Harrison v Harrison

[2017] NZCA 260

IN THE COURT OF APPEAL OF NEW ZEALAND

CA14/2017
[2017] NZCA 260

BETWEEN	ANGELA JANICE HARRISON Appellant
AND	GRAEME ROSS HARRISON AND ADRIENNE HARRISON Respondents

Hearing	12 June 2017
Court:	Harrison, French and Winkelmann JJ
Counsel:	Appellant in person R O Parmenter for Respondents
Judgment:	19 June 2017 at 3.30 pm

JUDGMENT OF THE COURT

AThe appellant is granted an extension of time until 4 pm Monday 10 July 2017 to pay security for costs in the sum of $6,600, failing which the appeal will be struck out.

BIf the appellant pays security for costs in the sum of $6,600 by 4 pm Monday 10 July 2017, her application for an extension of time under r 43(2) of the Court of Appeal (Civil) Rules 2005 for filing the case on appeal and applying for a hearing date is granted.

CThe appellant is ordered to pay the respondents costs for one standard application on a band A basis together with usual disbursements.

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REASONS OF THE COURT

(Given by French J)

Introduction

1. Miss Harrison filed an appeal in this Court against a decision of Associate Judge Osborne.[1]  She has not paid security for costs and has failed to comply with the time requirements of r 43 of the Court of Appeal (Civil) Rules 2005 for filing the case on appeal and seeking a fixture.

   [1]Harrison v Harrison [2016] NZHC 2854.

2. The respondents have applied for the appeal to be struck out for non-payment of security and Miss Harrison has applied for an extension of time to comply with the requirements of r 43.

3. Prior to the hearing of these applications, Miss Harrison asked that Harrison and French JJ recuse themselves.  Her concern was that neither Judge would be able to bring an open mind to the applications.  In the case of Harrison J that was said to be because of previous involvement as a High Court Judge in a related proceeding.  In the case of French J it was said to be because of an error made when denying Miss Harrison dispensation for payment of security for costs in this appeal.[2]  In our view, recusal is not warranted in either case.  The fact a Judge has made earlier adverse decisions in related proceedings, or the same proceedings, is not of itself grounds for recusal, and there is no aspect of the decisions made by the two Judges that either shows actual predetermination or that could reasonably generate a perception of predetermination.

Analysis

[2]The error was said to be overlooking Miss Harrison’s right to natural justice.

1. Miss Harrison was only half a day late in filing her application for a fixture and case on appeal.  In those circumstances, an extension of time would invariably be granted.  Miss Harrison is self-represented, the delay was minimal and it cannot have caused any prejudice to the respondents.

2. The failure to pay security for costs is however problematic.  This Court has ordered Miss Harrison to pay security in the sum of $6,600.[3]  She has not complied with that order and by virtue of r 37(2) that means she cannot apply for the allocation of a hearing date for the appeal.

   [3]Harrison v Harrison [2017] NZCA 67

3. Miss Harrison has sought to appeal the issue of security for costs to the Supreme Court.  Normally, that would mean this Court would preserve her rights pending the outcome in the Supreme Court.  However, Miss Harrison failed to pay the Supreme Court’s filing fee.  The Registrar of the Supreme Court refused to waive payment of the filing fee and, on review, the Registrar’s decision has recently been upheld by Glazebrook J.[4]  Miss Harrison told us she does not accept that decision because it was not made by the Chief Justice and it is the Chief Justice to whom she has addressed her application. 

   [4]Harrison v Harrison [2017] NZSC 84.

4. In our view, the correct legal position is that Glazebrook J had the jurisdiction to make the decision she did and the effect of it is that there is no extant proceeding currently before the Supreme Court.

5. That would ordinarily mean this appeal should be struck out.  We are however prepared to give Miss Harrison one last opportunity to pay security for costs.

6. We accordingly grant Miss Harrison an extension of time to pay security for costs in the sum of $6,600 by 4 pm Monday 10 July 2017.  Subject to payment of that sum being made by 10 July 2017, we also grant Miss Harrison an extension of time under r 43 to file the case on appeal and seek a fixture date.  In the event payment is not made by 10 July 2017, then the appeal will be struck out.

7. As regards costs on the applications, we consider no costs should be awarded in relation to the application for an extension of time under r 43.  However, the respondents were entitled to take the point on security for costs.  Accordingly, we order the appellant to pay the respondents costs for one standard application on a band A basis together with usual disbursements.

Solicitors:
Birdsey & Associates, Auckland for Respondents