Harris v Davies

[2007] NZCA 358

IN THE COURT OF APPEAL OF NEW ZEALAND

CA188/06
[2007] NZCA 358

BETWEENLEE ANTHONY HARRIS

Appellant

ANDDOUGLAS WARREN DAVIES

First Respondent

ANDWARREN NEVILLE DAVIES

Second Respondent

Hearing:18 June 2007

Court:Glazebrook, Chambers and Wilson JJ

Counsel:J M Miller and S A Thistoll for Appellant

N Levy for Respondents

Judgment:22 August 2007 at 10.30 am

JUDGMENT OF THE COURT

AThe appellant’s application for an extension of time in which to apply for the allocation of a hearing date and in which to file the case on appeal is dismissed, with the consequence that the appeal is to be treated as having been abandoned.

B        No order as to costs.

REASONS OF THE COURT

(Given by Chambers J)

Application for extension of time following a deemed abandonment

[1]       Mr Lee Harris, the appellant, lives on a rural property near Masterton.  In the weeks leading up to 10 August 2002, he and Mr Douglas Davies, the first respondent, had had a disagreement concerning some tools Mr Harris had lent to Mr Douglas Davies, but which Mr Douglas Davies had failed to return.  Mr Harris accused Mr Douglas Davies of stealing them. 

[2]       Matters came to a head on 10 August 2002.  Mr Harris was at home.  Mr Douglas Davies and Mr Warren Davies, the second respondent, drove up and parked across Mr Harris’s driveway.  Mr Douglas Davies got out of his vehicle.  Mr Harris saw he was carrying a shotgun.  Mr Harris ran to his car, got in, and then drove at the Davies’ vehicle.  He hit the front of it with his car and shunted it sufficiently out of the way for him to be able to drive past.  He drove out on the road.  Messrs Douglas and Warren Davies pursued him.  Mr Douglas Davies fired at him.  Most of the bullets hit Mr Harris’s car, but some struck his right arm and hand. 

[3]       A cat and mouse chase developed.  Mr Warren Davies, who was the driver of their vehicle, shunted Mr Harris’s car off the road at one point.  But, in the end, Mr Harris managed to escape and made his way to Masterton Hospital.  Medical staff treated the injuries to his arm, and extracted from it approximately 21 pellets. 

[4]       The police charged Messrs Douglas and Warren Davies with attempted murder.  Mr Harris was due to give evidence, as, in addition to being the victim, he was also the prime Crown witness.  Mr Harris, however, refused to give evidence at the preliminary hearing.  As a result, Messrs Douglas and Warren Davies were discharged.

[5]       Later, Mr Harris brought a civil claim against Messrs Douglas and Warren Davies, alleging the tort of battery.  A claim for compensatory damages was barred by s 317(1) of the Injury Prevention, Rehabilitation, and Compensation Act 2001.  So Mr Harris limited himself to a claim for exemplary damages, such damages remaining available pursuant to s 319.  MacKenzie J heard the claim.  He ruled that, while Messrs Douglas and Warren Davies had committed the tort of battery, this was not an appropriate case for an award of exemplary damages.  He accordingly dismissed the claim: Harris v Davies HC MAS CIV 2003-435-21 15 August 2006. 

[6]       Mr Harris appealed.  But he failed to prosecute that appeal in a timely way.  Rule 43(1) of the Court of Appeal (Civil) Rules 2005 provides that, if an appellant does not apply for the allocation of a hearing date and file the case on appeal within six months after an appeal is brought, the appeal is to be treated as having been abandoned.  Mr Harris took neither step within the six month period.  Subclause (2) provides for this court, on application, to extend that six month period.  It is just such an application with which we are presently concerned. 

[7]       The sole issue in this case is whether we should exercise our discretion so as to permit Mr Harris to continue with his appeal. 

Why we are dismissing the application

[8]       Once an appellant has allowed r 43 to be triggered, he or she is then in a position where, instead of being able to appeal as of right, he or she “requires the exercise by this Court of a positive discretion”: Russell v Commissioner of Inland Revenue (2006) 22 NZTC 19,807 at [10] (CA).  Before exercising that discretion, this court is always interested in the reason why the appeal has not been prosecuted diligently.  Another relevant factor, as stated in Russell, is “whether the proposed appeal is genuinely arguable”.  Appeals as of right can be brought regardless of merits, but once an appellant needs leave to continue, this court will generally grant such leave only if the appeal seems meritorious. 

