Clarke v Kiwirail Limited
[2020] NZCA 501
•16 October 2020 at 10.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA491/2019 [2020] NZCA 501 |
| BETWEEN | NEIL MARTIN CLARKE |
| AND | KIWIRAIL LIMITED |
| Hearing: | 7 September 2020 |
Court: | Miller, Cooper and Clifford JJ |
Counsel: | Appellant in person |
Judgment: | 16 October 2020 at 10.30 am |
JUDGMENT OF THE COURT
The application for an extension of time is declined.
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REASONS OF THE COURT
(Given by Clifford J)
This application is brought by Mr Clarke to extend the time in which he must file his case on appeal and apply for a hearing date under r 43 of the Court of Appeal (Civil) Rules 2005.
Background
Mr Clarke filed proceedings against KiwiRail and the Police in the High Court on 6 November 2015 in relation to charges of trespass he faced between 1 January 2000 and 7 November 2009. Mr Clarke did not serve the respondents at that time, and before us candidly explained that he “forgot all about the case” for several years. KiwiRail was eventually served on 11 June 2019.[1] It promptly applied for strike-out on the basis the proceeding was time-barred, had not been prosecuted adequately by Mr Clarke and disclosed no tenable cause of action. Associate Judge Johnston granted the application.[2]
[1]It appears the Police have never been served.
[2]Clarke v Kiwirail Ltd [2019] NZHC 2127.
Mr Clarke filed an appeal in this Court within time on 25 September 2019. On 16 January 2020, the final day for compliance with r 43, he filed an application for an extension of time to file a case on appeal and apply for a hearing date on the basis he was applying for legal aid and had struggled to obtain legal advice over the Christmas period. At that time, Mr Clarke was litigating security for costs on the appeal. The Deputy Registrar therefore emailed Mr Clarke explaining that he intended to treat the application filed as one to suspend r 43 pursuant to r 43(1B)(c) — a power that could be exercised by the Registrar without an interlocutory application — and granted a suspension to 17 February 2020 accordingly.[3]
[3]The Deputy Registrar also noted that his decision was reviewable by a Judge on application. Neither party chose to do so.
The new deadline passed without any action by Mr Clarke. The appeal was accordingly deemed abandoned on 18 February 2020, and the parties alerted to this fact on 17 March 2020.
Subsequently, on 21 May 2020, Mr Clarke applied for an extension of time to comply with r 43. That application was made three working days outside the relevant three-month deadline.[4] Notwithstanding, the Deputy Registrar accepted the application for filing by granting an extension under r 5A(1)(c)(ii).[5]
Submissions
[4]Court of Appeal (Civil) Rules 2005, r 43(3)(b).
[5]Rule 43(9) does not exclude operation of r 5A(1)(c) to extend the otherwise hard backstop of r 43(3)(b).
Mr Clarke appeared in person before us to explain that he intended to apply to Legal Aid Services, the Police and the Department for Courts (now the Ministry of Justice) for information they hold relevant to his trespass charges. He also pressed his primary complaint regarding the judgment below, being that he was not prepared to fully argue the case when the strike‑out was called due a miscommunication by a case officer in the High Court.
For KiwiRail, Mr Lomas opposed the application for an extension. He submitted the appeal was meritless and pointed to the protracted delay caused by Mr Clarke’s failure to prosecute both the appeal and the underlying High Court proceeding. He also noted Mr Clarke remains in default of security for costs, which pursuant to a judgment of Brown J dated 16 March 2020 was payable no later than 15 April 2020.[6]
Assessment
[6]Clarke v KiwiRail Ltd [2020] NZCA 59.
The principles outlined by the Supreme Court in Almond v Read are of assistance in determining whether an extension of time should be granted under r 43.[7] We see several as relevant here.
[7]Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [35]–[40], applied to r 43 in Yarrow v WestpacNew Zealand Ltd [2018] NZCA 601 at [4] and Smyth-Daveron v Mountbatten (born Windsor) [2019] NZCA 186 at [7].
First, the length of the present delay is reasonably significant. Mr Clarke sought an extension some three months after his appeal was deemed abandoned.
Second, no adequate reasons have been presented for the delay. Mr Clarke identifies a need to obtain documents from various agencies in order to progress matters. However, he has had years in which to do so. Any need to obtain documentation cannot explain matters.
Third, the conduct of this litigation discloses immense and wholly unsatisfactory delays on the part of Mr Clarke, most notably the years in which the High Court proceeding was apparently forgotten. In this Court, Mr Clarke has continued to require extensions from the Registrar and has repeatedly filed documents without serving them on KiwiRail.
Finally, we consider that granting Mr Clarke’s application would achieve nothing, as Mr Clarke is not in a position to satisfy r 43. Brown J ordered in a judgment dated 16 March 2020 that security for costs of $7,060 be paid by 15 April 2020.[8] Mr Clarke did not challenge that judgment. Nor did he pay security as ordered. He confirmed before us that he did not have the means to do so. Accordingly, he is prevented from applying for a hearing date by r 37(2) and thus even if we granted a further extension there is no prospect of him satisfying the requirements of r 43. An extension will thus inevitably lead to a further abandonment.
Result
[8]Clarke v KiwiRail Ltd, above n 6.
The application for an extension of time is declined.
There is no order as to costs.
Solicitors:
Russell McVeagh, Wellington for Respondent
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