King v ASB Bank Limited - [2014] NZCA 467

IN THE COURT OF APPEAL OF NEW ZEALAND

CA810/2013
[2014] NZCA 467

BETWEEN	BRUCE JAMES KING Applicant
AND	ASB BANK LIMITED Respondent

Counsel:

Applicant in person

Judgment:

(On the papers)

25 September 2014 at 11.00 am

JUDGMENT OF STEVENS J

(Review of Decision of Deputy Registrar)

AExtension of time within which to apply to review the decision of the Deputy Registrar granted.
BThe application for a review of the decision of the Deputy Registrar is dismissed.

____________________________________________________________________

REASONS

Introduction

This is an application for review of the decision of a Deputy Registrar to refuse to accept the filing of an application by Mr King for an extension of time under r 43(2) of the Court of Appeal (Civil) Rules 2005 (the Civil Rules).[1] This occurred because the application did not comply with procedural requirements in material respects.

Procedural history

[1]The case officer who made the decision is also a Deputy Registrar under the Court of Appeal (Civil) Rules 2005 [Civil Rules].

On 2 December 2013 Mr King filed a notice of appeal against a decision of Katz J.[2] The three month period set out in r 43 of the Civil Rules expired on 25 March 2014.[3] That day passed without compliance with the requirements of the rule dealing with filing of the case on appeal and an application for the allocation of a hearing date.[4] The Deputy Registrar informed Mr King by email on 26 March 2014 that he had until 25 June 2014 to apply for an extension of the three month time period.[5] On 25 June 2014, the last available day for filing such an application, Mr King emailed an “Application for Time Extension” to the Deputy Registrar. Because it was sent by email, the application was unsigned.
[2]King v ASB Bank Ltd [2013] NZHC 2914.
[3]Pursuant to r 43(5) the time period between 25 December and 15 January is not included in the calculation of the three months.
[4]For completeness I record that the review of the Registrar’s decision on security for costs does not prevent compliance with r 43. See Reid v Cottle [2014] NZCA 154 at [9].
[5]Civil Rules, r 43(3).
On 2 July 2014 the Deputy Registrar declined to accept the application because it did not comply with the requirements of the Civil Rules. The defects identified were:
(a)the application was filed by email rather than hard copy as required by r 31 of the Civil Rules; and
(b)the application was not accompanied by the required filing fee or fee waiver application.[6]
[6]Regulation 4(2) of the Court of Appeal Fees Regulations 2001 requires all fees to be prepaid subject to the power to waive fees in regs 5 and 6.
In an effort to remedy the second defect a fee waiver application was filed on 3 July 2014. This was later returned because the r 43(2) application had already been rejected.
On 8 August 2014 Mr King filed an “Application to Registrar for Leave to File Document” (the document being the r…

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: [2014] NZCA 467
Decision Date: 25 September 2014 at 11.00 am

CaseChat Overview and Summary

Bruce James King sought review of a decision by the Deputy Registrar to refuse his application for an extension of time to file an appeal against a decision of Katz J. The Court of Appeal examined whether the procedural requirements under the Court of Appeal (Civil) Rules 2005 were properly complied with. The Deputy Registrar rejected Mr King's application for an extension on the grounds that it was not filed in the required manner and was not accompanied by the required filing fee or fee waiver application. Mr King argued that the email filing was permissible under the rules, and that the failure to pay the fee should not result in dismissal given that he had subsequently filed a fee waiver application. The Court of Appeal found that the correct approach was that the Civil Rules did not prescribe a specific process for the filing of r 43(2) applications. Rather, Rule 5(4) applied, which requires that such matters be dealt with in a manner that promotes the ends of justice. Since applications for leave to appeal, which are similar to r 43(2) applications, must be filed by hand or post, the same applies to r 43(2) applications. The Court also found that the failure to pay the filing fee or file a fee waiver application was a clear requirement of the Court of Appeal Fees Regulations 2001, and that compliance with these requirements was not a mere formality. Accordingly, the application for a review of the Deputy Registrar's decision was dismissed.

Orders