Judith Maryanne Cameron v Anne Colleen Thompson

[2000] NZCA 89

IN THE COURT OF APPEAL OF NEW ZEALAND CA94/00

BETWEEN	JUDITH MARYANNE CAMERON
Appellant

AND	ANNE COLLEEN THOMPSON
Respondent

Hearing:	19 June 2000
Coram:	Henry J Thomas J Keith J
Appearances:	L S Jenkins for the Appellant J F Mather for the Respondent
Judgment:	19 June 2000

JUDGMENT OF THE COURT DELIVERED BY HENRY J

1. This is an application under s67 of the Judicature Act 1908 for leave to appeal the judgment of the High Court delivered on 11 February 2000 allowing an appeal to that Court from the District Court.   The High Court has refused leave to appeal.   The principles applicable are well established (e.g. Cuff v Broadlands Finance Ltd [1989] 2 NZLR 343, Waller v Hider [1998] 1 NZLR 412). Leave is unlikely to be granted where the case lacks any general importance and raises issues of concern to the parties only.

2. The proceeding in the District Court was a claim for conversion of chattels brought by the present respondent.   The claim failed.   On appeal Williams J in the High Court allowed the appeal and remitted the claim for rehearing in the District Court.   The primary reasons were that the District Court Judge appeared to have applied an incorrect standard of proof, and had not properly directed her mind to the distinction between the crime of theft  and the tort of conversion.

3. We are not persuaded that there is any question of general importance nor an apparent injustice which would warrant a second appeal.   No discrete question of law justifying determination by this Court arises.   Neither is this a case where the High Court has arguably erroneously reached a different final conclusion on the facts from that determined by the lower Court.  The main thrust of the complaint is that the High Court Judge gave insufficient weight to what were said to be factual findings made in the District Court which would negate the respondent’s claim.   That is not self evident from a perusal of the two judgments.   Moreover it is not the kind of ground which readily fits into the s67 jurisprudence.   Re‑assessment of first instance findings of fact is not generally a function of a second appellate body, particularly when on the first appeal a failure to apply established law to the facts has been identified as a matter which could have had a bearing on the original decision.

4. The application is dismissed.

5. The present respondent is entitled to costs which are fixed in the sum of $1500 together with disbursements including travelling expenses of counsel to be settled if necessary by the Registrar.

Solicitors

Sandi Anderson, Auckland, for Appellant
Dillon Hunt, Orewa, for Respondent