Hillary v Todd & ors (McAlister, Todd Phillips Bodkins) and another

[2008] NZCA 103

IN THE COURT OF APPEAL OF NEW ZEALAND

CA36/2008
[2008] NZCA 103

BETWEENGAVIN JOHN HILLARY

Applicant

ANDTODD & ORS (MACALISTER, TODD, PHILLIPS BODKINS)

First Respondent

ANDDUNCAN & ORS (CORBAN REVELL)

Second Respondent

Hearing:21 April 2008

Court:Glazebrook, O'Regan and Ellen France JJ

Counsel:G J Hillary in person

M E Parker for First Respondent
M A Gilbert for Second Respondent

Judgment:29 April 2008 at 12.30 pm

JUDGMENT OF THE COURT

A        The application for special leave to appeal out of time is dismissed.

BThe applicant must pay costs of $750 plus usual disbursements to each respondent.

REASONS OF THE COURT

(Given by O’Regan J)

Introduction

[1]       Mr Hillary wishes to appeal against a judgment of Venning J in the High Court, Todd v Hillary HC AK CIV 2005-412-000294 15 June 2007.  In that decision, Venning J upheld a claim against Mr Hillary by Macalister Todd for unpaid legal fees, and dismissed Mr Hillary’s counterclaim against Macalister Todd and his claim against Corban Revell. 

[2]       Macalister Todd had acted for Mr Hillary on some aspects of Mr Hillary’s dispute with his former wife over relationship property, and Corban Revell had acted for his former wife.  Mr Hillary claimed damages from both firms for losses he said he had incurred in the course of the execution of a Family Court judgment.  Venning J found that Macalister Todd owed a duty of care to Mr Hillary but had not breached it, and that Corban Revell owed no duty of care to Mr Hillary.  Mr Hillary acted for himself in the High Court, as he has in this Court.

Late filing

[3]       Mr Hillary needed to file his appeal within 20 working days of the High Court judgment (that is, by 13 July 2007): r 29(1) of the Court of Appeal (Civil) Rules 2005 (the Civil Rules), and he also needed to serve a copy of the notice of appeal on Macalister Todd and Corban Revell.  He did neither. 

[4]       Mr Hillary’s account of what occurred is as follows.  He was told on 11 July 2007 that a lawyer he had engaged would not act for him.  He sent a notice of appeal to the Court on 12 July 2007, but had omitted to sign it.  This notice was sent by post from Queenstown.  He emailed the Court of Appeal registry on 13 July 2007 advising that the notice had been sent and requesting confirming of its arrival.  The Court of Appeal registry emailed a response to the effect that the appeal would arrive out of time and that an application for leave to appeal out of time should be filed.  The notice of appeal was received by the Court of Appeal registry on 17 July 2007, two working days after the expiry of the period during which the notice of appeal had to be filed and served.  Mr Hillary had sent the notice of appeal to the Ministry of Justice’s post office box, rather than to the Court of Appeal’s post office box.  He said this mistake arose from confusing information on the Ministry’s website.  Mr Hillary sent a signed notice of appeal on 13 July 2007 and this was also received by the Court of Appeal on 17 July 2007. 

[5]       Mr Hillary sent an email to counsel for Macalister Todd and counsel for Corban Revell on 13 July 2007 attaching his submission on costs for the High Court, and also attaching a copy of the notice of appeal.  Neither counsel had provided an email address for this purpose so service by email was not in accordance with the Civil Rules.

[6]       Counsel for Macalister Todd, Mr Parker, said that he subsequently enquired of the Court of Appeal registry on 2 August 2007 whether an appeal had been filed and was told that Mr Hillary had attempted to file an appeal but had not met the required time frame so that the notice of appeal that he had submitted had been rejected.

[7]       Counsel for Corban Revell, Mr Gilbert, said that he had seen the email of 13 July 2007 containing the notice of appeal but the notice indicated that Mr Hillary was appealing only findings in favour of Macalister Todd, not those in favour of Corban Revell.  

