Gibson v Fisher

[2007] NZCA 57

IN THE COURT OF APPEAL OF NEW ZEALAND

CA79/06
[2007] NZCA 57

BETWEENNEVILLE JAMES GIBSON

Applicant

ANDANTONIA CHRISTINA MARIA FISHER

Respondent

Hearing:19 February 2007

Court:Hammond, Arnold and Ellen France JJ

Counsel:Applicant in Person

P J L Hunt and G Simms for Respondent (via video conference)

Judgment:9 March 2007 at 11 am

JUDGMENT OF THE COURT

A        The application for special leave to appeal is dismissed.

B        No order for costs.

REASONS OF THE COURT

(Given by Hammond J)

Introduction

[1]       We have before us an application for special leave to bring this appeal out of time.

Background

[2]       Mr Gibson was a dentist.  He retained the respondent, an Auckland barrister, in relation to two disciplinary cases which were brought against him by his professional body. 

[3]       Those proceedings did not go well for Mr Gibson.  Subsequently he issued High Court proceedings against Ms Fisher, on a variety of causes of action: breach of contract, breach of fiduciary duty, negligence, and breach of the Fair Trading Act 1986.

[4]       In the course of that proceeding, Ms Fisher’s counsel made an application for security for costs against Mr Gibson.  The application was made under r 60 of the High Court Rules.  Venning J delivered an oral judgment on 31 March 2006.  The Judge ordered Mr Gibson to pay security for costs, on a staged basis.  He was ordered to pay $15,000 up to the completion of discovery, with leave reserved to Ms Fisher to revisit the issue and “top up” the security during the course of the proceedings.  An order was made staying the proceeding until security was paid.

[5]       Mr Gibson was dissatisfied with that decision.  He filed a notice of appeal, without delay, on 2 April 2006.  But then, as not uncommonly happens with lay litigants, Mr Gibson got himself into procedural difficulties.  Although the appeal was filed in time, it was served on Ms Fisher’s solicitors a short period beyond the 20 working day time limit under the Court of Appeal (Civil) Rules 2005. 

[6]       That has left Mr Gibson in a position where he has had to seek special leave.  He now seeks such leave – as he expresses it – “under ss 13, 14, 15, 27 and 29 of the Court of Appeal (Civil) Rules 2005”.

The grounds of the application and opposition

[7]       Mr Gibson put his application on three bases: that Ms Fisher is not prejudiced by the serving of the appeal out of time; that he will be prejudiced by not having his appeal heard; and that it is in the overall interests of justice that his appeal be heard, because it has merit.

[8]       Mr Hunt opposed the making of the orders sought on the grounds that the appeal has no merit; that the High Court did not act on a wrong principle, fail to take into account a relevant matter, or take into account an irrelevant matter, and was not plainly wrong with respect to the order for security for costs; that Mr Gibson’s explanation for the delay is not acceptable; and that granting leave would not meet the overall interests of justice.

[9]       The opposition is, in essence, put on two grounds: procedural non-compliance (delay); and what is said to be an obvious lack of merit in the appeal.  We will deal with the matters arising under those two heads.

Delay

[10]     There is some dispute about the character and extent of the actual “delays”, but on any view they are of a small order: around 11 days delay in the service of the notice of appeal; and 16 days on delivery of the case on appeal.

[11]     Those sort of delays are not to be encouraged, and the circumstances of a case may mean they will not be countenanced.  In this instance, Mr Gibson was a lay litigant, the delays are not great, and there is no demonstrable prejudice.  We do not consider this factor should tell against him, as such, in this case.

The merits of the appeal

[12]     It was common ground in the High Court that Mr Gibson was resident outside New Zealand, and that he was impecunious and would be unable to pay costs.  It was accepted that there was jurisdiction to make a security-for-costs order.

[13]     The issue therefore became that of balancing the interests of Mr Gibson’s right to have his day in court against the interests of Ms Fisher not to be substantially out of pocket as a result of an impecunious plaintiff pursuing an unsuccessful proceeding.  And as the Judge said, inevitably, a consideration of the plaintiff’s interest invites an assessment – so far as it can presently be had – of the strength of the plaintiff’s claim.

