Bai v Pronk

[2023] NZHC 3197

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-2067

[2023] NZHC 3197

BETWEEN

BARRY BAI

Appellant

AND

KEATON PRONK

First Respondent

McDONALD VAGUE LIMITED
Second Respondent

McDONALD VAGUE & PARTNERS LIMITED

Third Respondent

BRETT LEESON MARTELLI
Fourth Respondent

HC LEGAL LIMITED

Fifth Respondent

Hearing:	On the papers
Judgment:	13 November 2023

JUDGMENT OF MUR J

This judgment was delivered by me on 13 November 2023 at 4.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors:           Lee Langstone, Auckland

Wotton Kearney, Auckland

BAI v PRONK [2023] NZHC 3197 [13 November 2023]

Introduction

[1]                 The appellant, Mr Barry Bai, appeals against a judgment of Judge Kelly in the District Court dated 11 August 2023 striking out his claim against the respondents.1 His claim has its origins in a dispute between NZSouthpole Team Ltd, a bricklaying company he was employed by, and a disgruntled customer.

[2]                 The notice of appeal is prolix and plainly defective. But that is not the only issue beleaguering Mr Bai’s appeal. He is also in serial default of case management directions made by this Court such that counsel for the respondents now seek an order that I dismiss his appeal without further mention pursuant to r 20.12(1) of the High Court Rules 2016 (HCR).

Mr Bai’s successive non-compliance

[3]                 Mr Bai’s appeal was filed on 10 October 2023. It is still yet to be served on the fourth and fifth respondents despite their willingness to accept service through solicitors by email. Service on the first and third respondents has occurred but was out of time. In the result, an application for leave to appeal is now required pursuant to r 20.3(7) of the HCR.

[4]                 By minute dated 9 October 2023, I advised Mr Bai accordingly. When the matter came before me again on 24 October 2023, I repeated that position and required that he file and serve his application under r 20.3(7) by 31 October 2023. I also reminded him of service requirements on the fourth and fifth respondents.

[5]                 On 1 November 2023, the matter came before Robinson J by way of a telephone conference, which lasted for 51 minutes. I refer to his Honour’s lengthy minute of the same date in which he made the following directions:

(a)Mr Bai is to attend to service of his Notice of Appeal on the fourth and fifth respondents. Service is long overdue and can be done by email to Mr Cornfield.2

(b)Mr Bai is to file and serve any application for leave to bring his appeal out of time by 5:00 pm on Friday, 10 November

1      Bai v Pronk [2023] NZDC 16287.

2      Mr Cornfield had earlier indicated his agreement in this respect.

2023. Like Muir J, I refer Mr Bai to r 20.3 of the High Court Rules.

(c)The matter is to be called again in the Civil Appeals List at

9:00 am on Tuesday, 14 November 2023.

[6]The respondents now advise that:

(a)service has yet to occur on the fourth and fifth respondents; and

(b)no application for leave to appeal was filed by 5 pm, 10 November 2023.

Dismissal or stay of appeals

[7]Rule 20.12 relevantly provides:

20.12   Dismissal or stay or abandonment of appeal or cross-appeal

(1)The court may, on application, dismiss or stay an appeal or a cross- appeal if the court is satisfied that the appellant or the respondent has failed to proceed with it, or has failed to comply with a direction under rule 7.15.

(2)The appeal is taken to have been dismissed, subject to the respondent’s right to apply for an order as to costs, if the appellant signs, files, and serves on every other party a statement to the effect that the appellant abandons the appeal.

…

Discussion

[8]                 As this Court has previously held, repeated breaches of timetabling directions are a sufficient basis to dismiss an appeal pursuant to r 20.12(1).3 What the Court is required to be satisfied of is either that the appellant has failed to proceed with the appeal or has failed to comply with a direction under r 7.15.

[9]                 Mr Bai has, without legitimate explanation, repeatedly failed to comply with the Court’s directions in respect of basic procedural steps. He does so against the background of related proceedings which have been found to be unmeritorious.4

3      See Liu v TR Group Ltd [2016] NZHC 2195 at [23] and [30].

4      See James v NZSouthpole Team Ltd (in liq) [2021] NZHC 1682 at [42].

[10]              I note also that in the course of the telephone conference before Robinson J, Mr Bai insisted he had a right to have the Solicitor-General and amicus curia present, declined to participate further in their absence and simply “hung up”.

[11]              I accept that, in these circumstances, the Court’s discretion under r 20.12(1) is appropriately invoked to dismiss the appeal. I am satisfied he has failed to proceed with the appeal and/or to do so in accordance with reasonable directions.

Result

[12]The appeal is dismissed.

[13]The mention on 14 November 2023 is vacated and appearances excused.

Muir J