My Noodle Ltd v Queenstown-Lakes District Council

[2009] NZCA 224

IN THE COURT OF APPEAL OF NEW ZEALAND

CA120/2009
[2009] NZCA 224

BETWEENMY NOODLE LIMITED, CENTRAL OTAGO BREWERIES LIMITED, CHUCK NORRIS LIMITED, BARMUDA QUEENSTOWN LIMITED

Applicants

ANDQUEENSTOWN-LAKES DISTRICT COUNCIL

First Respondent

ANDNEW ZEALAND POLICE

Second Respondent

Hearing:18 May 2009

Court:Glazebrook, O'Regan and Arnold JJ

Counsel:A J Forbes QC for Applicants

G M Todd for First Respondent

Judgment:2 June 2009 3.30 pm

JUDGMENT OF THE COURT

AThe application for an extension of time in which to appeal is granted, subject to the conditions set out in [24] and [25] of the Reasons of the Court.

BThe applicant is awarded costs for a standard application on a band A basis and usual disbursements.

REASONS OF THE COURT

(Given by O’Regan J)

Introduction

[1]       This is an application for an extension of time in which to appeal.  The applicants intended to appeal against a judgment delivered by French J on 4 June 2008 (HC CHCH CIV-2007-485-2259).  That judgment concerned an appeal against a decision of the Liquor Licensing Authority.

[2]       In order to appeal the High Court judgment, the applicants required leave: s 150 of the Sale of Liquor Act 1989.  On 20 October 2008, French J granted leave to appeal on four questions of law. 

[3]       The applicants were then required to file a notice of appeal with this Court on or before 18 November 2008: r 29 of the Court of Appeal (Civil) Rules 2005 (the Rules).  They failed to meet this deadline. 

[4]       On 6 March 2009, the applicants filed an application seeking an extension of time for filing a notice of appeal.  The respondents oppose an extension being granted.  Their counsel, Mr Todd, argued that the failure to file the appeal within time meant the leave to appeal granted by the High Court had lapsed and that special leave from this Court was now required.

[5]       Counsel for the applicants, Mr Forbes QC, also indicated that the applicants may now need an extension of time for the seeking of a fixture and the filing of the case on appeal, and sought such an extension at the hearing.

Issues

[6]       The issues before us then are:

(a)Is special leave to appeal now required and, if so, should it be granted?

(b)If not, should an extension of time be granted?

(c)Is an extension of time to seek a fixture and file the case on appeal required and, if so, should it be granted?

[7]       Before considering these issues, we briefly set out the background to the application and the relevant provisions.

The failure to file a notice of appeal

[8]       Following the granting of leave to appeal, the applicants’ legal advisers overlooked the requirement that a notice of appeal be filed with this Court.  This error came to the attention of Mr Forbes during a telephone discussion with this Court’s registry staff on 26 February 2009.  By that stage, preparation of the case on appeal was well under way, the parties having exchanged approximately 22 emails on the subject.  The following day, Mr Forbes notified the lawyers for the respondents of the error.  He asked for their consent to an extension of time in which to file a notice of appeal, but they refused.

The relevant provisions

[9]       In the present case, the High Court granted leave to appeal pursuant to s 150 of the Sale of Liquor Act, which provides:

150     Further appeal to Court of Appeal

(1)       Any party to an appeal under section 139 of this Act who is dissatisfied with the determination of the High Court on any point of law may, with leave of the High Court or (if that leave is declined) with special leave of the Court of Appeal, appeal to the Court of Appeal against the determination.

…

(3)       Where the High Court refuses leave to any party to appeal to the Court of Appeal under this section, that party may, within 15 working days after the refusal of the High Court or within such further time as the Court of Appeal may allow, apply to the Court of Appeal, in such manner as may be directed by rules of Court, for special leave to appeal to that Court, and the Court of Appeal may grant leave accordingly if in the opinion of that Court the question of law involved in the appeal is one that by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.

…

[10]     It is also necessary to refer to rr 29 and 29A of the Rules, which relevantly provide:

29       Time for appeal

(1)       A party must bring an appeal,—

…

(b)      in the case of an appeal where leave to appeal… has been given by the court appealed from or by the Court,—

(i)       within the time specified by that court or by the Court when giving leave; or

(ii)      if no time was specified by that court or by the Court, within 20 working days after the date of the decision giving leave.

