Ike v New Zealand Couriers Limited HC Auckland CIV 2011-404-000648
[2011] NZHC 207
•14 March 2011
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV 2011-404-000648
UNDER Part 20 of the High Court Rules
IN THE MATTER OF Section 72 of the District Courts Act 1947
AND IN THE MATTER OF an application for leave to appeal out of time
BETWEEN ISIDORE OKEY IKE Applicant
ANDNEW ZEALAND COURIERS LIMITED Respondent
Hearing: 8 March 2011
Appearances: C S Henry for the Appellant
A M Hersche for the Respondent
Judgment: 14 March 2011 11:00:00
[RESERVED] JUDGMENT OF WYLIE J
This judgment was delivered by Justice Wylie on at
Pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
Counsel: C S Henry: [email protected]
A M Hersche: [email protected]
[1] The applicant, Mr Ike, has applied for an extension of time to file a notice of appeal against a decision of Her Honour Judge Sharp given in the District Court at
Auckland on 13 December 2010.
IKE V NZ COURIERS LTD HC AK CIV 2011-404-000648 14 March 2011
[2] The application is opposed by the respondent, New Zealand Couriers Limited
(“New Zealand Couriers”).
Background
[3] Mr Ike was contracted as an owner/driver to provide services to New Zealand Couriers. The contract was terminated by New Zealand Couriers on 2 May 2008. It asserted that Mr Ike had breached the contract on two separate occasions, and that it was entitled, pursuant to the provisions in the contract, to terminate the same.
[4] Mr Ike for his part, admitted one of the breaches, denied the other and asserted that the contract had been wrongly terminated. He sued New Zealand Couriers for the losses that he said resulted as a consequence.
[5] The matter came before Judge Sharp over a period of some two and a half days in early December 2010. Her Honour gave an oral judgment in favour of New Zealand Couriers on 13 December 2010.
[6] On 23 December 2010, Mr Ike’s counsel asked the Registrar of the Auckland District Court whether a transcript of the oral judgment was available. He was advised that it was not available at that stage.
[7] On 25 January 2011, Mr Ike’s counsel sent a letter to the High Court Registry enclosing a notice of appeal for filing. The notice of appeal was dated 25 January
2011. An application for waiver of the applicable filing fee was made at the same time.
[8] A copy of the notice of appeal was sent by facsimile to New Zealand Couriers’ solicitors on 1 February 2011. On the same day, a copy of the notice of appeal was sent to the Auckland District Court. It was noted as having been received by the District Court on 2 February 2011.
[9] Between 1 and 3 February 2011, counsel for New Zealand Couriers made various inquiries with the High Court Registry to check whether the notice of appeal
had in fact been filed. The Registry advised that no notice of appeal had been received.
[10] On 2 February 2011, a typed transcript of Judge Sharp’s judgment was
received by counsel for both parties.
[11] On 3 February 2011, counsel for New Zealand Couriers sent a letter to counsel for Mr Ike advising that no notice of appeal had been filed in the High Court.
[12] Mr Ike’s counsel then telephoned the High Court Registry to himself inquire whether the notice of appeal had been received. He was advised that the notice of appeal had not arrived at the High Court Registry.
[13] A fresh notice of appeal was filed with the High Court on 10 February 2011.
The notices of appeal
[14] The notice of appeal filed on 10 February 2011 differs from the notice of appeal filed on 25 January 2011. The differences are, however, readily explained. As at 25 January 2011, counsel did not have the typed transcript of Judge Sharp’s decision. The notice of appeal filed on 25 January 2011 set out two grounds of appeal, and then went on to note that further grounds of appeal might be raised once the written judgment became available.
