Finnie v Wilson HC Wellington CIV 2007 485 1033

[2007] NZHC 1974

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2007 485 1033

BETWEEN  ANDREW JOHN FINNIE Appellant

ANDCYNTHIA DELORES WILSON Respondent

Counsel:         No appearance for the Appellant

J C Cheer for the Respondent
M Gazley as lawyer for the children

Date:              7 August 2007

DECISION OF ASSOCIATE JUDGE D I GENDALL

[1]      This appeal has been set down for hearing on 23 October 2007, one day is allowed.

[2]      On 12 June 2007 this Court made directions in respect of the appeal.

[3]      In accordance with those directions the appellant has filed his points on appeal within time on 26 June 2007.  Further, the appellant paid security for costs, again on time, on 26 June 2007.

[4]      The  appellant  was  to  file  a  common  bundle  in  consultation  with  the respondent by 10 July 2007.  This has not occurred.

[5]      Ms Cheer, counsel for the respondent, has filed a detailed memorandum for the call of this matter today outlining the lack of progress which has been made with

respect to the filing of this common bundle.

ANDREW JOHN FINNIE V CYNTHIA DELORES WILSON HC WN CIV 2007 485 1033  7 August 2007

[6]      Further, the appellant was to file his submissions by 17 July 2007.  That has also not occurred.

[7]      These   matters   are   clearly   delaying   further   steps   required   from   the respondents in the timetable orders made earlier.

[8]      Given that the hearing date for this appeal is scheduled for 23 October 2007, further delay cannot be countenanced.

[9]      Before me today Ms Cheer, for the respondent, sought some firm action in this matter.  She was suggesting that the appeal might be struck out or alternatively an unless order provided.

[10]     Mr Gazley appeared as counsel for the children and indicated a neutral stance in this matter.   He noted, however, that clearly progress must be made with the completion of the common bundle and filing of submissions.

[11]    There was no appearance by the appellant, who I understand is a self- represented litigant in this matter today.

[12]     Time marches on.  The hearing date set for the appeal is fast approaching.

[13]     That said, in my view, given the delays which have occurred in this matter, an unless order is appropriate.

[14]     An order is now made in the following terms.   Unless the appellant first within 15 working days of today files and serves a common bundle of paginated and indexed copies of all relevant documents in terms of paragraph 6 of Schedule 6 of the High Court Rules, and secondly, within 25 working days of today files and serves the appellant’s submissions and a chronology (if relevant) for the purposes of this appeal, then the appellant’s appeal shall be struck out.

[15]     Further amended directions are now made in the following terms:

a)       Submissions  from  the  respondents  together  with  any  chronology which may be required in terms of paragraph 6 of Schedule 6 of the High Court Rules are to be filed and served within 35 working days of today.

b)Leave is reserved for any party to approach the Court further on three days’ notice if further assistance is required.

c)       Ms  Cheer,  for  the  respondent,  seeks  costs  with  respect  to  the appearance today.   In my view, that is not an unreasonable request. Costs are appropriately awarded to the respondent and to counsel for the children for the appearance today.   An order is now made that costs are awarded against the appellant on a category 2B basis with respect to today’s appearance.

[16]     Before me, Ms Cheer requested that a further order be made that the award of costs today be deducted from the security for costs on appeal, the security for costs are held for this appeal and that the appellant be required to “top up” the security for costs amount prior to hearing the appeal.

[17]     I am not prepared to make that order sought today.

[18]     It is important, as I see it, that matters are brought to a proper conclusion and that the appeal on 23 October proceeds if at all possible.  The order for costs made today is to be enforced in the normal manner.

‘Associate Judge D.I. Gendall’

Solicitors:

Khandallah Law, Wellington for the Respondent