Clarke v Kiwirail Limited - [2020] NZCA 501

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA491/2019
[2020] NZCA 501

BETWEEN	NEIL MARTIN CLARKE Appellant
AND	KIWIRAIL LIMITED Respondent

Hearing:	7 September 2020
Court:	Miller, Cooper and Clifford JJ
Counsel:	Appellant in person A J W O Lomas for Respondent
Judgment:	16 October 2020 at 10.30 am

JUDGMENT OF THE COURT

The application for an extension of time is declined.

____________________________________________________________________

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…

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: [2020] NZCA 501
Decision Date: 16 October 2020 at 10.30 am

CaseChat Overview and Summary

Neil Martin Clarke brought an appeal against KiwiRail Limited in relation to trespass charges dating from between 1 January 2000 and 7 November 2009. Clarke originally filed proceedings in the High Court on 6 November 2015, but failed to serve the respondents and subsequently forgot about the case for several years. KiwiRail was eventually served on 11 June 2019 and applied for a strike-out, which was granted by Associate Judge Johnston on the basis that the proceeding was time-barred and had not been prosecuted adequately. Clarke appealed to the Court of Appeal within time, but failed to comply with the rules to file a case on appeal and apply for a hearing date by the deadline of 16 January 2020. He subsequently applied for an extension of time, but this was made three working days outside the relevant three-month deadline. The Court of Appeal considered whether to grant the extension.

The legal issue before the Court of Appeal was whether to grant Clarke an extension of time to file his case on appeal and apply for a hearing date under r 43 of the Court of Appeal (Civil) Rules 2005. Clarke argued that he was applying for legal aid and had struggled to obtain legal advice over the Christmas period. KiwiRail opposed the application, arguing that the appeal was meritless and that Clarke had caused protracted delays. The Court considered the principles outlined by the Supreme Court in Almond v Read, including the length of the delay, the reasons for the delay, the conduct of the litigation, and whether granting the extension would achieve anything. The Court found that Clarke had caused significant delays and that he was not in a position to satisfy the requirements of r 43, as he was unable to pay the security for costs ordered by Brown J.

The Court of Appeal declined to grant Clarke an extension of time to file his case on appeal and apply for a hearing date. The Court found that Clarke had caused significant delays and that he was not in a position to satisfy the requirements of r 43, as he was unable to pay the security for costs ordered by Brown J. The Court noted that Clarke had had years in which to obtain documentation and that his need to do so could not explain the delays. The Court also noted that Clarke had continued to require extensions from the Registrar and had repeatedly filed documents without serving them on KiwiRail. The Court concluded that granting Clarke an extension would inevitably lead to a further abandonment of the appeal. The Court did not make an order as to costs.

Orders