[15] The notice of appeal filed on 10 February 2011 was filed after the Judge’s
decision became available in writing. It asserts that Judge Sharp erred in holding:
(a) that New Zealand Couriers lawfully terminated Mr Ike’s contract, because there was no or insufficient evidence to support the Judge’s finding that the number of events required to entitle the respondent to terminate the contract forthwith had occurred;
(b)that New Zealand Couriers was entitled to terminate the contract forthwith, without providing Mr Ike with time to remedy the alleged breaches; and
(c) that New Zealand Couriers properly terminated the contract, when it purported to give Mr Ike seven days within which to respond.
Relevant law
[16] It is common ground that Mr Ike had the right to appeal to the High Court pursuant to s 72 of the District Courts Act 1947.
[17] Rule 20.4 of the High Court Rules provides that an appeal must be brought within 20 working days. It also provides that the Court may extend the time for filing.
[18] Section 72 does not limit the time prescribed for bringing the appeal. It follows that there is no bar to the application to extend time in the present context.[1]
[1] High Court Rules, r 20.4(3); Inglis Enterprises Ltd v Race Relations Conciliator (1994) 7 PRNZ 404.
[19] An extension of time is an indulgence within the discretion of the Court.
[20] Relevant authorities suggest that where application is made for an extension of time, the onus is on the applicant to explain the delay in not filing in time, and that a proper explanation should be provided by way of affidavit as to the relevant circumstances.[2] In exercising the discretion whether or not to extend time, important factors the Court will consider include the following:
[2] Ilich v Commissioner of Inland Revenue [2009] 24 NZTC 23.556; Christchurch City Council v McVicar HC Christchurch CIV 2004-485-925, 20 May 2004.
(a) the reasons for failing to bring the appeal in time;
(b) prejudice that may have been incurred by the other party; (c) subsequent events; and
(d) the merits of the intended appeal.
The governing consideration is the requirements of the justice of the case.[3]
Analysis
[3] Stedmances v Stedmances [1987] 2 NZLR 336 (CA).
[21] New Zealand Couriers asserts that there is no adequate explanation for the late filing. In particular, it asserts that there is no evidence from Mr Ike or from his counsel, as to whether Mr Ike wished to appeal, or whether he gave counsel instructions to do so within time.
[22] I do not accept that submission. While there is no evidence as to when counsel received instructions, I do not consider that this was necessary. It is the failure to file within time that has to be explained. Here, it is clear that counsel did endeavour to file the notice of appeal within time. A notice of appeal was sent by post to the High Court on 25 January 2011. The last day for filing and service of the notice of appeal without special leave was 1 February 2011. In the normal course of events, one would have expected that the letter and notice of appeal would have been received by the Registry, and that the appeal would have been filed, prior to that date. Further, I note that the letter addressed to the Registrar of this Court dated
25 January 2011 was copied to Mr Ike, albeit without the enclosures. It cannot responsibly be suggested that counsel was acting on a folly of his own, or that he did not try and file the appeal within time. The letter was not received by the Court, but that is not a matter which could have been within the reasonable contemplation of counsel. In my view, there has been an explanation for the failure to file the appeal within time.
[23] New Zealand Couriers asserted that granting special leave to appeal out of time would cost it significant additional expenses, and result in consequent inconvenience. It noted that Mr Ike has applied for legal aid, and that if legal aid is granted, it will have no recourse for its expenditure and inconvenience if the appeal
is unsuccessful.
[24] Again, I do not accept this submission. Mr Ike had a right of appeal. His counsel endeavoured to file an appeal within time, but was frustrated in his attempts to do so by circumstances beyond his control. Notice of the appeal was given to New Zealand Couriers on 1 February 2011, which as noted above, was the last day for filing and service of the notice of appeal without special leave. Had the appeal been filed within time, New Zealand Couriers would have been faced with the cost of defending Judge Sharp’s decision. There is no additional prejudice to New Zealand Couriers, beyond that which would have incurred had the appeal been filed in time.
[25] Neither party relied on subsequent events.
[26] As to the merits of the intended appeal, New Zealand Couriers submitted that the appeal was without merit. It noted that Judge Sharp found that there were at least two breaches of the contract, and that she thoroughly considered Mr Ike’s argument regarding the operation of the relevant clauses contained in the contract.
