Smith v Fletcher Construction Company Limited [2022] NZCA 107 (1 April 2022)

Last Updated: 5 April 2022

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

CA590/2021 [2022] NZCA 107

	BETWEEN	JOHN GOODWIN SMITH Applicant
	AND	THE FLETCHER CONSTRUCTION COMPANY LIMITED First Respondent ELECTRIX LIMITED Second Respondent

Court:	Cooper and Brown JJ
Counsel:	Applicant in Person C T Walker QC and M N Rathod for First Respondent K M Quinn and T McKenzie for Second Respondent
Judgment: (On the papers)	1 April 2022 at 12.30 pm

JUDGMENT OF THE COURT

1. The application for an extension of time to appeal is declined.
2. The applicant must pay one set of costs to the respondents for a standard application for leave in band A and usual disbursements.

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REASONS OF THE COURT

(Given by Brown J)

Introduction

• [1] Mr Smith applies under r 29A of the Court of Appeal (Civil) Rules 2005 (the Rules) for an extension of time in which to appeal from a judgment of Palmer J dated 9 September 2020 declining a second application by Mr Smith for access to documents in litigation between the respondents.^[1] The application is opposed by both respondents.

Background

• [2] During the trial of the proceeding between the respondents in October 2019 Palmer J granted a media organisation access to various documents in the proceeding.^[2] The documents to be provided comprised the pleadings, the opening submissions (except for redactions), the briefs of evidence of witnesses of fact (subject to redactions), the notes of evidence and the closing submissions.
• [3] Following delivery of judgment in the proceeding on 6 May 2020^[3] Mr Smith applied to access the court file in the proceeding. The reason for his request was to assist with research for his paper on the construction of the Justice and Emergency Services Precinct in Christchurch. On 13 June 2020 Palmer J granted Mr Smith access to the same material as that permitted in the October 2019 decision.
• [4] On 19 August 2020 Mr Smith made a second application for access to a substantial number of documents which had been referred to by a number of witnesses in the proceeding. Mr Smith provided a spreadsheet listing what appeared to be around 1,000 documents. The application was declined on 9 September 2020 by Palmer J who considered that the time and expense to the parties involved in assessing that volume of documents for redaction would be significant. The Judge explained:^[4]

I do not consider the principle of open justice requires so much when the documents constituting the essence of the case have been, or are being, made available. To require that would be disproportionate and may inhibit commercial parties using the courts to resolve disputes. That is particularly so after the substantive hearing has concluded and judgment has issued.

The Judge considered that limiting access to the documents previously disclosed was a reasonable limit prescribed by law which was demonstrably justified in terms of s 5 of the New Zealand Bill of Rights Act 1990.

• [5] Mr Smith’s third request seeking approximately 135 documents was resisted by both respondents. In a minute dated 5 October 2020 the Judge declined the application as he considered it was effectively dealt with by the 9 September 2020 judgment. There was a delay in releasing that minute with the result that Mr Smith did not receive it until the prescribed period for filing an appeal to this Court had expired.^[5]
• [6] Mr Smith’s application to this Court for an extension of time to appeal against the 5 October 2020 ruling was dismissed in a judgment dated 15 March 2021.^[6] The major barrier recognised by the Court was that the High Court Judge had clearly been correct in viewing the further request as essentially the same as that refused in the 9 September 2020 decision. The subsequent request was an abuse of process which could not have succeeded and any appeal against the October 2020 minute would be hopeless.^[7] The Court concluded by observing:^[8]

Mr Smith is, of course, still entitled to apply under r 29A for an extension of time to appeal the 9 September 2020 decision. That observation obviously says nothing about the likely outcome of such an application.

• [7] Mr Smith then applied to the Supreme Court for leave to appeal against this Court’s 15 March 2021 judgment. His application was dismissed on 16 June 2021.^[9] The Court drew attention to this Court’s observations concerning an application for extension of time in respect of the September 2020 judgment.
• [8] The appeal in the Electrix/Fletcher Construction litigation (CA293/2020) was argued on 9 June 2021, with Mr Smith present at the hearing, but shortly afterwards it was abandoned. Subsequently on 10 September 2021 Mr Smith applied for access to the entire Court of Appeal file. That request was declined in a minute dated 17 September 2021.
• [9] On 30 September 2021 Mr Smith filed the present application for an extension of time to appeal from the 9 September 2020 judgment.

Relevant principles

• [10] The principles applicable to applications for extensions of time under r 29A of the Rules were explained by the Supreme Court in Almond v Read.^[10] The ultimate question when considering the exercise of the discretion is what the interests of justice require. Factors identified as likely to require consideration include:^[11]

  (a) the length of the delay;
  (b) the reasons for the delay;
  (c) the conduct of the parties, particularly of the applicant;
  (d) any prejudice or hardship to the respondent or to others with a legitimate interest in the outcome; and
  (e) the significance of the issues raised by the proposed appeal, both to the parties and more generally.