[14]     The Judge took the view that “having reviewed the pleadings and on the basis of the material currently before the Court at this time this is a claim with no or little apparent merit.”

[15]     To succeed in the present circumstances Mr Gibson must (as he accepted) show that the Judge had acted on a wrong principle, or had taken into account irrelevant matters or failed to take into account relevant matters, or that he was plainly wrong.

[16]     Mr Gibson’s claims arose under two heads.  The first was with respect to a patient, a Ms Scholes.  A disciplinary tribunal found against Mr Gibson in that respect.  Certain penalties were then imposed against him.  Thereafter he instructed Ms Fisher to appeal to the High Court against both the substantive and the costs decisions, but that appeal was struck out in July of 2004 for want of prosecution.  Mr Gibson lays this at Ms Fisher’s door.

[17]     Ms Fisher’s response is that she had ceased to act for Mr Gibson several months prior to the striking out, and indeed that on 6 December 2003 Mr Gibson had collected his files from her and her retainer ended.  These events were traversed by Venning J and he concluded that, “… it is very difficult to see how the fact that the appeal was struck out in 2004 for non-prosecution some seven months later could be laid at the feet of the defendant.”  There was an evidential basis on which the Judge could have reached that view.

[18]     The second aspect of Ms Fisher’s instructions related to complaints by three other patients, Fryes, Blunt, and Scott.  Ms Fisher endeavoured to have the complaints struck out on the basis of an abuse of process.  That challenge was dismissed in June of 2003.  Mr Gibson wanted to appeal against those decisions.  Issues then arose between Mr Gibson and Ms Fisher, as to her fees, in October and November of 2003.  Mr Gibson instructed other counsel, Mr Jenkins.  Apparently Mr Jenkins took the view that what should have been applied for was judicial review, rather than appeal, proceedings.  The appeal proceedings commenced by Mr Gibson were abandoned.  Mr Gibson then suffered the misfortune of the judicial review proceedings promoted by Mr Jenkins being dismissed by the High Court in February of 2004. 

[19]     Again, however, Mr Gibson’s difficulty is that Ms Fisher’s instructions had been terminated; Mr Jenkins had taken over the conduct of the proceedings.  Unsurprisingly, the Judge arrived at the view that Mr Gibson’s impecuniousity had not been caused by the actions of Ms Fisher.  Again, there was an evidential basis for the view arrived at by the Judge.  We are not disposed to interfere under this head.

The quantum of security

[20]     There is a faint suggestion in Mr Gibson’s third set of amended points on appeal (those of 21 December 2006), that the quantum of the security ordered is too high.  If that is what is being said, then we do not consider that any error of a requisite character has been demonstrated.  It is well recognised that fixing the quantum of security is appropriately a matter for the trial Judge, who is well appraised of the circumstances of the particular case.  In this case, the Judge had the benefit of all that had been said to him both by Mr Gibson and Mr Ring under this head.

Conclusion

[21]     It is correct that the dismissal of this application will mean the end of an appeal which was, initially, lodged in time.  But Mr Gibson got himself into the position where an appeal which he had of right, needed leave, and in accordance with the usual principles upon which such applications are determined, that necessitates a review of the merits of the appeal.

[22]     The short periods of time that Mr Gibson was out of time by would have disposed the Court to grant leave.  But we do consider this is one of those cases in which Mr Gibson has no realistic prospect of successfully appealing the security-for-costs decision.  It is in the interests of justice that that prospective appeal be terminated now.  The application for special leave to appeal is dismissed.

[23]     The consequence of course is that Venning J’s orders stand.  Mr Gibson will have to understand that either he will have to comply with those orders, or ultimately he will face having his action struck out altogether.

[24]     There will be no order for costs.  The resistance to the appeal on the grounds of timing was unfortunate.  In that sense, both parties have had a measure of success.

Solicitors:
McElroys, Auckland for Respondent