Fabian v Attorney-General

IN THE COURT OF APPEAL OF NEW ZEALAND

CA677/2013
[2014] NZCA 90

BETWEEN	TYRONE MAUNGA URAUTUNUI FABIAN Applicant
AND	ATTORNEY-GENERAL Respondent

Court:

Ellen France, Harrison and French JJ

Counsel:

Applicant in person
J R Gough and L R McKay for Respondent

Judgment:

(On the papers)

24 March 2014 at 12.30 pm

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal is dismissed.
BThe applicant must pay the respondent costs calculated as for a standard application on a band A basis together with usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

Mr Fabian wishes to appeal two decisions of Associate Judge Sargisson. In the first decision, the Judge struck out a statement of claim Mr Fabian had filed in the High Court against the respondent and dismissed the proceedings.[1] The second decision was a subsequent costs decision awarding costs against Mr Fabian.[2]
[1]Fabian v Attorney-General [2013] NZHC 1606.
[2]Fabian v New Zealand Government [2013] NZHC 1891.
Mr Fabian filed his appeal out of time. He has therefore applied for an extension of time under r 29A of the Court of Appeal (Civil) Rules 2005.
The parties have consented to the application under r 29A being dealt with on the papers.
The proposed appeal is misconceived. It is well-established that this Court does not have jurisdiction to hear appeals against decisions of Associate Judges on strike out applications and incidental costs. Instead, any challenge to those decisions must be by way of review in the High Court.[3]
[3]Judicature Act 1908, s 26P.
That in itself is sufficient to dispose of the application. We also note that the proposed appeal, being based as it is on claims of personal sovereignty, has no realistic prospect of success.
The application for an extension of time is accordingly dismissed.
The respondent is entitled to costs on the application. Mr Fabian was made aware of the jurisdictional problem, but chose to proceed.

Outcome

The application for an extension of time is dismissed.
The applicant must pay the respondent costs calculated as for a standard application on a band A basis together with usual disbursements.

Solicitors:
Crown Law Office, Wellington for Respondent

CaseChat Overview and Summary

Tyrone Maunga Urautunui Fabian has applied to the Court of Appeal of New Zealand for an extension of time to appeal two decisions of Associate Judge Sargisson. The first decision involved the striking out of a statement of claim filed by Mr Fabian against the Attorney-General and the dismissal of the proceedings. The second decision involved an award of costs against Mr Fabian. Mr Fabian filed his appeal out of time and has sought an extension of time under rule 29A of the Court of Appeal (Civil) Rules 2005. The court heard the application on the papers, as both parties consented to this approach.

The court was required to determine whether Mr Fabian's application for an extension of time should be granted and whether the appeal itself had any realistic prospect of success. The court noted that it does not have jurisdiction to hear appeals against decisions of Associate Judges on strike out applications and incidental costs, as this must be done by way of review in the High Court. Additionally, the court found that the proposed appeal, which was based on claims of personal sovereignty, had no realistic prospect of success.

The court dismissed the application for an extension of time. The court found that Mr Fabian was aware of the jurisdictional issue but chose to proceed with the application regardless. The court also noted that the appeal itself was misconceived and had no realistic prospect of success. The applicant was ordered to pay the respondent's costs calculated as for a standard application on a band A basis together with usual disbursements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established