Alp v Attorney-General

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2024-485-400

[2024] NZHC 1983

UNDER the High Court Rules 2016

BETWEEN

KELVYN ALP

Appellant/Applicant

AND

ATTORNEY-GENERAL

Respondent

Hearing: On the papers

Appearances:

T J Leighton for Appellant/Applicant

S J Leslie and K Budgen for Respondent

Judgment:

17 July 2024

JUDGMENT OF McHERRON J

[1] Kelvyn Alp seeks leave under r 20.4 of the High Court Rules 2016 to file an appeal out of time from a decision of the District Court dated 29 May 2024.1

[2] The respondent does not oppose extension of the time prescribed for appealing. Mr Alp was only two days late in filing his notice of appeal and the respondent accepts that there is little prejudice because of the short delay.

[3] However, the respondent is critical of the lack of supporting information provided in the application for extension, in particular the lack of a supporting affidavit explaining the reason for the delay.

1 Alp v Attorney-General [2024] NZDC 11935.

ALP v ATTORNEY-GENERAL [2024] NZHC 1983 [17 July 2024]

[4] Strictly speaking, the criticism of the failure to provide a more detailed explanation as to the circumstances surrounding the failure to appeal within time is valid.

[5] However, in light of the lack of opposition and given the fact that it is only a short delay with little prejudice and the Crown does not oppose, I allow the extension of time to appeal.

[6] The respondent seeks the costs of filing a memorandum in response to the application for leave. Mr Alp opposes having to pay costs. He points out that the respondent does not oppose the extension. Its memorandum was therefore unnecessary.

[7] However, as McGechan on Procedure notes, a party seeking an extension of time can expect to pay the costs of the application, unless it is unreasonably opposed.2 Mr Arp could have avoided these costs by filing his appeal in time.

[8] Accordingly, I allow the respondent’s application for costs in filing a memorandum, which I assess on a 1A basis by analogy with item 12 in schedule 3 of the High Court Rules, namely 0.2 days at $1,590 per day.

[9] By special leave under r 20.4(3)(b) Mr Alp may file an appeal from the District Court decision, no later than 24 July 2024.

[10]Mr Alp must pay costs of $318 on the application to the respondent.

[11] I vacate the mention of this matter in the Judge’s Chambers List, scheduled for 12 August 2024.

McHerron J

2 Jessica Gorman and others McGechan on Procedure (online looseleaf ed, Thomson Reuters) at [20.4.02].

CaseChat Overview and Summary

Kelvyn Alp applied to the High Court for leave to file an appeal out of time from a decision of the District Court. The appeal was two days late, and the respondent, the Attorney-General, did not oppose the extension but did criticise the lack of information in the application, particularly the absence of an affidavit explaining the delay. The High Court noted that the criticism regarding the lack of detail was valid but decided to allow the extension given the minimal delay, the lack of opposition, and the minor prejudice caused. The court also ruled that Alp should pay the costs of the respondent’s memorandum in response to the application for leave to appeal, as the respondent was not unreasonably opposed to the extension. Alp was granted leave to file the appeal by 24 July 2024, and ordered to pay $318 in costs. The matter was removed from the Judge’s Chambers List.

The primary legal issue before the court was whether Kelvyn Alp should be granted leave to file an appeal out of time from the District Court decision. This required the court to consider the strict requirements under r 20.4 of the High Court Rules 2016, balanced against the minor delay and lack of opposition from the respondent. The court also had to determine whether Alp should be required to pay costs for the respondent’s memorandum in response to the application for leave to appeal. The court found that despite the lack of a supporting affidavit, the minimal delay and lack of opposition justified allowing the extension of time. However, the court held that Alp should bear the costs of the respondent’s memorandum as the respondent was not unreasonably opposed to the application for leave.

The High Court, presided over by Justice McHerron, granted Kelvyn Alp leave to file an appeal out of time from the District Court decision, allowing the appeal to be filed by 24 July 2024. The court acknowledged the respondent's criticism of the lack of detail in Alp's application but emphasised the minor delay and lack of opposition as significant factors in favour of granting the extension. Justice McHerron also noted that while the respondent did not oppose the extension, Alp should still bear the costs for the respondent's memorandum in response to the application for leave. Alp was ordered to pay $318 in costs to the respondent. The matter was subsequently removed from the Judge’s Chambers List.

CaseChat Overview and Summary

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