J M Collier v D I Jones
[2000] NZCA 93
•21 June 2000
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA131/99 |
| BETWEEN | J M COLLIER |
| Appellant |
| AND | D I JONES |
| Respondent |
| Hearing: | 19 June 2000 |
| Coram: | Henry J Thomas J Keith J |
Appearances: | Appellant in person |
| Judgment: | 21 June 2000 |
| JUDGMENT OF THE COURT DELIVERED BY KEITH J |
In March 1999 Hansen J, in the High Court in Christchurch, dismissed proceedings brought by Mr Collier against Mr Jones. In May 1999 he made a costs order against Mr Collier of $45,000 plus disbursements of $1,099.13. Mr Collier has appealed to this Court against both judgments. Pending the hearing of those appeals, he applies to this Court for a stay of execution of the costs judgment under rule 9 of the Court of Appeal (Civil) Rules 1997. That power is conferred in broad terms. In particular it is made clear that any order may be subject to such conditions as to the giving of security as the court making the order thinks fit to impose. The McGechan commentary (CA9.04) says that generally but not invariably a stay is granted on terms that the amount of judgment (not of course relevant here) and costs are paid by the applicant on an undertaking (with security if necessary) to repay if the appeal is successful. The respondent in this case made proposals along that line, all requiring full payment of the costs order, but Mr Collier has not taken them up. He told us from the bar that he was not able to make the payment in full. He had earlier asked Mr Jones’ solicitor about periodic payments but that possibility had been rejected.
Mr Collier is the subject of orders made under the vexatious litigant provisions of s88A of the Judicature Act 1988. The orders made in the High Court by the Chief Justice and Heron J are:
1.No civil proceedings shall, without the leave of the Court, be instituted by Mr Collier himself or by his agent.
2.All civil proceedings instituted by Mr Collier are stayed and may not be continued by him or by his agent without leave.
Chisholm J on 16 May 2000 granted Mr Collier leave in terms of that judgment to apply to this Court for a stay and he granted an interim stay expiring at the close of 19 June 2000 pending this Court’s determination.
As long ago as 3 August 1999, Mr Collier made the same application in the High Court for a stay as he has made to us. Hansen J dismissed the application. He began by saying that he had formed a very strong view in the course of the substantive hearings that the proceedings were based on no more than suspicion. The decision against Mr Collier was basically one on the facts. Mr Collier, he said, accepted the principles relating to a stay, that a successful litigant should not be deprived of the fruits of the litigation which may be balanced or contrasted with the fact that the appellant should not be deprived of the fruits of a successful appeal. (See similarly Duncan v Osborne Building Ltd (1992) 6 PRNZ 85, 87.) Mr Collier had said from the bar that his assets would be less than $2,000. The essence of Hansen J’s reasons for refusing the application for the stay is stated in the remaining two paragraphs of his judgment:
It is for an appellant to demonstrate that [execution of the judgment], of course, would render the right to appeal nugatory so as to justify a stay. In my view it does not. Mr Collier has already mentioned the possibility of bankruptcy in relation to other small awards of costs, and apparently there are in existence bankruptcy notices. The reality is, of course, that if the appeal has merit this is a matter that can be proceeded with by the Official Assignee in bankruptcy.
In all of the circumstances of this case, particularly in view of the fact that the matter was determined on a factual basis, the application for a stay is declined.
In Dymocks Franchise Systems (NSW) Pty Ltd v Bilgola Enterprises Ltd (1999) 13 PRNZ 48, 58 this Court said that it is appropriate for it to have regard to the findings of the Judge in the court below when considering an identical application for stay. The trial Judge had had the advantage of hearing the witnesses give evidence at the trial and this Court accordingly was not minded to question the trial Judge’s findings of facts or to disregard the reasons he gave for declining a stay.
Mr Collier sets out a number of grounds in his application and his submissions in support. The first is a general one that a substantial miscarriage of justice is likely to result were the judgment to be executed. That is a matter of overall assessment depending on the particular circumstances and we accordingly put it to one side at this stage. Next he says that there will be no prejudice to the respondent. That ground was not found persuasive by Hansen J. There plainly is advantage to the respondent in securing whatever assets are available at this stage to meet the judgment in his favour even if that process is subject to conditions.
That factor of prejudice is also to be balanced by any possible prejudice to the appellant. Mr Collier of course referred to the prejudice resulting from an adjudication of bankruptcy. On that we recall that the power to make an order of bankruptcy is discretionary and that a pending challenge to the judgment on which the petition is based may be a reason for refusing or postponing an adjudication. In addition, as Hansen J said, if there is merit in the appeal and one outcome of execution is that Mr Collier is made bankrupt then the Official Assignee will be able to determine whether to continue the appeal.
Mr Collier made very broad arguments that the trial is tainted by fraud and that the appellant was denied a fair trial by an impartial tribunal. So far as those very serious allegations relate to Hansen J, the respondent has carefully assembled aspects of the history of the matter which demonstrate that any issue about the Judge’s impartiality had been clearly raised at appropriate times by the respondent with Mr Collier and that Mr Collier had indicated that he did not have any difficulty with Justice Hansen sitting in this matter. We must put this set of allegations firmly to one side. They have no basis at all in the record before us. The other arguments under this heading relate, if anything, to the substantive appeal and not to the application before us.
Other arguments which Mr Collier makes relate to the reasoning in the principal judgment and are accordingly matters for the appeal hearing itself. They do not affect the right of the successful litigant to have the advantage of his judgment, if appropriate, under terms.
We conclude that there is no reason at all to depart from the ruling made on the earlier application for stay. Further factors supporting that conclusion are that the appellant did not challenge the refusal by Hansen J to grant a stay, and that he has not acted promptly in pursuing his second right of application to this Court. This Court in the Duncan case (para [3] above) recalled that it had long been recognised that a stay application should be filed promptly after judgment.
The application for a stay is accordingly dismissed.
The respondent is entitled to costs of $1,500 and reasonable disbursements, including the travel and accommodation expenses of counsel to be fixed by the Registrar if agreement cannot be reached.
Solicitors:
Duncan Cotterill, Christchurch
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