Gollan v Cameron HC Hamilton CIV 2010-419-1104

[2010] NZHC 1754

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV 2010-419-1104

BETWEEN  JAMES PATRICK GOLLAN Appellant

ANDSTUART ALISTAIR CAMERON First Respondent

ANDGABCAM LIMITED Second Respondent

ANDL B TRANSPORT LIMITED Third Respondent

ANDG L & S C MCCORMACK LTD Fourth Defendant

Hearing:         29 September 2010

Counsel:         J P Gollan, Appellant in person

No appearance by, or on behalf of First and Second Respondents
D J Taylor for Third Respondent
G Wilkin for Fourth Respondent

Judgment:      29 September 2010

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Kellaways, PO Box 19-379, Hamilton John Webb, PO Box 132, Hamilton Counsel:

D J Taylor, PO Box 19-366, Hamilton G Wilkin, PO Box 1394, Hamilton Copy to:

Mr J P Gollan, 30 Brookfield Street, Hamilton email [email protected]

GOLLAN V CAMERON AND ORS HC HAM CIV 2010-419-1104  29 September 2010

[1]      Mr Gollan seeks an extension of time to appeal against a judgment given in the District Court at Hamilton on 16 July 2010.

[2]      The appeal document and application have been served on all parties, though only the  third  and  fourth  named  respondents  are  represented  before  me.    They oppose the application for an extension of time.

[3]      Mr  Gollan  submits  that  an  extension  is  justified  because  a  lengthy  oral judgment was given on 16 July 2010 and a transcript of that judgment did not become available until 29 July 2010.  The appeal period in terms of r 20.4(2)(b) of the High Court Rules expired 20 working days after the date of which the oral judgment was given.  The expiry date was, therefore, 13 August 2010.

[4]      Calculating the same period, on a notional basis in respect of the date of which the written version of the judgment was received, the 20 working days would have expired on 26 August 2010.

[5]      The appeal was purportedly filed on 30 August 2010.   Rule 20.4(3) of the High Court Rules gives the Court the power to extend the time for appealing.  The discretion to do so is in unfettered terms which must be assessed by reference to the justice of the individual case.  In determining whether an extension is appropriate, the Court must bear in mind that any extension of time to appeal is an indulgence.

[6]      The ground on which Mr Gollan relies to extend time is simply his inability to formulate an appeal until such time as the written judgment was received.

[7]      Mr Taylor and Mr Wilkins both oppose the application because, as they rightly say, not all decisions given orally in the District Court will be made available promptly and there is nothing to suggest any particular difficulty for Mr Gollan to formulate his appeal without receipt of a written judgment.  As Mr Taylor submitted, there is nothing out of the ordinary in respect of this case.

[8]      In the circumstances of this particular case, I consider, by a fine margin, that it  is  appropriate  to  extend  time.    I  have  regard  to  Mr  Gollan’s  lack  of  legal

representation and the relatively small amount of time that passed from receipt of the written transcript of the judgment to the time the appeal was filed.

[9]      However, I consider also that Mr Gollan should make some contribution to the costs of the respondents in obtaining a indulgence.  The extension of time will be allowed on terms requiring costs to be paid to each of the third and fourth respondents, on a 2B basis, together with reasonable disbursements, both to be fixed by the Registrar.  Those sums shall be paid within 15 working days of the date on which the Registrar identifies that amount and makes it available in writing to Mr Gollan by email.  The email confirming the amount payable shall be forwarded, at the same time, to counsel for the two respondents represented before me.

[10]     Having granted leave for the appeal to be brought out of time, I adjourn the making of appeal directions until 9am on 17 November 2010.

[11]     If the costs ordered today have not been paid within the stipulated time, application may be made to strike out the appeal.   If any application to adduce additional evidence, as Mr Gollan has flagged, were to be made, that shall be filed and served on or before 5 November 2010.

[12]     By midday on 10 November 2010, Mr Gollan and counsel opposing the appeal, shall file and serve memoranda indicating the directions they seek on 17

November 2010.

[13]     Mr Taylor has flagged the possibility of security for costs being sought in the sum in excess of the usual amount.  An evidential foundation may be required for that.  Mr Taylor’s and Mr Wilkin’s position on that issue should be signalled clearly in their memorandum for the conference.  They will also need to consider whether any affidavit evidence to support such an application may be required.

[14]     Other than the orders I have made today on the application to extend time, costs are reserved.

P R Heath J