Vukomanovic v Residence Review Board [2011] NZCA 342 (22 July 2011)

Last Updated: 26 July 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA845/2010 [2011] NZCA 342

BETWEEN GORDANA VUKOMANOVIC Applicant

AND THE RESIDENCE REVIEW BOARD Respondent

Hearing: 19 July 2011

Court: O'Regan P, Glazebrook and Wild JJ

Counsel: Applicant in person J Foster for Respondent

Judgment: 22 July 2011 at 4.30 pm

JUDGMENT OF THE COURT

1. The application under r 43(3) of the Court of Appeal (Civil) Rules 2005 for an extension of time is dismissed.
   

B The appeal is now treated as abandoned pursuant to r 43(1).

REASONS OF THE COURT
(Given by Wild J)

[1] By application filed on 24 June 2011, Ms Vukomanovic applies under r 43(3) Court of Appeal (Civil) Rules 2005 for an extension of time to appeal.
[2] Ms Vukomanovic seeks to appeal against a judgment of Joseph Williams J delivered on 17 November 2010 declining to set aside a judgment he had given on 4 August 2010. That latter judgment dismissed Ms Vukomanovic’s application for judicial review of a decision of the Residence Review Board.
[3] We need first to explain why Ms Vukomanovic needs an extension of time. Having brought her appeal on 14 December last, Ms Vukomanovic applied to waive the requirement in r 35 that she give security for the costs of her appeal. Although the Registrar refused to waive security, she reduced it from $5,560 to $2,500.
[4] On 17 March Chambers J dismissed Ms Vukomanovic’s application to review the Registrar’s decision. He gave Ms Vukomanovic until 13 April to give the $2,500 security fixed by the Registrar. In the course of his decision, Chambers J described the appeal as “frankly hopeless”. He urged Ms Vukomanovic to take legal advice, predicting that if she did so she would be advised that the appeal was hopeless and should be abandoned so that Ms Vukomanovic would save herself the security she had been ordered to give.
[5] Undeterred, on 22 March Ms Vukomanovic applied to have a panel of three judges review the decision of Chambers J. In a minute dated 13 June Arnold J made it clear that this Court does not have jurisdiction to review the decision of Chambers J. Arnold J noted that Ms Vukomanovic’s only remedy in respect of that decision was to seek leave to appeal to the Supreme Court. Failing that she must pay the security fixed. Arnold J noted that Ms Vukomanovic had applied for a fixture under r 37(2). He pointed out that she was not entitled to do that until she had given the security fixed, and confirmed that no fixture would be allocated until the question of security for costs was resolved.
[6] The application for an extension of time we are dealing with is Ms Vukomanovic’s response to that situation.
[7] In a second minute issued on 6 July, Arnold J reiterated that the alternatives facing Ms Vukomanovic were to seek leave to appeal to the Supreme Court against the decision of Chambers J upholding the Registrar’s decision about security for costs, or to pay that security. He noted that Ms Vukomanovic was well outside the time for seeking leave to appeal to the Supreme Court. He also made the obvious point that how Ms Vukomanovic deals with security in the meantime will be relevant to how the Court deals with the present application.
[8] As of the hearing of this application, Ms Vukomanovic has neither paid the security for costs fixed, nor applied to the Supreme Court for leave to appeal. So she has not exercised either of the alternatives that were open to her. In her oral submissions in support of her application, Ms Vukomanovic told us that she was unable to pay the $2,500 security for costs. Pressed by the Court, she was unable to give any time frame within which she would be able to pay the security.
[9] Rule 43(2) gives this Court a discretion to extend time to allow the appeal to proceed. Given Ms Vukomanovic’s position as to payment of the security for costs, and given that she has not applied to the Supreme Court for leave to appeal, there is no point in our even considering extending time. Rule 43(1) provides that Ms Vukomanovic’s appeal is to be treated as having been abandoned, and that really is the end of this application.
[10] Even if it were appropriate to consider exercising the discretion to extend time, neither of the two factors that would be relevant to its exercise favour Ms Vukomanovic. Those two factors are the reasons why the appeal has not been prosecuted diligently, and the merits of the proposed appeal.
[11] The chronology we have outlined sufficiently deals with the first of those reasons. In short, it is Ms Vukomanovic’s inability or unwillingness to pay the security for costs.
[12] We turn to the merits of the proposed appeal. The judgment of Joseph Williams J that Ms Vukomanovic seeks to appeal was a judgment declining to recall his judgment of 4 August 2010 dismissing an application by Ms Vukomanovic for judicial review of the decision of the Residence Review Board. The Judge dealt in turn with the two reasons Ms Vukomanovic had advanced in asking the Judge to recall his judgment. The first was that the Residence Review Board had not appeared before the Judge in its own right to support its decision. As the Judge correctly pointed out, it is well established that administrative tribunals such as the Residence Review Board do not appear in the High Court upon an application for judicial review to defend their decisions. The Judge cited some of the authorities establishing that, which are conveniently collected in McGechan on Procedure.[1] As the Judge pointed out, the appropriate party to carry the burden of resisting Ms Vukomanovic’s application for judicial review was the second respondent, the Chief Executive of the Department of Labour. The Chief Executive fulfilled that role, represented by counsel.
[13] The second ground for recall advanced by Ms Vukomanovic was that documentation supporting her voluntary activities with the Anglican and Orthodox Churches and with Yugo Sport had not found their way to the Residence Review Board or to the High Court on the judicial review application.
[14] The Judge observed that that seemed to be because Ms Vukomanovic had not provided those documents. The Judge was correct to point out that documents not provided to him could not form a proper ground for asking him to recall his judgment. The Judge correctly pointed out that, if those documents had any relevance, it was only on an appeal against his decision on judicial review.
[15] We can see no possible error in the judgment Ms Vukomanovic seeks to appeal against, because neither of the grounds advanced by Ms Vukomanovic provided the proper basis for the Judge to recall his judgment on the judicial review application.
[16] Accordingly, we dismiss Ms Vukomanovic’s application for an extension of time for her appeal. The result is that the appeal is now to be treated as abandoned pursuant to r 43(1).

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] Anna Joseph (ed) McGechan on Procedure (on line looseleaf ed, Brookers) at [JA9.04(2)].