[9]       We turn first to the reasons for the delay.  Brooke Gibson, Mr Harris’s former solicitor, has sworn an affidavit in which he says he thought the six month period “expired at the end of March 2007”.  He does not explain how he formed that erroneous impression, especially since he had received a letter from this court’s registry advising of the requirements of r 43.  It was clear on the face of that letter that the six month period expired on 4 March 2007.  The application for an extension of time was not filed until 30 March this year, almost four weeks after the appeal was deemed abandoned. 

[10]     It seems therefore the delay is purely a result of lawyer oversight.  We do not consider any blame can attach to Mr Harris personally, as Mr Gibson affirms that at all times he was in receipt of instructions from Mr Harris that he wished to proceed with his appeal.  In the circumstances, we conclude that, if the appeal has merit, we would be prepared to excuse the delay and grant the application.  But has the appeal got merit?  We now turn to that question. 

[11] MacKenzie J dismissed Mr Harris’s claim for the following reasons. First, he summarised the general principles of law applicable in this area. He said it was not “an automatic consequence that serious criminal conduct will sound in exemplary damages as well as criminal sanctions”: at [12]. He added:

Regard must be had to the circumstances of the particular case, and whether, in those circumstances, both the public and the private interest in punishment and condemnation can be sufficiently served by the criminal justice system.  As was noted in Daniels v Thompson [[1998] 3 NZLR 22], those objectives include consideration of the interest of victims.

[12]     MacKenzie J then turned to consider the particular circumstances of this case.  In that regard, he considered particularly important the fact that Mr Harris had refused to give evidence in the criminal proceeding.  He said at [17]:

The direct result of his refusal to co-operate was that the criminal law was unable to be properly executed in this case.  In my view, the plaintiff, having failed to play his proper part in ensuring that the defendants were properly tried in respect of their conduct and, if found guilty, subject to the applicable criminal penalties, ought not to be able to recover, for his personal benefit, an award in damages, the purpose of which is to punish and condemn the defendants’ conduct.  His refusal to co-operate with, and perform his public duty in relation to, the criminal proceedings makes such an award inappropriate. 

[13]     His Honour also said at [18]:

The possible availability of an award of exemplary damages in appropriate cases should not lead to any expectation on the part of victims that they may have a choice either to become involved in a criminal justice system or to seek exemplary damages.  It will be wrong to make an award of exemplary damages in circumstances which might encourage others to act in a way which might enable them to obtain a personal benefit from the punishment and condemnation which the public interest requires. 

[14]     Because Mr Gibson had to swear an affidavit explaining his oversight, Mr Miller appeared for Mr Harris on this application.  He submitted MacKenzie J’s judgment was wrong in two respects.

[15]     First, the judge was wrong to draw the conclusion that Mr Harris had failed to co-operate in the prosecution.  Mr Miller referred to a medical certificate, which had apparently been in the common bundle of documents at trial.  This, he submitted, provided an excuse for Mr Harris's refusal to give evidence.  This argument has no chance of success.  The fact that a document may be in a common bundle is not evidence of the truth of its contents: High Court Rules, r 441O.  If Mr Harris wanted to establish he was medically unfit to give evidence at the criminal trial, he should have called a doctor to prove that.  He did not.  On the evidence which was available, MacKenzie J was justified in finding Mr Harris had wilfully refused to co-operate with the criminal proceeding.  He was also entitled to take into account that neither the police nor the judge presiding at the preliminary hearing had considered Mr Harris medically unfit. 

[16]     Mr Miller’s second ground of appeal proceeded on an assumption MacKenzie J had been entitled to find as a matter of fact that Mr Harris had not co‑operated with the criminal proceeding.  Mr Miller said that did not matter.  He argued that the victims of crimes effectively have an election as to remedy.  A victim can elect to participate in a criminal proceeding as a witness.  Alternatively he or she may pursue exemplary damages in a civil proceeding. 

