David Edward Coxhead v Allan James Hubbard

[2002] NZCA 81

IN THE COURT OF APPEAL OF NEW ZEALAND CA181/01

BETWEEN	DAVID EDWARD COXHEAD
Appellant

AND	ALLAN JAMES HUBBARD
Respondent

Coram:	Richardson P Keith J Blanchard J
Counsel:	D E Coxhead in Person H C Matthews for Respondent
Judgment (on the papers):	24 April 2002

JUDGMENT OF  THE COURT

1. At the request of Mr Coxhead and counsel for Mr Hubbard, we are dealing with the present application for conditional leave on the basis of the written submissions and other material before the Court.

2. The appellant, Mr Coxhead, seeks conditional leave to appeal to Her Majesty  in Council against a judgment of this Court of 20 February 2002 in which the Court determined that it had no jurisdiction to hear Mr Coxhead’s application for special leave to appeal and dismissed that application.

3. The background is as follows.  Mr Coxhead brought a proceeding in the High Court at Timaru seeking damages in the amount of $52 million from Mr Hubbard.  On 11 December 2000 Mr Hubbard made a request for particulars.  That led to an order requiring particulars to be given by 2 February 2001.  That order was not complied with.  On 28 February 2001 Master Venning ordered Mr Coxhead either to file an amended statement of claim with proper particulars or to provide particulars as requested by Mr Hubbard, in either case by 30 March 2001.  He indicated that if Mr Coxhead failed to comply fully with that direction Mr Hubbard could make an application under r277 which provides, in part, that the Court may, where a plaintiff makes default in complying with an order made on an interlocutory application, make an order that the proceeding be dismissed as to the whole or any part of the relief claimed by the plaintiff on the proceeding. 

4. Mr Coxhead did not comply with that order and consequently, after a further hearing, Master Venning made an order on 26 April 2001 under r277 that Mr Coxhead’s claim against Mr Hubbard was dismissed as to the whole of the relief claimed.

5. On 7 June 2001 Mr Coxhead filed an application in the High Court seeking a review of the Master’s decision of 26 April 2001.  Fraser J heard that application together with an application for an extension of time, since Mr Coxhead had not made his application for review within the requisite seven days.  Giving his reasons, Fraser J on 25 June 2001 dismissed both applications.

6. Rule 61C, which was the rule under which Fraser J was acting, provides that no appeal is to lie from a decision of a Judge under the rule except by leave of a Judge.  No such leave has ever been sought in the High Court.  The rule further provides that an application for leave to appeal has to be filed and served within seven days after the decision of the Judge was given. 

7. It was not surprising therefore that, when Mr Coxhead’s application, described as an application for special leave to appeal or, alternatively, as a notice of appeal, came for hearing in this Court, it was found that the matter was not properly before the Court.  It was accordingly determined that the Court had no jurisdiction to hear the application and it was dismissed.  The Court also commented that there could not be any doubt that what occurred justified the invocation of the sanctions provided for in r277.  So, even if the case had properly been in this Court, there was no basis upon which there could be any alteration of the decisions made in the High Court.

8. The written submissions filed by Mr Coxhead are very extensive.  The arguments which he puts forward cannot, however, overcome the fundamental difficulty that where there is no right of appeal to this Court without the leave of the High Court, which has never been sought (and which, we would add, is most unlikely to be given now that so much time has elapsed after the expiry of the stipulated seven day period), it is hopeless to argue that there can be any right to appeal to the Privy Council.

9. The application therefore must be, and is, dismissed with costs of $500 to the respondent.

Solicitors:

White Fox and Jones, Christchurch for Respondent