Fuller v District Court at Waitâkere [2023] NZCA 634 (11 December 2023)

Last Updated: 18 December 2023

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

CA256/2023 [2023] NZCA 634

	BETWEEN	PETER MALCOLM FULLER Appellant
	AND	DISTRICT COURT AT WAITĀKERE Respondent

Court:	Courtney and Katz JJ
Counsel:	Appellant in person No appearance for Respondent
Judgment: (On the papers)	11 December 2023 at 10.30 am

JUDGMENT OF THE COURT

1. The application for an extension of the time for complying with r 43(1) of the Court of Appeal (Civil) Rules 2005 is granted.
2. The time for complying with r 43(1) is extended to 16 January 2024.

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REASONS OF THE COURT

(Given by Courtney J)

• [1] In 2022 Mr Fuller sought copies of audio files relating to various proceedings in which he had been involved.^[1] He considers that the files have been tampered with and wished to have them examined by an independent person. In December 2022 Judge Tremewan declined Mr Fuller’s application under the District Court (Access to Court Documents) Rules 2017.^[2] Mr Fuller applied for judicial review of this decision.^[3]
• [2] Mr Fuller’s application for judicial review was referred to Jagose J by a Registrar under r 5.35A(3)(a) of the High Court Rules 2016, for consideration as to whether it was “plainly an abuse of the process of the court”. Under r 5.35B, the Judge struck out the claim as an abuse of process and dismissed the proceeding.^[4]
• [3] Jagose J’s decision was delivered on 27 April 2023. Mr Fuller filed an appeal on 16 May 2023, within the permitted time.^[5] However, he did not apply for the allocation of a hearing date, nor file the case on appeal, within three months after the appeal was brought, as required by r 43(1) of the Court of Appeal (Civil) Rules 2005. As a result, the appeal was treated as having been abandoned.
• [4] Mr Fuller has applied under r 43(2) for an extension of time to comply with r 43(1). His application was filed on 23 August 2023, one week after the expiry of the r 43(1) period. The ground for his application is that he has had “[i]nsufficient public resources” to attend to the filing of a case on appeal but also notes that this has since been remedied.
• [5] An application for an extension of time under r 43(2) will engage the same factors as were identified by the Supreme Court in Almond v Read in the context of applications to extend time for appealing.^[6] The ultimate question is whether the interests of justice require time to be extended. The relevant factors include the length of and reasons for the delay, the conduct of the parties (especially the applicant), any prejudice to the respondent or others with a legitimate interest in the outcome, the significance of the issues raised, and the merits of the proposed appeal (though refusing an extension based substantially on this last factor would only be done where the appeal is clearly hopeless).^[7]
• [6] The delay here is short — one week. The explanation is understandable, given that Mr Fuller is a lay litigant. There is no participating respondent and no question of prejudice arises.
• [7] Nor does the appeal appear to us to be hopeless. The grounds given by the Judge for concluding that the application for judicial review was an abuse of process were that Mr Fuller had an appeal pathway available in respect of the District Court’s decision, and that the judicial review application sought to overturn a decision “made within jurisdiction”.^[8] We are not satisfied that an appeal against the decision is clearly hopeless, given that the Judicial Review Procedure Act 2016 permits the High Court to grant relief even if a right of appeal exists,^[9] and this Court has previously rejected the proposition that a decision made by the District Court within its jurisdiction can never be amenable to judicial review.^[10] We note that the power under r 5.35B must be exercised sparingly, and only in the clearest of cases, given that the rule contemplates the denial of the fundamental right of access to the courts.^[11]
• [8] We grant the extension sought. The time for complying with r 43(1) is extended to 16 January 2024.

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^[1] The proceedings have not been identified, though it appears that some, at least, were criminal proceedings.

^[2] Re an application by Peter Malcolm Fuller DC Waitākere, 22 December 2022.

^[3] The application was undated but is recorded in the case management system as having been filed on 22 February 2023.

^[4] Fuller v District Court Judge L Tremewan [2023] NZHC 959 [High Court decision].

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

^[6] Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801; Rabson v Attorney-General [2017] NZCA 350 at [9], n 5; Dowden v Commissioner of Inland Revenue [2020] NZCA 630 at [3], n 2; and Yarrow v Westpac New Zealand Ltd [2018] NZCA 601 at [4].

^[7] Almond v Read, above n 6, at [38]–[39].

^[8] High Court decision, above n 4, at [5]–[6].

^[9] Judicial Review Procedure Act 2016, s 16(3)(a).

^[10] D v Auckland District Court [2022] NZCA 477 at [35]–[43].

^[11] Te Wakaminenga o Nga Hapu Ki Waitangi v Waitangi National Trust Board [2023] NZCA 63 at [15].