Machirus v Currie
[2019] NZCA 525
•31 October 2019 at 12.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA496/2018 [2019] NZCA 525 |
| BETWEEN | PETER LLOYD MACHIRUS |
| AND | PHILIPPA ANNE CURRIE |
| AND | RAYMOND DONNELLY & CO |
| AND | CROWN SOLICITOR AT CHRISTCHURCH |
| AND | ATTORNEY-GENERAL |
| Hearing: | 21 October 2019 |
Court: | Brown, Gilbert and Goddard JJ |
Counsel: | Applicant in person |
Judgment: | 31 October 2019 at 12.30 pm |
JUDGMENT OF THE COURT
A The application for an extension of time for filing a case on appeal is granted. A case on appeal that complies with the Court of Appeal (Civil) Rules 2005 must be filed by Wednesday, 18 December 2019.
BIf a case on appeal that complies with the Court of Appeal (Civil) Rules 2005 is not filed by 18 December 2019, the appeal will be deemed to be abandoned on the following day.
CWe make no order as to costs.
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REASONS OF THE COURT
(Given by Goddard J)
Mr Machirus seeks an extension of time to file the case on appeal in these proceedings pursuant to r 43(2) of the Court of Appeal (Civil) Rules 2005 (Rules).
Procedural background
Mr Machirus wishes to pursue an appeal against a judgment delivered by the High Court on 30 July 2018.[1] That judgment dismissed a claim brought by Mr Machirus and others in tort (misfeasance in public office, deceit and malicious prosecution) and for breach of the New Zealand Bill of Rights Act 1990, arising out of criminal proceedings that had been brought against them.
[1]Clayton v Currie [2018] NZHC 1898 [High Court decision].
Mr Machirus filed a notice of appeal on 27 August 2018, within the prescribed timeframe.
Under r 43 of the Rules, an appeal is treated as having been abandoned if the appellant does not apply for the allocation of a hearing date and file the case on appeal within three months of bringing the appeal.
In this case, Mr Machirus should have filed the case on appeal by 27 November 2018. He did not do so.
Mr Machirus filed an application for dispensation from providing security for costs. That application was declined on 23 November 2018. Security for costs was provided on 19 December 2018.
On 27 November 2018 Mr Machirus applied for a hearing date and filed a document headed “file case on appeal”, which appears to be a summary of the arguments that he wishes to present on the appeal. However it is not the case on appeal required by the Rules, which must include all relevant documents needed to enable the Court to determine the appeal.[2]
[2]See Court of Appeal (Civil) Rules 2005, rr 39 and 40.
On 8 March 2019 Cooper J directed that Mr Machirus file and serve a complying case on appeal on or before Friday 29 March 2019. If he failed to do so, his appeal was to be deemed abandoned the following day. On 29 March 2019 Cooper J granted a further extension of time to 5 April 2019 with a deemed date of abandonment, if a case on appeal was not filed, of 8 April 2019.
On 5 April 2019 Mr Machirus filed a spiral bound volume that purported to be a case on appeal. It comprised six pages of commentary in the nature of a factual review and submissions. It also contained a schedule listing 121 documents by reference to date, description and discovery reference number.
However that document also was not a case on appeal that complies with the Rules. On 5 April 2019 the Crown Law Office, who are acting for the respondents in connection with this appeal, wrote to Mr Machirus identifying the defects in the purported case on appeal. On 16 April 2019 the respondents filed a memorandum seeking confirmation that the appeal was abandoned in accordance with the Minute issued by Cooper J on 29 March 2019.
On 23 April 2019 Mr Machirus sent an email to the Registry seeking an extension of time to comply with the requirements of the Rules. That application was dealt with by Brown J at a teleconference on 17 May 2019. In a Minute issued on 21 May 2019 Brown J said that he was prepared to allow the appellants “a final opportunity to assemble a case on appeal which complies with the Rules and which will enable an appeal hearing to be conducted in a meaningful and efficient way”.[3]
[3]Another claimant initially appealed the High Court decision but has since abandoned their appeal.
