Barton v Chief Executive of the Department of Corrections [2021] NZCA 328 (20 July 2021)

Last Updated: 27 July 2021

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA230/2021 [2021] NZCA 328

	BETWEEN	DAVID SIMON BARTON Appellant
	AND	CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS AND ORS Respondents

Counsel:	Appellant in person S M Kinsler and E M Watt for Respondents
Judgment: (On the papers)	20 July 2021 at 10.30 am

JUDGMENT OF GODDARD J

1. An extension of time to file the appeal is granted.
2. The application for a stay of the High Court judgment is declined.

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REASONS

Background

• [1] Mr Barton is in custody at Ngawha Prison. He has filed proceedings in the High Court against the Chief Executive of the Department of Corrections and numerous other defendants, in connection with misconduct proceedings before a visiting Justice at that prison.
• [2] In a judgment delivered on 12 February 2021, Venning J held that Mr Barton’s pleadings were likely to cause prejudice or delay and are frivolous and vexatious.^[1] He made orders staying the proceedings, and directing that the stay would only be lifted when an amended pleading is filed that is approved by a High Court Judge. Unless such approval was granted to an amended pleading by 31 May 2021, the proceedings would be struck out.^[2]
• [3] On 31 May 2021 Mr Barton filed an amended statement of claim in the High Court. On 3 June 2021 he filed a memorandum indicating that he intended to further refine that pleading. It appears further memoranda were also filed in the High Court.
• [4] On 18 June 2021, van Bohemen J issued a minute in the High Court proceedings, after reviewing the amended pleading filed by Mr Barton. He said:

[8] It is plain that Mr Barton has failed to remedy the significant deficiencies in his pleading identified by Venning J and that the amended proceeding does not comply with the High Court Rules.

[9] In terms of Venning J’s judgment of 12 February 2021, the proceeding is already struck out because Mr Barton filed his amended statement of claim on 31 May 2021, thereby not allowing sufficient time for a High Court Judge to approve the pleading by that date as required by Venning J’s judgment.

[10] Lest there be any doubt, however, I order that the proceeding be struck out because it is vexatious and frivolous and an abuse of process.

Extension of time to appeal to this Court

• [5] Mr Barton wishes to appeal from the 12 February 2021 judgment. But he did not file his appeal within the 20-working-day period for filing an appeal. On 28 April 2021 he filed an application for an extension of time to appeal under r 29A of the Court of Appeal (Civil) Rules 2005 (Rules). He also filed a notice of appeal which was received by the Court on 7 May 2021.
• [6] The delay in filing the appeal was not lengthy. The respondents do not suggest they are prejudiced by that delay and abide the decision of the Court in relation to extension of time for bringing an appeal. In those circumstances, an extension of time under r 29A is appropriate.

Application for stay of High Court judgment

Mr Barton’s application for a stay

• [7] Mr Barton also applied to this Court for a stay of the High Court judgment pending appeal, on various grounds including his limited access to typing facilities at Ngawha Prison.
• [8] On 25 May 2021 I directed that Mr Barton should apply for an extension of time to file his amended pleading in the High Court, before this Court considered his application for a stay. As I noted, if an extension of time was granted by the High Court that would address any perceived need for interim orders from this Court.
• [9] Mr Barton applied for an extension of time to file his amended pleading until 31 July 2021. The Deputy Registrar of the High Court declined to refer the request for an extension of time to a Judge, on the basis that a minute of Venning J dated 7 May 2021 directed that the Court was not to accept any further communications/documents from Mr Barton apart from the amended pleading required by the 12 February 2021 judgment.
• [10] In a minute dated 31 May 2021, I indicated that in those circumstances it appeared necessary for this Court to determine the application for a stay. I noted that on a preliminary review of that application, it did not appear to identify any prejudice to Mr Barton if the stay was not obtained, and his application for leave to appeal and resulting appeal were to succeed. In that scenario, the order striking out his proceeding would be set aside. In those circumstances I invited Mr Barton to consider whether he pursued his application for a stay. I directed that he file, by Tuesday 8 June 2021, a memorandum indicating whether he pursued the application for a stay. I also directed that if he did pursue the application for a stay, the memorandum should identify the prejudice that he says he will suffer if a stay is not granted.
• [11] Mr Barton subsequently sought, and was granted, extensions of time to file that memorandum. It was filed on 17 June 2021. In that memorandum Mr Barton advised that he does wish to continue with his application for a stay. However the memorandum primarily addresses issues relevant to Mr Barton’s substantive appeal, not issues relevant to the stay application. In particular, the memorandum does not identify any prejudice that would be suffered in the absence of a stay, if the appeal is ultimately successful.
• [12] Counsel for the respondents filed a memorandum on 22 June 2021 opposing the grant of a stay on the basis that the issue is moot, in light of the minute issued by van Bohemen J. The respondents also submit that there is no basis for the stay to be granted, as Mr Barton has not identified any prejudice that would be suffered in the event that no stay is granted.
• [13] Mr Barton filed a memorandum in response dated 23 June 2021, focussing on the minute of van Bohemen J dated 18 June 2021, and the limited access he has been provided to typing facilities. That memorandum also does not identify any relevant prejudice that would follow from refusal of a stay, were the appeal to succeed.

