Machirus v Currie - [2019] NZCA 525

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA496/2018
[2019] NZCA 525

BETWEEN	PETER LLOYD MACHIRUS Applicant
AND	PHILIPPA ANNE CURRIE First Respondent
AND	RAYMOND DONNELLY & CO Second Respondent
AND	CROWN SOLICITOR AT CHRISTCHURCH Third Respondent
AND	ATTORNEY-GENERAL Fourth Respondent

Hearing:	21 October 2019
Court:	Brown, Gilbert and Goddard JJ
Counsel:	Applicant in person S K Barr for Respondents
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.

____________________________________________________________________

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…

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 Machirus v Currie

Details

AGLC: Machirus v Currie [2019] NZCA 525
Case: [2019] NZCA 525
Decision Date: 31 October 2019 at 12.30 pm

CaseChat Overview and Summary

The case of Machirus v Currie involved Peter Lloyd Machirus as the applicant, seeking an extension of time to file a case on appeal against a judgment delivered by the High Court on 30 July 2018. The judgment dismissed claims brought by Machirus and others in tort and for breach of the New Zealand Bill of Rights Act 1990. The first respondent was Philippa Anne Currie, the second respondent was Raymond Donnelly & Co, the third respondent was the Crown Solicitor at Christchurch, and the fourth respondent was the Attorney-General. The hearing took place on 21 October 2019 before Brown, Gilbert, and Goddard JJ, with the applicant representing himself and S K Barr appearing for the respondents. The judgment was handed down on 31 October 2019.

The legal issue before the court was whether to grant the applicant, Machirus, an extension of time to file a case on appeal in compliance with the Court of Appeal (Civil) Rules 2005. The court had to consider the applicant's medical condition, specifically his dementia, and the possibility of obtaining legal assistance to help him comply with the formal requirements of the Rules. The court also had to weigh the prejudice caused to the respondents due to the lengthy delay in finally determining these proceedings.

The court, after considering the applicant's medical condition and the possibility of obtaining legal assistance, decided to grant a further short extension of time for filing a case on appeal. The court emphasised that it was important for a fully complying case on appeal to be filed by 18 December 2019, and that if this did not occur, the appeal would be deemed to be abandoned on the following day. The court made no order as to costs.

Orders