Events after the late filing

[8]       After 17 July 2007, correspondence passed between Mr Hillary and the Court of Appeal registry.  The Registrar of the Court sent a letter to Mr Hillary formally notifying him that his notice of appeal had been rejected.  It was dated 8 August 2007 and was sent by courier to him on 13 August 2007.  On 15 August 2007 a registry officer wrote to Mr Hillary returning to him a cheque for $4,000 which he had submitted as security for costs.  In this letter the registry officer said:

I repeat the point made to you over the phone that if you wish to pursue the appeal, you will have to file an application for special leave to appeal out of time under Rule 29(4) of the Court of Appeal (Civil) Rules 2005.

[9]       A message to the same effect was sent to Mr Hillary by email on the same day.  The following day another email message was sent to Mr Hillary by the registry officer.  It said:

An application under [Rule] 29(4) can be made at any time.  However, time can become an issue if the delay in filing such an application is considerable – i.e. months or years (the Court tends to frown a bit when it comes to that degree of lateness).  You, obviously, are not in that category. …

[10]     Mr Hillary filed a notice of application for special leave to appeal out of time on 25 January 2008.  This was over six months after the notice of appeal ought to have been filed and five months after he had been notified by a registry officer of the need to seek special leave to appeal out of time.  During that five month period he did not contact counsel for either Macalister Todd or Corban Revell, and both of those parties proceeded on the basis that no appeal against the High Court decision was in existence.  That had been confirmed in the case of McAlister Todd by the inquiry to this Court on 2 August 2007 by its counsel and in the case of Corban Revell by the fact that the notice of appeal that had been emailed to its counsel did not seek any relief in relation to Corban Revell.  Mr Hillary did not serve his application for special leave to appeal out of time on Macalister Todd or Corban Revell either: counsel for both of those parties became aware that the application existed only when they were contacted about it by the Court.

Evaluation

[11]     It is well established that, if an appeal is filed out of time as a result of an oversight by counsel, the Court would normally grant special leave to appeal out of time: Grey v Elders Pastoral Holdings Ltd (1999) 13 PRNZ 353.  In the present case, that latitude would also have been available to Mr Hillary, given that his appeal was received only two days after the deadline for the filing of the appeal, if he had promptly sought special leave.  However, the delay of six months in seeking special leave (five months from the date on which he was notified that he needed to seek special leave) is not sufficiently explained.  Mr Hillary sought to attribute the blame for this to Registry staff.  But he was notified in clear terms of the need to file an application for special leave in August 2007, and did not act on that until January 2008.  The intermittent email correspondence between him and the Registry during the intervening period does not provide a proper basis for his attribution of blame.  Nor does it provide any excuse for his failure to notify counsel for the respondents that he intended to seek leave to pursue the appeal: see [10] above.  Having heard nothing from Mr Hillary, they were entitled to believe that the matter was at an end.

[12]     Mr Hillary said that the proposed appeal had considerable merit, and that this should favour the granting of an indulgence to allow him to pursue the proposed appeal.  That was strongly contested by both Mr Parker and Mr Gilbert.  In the latter case, Mr Gilbert said that the decision that Corban Revell, who acted for the opposite party in the relationship property litigation between Mr Hillary and his former wife, had no duty of care to Mr Hillary was simply the application of well settled law and there was no realistic prospect of that finding being overturned.  In the former case, Mr Parker said that the finding by the High Court Judge that Macalister Todd had not breached its duty of care to Mr Hillary was clearly founded on the evidence.  He said the points which Mr Hillary said he wished to pursue on appeal were all matters which were well canvassed or, in the case of the new matters now raised, matters which did not affect the basis for the High Court decision.

[13]     We are unable to form a view about the merits of the appeal, but we have considerable doubts about the strength of the grounds of the proposed appeal based on the information currently before us.  Nevertheless, we will proceed on the basis that the proposed appeal is not hopeless.

[14]     Even on that assumption, however, we believe it is inappropriate to grant leave in the present case, in view of the six month delay in seeking special leave, with no adequate explanation.  As was noted by this Court in Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 91, the late filing of an appeal converts the position of an appellant from that of exercising a right to appeal to that of seeking an indulgence from the Court. In the case of a delay of this magnitude, we do not believe it is appropriate to grant that indulgence. This Court took a similar approach in Belling v Belling (1996) 9 PRNZ 469 and Williams v Allott (2001) 15 PRNZ 684.

Result

[15]     We dismiss the application for special leave to appeal out of time.

[16]     We award costs to each of the respondents of $750, plus usual disbursements.

Solicitors:
Gilbert Walker, Auckland for Second Respondent