Bevan-Smith v Raupo Publishing (NZ) Ltd - [2007] NZCA 579

IN THE COURT OF APPEAL OF NEW ZEALAND
CA57/07
[2007] NZCA 579
BETWEENJOHN BEVAN-SMITH

Appellant

ANDRAUPO PUBLISHING (NZ) LIMITED (FORMERLY REED PUBLISHING (NZ) LIMITED

Respondent

Hearing:3 December 2007

Court:Hammond, O'Regan and Ellen France JJ
Counsel:Appellant in person

D A Wood for Respondent

Judgment:14 December 2007 at 11.30 am

JUDGMENT OF THE COURT

AThe application for extension of time for applying for filing the case on appeal is dismissed.
BThe appellant must pay costs of $1,000 plus usual disbursements to the respondent.

REASONS OF THE COURT
(Given by O’Regan J)
Introduction
[1]        John Bevan-Smith seeks an extension of time in which to file a case on appeal in respect of an appeal against a judgment of Priestley J: Bevan-Smith v Reed Publishing (NZ) Ltd & Anor HC AK CIV 2003-404-3628 10 January 2007. In that judgment Priestley J dismissed Mr Bevan-Smith’s claim that the respondent, Raupo Publishing (NZ) Ltd, had breached the terms of the publishing contract it had concluded with Mr Bevan-Smith. Raupo was until very recently known as Reed Publishing (NZ) Ltd. We will refer to it as Raupo, even though it was known as Reed at the time of the events leading to this litigation.
[2]        The application is made to this Court pursuant to r 43(2) of the Court of Appeal (Civil) Rules 2005 (the Rules), which provides:
43         Appeal abandoned if not pursued
(1)       An appeal is to be treated as having been abandoned if the appellant does not apply for the allocation of a hearing date and file the case on appeal within 6 months after the appeal is brought.
(2)       The Court, on application, may—
(a)grant an extension of the period referred to in subclause (1); and

(b) grant 1 or more further extensions of any extended period.
(3)An application for the grant of an extension may be made before the expiry of the period to which the application relates or within 3 months after that expiry; but no extension may be granted on an application that is made later than 3 months after that expiry.
(4)This rule overrides rules 5(2) and 6.

[3] Mr Bevan-Smith’s notice of appeal to this Court was received on 9 February 2007. An amended notice of appeal was received by this Court on 26 February. We will treat the amended notice of appeal as an amendment of the grounds of appeal in terms of r 34(1) of the Rules.
[4] On 27 August, six months and 18 days after the expiry of the period referred to in r 43(1), Mr Bevan-Smith filed an application for an extension of time for filing the case on appeal. It is common ground that this was permitted as Mr Bevan-Smith had three months from 9 August in which to seek such an extension by virtue of r 43(3). A further extension was sought on 16 September. A further extension was sought on 2 November, together with extensive applications for discovery of documents, bank statements, financial information, court files, electronic archives and correspondence.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] NZCA 579
Decision Date: 14 December 2007

CaseChat Overview and Summary

In Bevan-Smith v Raupo Publishing (NZ) Ltd, the appellant, John Bevan-Smith, sought an extension of time to file a case on appeal against a High Court judgment dismissing his claim against Raupo Publishing (NZ) Ltd. The legal issues the Court of Appeal needed to decide were whether the Court should grant the appellant a further extension of time to file his case on appeal, given that almost nine months had elapsed since his notice of appeal was filed, and if so, whether there were good grounds for granting such an extension. The Court considered the principles applicable to deciding whether to grant an extension of time, including the philosophy that an appeal must be pursued expeditiously, and the fact that granting an extension is an indulgence. The Court also considered the appellant's conduct in the prosecution of the appeal and found it to be disentitling. Ultimately, the Court concluded that there were not good grounds for granting an extension of time in this case, and the appeal was deemed to be abandoned under r 43(1) of the Rules. The Court also ordered the appellant to pay costs of $1,000 plus usual disbursements to the respondent.

The Court of Appeal dismissed the appellant's application for an extension of time to file his case on appeal. The appeal was deemed to be abandoned under r 43(1) of the Rules, and the appellant was ordered to pay costs of $1,000 plus usual disbursements to the respondent. The Court found that the appellant's conduct in the prosecution of the appeal was disentitling and that there were not good grounds for granting an extension of time. The Court considered the principles applicable to deciding whether to grant an extension of time, including the philosophy that an appeal must be pursued expeditiously and the fact that granting an extension is an indulgence. The Court concluded that the appellant's appeal was devoid of merit and that his conduct in the prosecution of the appeal was manifestly disentitling.

Orders