[17]     We do not need to determine today precisely when the criminal law must be used as a remedy for criminal behaviour and when exemplary damages may be available as an alternative or additional remedy.  That is because, on any conceivable approach, MacKenzie J was obviously entitled to take into account in the exercise of his discretion the fact that Mr Harris had refused to co-operate with the criminal prosecution.  We cannot accept Mr Miller’s submission that the victim has an unqualified election as to remedy, with the consequence that Mr Harris’s refusal to give evidence was irrelevant.  Nor can we accept Mr Miller's fallback argument that, even if Mr Harris's conduct might adversely affect the quantum of any exemplary damages award, it could not disentitle him to an award at all. 

[18]     Mr Miller submitted MacKenzie J’s judgment “in effect means that the respondents have escaped any form of punishment for their conduct, criminal or civil, and … that there must be an equal public policy argument that irrespective of the criminal process their behaviour required condemnation by an award of damages”.  It is the case that Messrs Douglas and Warren Davies have escaped any form of punishment, but responsibility for that rests solely on Mr Harris’s shoulders.  The police took all steps necessary to bring Messrs Douglas and Warren Davies to justice; they were stymied by Mr Harris’s refusal to co-operate.

[19]     Mr Miller relied on two cases.  The first was A v M [1991] 3 NZLR 228, in which a wife received exemplary damages in respect of assaults and rapes committed by her husband. That case is distinguishable. There the wife had complained to the police, but they had failed to act. Of course, in those circumstances, the victim should be able to sue for exemplary damages arising from intentional misconduct. That is different from the case here where the police did act to bring the offenders to book.

[20]     The other case on which Mr Miller relied was G v G [1996] NZFLR 49 (HC).  In that case, a wife sued her husband for ongoing assaults.  She succeeded in obtaining an award of exemplary damages.  The wife had never complained to the authorities.  Cartwright J thought the absence of a complaint to the authorities was justified in the circumstances.  She said at [59]:

I can infer that to make a complaint to the authorities of criminal actions on the defendant’s part would be to subject the plaintiff to the very real trauma of giving evidence as a complainant in a jury trial and leave her with no personal advantage except (if she saw it as an advantage) revenge. 

[21]     We express no view as to whether that reasoning is correct.  In any event, the case can be distinguished as the victim chose not to complain to the police, for reasons the judge found appropriate in the circumstances.  That is different from what happened here, where Mr Harris elected to get the police involved and then, at the eleventh hour, refused to co-operate in the process he had initiated, thereby causing a significant waste of public money and police time and permitting the offenders (if they were in fact guilty) to escape an appropriate penalty. 

[22]     For all these reasons, we are satisfied there is not an arguable point of law involved in this appeal.  MacKenzie J was entitled to take into account Mr Harris’s failure to co-operate in the criminal proceeding as a controlling factor in the exercise of his discretion as to whether to award exemplary damages.  In these circumstances, we are not prepared to extend time under r 43.  The appeal therefore retains its status as “abandoned”. 

[23]     We also observe that the whole claim appears to lack practical utility.  Messrs Douglas and Warren Davies were legally-aided in the High Court.  They have sworn an affidavit as to their assets.  Mr Douglas Davies swears his only asset is a 1985 Toyota Hilux worth $1,800.  Mr Warren Davies says his only asset is a 1995 Ford Telstar worth $1,000.  Mr Harris has provided no evidence to the contrary.  In these circumstances, we are very surprised to find that Mr Harris has been granted legal aid to pursue this matter.  Costs are likely to exceed any possible recovery of damages. 

Costs

[24]     We have made no order as to costs.  This is because Mr Harris is apparently legally-aided.  An order for costs against him is therefore precluded by s 40 of the Legal Services Act 2000. 

[25]     We express some surprise that Mr Harris was legally-aided in respect of this particular application.  Given Mr Gibson has acknowledged the failure to comply with the six month rule was his, we would have thought he would bear the cost of bringing an application to extend time.  Apparently, however, the Legal Services Agency has not required that. 

Solicitors:
John Miller Law, Wellington, for Appellant
Paino & Robinson, Upper Hutt, for Respondents