Barton (deceased) v Chief Executive of the Department of Corrections [2023] NZCA 237 (15 June 2023)

Last Updated: 19 June 2023

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

CA230/2021 [2023] NZCA 237

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

Court:	French and Collins JJ
Counsel:	Appellant self-represented S M Kinsler and E M Watt for Respondents
Judgment: (On the papers)	15 June 2023 at 9.30 am

JUDGMENT OF THE COURT

1. The appeal is struck out.
2. There is no order for costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Collins J)

Introduction

[1] In July 2020, when the late Mr Barton was serving a sentence of imprisonment, he brought judicial review proceedings against, inter alia, the Chief Executive of the Department of Corrections, the Commissioner of Police and the New Zealand Parole Board, seeking damages totalling approximately $16,720,000. Then, in September 2020, Mr Barton was charged with two disciplinary offences. Mr Barton sought various forms of injunctive relief relating to the misconduct proceedings.

[2] In a judgment dated 12 February 2021, Venning J dismissed Mr Barton’s most recent applications for interim relief and stayed the proceedings.^[1] The Judge directed that the proceedings would be struck out on 31 May 2021 if Mr Barton failed, before that date, to file an amended statement of claim that was approved by a High Court Judge.^[2]

[3] Mr Barton applied for recall of Venning J’s judgment. That application was declined on 31 March 2021. Mr Barton then applied for leave to appeal the recall judgment and a stay of the 12 February 2021 judgment. Both applications were declined by Venning J, who also directed the Registrar not to accept any further communications from Mr Barton on the file.

[4] On 28 April 2021, Mr Barton filed an application in this Court for an extension of time to appeal the 12 February judgment. He also applied to stay the striking out of the judicial review proceeding.

[5] On 20 July 2021, this Court granted Mr Barton’s application for an extension of time to appeal but declined his stay application.^[3]

[6] Mr Barton passed away in May 2022. Thereafter, this Court issued a minute on 23 May 2022 staying Mr Barton’s appeal until 1 August 2022. The minute recorded that Mr Barton’s personal representatives were to advise the Court by 1 August 2022 whether or not they wished to discontinue the appeal.

[7] In a minute dated 17 April 2023, Goddard J recorded:

(a) the Court had not received any communications from Mr Barton’s personal representatives;

(b) it was likely Mr Barton’s family did not wish to continue the appeal; and

(c) the Court would consider striking out the appeal pursuant to r 44A of the Court of Appeal (Civil) Rules 2005 (the Rules) on 15 May 2023 if no communications opposing that course of action were received from Mr Barton’s personal representatives by 5 May 2023.

Rule 44A(1)

[8] Under r 44A(1) of the Rules, the Court may, on its own initiative, make an order striking out an appeal if:

(a) the appellant is in continuing default in complying with any of these rules or with any procedural direction or order made by a Judge; or

(b) the appellant has failed to prosecute the appeal with due diligence and dispatch; or

(c) the appeal is frivolous, vexatious, or otherwise an abuse of the process of the Court.

Analysis

[9] It is in the interests of justice for the appeal to be struck out, on the basis that Mr Barton’s personal representatives have failed to prosecute his appeal with due diligence and dispatch.

[10] Goddard J’s minute of 23 May 2022 made very clear to Mr Barton’s personal representatives that it was necessary for them to advise the Court whether the appeal was to be progressed posthumously.

[11] The nature of the applications for judicial review and relief, combined with the protracted delays that have occurred in relation to this appeal, make it abundantly clear that the Court should exercise its discretion to strike out the appeal.^[4]

Result

[12] The appeal is struck out.

[13] There is no order for costs.

Solicitors:
Meredith Connell, Wellington for Respondents

---

^[1] Barton v Chief Executive of the Department of Corrections [2021] NZHC 152.

^[2] At [47].

^[3] Barton v Chief Executive of the Department of Corrections [2021] NZCA 328.

^[4] Jessica Gorman and others McGechan on Procedure (online ed, Thomson Reuters) at [CR44A.01]; and Lovie v Medical Assurance Society New Zealand Ltd [1992] 2 NZLR 244 (HC) at 253.