Hayward v Commissioner of Police

IN THE COURT OF APPEAL OF NEW ZEALAND

CA464/2013
[2013] NZCA 478

BETWEEN	MARIANA NATALIA CRISTEA HAYWARD Applicant
AND	THE COMMISSIONER OF POLICE Respondent

CA468/2013
AND BETWEEN	JENE CHE TEWANA HAYWARD Applicant
AND	THE COMMISSIONER OF POLICE Respondent

Counsel:

D R I Gay for Applicant
M R Harborow for Respondent

Judgment:

(On the papers)

11 October 2013 at 10.00 am

JUDGMENT OF FRENCH J

AThe applications for an extension of time to appeal are granted.
BThere will be no order as to costs.

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REASONS

The applicants in both proceedings wish to appeal a decision of Venning J delivered in the High Court on 10 June 2013.[1] The last day for filing a notice of appeal was 8 July 2013. The notices of appeal were sent by email to this Court on 8 July 2013, counsel being under the mistaken impression that this would suffice. However, r 31 of the Court of Appeal (Civil) Rules 2005 stipulates that an appeal is brought only when the notice of appeal is filed either by hand delivery to the Registry, or by mailing to the Court’s postal address. The hard copies of the notices of appeal in this case were posted to the Court but not received until 10 July 2013.
[1]The Commissioner of Police v Hayward [2013] NZHC 1358.
As soon as the error was drawn to counsel’s attention, applications for an extension of time under r 29A were filed.
In the circumstances, the respondent consents to the applications being granted.
I am satisfied that the matter may be dealt with on the papers and that the applications should be granted. The delay was only two days, there is a reasonable explanation for the delay and there has been no prejudice to the respondent. It is in the interests of justice to grant the applications.
There will be no order as to costs.

Solicitors:
Craig Griffin & Lord, Auckland for Applicants
Crown Solicitor, Auckland for Respondent

CaseChat Overview and Summary

In the case of Hayward v Commissioner of Police, the applicants, Mariana Natalia Cristea Hayward and Jene Che Tewana Hayward, sought an extension of time to appeal a decision rendered by Venning J in the High Court on 10 June 2013. The Commissioner of Police was the respondent in both proceedings. The applicants' notices of appeal were mistakenly sent by email on the last permissible day, 8 July 2013, rather than being physically delivered or mailed to the Court as required by rule 31 of the Court of Appeal (Civil) Rules 2005. Although the hard copies of the notices of appeal were posted, they were not received until 10 July 2013.

The primary legal issue before the Court of Appeal was whether the applicants' late filing of the notices of appeal could be excused under rule 29A of the Court of Appeal (Civil) Rules 2005. Rule 29A allows for an extension of time to file a notice of appeal if the delay was not wilful, there is a reasonable explanation for the delay, and the respondent has not been prejudiced by the delay. The Court was required to determine if the applicants' delay was justified and if granting the extension would be in the interests of justice.

The Court of Appeal found that the delay was only two days, there was a reasonable explanation for the delay due to the applicants' counsel's mistake, and the respondent had not been prejudiced. The Court held that granting the extension was in the interests of justice and thus granted the applicants' applications for an extension of time to appeal. No order was made regarding costs.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established