Davis v Whangarei District Council
[2025] NZCA 343
•21 July 2025 at 11.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA720/2024 |
| BETWEEN | TIMARU DAVIS |
| AND | WHANGAREI DISTRICT COUNCIL |
| Court: | Ellis and Cooke JJ |
Counsel: | Applicant in person |
Judgment: | 21 July 2025 at 11.00 am |
JUDGMENT OF THE COURT
AThe application for an extension of time is declined.
BWe make no order as to costs.
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REASONS OF THE COURT
(Given by Ellis J)
Mr Timaru Davis has applied for an extension of time pursuant to r 29A of the Court of Appeal (Civil) Rules 2005 to bring an appeal against a decision of the High Court, which declined an extension of time to appeal against a decision of the District Court.[1] The High Court decision was issued on 11 July 2024, following a hearing on 4 March 2024. At that hearing Mr Davis was, as he is now, self‑represented.[2]
[1]Davis v Whangārei District Council [2024] NZHC 1899.
[2]Mr Davis’s wife was an appellant in the High Court alongside Mr Davis. Mr Davis now advances the application to this Court alone.
On 3 February 2025, there was a direction that the extension of time application filed in this Court should be determined on the papers, by two judges. In the context of that on the papers hearing, the material on the court file was reviewed. This included an unauthorised audio recording which appears to have been made by Mr Davis of a High Court callover before Brewer J on 16 February 2024.[3] This prompted the Court to obtain, from the High Court, Brewer J’s minute of the callover (which was not on the file). In it, he recorded:[4]
[1] Mr and Mrs Davis have filed a notice of appeal against a judgment of the District Court which was entered, as I understand it, on 24 September 2020. I understand the reason for the judgment by default was that the Whangārei District Council was suing for unpaid rates and no steps were taken. I do not have a copy of the District Court judgment on the file and I note that Ms Wiessing for the Council has undertaken to file that later today. In any event, I ask the District Court to transfer its file to the High Court for the purpose of the appeal. The reference given in the notice of appeal is CIV‑2019‑088‑0820.
[2] Ms Wiessing has filed a memorandum in which it is pointed out that there is no application for leave to appeal out of time. Nor is there an application for urgent relief, and the points on appeal do not clearly state the legal grounds for appeal.
[3] I have discussed this with Ms Wiessing and particularly in light of a memorandum filed by Mr and Mrs Davis responding, apparently, to a letter written to them on behalf of the Council addressing these points.
[4] In my view there is nothing to be gained by taking a technical approach to the preliminaries of this appeal. Mr and Mrs Davis represent themselves and large aspects of their defence appear to be on a sovereign person or sovereign tangata whenua basis. Cutting through the legalistic matters, what is needed here is to put the case in front of a Judge so that Mr and Mrs Davis can tell the Judge why a default judgment should not have been entered against them, and the Council can tell the Judge what legal steps it took and why the judgment should stand. Those are not complex issues.
[5] I have said to Mr Davis that if there is a factual basis to the appeal, for example, a claim that they did not know that they were being sued, then they will need to file an affidavit setting out the facts as they see them. If they are going to do that, then they must do it no later than 23 February 2024. The Council is to file any affidavit or submissions no later than 29 February 2024.
[6] I set the appeal down for hearing at 10 am on 4 March 2024 and I allow two hours.
[3]We have subsequently obtained and listened to the authorised recording, which confirms the content of his minute.
[4]Emphasis in original.
The contents of that minute prompted this Court to issue a further minute, stating:
[4] The short point is that both the recording and the minute support Mr Davis’ contention that on 16 February 2024, Brewer J “dismissed the out of time rule”. What is clearly meant by that is that at the callover and in his minute Brewer J made it very clear (with the acquiescence of Ms Wiessing for the Council) that the extension of time should, in effect be granted. He directed a hearing of the substantive appeal (not the extension application) take place on 4 March 2024. For whatever reason, that did not occur. Although there was a hearing on that day, Robinson J’s decision is both on its face and in terms of its content, a decision on the application for special leave to extend time for appealing. That was directly contrary to Brewer J’s direction and his intent.
This Court invited Ms Wiessing to respond, which she did. She says an alternative interpretation of Brewer J’s directions at the callover (as recorded in his minute) is that the Davis’s application to appeal out of time and the substantive appeal should be heard together. That is, the preliminary matter being disposed of was the need to make an application for an extension of time in the proper form. That submission is, however, rather contradicted by the fact that the Whangarei District Council’s submissions at the High Court hearing were addressed to the substantive appeal.[5] It seems Mr and Mrs Davis also proceeded on this basis. It therefore remains unclear as to why Robinson J proceeded as he did.[6]
[5]Ms Wiessing provided a copy of the submissions to us.
[6]We also acknowledge that the merits of the appeal were canvassed by Robinson J in his judgment and (at [38]) he made a specific finding that the appeal had no prospect of success.
Regrettably, it continues to be plain to us that the extension of time had in fact been granted by Brewer J. We think his minute makes that clear beyond doubt. And we are similarly unable to read Robinson J’s decision as purporting to determine that application again. That was not something he was able to do.
It seems to us, however, that the appropriate remedy cannot lie with this Court. In the circumstances described above, it is not open to us to grant an extension of time under r 29A. Even if the High Court’s decision was to be regarded as valid, the criteria for the grant of an extension would not be satisfied in this case.
That said, however, we think it must remain open to Mr Davis to apply for a (re)hearing of his substantive appeal in the High Court, on the basis of the events set out in this judgment. In deciding whether to do so, however, we would expect him to have careful regard to Robinson J’s assessment of the merits of his appeal, which seem very far from strong.
Result
The application for an extension of time is declined.
We make no order as to costs.
Solicitors:
Whangarei District Council, Whangārei for Respondent
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