Moulton v Auckland Council

[2011] NZCA 540

IN THE COURT OF APPEAL OF NEW ZEALAND

CA494/2011
[2011] NZCA 540

BETWEEN  GARY MOULTON
Applicant

AND  AUCKLAND COUNCIL
Respondent

Hearing:         20 October 2011

Court:             Glazebrook, Arnold and Ellen France JJ

Counsel:         Appellant in person
S Fraser for Respondent

Judgment:      28 October 2011 at 10.30 am

JUDGMENT OF THE COURT

A        The application for special leave to appeal out of time is declined.

BThe applicant must pay the respondent costs for a standard application on a band A basis and usual disbursements.

REASONS OF THE COURT

(Given by Glazebrook J)

1. Mr Moulton applies for leave to appeal out of time against a judgment of Morris J delivered on 15 September 1995.[1] 

   [1]Moulton v Auckland Regional Council HC Auckland HC69/95, 15 September 1995.

2. Lang J in the High Court refused Mr Moulton’s application for an extension of time to appeal to this Court.[2]

   [2]Moulton v Auckland Council HC Auckland CIV-2010-404-7767, 30 June 2011.

3. The application is some 15 years out of time and no proper excuse has been provided for a delay of such magnitude.  Finality in litigation is important, especially after such a long period.

4. Further, as pointed out by Lang J, Mr Moulton now seeks to raise issues that were not raised before Morris J.  This would cause prejudice to the respondent who should not now have to face fresh issues not canvassed in the original appeal.

5. In the circumstances the application for special leave to appeal out of time is declined.

6. The applicant must pay the respondent costs for a standard application on a band A basis and usual disbursements.

Solicitors:
BurnsFraser, Auckland for Respondent