• [11] While the Court recognised that the merits of a proposed appeal may, in principle, be relevant to the exercise of the discretion to extend time, a decision to refuse an extension of time based substantially on that ground should be made only where the appeal is clearly hopeless. The lack of merit must be readily apparent.^[12]

Discussion

• [12] The delay in seeking to bring the appeal is significant, the application having been filed more than a year after the date of delivery of the judgment. Mr Smith acknowledges that he did not contemplate appealing the 9 September 2020 judgment within the permitted period. As he put it:

Why would I pay $1,100 to lodge an appeal plus lawyer’s fee in taking the judgment which I largely agreed with, to appeal as against $30 to submit a further application to access a few documents?

However his attempt to appeal the subsequent 5 October 2020 judgment set in train a time-consuming series of events.

• [13] Mr Smith argues that the delay from 5 October 2020 to the Supreme Court’s decision declining leave on 16 June 2021, a period of eight and a half months, should be attributed to actions taken to mitigate the failure of the Auckland High Court registry to notify him of the delivery of the 5 October 2020 minute within the appeal period. While we accept that there was a delay in notification, we consider that the period that subsequently elapsed was the responsibility of Mr Smith.
• [14] Mr Smith elected only to seek an extension of time to appeal from the 5 October 2020 judgment rather than the 9 September 2020 judgment. When that application for an extension was dismissed he also chose to pursue an unrealistic application for leave to appeal to the Supreme Court. Indeed in his submissions in support of the application to the Supreme Court for leave to appeal it was stated that Mr Smith accepted and acted upon the decision of 9 September 2020, and “did not, and does not, wish to challenge that decision”. In the circumstances we find unconvincing Mr Smith’s contention in his submissions in support of the present application that he refrained from seeking to appeal the September judgment “for fear that my application would interfere with the fair and orderly administration of the ongoing justice (Fletcher appeal) proceedings”.
• [15] Counsel for the first respondent fairly observes that even after being informed by both this Court and the Supreme Court that an application for an extension of time to appeal was an available course, Mr Smith consciously waited a further four months. The present application was only made by Mr Smith once his application for access to this Court’s file for CA293/2020 was declined.
• [16] We consider that there would be a modest degree of prejudice for the respondents in having to engage with an appeal and the foreshadowed redaction exercise when the actual litigation in question was resolved some nine months ago. While there is always a general public interest in allowing for the scrutiny of a Court decision, we consider there is merit in the submission for the respondents that Mr Smith has the material he requires for his stated purpose. The additional 1,000 documents he seeks are not necessary in order to understand the facts, issues and arguments in the High Court or in this Court where he was an observer at the hearing.

Conclusion

• [17] As the Supreme Court observed, the longer the delay in bringing an appeal the more an applicant will be seeking an “indulgence” from the Court and the stronger the case for an extension will need to be.^[13] Notwithstanding that there was some contribution to the delay as a consequence of the failure to notify Mr Smith of the 5 October 2020 decision within the appeal period, we consider that a significant period of time then elapsed prior to the filing of the present application while Mr Smith unsuccessfully pursued other procedural avenues. He elected to do so in the face of guidance by this Court and subsequently by the Supreme Court as to the orthodox route. The record suggests that he has now had a change of mind about appealing the 9 September 2020 decision. Having weighed the Almond v Read factors, in our view the interests of justice do not require that Mr Smith should be permitted after this period of time to launch a challenge to that decision.
• [18] Consequently the application for an extension of time to appeal is declined.
• [19] Mr Smith is to pay one set of costs to the respondents for a standard application for leave to appeal in band A and usual disbursements.

Solicitors:
Craig Griffin & Lord, Auckland for First Respondent
Burton Partners, Auckland for Second Respondent

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^[1] Electrix Ltd v Fletcher Construction Co Ltd (No 3) [2020] NZHC 2348 [Electrix (No 3)].

^[2] Electrix Ltd v Fletcher Construction Co Ltd (No 1) [2019] NZHC 2678.

^[3] Electrix Ltd v Fletcher Construction Co Ltd (No 2) [2020] NZHC 918.

^[4] Electrix (No 3), above n 1, at [14].

^[5] Court of Appeal (Civil) Rules 2005, r 29(1)(a).

^[6] Smith v Electrix Ltd [2021] NZCA 67.

^[7] At [5].

^[8] At [5].

^[9] Smith v Electrix Ltd [2021] NZSC 64.

^[10] Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801.

^[11] At [38].

^[12] At [39(c)].

^[13] Almond v Read, above n 10, at [38(a)].