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Court of Appeal of New Zealand |
Last Updated: 17 April 2014
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IN THE COURT OF APPEAL OF NEW ZEALAND
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BETWEEN
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Applicant |
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AND
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First Respondent
COOPER RAPLEY LAWYERS
Second Respondent
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Hearing: |
2 April 2014 |
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Court: |
O’Regan P, Wild and White JJ |
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Counsel: |
Applicant in person
J Reardon for Respondent |
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Judgment: |
JUDGMENT OF THE COURT
____________________________________________________________________
REASONS OF THE COURT
(Given by O’Regan
P)
Introduction
[1] This is an application for an extension of time to apply for the allocation of a hearing date and to file the case on appeal. The application is made under r 43(2) of the Court of Appeal (Civil) Rules 2005 (the Rules). The application is opposed.
Appeal
[2] The appeal to which the application relates is an appeal against a decision of Williams J.[1] In that decision, Williams J struck out the claim made by Mr Reid and Mrs Christine Barber as trustees of the Marangairoa Trust against Ms Cottle and the law firm that acted for her in the transaction that is subject to the present proceedings, Cooper Rapley Lawyers. The reason Williams J struck out the claim was that the res judicata doctrine applied.[2] That was because a claim by Mrs Barber against Ms Cottle that was dismissed by Mallon J in 2008,[3] arose from the same facts and was based on the same actions of Ms Cottle as those founding the present claim. Mrs Barber applied to this Court for an extension of time within which to appeal against the judgment of Mallon J in October 2009, some 18 months outside the relevant appeal period. This Court refused to grant the extension of time.[4]
[3] Williams J found that the Marangairoa Trust, of which Mr Reid is a trustee, was a privy of Mrs Barber and Cooper Rapley Lawyers were privies of Ms Cottle. For that reason, the resolution of Mrs Barber’s claim against Ms Cottle in the judgment of Mallon J created a res judicata in relation to the claim made in the present proceedings. To the extent any new claim was made, the Limitation Act 1950 applied to prevent the claim from being made.
[4] The notice of appeal against the decision of Williams J was filed on 14 June 2011, within the relevant appeal period. Under r 43, as it stood at the time, an application for the allocation of a hearing had to be made, and the case on appeal had to be filed, by 13 December 2011. This was not done, but an application for extension of time was filed on 14 December 2011.
Timing
[5] The application for extension of time was due to be heard in March 2012, but that hearing was vacated by order of Harrison J because security for costs had not been paid at the relevant time. The Registrar refused to dispense with security and that decision was upheld on review by Arnold J.[5]
Status of Mr Reid
[6] The present application is made by Mr Reid as a trustee of the Marangairoa Trust. Mrs Barber is no longer a party. She was adjudged bankrupt in 2012. Mr Reid is a self-styled community advocate, but has now been declared a vexatious litigant.[6] The decision declaring him to be a vexatious litigant did not, however, prevent the continuation of the present appeal.[7] Mr Reid’s standing to be a plaintiff in the High Court was questioned. Ultimately Williams J decided that it was not necessary to make a finding on the issue, but he accepted for the purposes of the application to strike out that Mr Reid had standing as a trustee of the Marangairoa Trust. We will proceed on the same basis, again without deciding the point.
Grounds for extension of time
[7] Mr Reid advances the application for extension of time on the basis that he was unable to get the appeal ready for hearing and compile the case on appeal because of four matters that he had raised and which had remained unresolved at the time that the period for filing the case on appeal and seeking a hearing expired. These four matters are described and evaluated in the paragraphs that follow.
(i) Amendment of notice of appeal
[8] On 5 July 2011, Mr Reid made an application for leave to amend the notice of appeal to include argument on costs. He said no direction was made about this. However, an amended notice of appeal was filed on 20 October 2011. This does not provide any reason for delay in complying with r 43. As Mr Reid himself confirmed, the amended notice of appeal was filed some seven weeks before the expiry of the period referred to in r 43.
(ii) Security for costs - review
[9] On 12 August 2011, the Registrar refused to dispense with security for costs in respect of the present appeal. On 29 August 2011, Mr Reid applied for a review of that refusal. In fact the application for review was made outside the ten working day period provided for in r 7(3) of the Rules. Notwithstanding this, the Judge who dealt with the application for review, Arnold J, dealt with the matter on the merits.[8] However, as a result of a delay in referring the matter to a Judge for decision, the decision in relation to the review was not made until 6 March 2012, that is some three months after the date on which the case on appeal had to be filed and a hearing had to be sought. While it is regrettable that there was a significant delay in dealing with the application for review of the decision of the Registrar not to dispense with security for costs, the six month period provided for in r 43 still operates. In the present case, security for costs was ultimately paid by Mr Reid.
(iii) Mr Reid’s status
[10] The respondents challenged the status of Mr Reid as trustee of the Marangairoa Trust to pursue the appeal in memoranda to the Court dated 30 June 2011 and 5 July 2011. Mr Reid argued that he was entitled to determination by the Court as to his status before posting security for costs and or filing fees. We disagree. He knew that his status was questionable because the matter had been fully aired in the High Court and Williams J had not been prepared to make a finding. There was no reason for the Court to deal with this as a preliminary issue and the fact that it was not resolved did not provide a good reason for noncompliance with r 43.
(iv) Transcript
[11] On 4 July 2011 Mr Reid sought a direction that the High Court provide a transcript of the hearing before Williams J. Mr Reid said this was necessary for inclusion in the case on appeal. In fact, there was no evidence taken before Williams J so no transcript was required for the case on appeal and there does not appear to be any reason why the expense of preparing a transcript of the argument of counsel ought to be incurred.
