Rose v Rhode [2006] NZCA 28 (16 March 2006)

Court of Appeal of New Zealand

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Rose v Rhode [2006] NZCA 28 (16 March 2006)

Last Updated: 25 March 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA281/05

BETWEEN JOHN LESLIE ROSE
Applicant

AND DAVID LAWRENCE RHODE
Respondent

Hearing: 13 March 2006

Court: Glazebrook, Hammond and Cooper JJ

Counsel: Applicant in person
R J Hart for Respondent

Judgment: 16 March 2006

JUDGMENT OF THE COURT

A. The application is dismissed.

B. The respondent will have costs of $1,500 together with usual disbursements.

REASONS

(Given by Hammond J)

Introduction

[1]	Mr Rose, the applicant, is an intending appellant. He applies under r 5(2) of the Court of Appeal (Civil) Rules 2005 to extend the time provided by r 14 of the High Court rules for applying to the High Court, for leave to appeal to this Court.

Background

[2]	On 4 June 2000 vehicles being driven by Mr Rose and the respondent, Mr Rhodes, collided in South Auckland. Mr Rose’s vehicle sustained damage of some $13,000; Mr Rhodes’ just under $8,000.
[3]	Each driver blamed the other for the accident, and sought recompense. Ultimately, there was a hearing before the Disputes Tribunal; then a hearing in the Manukau District Court on 30 May 2005. In the District Court Mr Rose’s claim failed; Mr Rhodes’ counter claim was allowed, and he was also awarded costs and interest. Mr Rose thereupon appealed to the High Court. On 29 November 2005, Potter J dismissed that appeal, in a considered decision.
[4]	Mr Rose then wished to advance a second appeal, to this Court. Any such appeal required an application for leave to the High Court, under s 67 of the Judicature Act 1908. Pursuant to r 14(1) of the Court of Appeal Rules, such leave needed to be applied for within 20 days after Potter J’s decision. Mr Rose did not make any such application. He is now plainly out of time, under that rule.
[5]	Mr Rhodes then applied to have a Notice of Appeal which had been incorrectly lodged in this Court (without leave), struck out.
[6]	Mr Rose responded to that move by informally seeking leave to appeal (out of time) under r 29(4) of the Court of Appeal (Civil) Rules 2005.
[7]	On 28 February 2006 the case file was referred to Chambers J in this Court. By Minute of that date, Chambers J identified Mr Rose’s predicament - that he was out of time. Chambers J noted that the only possible avenue of relief for Mr Rose would be to endeavour to persuade this Court to enlarge the time, under r 5(2) of the rules of this Court, for filing an application for leave to appeal in the High Court. Mr Rose then made the application which is before us.

Discussion

[8]	Rule 5(2) of the Court of Appeal Rules is rarely resorted to in the sort of circumstances raised by this case. Finality is important in litigation, and the expiration of appeal periods, and periods to apply for leave to appeal, do not of themselves normally occasion resort to that rule.
[9]	In any event, this Court should not resort to r 5(2) where the application for an extension does not itself meet the underlying tests posed by s 67 of the Judicature Act 1908. We therefore first consider this matter as if we had a timeous application under s 67 of the Judicature Act in front of us. That is also the most favourable course to Mr Rose.
[10]	Mr Rose’s first concern is that he says a claim of bias or pre-determination of his case has never been squarely addressed. Mr Rose says that at the commencement of his case in the Disputes Tribunal the presiding officer said: "Matters such as these are discussed amongst ourselves as we do, and I can tell you that no further appeals will be allowed in this matter." Mr Rose said he took a note of this comment. He viewed this statement with great apprehension; he says there must be an incestuous relationship between Referees and Judges in the same courthouse, and he took the statement as meaning his case was doomed from the outset. He further claims that Potter J did not squarely address this aspect on his High Court appeal, saying that he had "abandoned" the point, when he had not.
[11]	The statement - if made - indicated no more than the referees would discuss the case amongst themselves. In any event, no application was made to the District Court Judge that she should recuse herself, or that the case should be heard by a District Court Judge based out of Manukau. In those circumstances, Potter J was perfectly entitled to press on with the merits of the appeal, as she did.
[12]	Mr Rose’s second concern is that the District Court Judge, then the High Court Judge, got it wrong on the facts. Mr Rose accepted before us that all the relevant witnesses gave evidence, and were cross-examined. But he contends that no reasonable Judge could have come to the view that either of their Honours did. Potter J, in particular, was clearly alive to Mr Rose’s deeply felt belief that there was here a miscarriage of justice. She delivered, for a matter of this character, a relatively lengthy considered judgment which canvassed the evidence at some length. But Mr Rose is simply unable to accept the outcome in the lower courts. It is not the function of this Court on a second appeal to engage in mere error correction. We are not, by this indication, suggesting that there was a factual error. There have been concurrent findings of fact against Mr Rose in the lower courts.
[13]	Thirdly, and relatedly, the proposed second appeal raises no question of law of a relevant character, and certainly none with any element of public interest, such as is required by the principles adopted in this Court in dealing with applications under s 67.
[14]	Even therefore entirely overlooking, as we do for present purposes, the procedural errors which were made by Mr Rose, and treating this application as if it had been timeously made, the application for leave for a second appeal was always bound to fail.
[15]	We therefore decline the application to extend the time for leave under r 5(2).
[16]	The respondent will have costs of $1,500 together with usual disbursements (which under the rules will include the travel and accommodation expenses of counsel).

Solicitors:
Jones Fee, Auckland for Respondent