Johns v Ellis Gould

[2012] NZCA 354

IN THE COURT OF APPEAL OF NEW ZEALAND

CA226/06
[2012] NZCA 354

BETWEEN  STEPHEN HENRY CYRIL JOHNS
Appellant

AND  ELLIS GOULD
First Respondent

AND  ROCHELLE MAUREEN BROOKIE
Second Respondent

Hearing:         On the papers

Court:             Arnold, Wild and White JJ

Counsel:         Appellant in Person
R Hern for First Respondent
No appearance for Second Respondent

Judgment:      6 August 2012 at 2.30 pm

JUDGMENT OF THE COURT

AThis appeal is struck out.

BNo further order as to costs.

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REASONS OF THE COURT
(Given by Wild J)

1. In a Minute and Directions he issued on 15 May, Wild J directed the appellant to provide the Court with three further copies of his case on appeal by 29 June 2012.

2. The appellant has not done that.

3. In the same 15 May Minute, Wild J noted that the appellant had foreshadowed an application for leave to adduce further evidence in support of his appeal.  Wild J directed that any such application, accompanied by the affidavit(s) containing the further evidence sought to be adduced, must be filed and served, also by 29 June.  No application has been filed.

4. Wild J’s 15 May Minute was given in the context of an application by the appellant to adjourn the hearing of this appeal, which had been scheduled for 5 June.  Wild J reluctantly granted the appellant’s adjournment application.  The directions he gave were toward a fresh hearing date for this appeal of 27 September.

5. Wild J noted the opposition of the first respondent to the adjournment, quoting from its counsel’s memorandum:

   The appeal itself was filed in October 2006.  So Mr Johns has had 5½ years to progress it.  Preceding that, the High Court proceedings (which went to trial in August 2006) were commenced in 2001.  The actual events that led to the claim against Ellis Gould occurred in 1995.

6. The directions Wild J gave in his 15 May Minute were preceded by this statement:

   [8]       In these unsatisfactory circumstances, I am prepared to give the appellant one last opportunity to prepare and argue his appeal.  I repeat, ONE LAST OPPORTUNITY.  No latitude will be permitted to the appellant in respect of any of the directions in the next paragraph.  That means that he must comply with the time deadline I have fixed for each of the steps that follows.  No further adjournment of the hearing date will be granted to the appellant.

7. That could not be clearer.

8. The appellant is in breach of the direction to provide the required three further copies of his case on appeal by 29 June.  In terms of his foreshadowed application for leave to adduce further evidence, he neither made an application by 29 June nor indicated to the Court that he would not be making one.  There has simply been no word from the appellant since he was sent Wild J’s 15 May Minute.

9. In those circumstances, the time has come to strike out this appeal for non-compliance with this Court’s directions, and because the appellant is unwilling or unable to prosecute his appeal.

10. The appeal is struck out. 

11. In paragraph [9]h) of his 15 May Minute Wild J allowed the first respondent the costs of adjourning the hearing fixture.  No further award of costs is appropriate.

Solicitors:
McElroys, Auckland for First Respondent