Ailsa Rae Kennedy, Ailsa Kathryn Goode v Taupo District Council
[2001] NZCA 326
•22 August 2001
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA 81/01 |
| BETWEEN | AILSA RAE KENNEDY, AILSA KATHRYN GOODE AND SARAH PATRICIA TODD |
| Appellants |
| AND | TAUPO DISTRICT COUNCIL |
| Respondent |
| Hearing: | 20 August 2001 |
| Coram: | Gault J Thomas J Tipping J |
| Appearances: | S J Brown for Appellants P D Green for Respondent |
| Judgment: | 22 August 2001 |
| JUDGMENT OF THE COURT DELIVERED BY THOMAS J |
Through their counsel, Mr Brown, the appellants have applied for special leave to appeal.
The appellants were unsuccessful in proceedings brought by them against the respondent Council. Salmon J gave judgment for the Council on 15 December 2000.
A Notice of Appeal was filed by the appellants’ solicitors on 23 January 2001. Through inadvertence, their solicitors failed to arrange for security for costs to be given under r 11 of the Court of Appeal (Civil) Rules 1997. The person accepting responsibility for putting the solicitors in funds to enable them to attend to the security simply forgot to do so under the pressure of work commitments. The appellants are now out of time in which to lodge a fresh appeal. It is for that reason that they seek special leave to appeal.
Notwithstanding the reasons for their predicament, the appellants are now in the position of having to seek an indulgence from this Court. But Mr Brown was unable to persuade us that the appeal has any merit. At the hearing before Salmon J, argument focused on whether the Council had sought to “punish” the appellants, and whether the Council had a right to remove vegetation and trees on the Council’s reserve as proposed by it in a resolution it had passed on 16 February 2000. The vegetation and trees have now been removed. Any practical purpose in pursuing the appeal has clearly been significantly diminished.
Other grounds discussed before us by Mr Brown appear untenable. They clearly lack any real chance of succeeding on appeal.
Moreover, the appellants have been unacceptably tardy in prosecuting the proceeding from the outset. They have shown little inclination to proceed with the litigation with any degree of expedition and diligence. They have also continually been in default of timetable orders. This is not the type of conduct by a litigant likely to attract the Court’s sympathy when considering whether special leave to appeal should be granted.
The application is therefore refused. Costs are awarded to the respondent in the sum of $1,000, together with disbursements, which, failing agreement, are to be fixed by the Registrar.
Solicitors
S J Brown, Wellington for Appellants
Le Pine & Co, Solicitors, Taupo for Respondent
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