Butcher v New Zealand Serious Fraud Squad
[2020] NZCA 242
•17 June 2020 at 10 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA672/2019 [2020] NZCA 242 |
| BETWEEN | CARL DAVID GEORGE BUTCHER |
| AND | NEW ZEALAND SERIOUS FRAUD SQUAD |
| Counsel: | Applicant in person |
Judgment: | 17 June 2020 at 10 am |
JUDGMENT OF COOPER J
The application for an extension of time to appeal is declined.
____________________________________________________________________
REASONS
Mr Butcher has made an application for an extension of time to bring a civil appeal under r 29A of the Court of Appeal (Civil) Rules 2005 (the Rules).
It appears that he wishes to appeal an order made by Venning J in the High Court in the matter CIV-2019-404-2077 Butcher v New Zealand Serious Fraud Squad.[1]
[1]Butcher v New Zealand Serious Fraud Squad HC Auckland CIV-2019-404-2077, 30 September 2019.
In his minute dated 30 September 2019 the Judge dealt with this and two other applications made by Mr Butcher. He referred to the present matter in the following terms:
[14] The last set of proceedings referred for review is an application by Mr Butcher apparently directed at the decision of the Serious Fraud Office to decline to investigate an alleged theft of Mr Butcher’s property. The matters set out in Mr Butcher’s document making this claim do not support an application for judicial review. The relief sought is not available on judicial review. For example, Mr Butcher seeks an interim order in relation to a caveat.
[15] In its current form the pleading overall is confused and vexatious. It does not support a judicial review nor indeed any other relief.
[16] The proceeding is struck out under HCR 5.35B(2)(a) as being vexatious and an abuse of process.
[17] Mr Butcher has the right of appeal against the decision: HCR 5.35B(3).
[18] The Registrar is to send a copy of this minute to the Director, Serious Fraud Office and to the District Commander, Auckland Police.
It appears from material attached to an affidavit sworn by Mr Butcher on 17 February 2020 that the Registrar of the High Court complied with the Judge’s direction at [18]. In that affidavit, Mr Butcher also stated that he had served a copy of the present application on both the Serious Fraud Office and the New Zealand Police in Auckland. However, no appearance has been entered by either party.
As noted, the present application is for an extension of time to file the appeal under r 29A of the Rules. The application was received on 20 December 2019, some 38 working days after the appeal should have been filed in accordance with r 29(1)(a).
Mr Butcher has filed a subsequent document, dated 21 February 2020, a “memorandum” in which he seeks “urgent directions”. Those directions include that the matter “be re-instated with the Auckland High Court.” As far as I can tell, that would effectively mean that the appeal (not yet filed) would be allowed, without hearing from respondents. Obviously, that cannot occur.
The first matter that must be attended to is the application for an extension of time. Under Almond v Read matters to be considered include the length of delay, the reason for the delay, the applicant’s conduct, prejudice or hardship to the respondents, the significance of the issues raised and in some limited cases, the merits of the proposed appeal.[2]
[2]Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [38]–[39].
In the present case, the delay has not been lengthy, but it has not been explained. There is nothing particularly relevant otherwise in Mr Butcher’s conduct.
I am unable on the information available to assess whether any specific prejudice to the respondents might arise. In this case, that is linked to the issue of the merits of the proposed appeal, which in a case like this do need to be addressed. I say that because the Judge struck the proceeding out in summary terms. As has been seen, he concluded simply that the matters that Mr Butcher had set out in the document in which he asserted his claim did not support an application for review. He added that the relief sought was not available on judicial review. He determined that the pleading overall was “confused and vexatious” and did not support an application for judicial review, nor indeed any other kind of relief.
I have not seen the document which was before the High Court, and that is another difficulty. Given the nature of the criticisms made of the document, Mr Butcher should have placed it before this Court and made at least some attempt to say why the High Court’s conclusion was incorrect. That has not been done.
The relief sought on the appeal however is consistent with the Judge’s description of the proceeding before him. For example, the relief foreshadowed in the present application is that the respondents be ordered to “give an explanation” as to why an investigation into matters that he has raised about events addressed in affidavits sworn in September 2010 and September 2011 and a statutory declaration made in January 2013, has not taken place. Then he seeks that, if the explanation given is insufficient, the respondents be instructed to carry out their “respective public function promptly”. It is not clear to me that such relief could ever be granted, because it effectively involves the Court giving instructions to prosecuting authorities as to how they carry out their function. That would be a most unusual order to make. There is no material before this court that could possibly justify it, any more than there evidently was before the High Court.
In the circumstances, I conclude that there would be prejudice to the respondents in incurring the cost of responding to an appeal which seems to be misconceived. In any event, given the terms of the order made in the High Court, this was a case where the applicant should have sought to address the merits of his proposed appeal, as relevant to the exercise of the discretion to extend the time to commence it.
Since that has not been done I am not prepared to make an order extending the time to file the appeal. The application for an extension of time to appeal is declined.
Solicitors:
0