton (1994) 8 PRNZ 27.
[22]	That line of reasoning was influential with Tompkins J in Toussaint v Mainline Cars Limited (In Rec) (1995) 8 PRNZ 527 in respect of a case where by the time the application to strike out was heard legal aid had been granted. His Honour said:

[25]	In this case the Registrar granted one period of extension. No request was made for any further extension. At the time that the Registrar advised the High Court (as required) in terms of s 73(3) that no security for costs had been paid, the appellant was not in receipt of legal aid. The mandatory requirement therefore applied. Upon the Registrar of the Family Court advising the Registrar of the High Court, the notice of appeal was deemed to be abandoned.
[26]	A subsequent grant of legal aid cannot have retrospective effect. The appeal was abandoned before the grant was made and in such circumstances cannot be resuscitated; Scenic Developments v Kelmarna Properties [2004] NZCA 271; (2004) 17 PRNZ 489 (CA).
[27]	The argument that there is harshness in the rule that upon the Registrar of the appealed from Court giving notice to the Registrar of the High Court that the appeal is deemed to be abandoned, ignores the fact that there are proper avenues available within the statutory framework to ameliorate the situation.
[28]	First there is provision for a Registrar to grant an extension of time. In this case one was sought and obtained. A further extension could have been similarly applied for to cover the period until there was certainty about legal aid.
[29]	Secondly, security can be given to cover the period as was done belatedly in this case.
[30]	Thirdly, there is specific power in s 39(3) of the Property (Relationships) Act 1976 for a person to make an ex parte application that security is not required to be given.
[31]	Certainty and finality are important in litigation as are rights of appeal. Courts have consistently said that where the terms of a statute are clear and unambiguous they must be complied with. When this appeal was deemed to be abandoned there was no grant of legal aid so the exception did not apply. Security had not been given and the consequence was inevitable.
[32]	The appeal is accordingly dismissed.