[27] Again, I am unable to accept those submissions.
[28] Judge Sharp found that there were two breaches of the contract. As noted above, Mr Ike admitted the first breach, but denied the second breach. The Judge relied on two emails from a Parts Manager at an entity known as Farm Services based in Silverdale. The Judge accepted that those emails were admissible, although their author did not give evidence. The Judge considered that the emails raised complaints about the behaviour of a New Zealand Courier’s driver. She was prepared to infer the driver must have been Mr Ike. The judgment does not set out clause 12 of the contract. Nor does it say how the two emails evidence a breach of the contract. The emails may or may not evidence breach of the contract. It is impossible to tell from Judge Sharp’s judgment.
[29] A significant matter in issue in the proposed appeal concerns the interpretation of clause 16 in the contract. Once again, it is difficult to consider the merits of the intended appeal because the Judge does not set out clause 16 in her judgment. It appears that New Zealand Couriers was arguing that breach entitled to forthwith terminate the contract; Mr Ike was arguing that any breaches were
remedial, and that he should have been given notice to remedy them. I glean from the judgment that there are conflicting provisions contained in clause 16. Further, it seems that New Zealand Couriers complicated the position, because, as I understand it, it purported to give Mr Ike notice requiring him to remedy the breaches, at the same time as it purported to forthwith terminate his contract.
[30] Judge Sharp acknowledged that the various parts of clause 16 appeared to be in contravention of each other, and that the matter has been argued strongly on Mr Ike’s behalf. The Judge accepted that if the Court agreed with those submissions, then it would follow that New Zealand Couriers should have given Mr Ike the opportunity to remedy the breaches before the contract was terminated. In the event, the Judge concluded that it was necessary to imply a term to give business efficacy to the contract. She considered that any other interpretation was strained.
[31] From reading the judgment, it clearly cannot be said that interpreting the contract was a clear cut exercise, or that the position advanced on Mr Ike’s behalf was untenable.
[32] In the circumstances, it cannot be said that the intended appeal lacks merit. In my judgment, the justice of the case requires that special leave to appeal out of time should be given. Accordingly, I direct that the time within which the appeal had to be filed be extended to 10 February 2011.
[33] Normally where application for special leave to appeal out of time is made, the party seeking an extension can expect to pay the costs of the application, unless it was unreasonably opposed. I have concluded, and by a comfortable margin, that the application was unreasonably opposed in the present circumstances. I direct that Mr Ike is entitled to his costs on a 2B basis. He is also entitled to his reasonable disbursements. If there is any dispute regarding the same, then I direct that that dispute be referred to me within 10 working days of the date of this judgment.
[34] To expedite the hearing of the appeal, I also make the following directions. [35] The appeal will be heard on 28 June 2011 at 10.00 am.
[36] The time for the hearing is estimated to be one day.
[37] The appeal is classed as category 2 for costs purposes.
[38] The appellant is to pay security in the sum of $1,880 not later than one month after the date of this judgment. It should be noted that if security is not paid by that date, then under s 74(2) of the District Courts Act 1947, the appeal must be treated as having been abandoned, and will be dismissed without any further call before the Court. I acknowledge Mr Henry’s advice that Mr Ike is applying for legal aid. In the event that legal aid is granted within that one-month period, I reserve leave to Mr Ike to apply to set aside this order for security. Alternatively, if agreement can be reached between counsel, then they may file a joint memorandum in this regard.
[39] The appellant is to file and serve a common bundle of numbered and indexed copies of all relevant documents by 22 April 2011.
[40] The appellant is to file and serve the appellant’s submissions and a
chronology (if relevant) by 29 April 2011.
[41] The respondent is to file and serve the respondent’s submissions and a
separate chronology (if there is disagreement) by 13 May 2011.
[42] The remaining provisions of the Sixth Schedule are to apply to this appeal.
Wylie J
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