King v ASB Bank Limited [2014] NZCA 467 (25 September 2014)

Last Updated: 29 September 2014

IN THE COURT OF APPEAL OF NEW ZEALAND
CA810/2013 [2014] NZCA 467
BETWEEN	BRUCE JAMES KING Applicant
AND	ASB BANK LIMITED Respondent

Counsel:	Applicant in person
Judgment: (On the papers)	25 September 2014 at 11.00 am

JUDGMENT OF STEVENS J

(Review of Decision of Deputy Registrar)

1. Extension of time within which to apply to review the decision of the Deputy Registrar granted.
2. The application for a review of the decision of the Deputy Registrar is dismissed.

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REASONS

Introduction

[1] This is an application for review of the decision of a Deputy Registrar to refuse to accept the filing of an application by Mr King for an extension of time under r 43(2) of the Court of Appeal (Civil) Rules 2005 (the Civil Rules).^[1] This occurred because the application did not comply with procedural requirements in material respects.

Procedural history

[2] On 2 December 2013 Mr King filed a notice of appeal against a decision of Katz J.^[2] The three month period set out in r 43 of the Civil Rules expired on 25 March 2014.^[3] That day passed without compliance with the requirements of the rule dealing with filing of the case on appeal and an application for the allocation of a hearing date.^[4] The Deputy Registrar informed Mr King by email on 26 March 2014 that he had until 25 June 2014 to apply for an extension of the three month time period.^[5] On 25 June 2014, the last available day for filing such an application, Mr King emailed an “Application for Time Extension” to the Deputy Registrar. Because it was sent by email, the application was unsigned.
[3] On 2 July 2014 the Deputy Registrar declined to accept the application because it did not comply with the requirements of the Civil Rules. The defects identified were:

• (a) the application was filed by email rather than hard copy as required by r 31 of the Civil Rules; and
• (b) the application was not accompanied by the required filing fee or fee waiver application.^[6]

[4] In an effort to remedy the second defect a fee waiver application was filed on 3 July 2014. This was later returned because the r 43(2) application had already been rejected.
[5] On 8 August 2014 Mr King filed an “Application to Registrar for Leave to File Document” (the document being the r 43 application). The application relied on rr 5, 6 and 8 of the Civil Rules. It is appropriate to treat this as an application to review the Deputy Registrar’s decision under r 7.
[6] Rule 7(3) requires any such review application to be filed within 10 working days after the decision. That deadline passed on 16 July 2014. Mr King thus also requires an extension of time within which to apply to review the decision. I grant such an extension in this case, given that some latitude may be afforded to litigants in person^[7] and the ability to review the Deputy Registrar’s decision was not pointed out to Mr King.
[7] In his review application, Mr King submits the defects are not sufficient to justify the Deputy Registrar’s decision in three respects:

• (a) Rule 10(1)(b)(iii) of the Civil Rules provides for the filing of documents by email, which means that the application was filed on time.
• (b) While the fee waiver application was not filed with the application, all previous fee waivers have been granted and there is little or no prejudice to the respondent given the short time it took to file for waiver.
• (c) The criteria for a successful application under r 29A are greatly circumscribed.

Evaluation

[8] Mr King’s correspondence with the Registry indicates he considered that such interlocutory applications could be filed by email. The Deputy Registrar referred to r 31 of the Civil Rules in informing Mr King such applications must be delivered by hand or sent by post.
[9] The correct approach is that the Civil Rules prescribe no process for the filing of r 43(2) applications. Rule 5(4) governs such situations:

(4) If any matter arises in a proceeding for which no form of procedure is prescribed by these rules, the Court must dispose of the matter as nearly as practicable in accordance with the provisions of these rules affecting any similar matter, or, if there are no such provisions, in the manner that the Court thinks best calculated to promote the ends of justice.

[10] The filing of an application to extend time under r 43 is similar to an application for leave to appeal. In the case of both applications the applicant must apply to the Court to progress an appeal and the Court has a discretion whether or not to grant the application.^[8] On that approach, the requirements under r 10 for the filing of a document, which can be accepted by email, are not applicable. Rule 16 states applications for leave to appeal are brought only when delivered by hand or sent by post. The position is therefore the same for applications under r 43(2). It is also consistent with current Registry practice.
[11] In any event, there was no payment of the prescribed fee or the filing on time of a fee waiver form, which is a clear requirement of the Court of Appeal Fees Regulations 2001. Such requirements exist for good reason and compliance is not a mere formality.
[12] Filing a defective application by email on the last day possible is therefore not sufficient and the decision reached by the Deputy Registrar was correct.
[13] Since a r 43(2) application was not made within the prescribed timeframe, r 43(3) applies. That rule states that “no extension may be granted on an application that is made later than 3 months after that expiry”. Rule 43 overrides rr 5(2) and 6 to which Mr King refers in his application.^[9] Therefore, even if I were inclined to do so, I am not able to exercise the discretion in those rules to remedy the defects.
[14] If Mr King wishes to pursue his appeal he must file an application for an extension of time for appealing pursuant to r 29A. Mr King contends this is not a satisfactory alternative, given the limited application of that rule in cases of deemed abandonment.^[10] However, to the extent this situation has arisen, it is a direct consequence of Mr King’s approach to his appeal.^[11] In the normal course, appeals and associated applications are to be progressed promptly.

Result

[15] The application for a review of the Deputy Registrar’s decision is dismissed.

Solicitors:
Simpson Grierson, Auckland for Respondent

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^[1] The case officer who made the decision is also a Deputy Registrar under the Court of Appeal (Civil) Rules 2005 [Civil Rules].

^[2] King v ASB Bank Ltd [2013] NZHC 2914.

^[3] Pursuant to r 43(5) the time period between 25 December and 15 January is not included in the calculation of the three months.

^[4] For completeness I record that the review of the Registrar’s decision on security for costs does not prevent compliance with r 43. See Reid v Cottle [2014] NZCA 154 at [9].

^[5] Civil Rules, r 43(3).

^[6] Regulation 4(2) of the Court of Appeal Fees Regulations 2001 requires all fees to be prepaid subject to the power to waive fees in regs 5 and 6.

^[7] Crequer v Chief Executive of the Ministry of Social Development [2014] NZCA 284 at [13].

^[8] Crequer, above n 7, at [12]. See also Harris v Davies [2007] NZCA 358 at [8]. Regarding applications for leave to appeal, there must be a question of law of requisite importance to justify the second appeal: see Waller v Hider [1997] NZCA 221; [1998] 1 NZLR 412 (CA) at 413.

^[9] Civil Rules, r 43(4).

^[10] Sexton v Rice Craig [2007] NZCA 200 at [31].

^[11] Sexton, above n 10, at [28].