Lister v Mathews - [2015] NZCA 474

IN THE COURT OF APPEAL OF NEW ZEALAND

CA352/2015
[2015] NZCA 474

BETWEEN	DEBRA ANNE GRETA LISTER Applicant
AND	R E MATHEWS & ORS Respondents

Hearing:	5 October 2015
Court:	Ellen France P, Wild and Cooper JJ
Counsel:	Applicant in Person C P Hallowes for Respondents
Judgment:	7 October 2015 at 3 pm

JUDGMENT OF THE COURT

AThe application for an extension of time to apply for special leave to appeal to the Court of Appeal is dismissed.
BNo order as to costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Wild J)

Ms Lister applies, under s 29A of the Court of Appeal (Civil) Rules 2005, for an extension of time to file an application for special leave to appeal from a judgment of Asher J delivered in the High Court at Auckland on 20 October 2014.[1]
[1]Lister v Pegg Ayton Gordon Trustee Ltd & Ors [2014] NZHC 2553 [Judgment of Asher J].
In that judgment, Asher J dismissed an application by Ms Lister to review a judgment of Associate Judge Christiansen delivered on 19 August 2014.[2] The Associate Judge had struck out Ms Lister’s claim against the Wilson Home Trust. Justice Asher declined an application by Ms Lister for leave to appeal to this Court.[3] Accordingly, Ms Lister requires special leave from this Court to appeal, pursuant to s 26P(1AA) of the Judicature Act 1908.
[2]Lister v Pegg Ayton Gordon Trustee Ltd & Ors [2014] NZHC 1956 [Judgment of Associate Judge Christiansen].
[3]Lister v Pegg Ayton Gordon Trustee Ltd & Ors [2015] NZHC 839.
Ms Lister has been representing herself throughout. Her explanation for getting out of time with her s 26P(1AA) application for special leave is that she made a procedural mistake in seeking judicial review of the High Court decisions, instead of seeking leave to appeal to this Court.[4]
[4]The Registrar of the High Court refused to accept for filing that judicial review application. Ms Lister then sought to review the Registrar’s decision. In an on the papers judgment delivered on 5 June 2015, Ellis J held the High Court has no jurisdiction to judicially review a decision of one of its own Judges or Associate Judges: Lister v The (Deputy) Registrar of the High Court of New Zealand Auckland Registry [2015] NZHC 1246.
Given that explanation and the fact that it comes from a self-represented litigant, we intend focusing on two considerations:
(a)whether the proposed second appeal has merit; and
(b)whether it raises any question, whether of fact or law and whether of public or private interest, sufficiently important to warrant a second appeal.
This case concerns the interpretation of the will of Ms Lister’s aunt, the late Iris Lyons. Mrs Lyons died on 2 March 1995. Her will dated 10 December 1993 contained this devise:
3(c)I GIVE DEVISE AND BEQUEATH my flat at 1/84 Trafalgar Street, Royal Oak, unto my Trustee UPON TRUST to permit my brother EARL ARTHUR LISTER to have the use occupation and enjoyment of the same…

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.

Continue reading Lister v Mathews

Details

AGLC: Lister v Mathews [2015] NZCA 474
Case: [2015] NZCA 474
Decision Date: 7 October 2015 at 3 pm

CaseChat Overview and Summary

Debra Anne Greta Lister applied to the Court of Appeal for an extension of time to appeal a decision of the High Court. The Court of Appeal dismissed the application and made no order as to costs. Lister had previously sought review of a decision of the High Court which dismissed her application to review a decision of an Associate Judge. That decision struck out Lister’s claim against the Wilson Home Trust, which was a beneficiary of the will of Lister’s aunt, Iris Lyons. Lister sought to appeal to the Court of Appeal but was refused leave. She now sought special leave to appeal. The Court of Appeal found that the proposed appeal had no merit and would not raise any question of law or fact capable of serious argument. The Court also found that the appeal would not be of sufficient importance to warrant the costs and delays involved. The application for an extension of time was dismissed.

Orders