Harriman v Dyhrberg

[2009] NZCA 115

IN THE COURT OF APPEAL OF NEW ZEALAND

CA624/2008
[2009] NZCA 115

BETWEENALLEN LOUIS HARRIMAN

Applicant

ANDMARIE JEANETTE DYHRBERG

Respondent

Hearing:17 March 2009

Court:O'Regan, Arnold and Ellen France JJ

Counsel:Applicant in person

No appearance for Respondent

Judgment:2 April 2009 at 4 pm 

JUDGMENT OF THE COURT

The application for an extension of time within which to file an appeal is dismissed.

REASONS OF THE COURT

(Given by Arnold J)

Introduction

[1]       The applicant applies for extension of time within in which to file an appeal against a decision of Asher J: HC AK CIV-207-404-002471 27 May 2008.

Background

[2]       The applicant faced criminal charges and initially retained the respondent as his counsel. The respondent’s fee for her work was $12,625.  The applicant applied to the Auckland District Law Society (ADLS) for a costs revision.  The ADLS decision rejecting his application was delivered on 13 February 2007.  The applicant was in prison at the time but received a copy of the decision.  He had 14 days within which to appeal against this decision to the Registrar of the High Court, pursuant to s 148 of the Law Practitioners Act 1982 (LPA).

[3]       The applicant said that he had written to the Registrar on 17 February 2007 seeking to appeal the ADLS decision.  When he heard nothing, he wrote again on 9 April 2007.  The Registrar responded, advising the applicant that he had not received a letter from him dated 17 February 2007. 

[4]       The Registrar treated the applicant’s request as one for leave to appeal out of time.  He wrote to the applicant saying that he would ascertain the respondent’s attitude to the application.  If she opposed it, he would give the applicant the opportunity to make further submissions.

[5]       The respondent advised the Registrar that she did not consent to the application, but did not wish to be heard (an attitude that she has maintained throughout, including in this Court).  On 26 June 2007 the Registrar declined the application to appeal out of time, without having given the applicant an opportunity to make further submissions.

[6] The applicant then applied to the High Court under s 149 of the LPA to have the Registrar’s decision reviewed. Asher J noted the Registrar’s statement that if the respondent opposed the granting of the extension the applicant would be given time to make further written submissions and also noted that he had failed to provide that opportunity. The Judge accepted that this created procedural unfairness. Accordingly, the Judge decided that he should consider whether the Registrar should have allowed the application for leave to appeal out of time, that is, he considered the merits himself: at [17].

[7] The Judge noted that the applicant had not provided a satisfactory explanation for his failure to appeal within the time prescribed: [18] – [19]. Further, he concluded that the appeal had no prospect of success: at [26]. Accordingly the Judge declined to vary or reverse the Registrar’s decision.

[8]       Following that decision, the applicant sent communications to the High Court Registry in Auckland on 29 May and 4 June 2008 advising that he intended to file a notice of appeal and, in the latter instance, enclosing a draft notice of appeal.  In a letter received at the High Court Registry on 24 June 2008, the applicant enclosed a notice of appeal against the decision of Asher J.  He was advised by letter on 25 June 2008 that if he wished to appeal against Asher J’s decision, he would have to file his appeal in this Court. 

[9]       The applicant filed a notice of appeal in this Court on 28 June 2008.  He was advised on 13 July 2008 that the notice of appeal was out of time and that he would need to apply for special leave to appeal.  This Court received that application on 25 February 2009, although it was dated 9 September 2008 as was the supporting affidavit.

Basis for application

[10]     The grounds on which the applicant sought special leave to appeal may be summarised as follows:

1There was a failure to follow proper procedures.

2In light of the procedural errors the Judge should not have assessed the merits of the appeal.

3The hearing conducted by Asher J was flawed in that it was incomplete because relevant submissions and evidence were not presented. 

4The Judge was wrong to find that the appeal was without merit.

Discussion

[11]     Where there is an application for leave to appeal out of time, the Court will have regard to a variety of factors.  Among these are the circumstances in which the delay occurred, the length of the delay, the prejudice, if any, to the respondent, the importance of the issues on the appeal and the merits of the proposed appeal: see McGechan on Procedure at CR29.04(3). 

[12]     In the present case, there are two factors of particular importance.  First, we do not accept that the applicant has provided an adequate explanation for the delay.  In his affidavit he points to the fact that he is a prison inmate and does not have access to legal resource materials.  He claims to have been misled as to where he should have filed his appeal.  However, he does have some experience of the justice system.  More importantly, he offered no explanation for the fact that, once told in July 2008 that he needed to seek leave to appeal out of time, he delayed filing his application until February 2009 (although it is dated 9 September 2008).  Time limits promote finality.  Finality is not a decisive consideration as time limits can be overlooked or not complied with in circumstances that are understandable or at least excusable.  But here the delay has not been adequately explained.

[13]     Second, and more importantly, we agree with the Judge that the proposed appeal is without merit.  As the Judge said, the Registrar did commit a procedural error in not providing the applicant with an opportunity to file further submissions after having advised him that he would be given such an opportunity if the respondent opposed his application.  However, the Judge’s consideration of the merits remedied any procedural defect in the Registrar’s process. 

[14] The Judge noted that he gave the applicant a full opportunity to develop the basis for his appeal: at [26]. The applicant submitted that he had not been able to produce the evidence and submissions that he wanted to advance. At the hearing, we pressed the applicant to identify what further material he said should have been before the Judge. He was not able to provide any satisfactory answer. In those circumstances, we consider that the Judge was correct in his assessment that the appeal lacked any merit.

[15]     There is no other factor which justifies us in granting the applicant what is an indulgence.  Accordingly, the application for an extension of time within which to file an appeal is dismissed.  There is no order as to costs.