Erwood v Glasgow Harley - [2006] NZCA 348

IN THE COURT OF APPEAL OF NEW ZEALAND
CA52/06
BETWEENROBERT ERWOOD

Applicant

ANDGLASGOW HARLEY

First Respondent
ANDRAYLEE 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…

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: [2006] NZCA 348
Decision Date: 11 December 2006

CaseChat Overview and Summary

Robert Erwood, represented by litigation guardian Mr Minchin, sought special leave to appeal out of time against a decision of the High Court which dismissed his application to review a decision of the Registrar of the High Court at Auckland refusing to accept for filing his application to recall and set aside consent orders made in earlier litigation. The application was made under r 29(4) of the Court of Appeal (Civil) Rules 2005. The grounds for the application were that the delay had not caused prejudice to any other party, 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, and 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. The Court found that the delay was not significant and no significant prejudice arose and that there is merit in the appeal. However, the Court concluded that the repeated attempts at re-opening litigation which was settled and subject to consent orders three years ago smacked of abuse of the Court’s processes. In those circumstances the Court could see no proper basis for the Court granting an indulgence to the applicant to continue litigation of that nature. Having regard to the whole history of this litigation, the Court was not satisfied that the interest of justice would be served by the granting of the indulgence. The application was declined and the Court awarded costs to the respondents of $750 each.

Orders