IN THE COURT OF APPEAL OF NEW ZEALAND
CA52/06
BETWEENROBERT ERWOOD
Applicant
ANDGLASGOW HARLEY
First RespondentANDRAYLEE PATRICIA HARLEY
Second Respondent
Hearing:4 December 2006
Court:O'Regan, Robertson and Gendall JJ
Counsel:A C Beck for Applicant
N A Till for First Respondent
J A Farmer QC for Second Respondent
Judgment:11 December 2006 at 3 pm
JUDGMENT OF THE COURT
A The application for special leave to appeal out of time is dismissed.
B We award costs to $750 to each of the respondents.
REASONS OF THE COURT
(Given by O’Regan J)
Introduction
[1] This is an application for special leave to appeal against a decision of the High Court, Erwood v Glasgow Harley and Another HC AK CIV-2002-404-001663 15 December 2005 Harrison J. Special leave is required because the appeal was not filed in time. The last date for the filing of an appeal within time was 3 February 2006. The application for special leave was filed on 16 March 2006. The application is made under r 29(4) of the Court of Appeal (Civil) Rules 2005. That rule provides that a party may apply for special leave to appeal out of time in accordance with Part 2 of the Rules if he or she wishes to have the period extended, in the event that the appeal period has expired.
[2] There are three grounds on which the application is based. These are:
(a) The delay has not caused prejudice to any other party;
(b)The delay was caused by Mr Erwood having to move out of Auckland, and being unable to instruct counsel in Wellington before the date on which the application for special leave was made;
(c)A serious injustice will have occurred if the consent order of Frater J dated 25 November 2003, which Mr Erwood sought to challenge in the High Court, is allowed to stand.
Background to the decision of Harrison J
[3] The decision of Harrison J needs to be placed in context. He had before him an application by Mr Erwood for an order reviewing a decision by the Registrar of the High Court at Auckland refusing to accept for filing Mr Erwood’s application to recall and set aside consent orders. From the decision of Harrison J, it is apparent that the objective of the application was to seek an order setting aside consent orders made by Frater J in earlier litigation between Mr Erwood and the respondents. The consent orders were made after the applicant’s claim was settled at a judicial settlement conference at which Mr Erwood was represented by a litigation guardian and counsel representing the litigation guardian, but was not, himself, present. The basis of the application was apparently that the appointment of the litigation guardian ought to have terminated prior to the settlement conference.
[4] Mr Erwood commenced High Court proceedings against the respondents in May 2002. Glasgow Harley had been Mr Erwood’s solicitors, and Mrs Harley had been his counsel in litigation which arose from the loss sustained by Mr Erwood of a…
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- Case
- [2006] NZCA 348
- Decision Date
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