The Minute also recorded that in order to assemble a case on appeal which is relevant to the issues raised by the appeal, it was essential that the grounds of appeal be properly particularised. Accordingly, the minute directed that:
(a)By 21 June 2019 the appellants are to file properly particularised grounds of appeal identifying all the alleged errors of fact and all the alleged errors of law in the judgment under appeal.
(b) On the condition that the particularised grounds of appeal are filed in accordance with (a), then the appellants will have a further month (until 22 July 2019) to file a case on appeal in proper form which complies with the Rules.
Brown J deferred the hearing of Mr Machirus’ application for an extension of time to allow these steps to be taken, noting that “[t]he appellants should appreciate that if they fail to take those steps, that will be a significant factor in the Court’s consideration of their applications for extensions of time”.
In July 2019 Mr Machirus filed a document headed “case on appeal”. This document was not however a compilation of relevant documents as required by the Rules relating to preparation of a case on appeal. Rather, it was a five page submission setting out details of Mr Machirus’ appeal points. The document does appear to provide the particulars of the grounds of appeal required by subparagraph (a) of Brown J’s Minute of 21 May 2019, as set out above.
On 23 July 2019 Mr Machirus wrote to the respondents indicating that he would like to apply for a further extension of a month to obtain legal advice and representation due to ill-health. The respondents referred Mr Machirus to the Registry. No formal application for an extension was made.
After the expiry of a further month, the respondents filed a memorandum requesting that the requests for extension of time made by Mr Machirus be set down for hearing.
Submissions in relation to extension of time
In submissions that he filed on 3 October 2019, Mr Machirus sought a further extension for an unspecified period to enable him to seek assistance from a lawyer to comply with the requirements of the Rules.
Mr Machirus says he is currently representing himself. His ability to comply with the requirements of the Rules has been affected by ill-health, and in particular the dementia with which he was diagnosed in 2016, and for which he is taking medication. Mr Machirus provided a supporting letter from his doctor expressing the view that Mr Machirus “retains the cognitive ability to continue with the court case. However, he does have some periods of time where he does not function cognitively as well as he might and, therefore, his ability to put together the information he needs for this court case can be delayed at times.”
Mr Machirus says he understands the substance of the appeal, but is not capable of understanding and complying with the formal requirements in the Rules. He says that a friend is willing to lend him $5,000 to enable him to retain a lawyer to prepare the case on appeal, and ensure he complies with the Rules. However the friend is only willing to advance the money provided he obtains an extension of time, as otherwise that would be pointless.
The respondents opposed any further extension of time being granted to Mr Machirus. They point out that he has had the benefit of a number of extensions of time already, including the “final opportunity” provided by Brown J on 21 May 2019. Mr Machirus has previously told the Court that if he was granted an extension he would obtain legal assistance, but has failed to do so. No reason has been given by Mr Machirus as to why he could not instruct counsel earlier.
Counsel for the respondents accepted in argument that a further short extension would not cause any material prejudice to the respondents. But he noted that there is an individual respondent involved, and there has been a lengthy delay in finally determining these proceedings which continues to cause prejudice to that individual.
Analysis
We accept that the many delays in progressing this appeal have been frustrating for the respondents.
However we are persuaded, by a fine margin, that having regard to Mr Machirus’ medical condition and the indication that he may be able to access funds to instruct a lawyer to help him comply with the requirements of the Rules, he should be given an opportunity to do so. A further short extension of time for filing a case on appeal is in the interests of justice.
Result
The application for an extension of time for filing a case on appeal is granted. A case on appeal that complies with the Rules must be filed by Wednesday, 18 December 2019. Mr Machirus has already applied for a hearing date so is not required to do so again.
We emphasise to Mr Machirus, and to any lawyer he may instruct to assist him, that it is important that a fully complying case on appeal be filed by this date.
If a case on appeal that complies with the Rules is not filed by 18 December 2019, the appeal will be deemed to be abandoned on the following day.
We make no order as to costs.
Solicitors:
Crown Law Office, Wellington for Respondents
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