Legal Research
Cases
Harris v Davies

Harris v Davies

Case [2007] NZCA 358 22 August 2007

Civil Litigation & Procedure

No judgment structure available for this case.

Type to search within this case.

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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Harris v Davies

Details

AGLC: Harris v Davies [2007] NZCA 358
Case: [2007] NZCA 358
Decision Date: 22 August 2007

CaseChat Overview and Summary

The case of Harris v Davies involves Lee Anthony Harris, the appellant, who sought to appeal a decision made by MacKenzie J in the High Court, which dismissed Harris's claim for exemplary damages against Douglas Warren Davies and Warren Neville Davies, the respondents. The Court of Appeal of New Zealand was tasked with determining whether to grant an extension of time for Harris to continue with his appeal, which he had failed to prosecute within the stipulated six-month period as per Rule 43(1) of the Court of Appeal (Civil) Rules 2005.

The primary legal issue before the Court was whether to exercise its discretion to permit Harris to continue with his appeal despite the delay in filing the necessary documents. The Court considered the reasons for the delay and whether the appeal had merit. The Court found that the delay was due to the oversight of Harris's former solicitor, Brooke Gibson, who mistakenly believed the deadline was later than it actually was. However, the Court emphasized that once the six-month period had lapsed, Harris required the Court's positive discretion to continue with his appeal. In assessing the merits of the appeal, the Court examined MacKenzie J's reasons for dismissing Harris's claim for exemplary damages, particularly focusing on Harris's refusal to give evidence in the criminal proceedings against the Davieses.

The Court concluded that MacKenzie J was correct in finding that Harris's refusal to cooperate with the criminal proceedings was a significant factor in the decision not to award exemplary damages. The Court rejected Harris's arguments that he had an unqualified election as to remedy and that his refusal to give evidence should not affect his entitlement to exemplary damages. The Court held that MacKenzie J was entitled to consider Harris's failure to cooperate as a controlling factor and found no arguable point of law in the appeal. Consequently, the Court dismissed Harris's application for an extension of time, and the appeal was treated as abandoned.

The Court also noted the practical unlikelihood of Harris recovering any damages from the respondents, given their limited assets. Despite this, the Court made no order as to costs because Harris was legally-aided, and an order for costs against him would be precluded by the Legal Services Act 2000.

Orders