Mason v Robertson

[2020] NZHC 867

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-000897

[2020] NZHC 867

BETWEEN

ALEXANDER CHARLES MASON

Appellant

AND

ELIZABETH ANN ROBERTSON

Respondent

Hearing:	On the papers
Judgment:	30 April 2020

JUDGMENT OF DOWNS J

(Leave to appeal)

This judgment was delivered by me on Thursday, 30 April 2020 at 3 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

GJ Thwaite, Auckland. RS Pidgeon, Auckland.

MASON v ROBERTSON [2020] NZHC 867 [30 April 2020]

The proposed appeal

[1]    Alexander Mason engaged  Robert  Hacking,  a  barrister,  between November 2015  and  November  2016.  Mr  Mason  paid  some   but  not  all  of   Mr Hacking’s fees.  Almost  $50,000 remains unpaid.   Judge M E Sharp granted   Mr Hacking summary judgment.1 Mr Mason appealed to this Court. His appeal failed.2 Mr Mason now seeks leave to appeal to the Court of Appeal. He wishes to appeal the High Court judgment and related costs judgment.3

[2]    Mr Mason’s central contention is that a passive, reverse brief—when a barrister engages a solicitor, and the barrister conducts the client’s legal work—may contravene rules of professional ethics.

Principle

[3]Section 60 of the Senior Courts Act 2016 governs the application:

60 Appeals against decisions of High Court on appeal from District Court, Family Court, or Youth Court

(1)   The decision of the High Court on appeal from the District Court, the Family Court, or the Youth Court is final unless a party, on application, obtains leave to appeal against the decision to the Court of Appeal.

(2)   An application under subsection (1) for leave to appeal to the Court of Appeal must be made to the High Court or, if the High Court refuses leave, to the Court of Appeal.

…

[4]Applicable principle was identified by the Court of Appeal in Waller v Hider.4

For that Court, Blanchard J said:5

… the test is well established. The appeal must raise some question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of the further appeal.

1      Robertson v Mason [2019] NZDC 6528.

2      Mason v Robertson [2019] NZHC 2989.

3      Mason v Robertson [2019] NZHC 3391.

4      Waller v Hider [1998] 1 NZLR 412 (CA).

5      At 413.

[5]    The Judge also said the dispute needed to have “requisite element of sufficient importance”.6 Subsequent cases have acknowledged a trend to limit second appeals to ensure scarce judicial resources are not wasted.7

[6]    The discretion to extend time for an appeal is often described as unfettered. However, it would defeat the purpose of a time bar if it could be avoided without good reason.8

Mr Mason’s case

[7]    Mr Mason argues there is uncertainty and confusion among litigants about the application of Lawyers and Conveyancers (Lawyers: Conduct and Client Care) Rules 2008 to reverse briefs. Mr Mason says this is a matter of general importance.

[8]    Mr Mason contends the High Court uncritically upheld the District Court. He also challenges some findings of fact in the District Court.

Analysis

[9]    Mr Mason’s central point about reverse briefs was addressed at trial and on appeal. Related facts are clear, the subject of concurrent determinations, or both. The proposed appeal raises nothing new. It would do no more, as Ms Robertson observes, than delay rightful payment of Mr Hacking’s fees.

[10]   The proposed appeal raises no significant legal issue. The professional relationship in question is admittedly a common arrangement, but the dispute turns on particular facts. These have been well explored. Moreover, the alleged errors of law are not arguable. Indeed, Mr Mason overlooks an inconvenient fact: he wanted a reverse brief, presumably to mitigate cost.

6      Waller v Hider, above n 4, at 413.

7      Downer Construction (New Zealand) Ltd v Silverfield Developments Ltd [2007] NZCA 355, [2008] 2 NZLR 591 at [36]; Chief Executive of Land  Information  New  Zealand  v  Luke  [2008] NZCA 43 at [18].

8      Caltex Oil (NZ) Ltd v Hughes (1986) 1 PRNZ 235 (HC), Day v Ost (No 2) [1974] 1 NZLR 714 (SC), Spicers Paper (NZ) Ltd v BPK & GA Buckley Ltd (1993) 6 PRNZ 16 (HC).

[11]   It is not clear why Mr Mason waited until after the costs judgment to apply for leave to appeal the substantive judgment. Given the proposed appeal has little merit, the interests of justice do not favour leave to apply out of time.9

Result

[12]The application is dismissed.

……………………………..

Downs J

9      Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [38]–[39].