DeMarco v Anderson
[2022] NZCA 409
•29 August 2022 at 10.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA438/2021 [2022] NZCA 409 |
| BETWEEN | EUGENE JOHN DEMARCO |
| AND | NORMAN HUGH ANDERSON AND REBECCA ALICE CARRASCO |
| Court: | Cooper P and Simon France J |
Counsel: | Applicant in person |
Judgment: | 29 August 2022 at 10.30 am |
JUDGMENT OF THE COURT
A The application for an extension of time under r 43 is declined.
BThe applicant must pay the first respondents costs in the sum of $478.
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REASONS OF THE COURT
(Given by Simon France J)
This judgment deals with an application for an extension of time under r 43 of the Court of Appeal (Civil) Rules 2005 (the Rules) to file the case on appeal and apply for the allocation of a hearing date.
Background
Mr DeMarco appealed an adjudication of bankruptcy.[1] Security for costs was set at $7,060. Mr DeMarco sought a dispensation from the obligation to pay security. The Deputy Registrar declined the application. Mr DeMarco sought a review of the decision. Courtney J on 15 March 2022 declined the review.[2] On 22 March the Registrar issued a Notice of Result stating the appeal had expired under r 43 of the Rules and was deemed abandoned.
[1]Anderson v DeMarco [2020] NZHC 1757.
[2]DeMarco v Anderson [2022] NZCA 57.
The subsequent documentation filed by Mr DeMarco is as follows:
(a)On 31 March 2022 an application for allocation of a hearing date and to file the case on appeal.
(b)On 19 May 2022 an application for an extension of time under r 43. Appended to this is an affidavit sworn 26 April 2022 which is directed to the liability to pay security for costs.
(c)A memorandum on 27 June 2022. It amounts to submissions in support of the application for an extension of time. It is accompanied by a fresh affirmation, and also previously filed documents.
(d)A memorandum on 25 July 2022 which contains further submissions and appends an affidavit of Mr DeMarco sworn 25 July 2022. That affidavit itself appends a further “affidavit” of 14 pages.
As noted, this judgment addresses the application noted at (b). Brief submissions have been filed by the first respondents, and the second respondent abides.
A fuller description of some of the documentation is required.
The 31 March application notes the appeal has been dismissed but records the appeal has been “refused for cause without dishonour”. Those words are also stamped across the appended Notice of Result. It is requested that the decision of Courtney J be set aside as wrong in fact and law. There are then some paragraphs seemingly directed against the correctness of the bankruptcy decision to be appealed which introduce a theme to be repeated throughout the subsequent documentation:
5.The issue arises as the agent cannot be held liable for the actions of the principal.
6.It appears that the person of Mr DeMarco is being confused with the man – eugene-john, of the demarco family.
a.Does this court have jurisdiction over eugene-john, the man, if so, please provide evidence of such jurisdiction.
b.Is this jurisdiction by way of contract? If so, please provide verified copy of aforementioned contract.
7.eugene-john of the demarco family is only the agent of the person of Mr Demarco, and cannot be held liable for the debts of Mr DeMarco.
In similar vein it is asserted Mr DeMarco cannot have any assets as he is “a fiction”. Finally it is stated that Mr DeMarco has a right to a hearing under art 26 of the International Covenant on Civil and Political Rights, and that he has a right to be free from discrimination.
Turning to the 19 May application for an extension of time to file the case on appeal and for allocation of a hearing date, it is submitted that:
(a)the appeal is meritorious;
(b)the bankruptcy proceeding and in particular the adjudication process were not consented to; and
(c)“Eugene” as an authorised representative of Mr DeMarco did not consent, and an agent cannot be held liable for the acts of the principal.
The balance of the documentation addresses the issue of security for costs.
The filing of 27 June focuses on New Zealand’s status as a signatory to the International Covenant with a claim it guarantees a right to a hearing. The accompanying affidavit refers to a ruling on 23 June of Woolford J on security for costs. The first respondents advise that is likely in relation to applications in the High Court by Mr DeMarco to review decisions of the Official Assignee. The affidavit also alleges non-compliance by the Official Assignee with provisions of the Criminal Procedure Act 2011. The Official Assignee is said to be guilty of acting “as executor de son tort”.
The memorandum of 25 July expresses itself as being directed to the application for an extension of time. It is submitted the appeal is of public interest because it deals with parliamentary acts and may lead to a judicial review. The balance focuses on the Official Assignee and its actions other than to repeat the claim under the International Covenant.
The primary accompanying affidavit is on similar lines but develops the idea of who is a “person” for the purpose of bankruptcy. The conclusion is that “[t]his writer cannot be a person” and therefore the Insolvency Act 2006 cannot apply. There is then reference to the attached affidavit, being:
My Affidavit of Truth, Denial of Consent, Claim of Right and the Restoration of my “common law on the land unalienable rights”.
The content is not relevant to the application.
Decision
In Schmidt v Ebada Property Investments Ltd, this Court confirmed that once r 43 is triggered, the would-be appellant requires the exercise of a positive discretion by the Court.[3] Relevant to that will be the extent of the delay, the reasons for the delay and whether the appeal is genuinely arguable. Also relevant here is that Mr DeMarco is a lay litigant.[4]
[3]Schmidt v Ebada Property Investments Ltd [2012] NZCA 452 at [7], citing Harris v Davies [2007] NZCA 358 at [8].
[4]At [18].
The delay between the judgment of Courtney J and the filing of the application for an extension of time is two months. A similar period in Schmidt was described as “reasonably significant”.[5] In the present case it is relevant that the delay follows an already protracted process since the filing of the appeal in July 2021.
[5]At [8].
The delay is unexplained. Although Mr DeMarco is a lay litigant, it can be noted an earlier appeal in the same litigation (CA711/2020) was similarly dismissed for non-compliance with the Rules. That appeal related to the initial judgment that awarded damages to the first respondents.[6] It is the non-payment of that award that was relevant to the first respondents issuing bankruptcy notices. As Collins J for the Court noted in another judgment, the failure to appeal the foundation that led to being adjudicated bankrupt undermines the strength of this intended appeal.[7]
[6]Anderson v DeMarco [2020] NZHC 2979, (2020) 21 NZCPR 758.
[7]DeMarco v Anderson [2021] NZCA 476 at [12].
The documents filed in relation to this matter tell against the grant of an extension. They contain no attempt to address the particular matter, seek to relitigate the decision of Courtney J which is not in issue, and contain a wealth of irrelevant material some of which is difficult to understand. There is nothing in the material to support the proposition the appeal is of wider interest or has any apparent merit. The focus upon the idea of a divisible person suggests merit is in fact absent.
The delay being significant in itself, and more significant in the context of an already prolonged process, the inability to conclude Mr DeMarco will advance the appeal in any timely or focused way and the lack of any disclosed merit mean the application for an extension of time must be declined. It can also be noted the hurdle still exists that security for costs has not been paid, and Mr DeMarco shows no intention of doing so.
The first respondents seek standard costs of $478 increased by 50 per cent because of the lack of merit and what is said to be an unnecessary step. The first respondents filed a Notice of Opposition and brief submissions in support. The necessary endeavour on the part of the first respondents is not such as to merit any increase on standard costs, which are accordingly awarded.
Result
The application for an extension of time under r 43 is declined.
The applicant must pay the first respondents costs in the sum of $478.
Solicitors:
Parker & Associates, Wellington for First Respondents
Meredith Connell, Auckland for Second Respondent
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