Angus v Angus

[2004] NZCA 149

IN THE COURT OF APPEAL OF NEW ZEALAND

CA210/03

BETWEENSARAH GWYNNE ANGUS

Applicant

ANDWARWICK JOHN ANGUS

Respondent

Hearing:19 July 2004

Coram:Anderson P
Glazebrook J
Hammond J

Appearances:  R K M Hawk for Applicant

A S McIntyre for Respondent

Judgment:19 July 2004 

JUDGMENT OF THE COURT DELIVERED BY ANDERSON P

[1]       This is an application for an extension of time and to adduce further evidence in relation to a proposed appeal from a decision of the High Court (France J) on an interlocutory application.  The Judge struck out an appeal from the Family Court on the grounds of non-compliance with the then provisions relating to security for costs contained in s73(2) and (3) of the District Courts’ Act 1947.  They state:

(2) Except where the appellant is granted legal aid under the [Legal Services Act 2000], the appellant shall give security to the satisfaction of the Registrar of the Court appealed from to abide the event of the appeal. The security shall be for such amount as may be prescribed in the rules or (as the case may require) in rules made under the Family Courts Act 1980.

(3) If no such security as is required under the last preceding subsection is given within 7 days of the service of the notice of appeal, or within such further time as in special cases the Registrar of the Court appealed from may permit, that Registrar shall notify the Registrar of the [High Court] of the failure, and the notice of appeal shall be deemed to be abandoned.

[2]       A notice was given by the Registrar of the Family Court to the High Court pursuant to s73(3) of the District Courts Act.  At the time the notice was given an application for legal aid was under consideration by the Legal Services Agency.  That application subsequently proved meritorious, aid being granted.  Notwithstanding, the respondent applied to the High Court for an order striking out the appeal on the grounds of deemed abandonment. 

[3]       The present appeal was not pursued expeditiously but the reasons seem referable to the nature of the advice received by Mrs Angus from at least two law firms before present advice indicating prospects of success or at least reasonable arguability in relation to the effect of s73 of the District Courts Act as it then was. 

[4]       Both counsel perceive a neatly stated proposition of law raised by the present application.  It can be expressed in these terms: 

The short issue is whether or not an appeal from the Family Court to the High Court is deemed to be abandoned for non-payment of security in circumstances where the application for aid had not been finally determined and was eventually granted. 

[5]       Although the legislation has now changed, we consider there is still a matter of public importance in resolving that issue having regard to the likelihood of at least some appeals which may have been affected.

[6]       The question of law can be usefully and adequately answered without recourse to further evidence.  The application for leave to adduce further evidence must be dismissed.  We consider the delay in prosecuting the appeal excusable in the circumstances having regard to the nature of the question and the likelihood of Mrs Angus being dispirited by the advice she had previously received.  Further, as we have indicated, the question is one of general or public importance. 

[7]       There is another issue and that is whether special leave to appeal would be required in any event.  Because the decision of the High Court was an interlocutory decision in respect of an appeal which substantively could not have been brought to this Court without special leave it would seem paradoxical that an interlocutory finding could be appealed without leave and a substantive finding could not.  But for the same reasons that persuade us that the legal issue is important we would grant special leave if it is necessary. 

[8]       We think it inappropriate to examine the present matter further but conclude that an extension of time should be granted, that special leave to appeal should be granted and in each case such orders are made but the application for leave to adduce further evidence is dismissed.  There may be issues as to costs but they are reserved.

Solicitors:
Jackson Russell, Auckland for Applicant
Collins & May Law Office, Lower Hutt for Respondent