Vexatious litigant proceeding
[12] Mr Reid also argued that the Registrar of this Court deliberately delayed the progress of the matter because it was one of the matters referred to in the application to the High Court to have Mr Reid declared a vexatious litigant. There is nothing to support that contention. It is true that Arnold J made a ruling that a hearing for the present application for extension of time ought not to be allocated while the vexatious litigation proceedings were extant but that was made well after the expiry of the period for compliance with r 43 and has no bearing on the need to comply with r 43. Ultimately, as noted earlier, Mr Reid was declared vexatious, but the High Court decided that the order did not prevent the present proceeding continuing in this Court.[9]
Merits
[13] Mr Reid also argued that the substantive proceeding had merit. That was strongly disputed by Mr Reardon on behalf of the respondents. He described the case as “hopeless”. He said it was an effort to relitigate exactly the same facts as the claim brought by Mrs Barber in earlier litigation that was commenced in 2004, but related to events that had occurred in 1998. In addition, he said that the statement of claim in the High Court did not seek judgment for the Marangairoa Trust. All the pleadings and prayers sought either a declaration in favour of, or a payment to, Mrs Barber personally. He described the claim as “a claim by Mrs Barber dressed in Mr Reid’s clothes”.
[14] When dealing with the application for review of the decision of the Registrar refusing to waive security for costs, Arnold J expressed the tentative view that the appeal had little prospect of success. He said that the proceeding that had been struck out in the High Court sought to relitigate findings made in an earlier proceeding in the High Court (the decision of Mallon J) in respect of which there had already been an attempted appeal to this Court. He pointed out that, even if the proceeding raised anything new, any new matter was likely to be time-barred.[10]
Our overall evaluation
[15] It was noted by this Court in relation to the predecessor to r 43, the six month time limit in r 43 implemented:[11]
... the philosophy that once a matter has been the subject of a determination in the High Court any party wishing to challenge that determination by an appeal to the Court must do so expeditiously or forfeit the right to pursue the appeal.
[16] Once the six month deadline is passed, an intended appellant faces an appeal that is treated as abandoned unless the Court intervenes. As noted in Harris v Davies, once r 43 has been triggered, an appellant is in a position where, instead of being able to appeal as of right, he or she requires the exercise by this Court of a positive discretion.[12] As the Court noted in the Russell decision, an appeal as of right can be brought regardless of the merits, but once an appellant needs leave to continue, the Court will generally grant the leave only if the appeal seems meritorious.[13]
[17] In the present case the delay in compliance is ongoing, but it must be acknowledged that the application for extension of time was made within only a day of the expiry of the six month period provided for in r 43. If the case on appeal had been filed then, there would have been no prejudice. It is also true that the delay in dealing with the review of the decision of the Registrar in relation to security for costs is a factor in Mr Reid’s favour. That was a delay caused by the Court, not by Mr Reid. It may have been a decisive factor in favour of an extension of time if the application appeared meritorious.
[18] However, the decisive point is that the appeal has no merit. It is, as indicated earlier, an attempt to relitigate a case which was resolved against Mrs Barber in 2010, when this Court refused to allow her to appeal 18 months out of time. The attempt to dress the same dispute up as a dispute now involving the trust rather than Mrs Barber personally, and adding Cooper Rapley Lawyers as a further defendant does not avoid the application of the principle of res judicata. The position of Mr Reid as plaintiff is problematic, when his real role is to act as an advocate for Mrs Barber. And as Arnold J pointed out, any additional cause of action to that which was pursued in the earlier litigation would now be well and truly time-barred.
Result
[19] Mr Reid requires an indulgence from the Court to continue with the appeal. As this Court made clear in both Harris v Davies and Russell, such an indulgence will not be given to pursue an appeal that has no prospect of success.
[20] We therefore refuse to extend the time for the filing of the case on appeal and the seeking of a fixture. That means the appeal is now at an end.
Costs
[21] We award costs to the respondents for a standard application on a band A basis and usual disbursements. The security for costs which has been paid to the Court may be used to meet that award, and the excess (if any) should then be refunded to Mr Reid. The respondents should share the award in such proportions as they agree between them.
Solicitors:
Cooper Rapley Law,
Palmerston North for Respondents
[1] Reid and Barber v Cottle HC Palmerston North CIV 2010-454-582, 17 May 2011.
[2] Res judicata is a rule that parties to a proceeding in which a final judgment has been issued (and parties so closely associated with them that they are classified as privies) cannot relitigate matters decided in the earlier proceeding or that could have been litigated in the earlier proceeding.
[3] Barber v Cottle HC Palmerston North CIV 2004-454-756, 13 March 2008.
[4] Barber v Cottle [2010] NZCA 31.
[5] Reid v Cottle [2012] NZCA 70.
[6] Attorney-General v Reid [2012] NZHC 2119, [2012] 3 NZLR 630.
[7] At [98].
[8] Reid v Cottle, above n 5.
[9] See above at [6].
[10] Reid v Cottle, above n 5, at [11].
[11] Airwork (NZ) Ltd v Vertical Flight Management Ltd [1999] 1 NZLR 29 (CA) at 30.
[12] Harris v Davies [2007] NZCA 358 at [8], citing Russell v Commissioner of Inland Revenue (2006) 22 NZTC 19,807 (CA) at [10].
[13] Russell v Commissioner of Inland Revenue, above n 12, at [23].
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