General Marine Services Limited v The Ship 'Luana'

IN THE COURT OF APPEAL OF NEW ZEALAND

CA35/2012
[2012] NZCA 374

BETWEEN ROGER WILLIAM O'BYRNE
Applicant

AND THE WAIMAKARIRI DISTRICT COUNCIL
Respondent

Hearing: 17 July 2012

Court: Glazebrook, White and Simon France JJ

Counsel: Applicant in Person
E D Peers and E M Ritchie for Respondent

Judgment: 21 August 2012 at 4.00pm

JUDGMENT OF THE COURT

AThe application for special leave to appeal against a refusal to extend the time for appealing against conviction is dismissed for lack of jurisdiction.
BThere is no order as to costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Simon France J)

Mr O’Byrne was charged under the Building Act 2004 with erecting a hay shed without a building consent. He was represented by counsel and pleaded guilty. He was fined $7,500 and court costs of $130.[1] On appeal the fine was reduced to $6,000.[2]
[1]Waimakariri District Council v O’Byrne DC Rangiora CRI-2009‑061‑1116, 21 October 2009, Judge Bisphan.
[2]O’Byrne v Waimakariri District Council HC Christchurch CRI-2009‑409‑188, 29 April 2010, Fogarty J.
Mr O’Byrne then sought leave to appeal his sentence to this Court. The High Court declined leave,[3] and the matter came to this Court by way of an application for special leave.[4] By then it was apparent that Mr O’Byrne, now acting for himself, wished to challenge his conviction. He considered he should not have pleaded guilty because he had available to him the statutory defence of necessity. Special leave was declined, with Mr O’Byrne being informed he would need to return to the High Court to seek an extension of time to appeal his conviction.
[3]O’Byrne v Waimakariri District Council HC Christchurch CRI-2009‑409‑188, 13 August 2010, Fogarty J.
[4] O’Byrne v Waimakariri District Council [2011] NZCA 130.
Mr O’Byrne has now done that. Chisholm J reviewed the arguments Mr O’Byrne would make, and concluded they lacked merit. Accordingly, an extension of time was declined.[5] Mr O’Byrne again sought leave to appeal to this Court. Chisholm J declined the application.[6] Mr O’Byrne then sought special leave to appeal to this Court.
[5]O’Byrne v Waimakariri District Council [2011] NZAR 777 (HC).
[6]O’Byrne v Waimakariri District Council HC Christchurch CRI-2011‑409‑65, 13 December 2011, Chisholm J.
Shortly before the scheduled hearing of this application, and after submissions had been filed, this Court of its own motion raised the issue of jurisdiction. Mr O’Byrne was unprepared for this and time was given for him to file submissions on the point. The Council accepted that the Court’s minute[7] raising the issue accurately stated the law and did not wish to be further heard.
[7] O’Byrne v Waimakariri District Council CA35/2012, 16 July 2012.
Mr O’Byrne filed written submissions. Whilst he has addressed the criteria relevant to a s 144 Summary Proceedings Act 1957 application, he has not been able to advance matters in relation to whether there is jurisdiction in a situation where an extension of time has been refused by the High Court.
The issue has arisen previously in Taufoou v Department of Labour[8] and Tocker v Police.[9] Those cases confirm that jurisdiction under s 144 of the Summary Proceedings Act arises only when there has actually been an appeal heard in the High Court. It does not apply to an interlocutory matter. Here, Chisholm J declined to grant an extension of time. That is accordingly the final step available to Mr O’Byrne.
[8] Taufoou v Department of Labour [1981] 1 NZLR 573 (CA).
[9]Tocker v Police CA127/94, 2 August 1994.
The application for special leave to appeal must be declined for lack of jurisdiction.
Costs were awarded against Mr O’Byrne in the High Court on his failed leave application. They have not been sought here in any written material filed by the respondent. Since the lack of jurisdiction was overlooked until raised by this Court, we make no order as to costs.

Solicitors:
Buddle Findlay, Christchurch for Respondent

CaseChat Overview and Summary

In the case of General Marine Services Limited v The Ship 'Luana', the Court of Appeal of New Zealand was presented with an application for special leave to appeal against a refusal to extend the time for appealing against conviction. The applicant, Roger William O'Byrne, had previously been convicted under the Building Act 2004 for erecting a hay shed without a building consent. After initially pleading guilty and being fined, O'Byrne sought to appeal his sentence and later his conviction. His attempts to extend the appeal time were consistently denied by the High Court, leading to his application for special leave to appeal to the Court of Appeal. The legal issues at the core of this case centred on the jurisdiction of the Court of Appeal to grant special leave to appeal when the High Court had already declined to extend the time for appeal, and whether the statutory defence of necessity could have been available to O'Byrne at the time of his conviction.

The Court of Appeal examined the jurisdictional requirements under section 144 of the Summary Proceedings Act 1957, noting that special leave to appeal is only available if an appeal has already been heard in the High Court. The Court referenced previous cases, Taufoou v Department of Labour and Tocker v Police, which established that jurisdiction is triggered by the final decision of the High Court, not by interlocutory matters. In this case, since the High Court had already declined to grant an extension of time, the Court of Appeal found that it lacked jurisdiction to hear the application for special leave. The applicant's arguments did not sufficiently address the jurisdictional issue, focusing instead on the merits of his case. Consequently, the application was dismissed for lack of jurisdiction.

The Court of Appeal's decision was grounded in the established legal principles regarding the scope of its jurisdiction. Given the clear precedent and the finality of the High Court's decision to decline the extension of time, the Court concluded that it did not have the authority to entertain the application. As a result, the application for special leave to appeal was dismissed. Additionally, since the matter of costs had not been raised by the respondent, and the jurisdictional issue was not apparent until raised by the Court, no order was made regarding costs. This decision reinforces the importance of adhering to jurisdictional limits and the procedural requirements for appeals in New Zealand's legal system.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established