John Bevan-Smith v Raupo Publishing (NZ) Limited - [2008] NZSC 22

IN THE SUPREME COURT OF NEW ZEALAND
SC 2/2008
[2008] NZSC 22
BETWEENJOHN BEVAN-SMITH

Applicant

ANDRAUPO PUBLISHING (NZ) LTD

Respondent

Court:Elias CJ, Anderson and Wilson JJ
Counsel:Applicant in Person

D A Wood for Respondent

Judgment:9 April 2008

JUDGMENT OF THE COURT

THE APPLICATION FOR LEAVE TO APPEAL IS DISMISSED WITH COSTS OF $1,500 TO RAUPO PUBLISHING (NZ) LTD.

REASONS
[1] The applicant seeks leave to appeal from a judgment of the Court of Appeal on an application made to it under r 43(2) of the Court of Appeal (Civil) Rules 2005. By virtue of r 43(1) Mr Bevan-Smith’s appeal to that Court from a decision of the High Court was required, subject to r 43(2), to be treated as abandoned because he had not filed the case on appeal within six months of his notice of appeal.
[2] Rule 43(2) provides:
The Court, on application, may —
(a)grant an extension of the period referred to in subclause (1); and

(b) grant 1 or more further extensions of any extended period.

[3]       Mr Bevan-Smith applied for an extension within the three month period permitted by r 43(3). He twice sought further extensions, the later of which was the subject of the judgment now in issue. In dealing with the application, the Court of Appeal referred to the well-established principles identified in cases such as Airwork (NZ) Ltd v Vertical Flight Management Ltd,[1] Harlow v Gemmell,[2] Erwood v Maxted[3] and Scenic Developments Ltd v Kaimarna Properties Ltd[4].
[1] [1999] 1 NZLR 29.
[2] [2007] NZCA 101 at para [12].
[3] [2007] NZCA 161.
[4]    (2004) 17 PRNZ 489.
[4]       The Court of Appeal’s approach in the present case does not indicate any departure from settled principles. Therefore Mr Bevan-Smith has to persuade this Court that the application of those principles in his particular case was such as to meet the criteria for leave stipulated in s 13 of the Supreme Court Act 2003. The relevant provisions are:
13Criteria for leave to appeal
(1)The Supreme Court must not give leave to appeal to it unless it is satisfied that it is necessary in the interests of justice for the Court to hear and determine the proposed appeal.
(2)It is necessary in the interests of justice for the Supreme Court to hear and determine a proposed appeal if —
(a)   the appeal involves a matter of general or public importance; or
(b)   a substantial miscarriage of justice may have occurred, or may occur unless the appeal is heard; or
(c)   the appeal involves a matter of general commercial significance.

[5] The Court of Appeal declined to grant a further extension of time to Mr Bevan-Smith because, looking at the matter overall, it was satisfied that the indulgence was not justified. In reaching that view the Court was influenced by submissions on behalf of the respondent, Raupo Publishing (NZ) Ltd, concerning Mr Bevan-Smith’s conduct in relation to the High Court trial. In that Court, there were several applications for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] NZSC 22
Decision Date: 9 April 2008

CaseChat Overview and Summary

The applicant, John Bevan-Smith, sought leave to appeal from a judgment of the Court of Appeal. The Court of Appeal had declined to grant a further extension of time to Mr Bevan-Smith in an application made under r 43(2) of the Court of Appeal (Civil) Rules 2005. The matter before the Supreme Court was the application for leave to appeal that decision. The respondent, Raupo Publishing (NZ) Ltd, was the party against whom Mr Bevan-Smith had sought to appeal. The primary issue for the Supreme Court was whether leave should be granted to Mr Bevan-Smith to appeal against the Court of Appeal's refusal to grant a further extension of time for filing a case on appeal.

The Court of Appeal had considered Mr Bevan-Smith's application against the principles established in earlier cases, such as Airwork (NZ) Ltd v Vertical Flight Management Ltd, Harlow v Gemmell, Erwood v Maxted, and Scenic Developments Ltd v Kaimarna Properties Ltd. The Court of Appeal had determined that Mr Bevan-Smith's conduct during the High Court trial, including multiple applications for adjournment and breaches of timetable directions, had prolonged the trial considerably. Additionally, the Court of Appeal had noted that the damages that the trial judge would have awarded if Mr Bevan-Smith had proved liability were only a little over $8,000. The Court of Appeal had concluded that the indulgence was not justified, leading to its refusal to grant a further extension of time. The Supreme Court found no departure from settled principles in the Court of Appeal's approach and concluded that the application for leave to appeal did not meet the criteria for leave stipulated in s 13 of the Supreme Court Act 2003.

The Supreme Court dismissed the application for leave to appeal, stating that it was not persuaded to interfere with the Court of Appeal's discretionary decision on the interlocutory application. The Court also noted the disproportionate length of the trial in light of the realistic amount at stake and Mr Bevan-Smith's attempts to revive the involvement of Mr Alan Smith, who had formally discontinued his action against Mr Bevan-Smith. The Supreme Court awarded costs of $1,500 to Raupo Publishing (NZ) Ltd.

Orders