Discussion

• [14] The purpose of a stay pending appeal is to preserve the appellant’s position, in circumstances where, in the absence of a stay, the appellant will suffer some form of prejudice even if their appeal is ultimately successful. The purpose of a stay is to ensure that appeal rights are practically effective.
• [15] In this case, as noted in my minute dated 31 May 2021, if Mr Barton’s appeal succeeds the order striking out his claim would be set aside. He would be restored to the position he was in before the High Court judgment. Nothing in Mr Barton’s memorandum dated 17 June 2021, or in his memorandum in response dated 23 June 2021, or in the accompanying documents he has filed, reveals any form of prejudice that Mr Barton is likely to suffer if a stay is not granted, and his appeal is ultimately successful. The documents Mr Barton has filed do not engage with that key issue.
• [16] In his memoranda, Mr Barton requested a half-day hearing in person to further argue the merits of his stay application. However he has not identified any arguable basis for a stay on which he could usefully expand. An interlocutory application of this kind must be dealt with on the papers, unless a Judge directs otherwise.^[3] I consider that this application ought to be determined on the papers, as contemplated by the Rules.
• [17] I am satisfied that a stay would serve no useful purpose, and that there is no conceivable basis on which a stay could be granted in this case.
• [18] The application for a stay must therefore be declined.

Informal application seeking affidavit of typing hours

• [19] Finally, Mr Barton has sent emails to the Court making what he describes as an informal application under r 10B of the Rules, asking this Court to issue a minute directing the Department of Corrections to swear and file an affidavit setting out the typing hours he has been allowed from 13 October 2020 to 2 July 2021. Mr Barton says the purpose of such an affidavit is “that it will confirm to the Court my consistently reduced number of typing hours, which clearly substantially prejudiced [me] in the Court below”.
• [20] Rule 10B provides for an informal application to be made where the Rules, or a judgment, order, minute, or other direction of the court, provide for a party to make an informal application. No rule, or judgment, order, minute or direction of the Court provides for the informal application that Mr Barton has sought to make. In those circumstances, there is not strictly speaking any application properly before the Court.
• [21] In any event, the application is not one that should be granted. Mr Barton will of course need to be provided with access to the facilities (including computer time) required to enable him to participate effectively in this appeal. But I do not consider that requiring an affidavit from the Department of Corrections setting out the information sought by Mr Barton will assist this Court to determine Mr Barton’s appeal. The number of hours of typing that Mr Barton has been allowed over the last nine months or so is not relevant to the question whether the High Court pleadings (as amended) were likely to cause prejudice or delay, or were frivolous and vexatious, and should have been stayed (then struck out) under r 15.1 of the High Court Rules 2016.

Result

• [22] An extension of time to file the appeal is granted.
• [23] The application for a stay of the High Court judgment is declined.

Solicitors:
Meredith Connell, Wellington for Respondents

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^[1] Barton v Chief Executive, Department of Corrections [2021] NZHC 152 at [44].

^[2] At [47].

^[3] Court of Appeal (Civil) Rules 2005, rr 27C and 19B(2)(b).