…

29A     Extension of time for appealing

(1)       If the appeal period prescribed by an enactment or the period prescribed by rule 29(1) or (2) has expired, a party who wishes to appeal may apply for an extension of time in which to appeal.

…

(4)       If the other party does not consent to an extension of time, the party wishing to appeal must apply under Part 2 for an extension of time in which to appeal.

(5)       An application under subclause (4) must be made and treated as if it were an application under Part 2 for leave to appeal, and Part 2 applies with all necessary modifications.

[11]     Part 2 of the Rules applies where leave is required before a person may bring an appeal: r 13.  It sets out the procedural requirements that such an application must comply with, including: the matters that must be stated in the application (r 17); the documents that must accompany the application (r 18); and various requirements in relation to the case on appeal (r 22), written submissions (r 23), bundles of authorities (r 24) and oral submissions (r 25).

Do the applicants need special leave?

[12]     Mr Todd argued that, because the applicants did not file a notice of appeal within 20 working days from the date of leave being granted (as required by r 29), they had to apply afresh to this Court for special leave to appeal.  Accordingly, he submitted that this Court must consider whether to grant leave, with particular emphasis on the public importance of the points in issue and the merits of the appeal.

[13]     We are satisfied that the applicants are not required to apply to this Court for special leave to appeal.  Section 150 of the Sale of Liquor Act is clear: special leave to appeal is required only where the High Court has declined to give leave.  Once leave has been given, there is no jurisdiction (or need) for this Court to grant special leave: the successful party can file its appeal as of right.  As the High Court did not decline leave in this case, this Court has no jurisdiction to grant special leave, and nothing in the Rules can change that.

[14]     Once a party has been granted leave, it must, if it wishes to exercise its right of appeal, comply with the Rules.  Non-compliance does not, however, cause the leave that has been granted to lapse.

[15]     The Rules require notices of appeal to be filed within 20 working days of the day on which leave to appeal is granted.  If this deadline is missed, r 29A applies.  Rule 29A(5) provides that an application for an extension of time in which to appeal (where the opposing party does not consent to the extension) must be “made and treated as if it were an application under Part 2 for leave to appeal” (emphasis added).  The italicised words make it clear that r 29A does not alter the substance of application: it merely imposes the procedural requirements in Part 2 on applications for extensions of time in which to appeal.  We do acknowledge that r 29A(4) is somewhat confusing because it says the application for an extension of time must be made “under Part 2”.  However, we think the position becomes clear when r 29A(4) is read with r 29A(5).

[16]     We conclude that the applicants, having already been granted leave, have the right to appeal to this Court, subject to being granted an extension of time to appeal.  The grant of leave has not lapsed because of their failure to meet the time deadline in the Rules, but they do need an extension of time in order to proceed.

Should this Court grant an extension of time? 

[17]     Mr Forbes submitted that it is in the interests of justice for an extension of time to be granted.  An extension will, he argued, cause no prejudice to the respondents, because: 

(a)Prior to discovering their error, the applicants had progressed the appeal in all material respects, including preparing the case on appeal, obtaining funds for security for costs and the setting down fee, as well as consulting with the respondents in relation to the time required for the hearing and whether to request that the appeal be heard by the permanent court; and

(b)It was always clear that the applicants were intending to prosecute the appeal.

[18]     Mr Todd submitted that, because of the delay in filing a notice of appeal and the resulting prejudice to the respondents, it is not in the interests of justice for this Court to grant an extension of time.

[19]     A number of factors are relevant to a decision as to whether time to appeal should be extended, including the reason for the delay, the length of the delay, the conduct of the parties and the extent of any prejudice caused by the delay: New Plymouth District Council v Waitara Leaseholders Association Incorporate [2007] NZCA 80 at [22]. The overall test, however, is whether granting an extension would “meet the overall interests of justice”: Havanaco Ltd v Stewart (2005) 17 PRNZ 622 at [5] (CA).

[20]     We accept that the cause of the delay in this case was a genuine mistake on the part of the applicants’ legal advisers.  Once the error was discovered, their counsel immediately sought the respondents’ consent to an extension of time for appealing.  This Court has made it clear that it is normally sympathetic to an extension of time in such circumstances, particularly where counsel has acted expeditiously to remedy the oversight after it has been discovered: see, eg, Grey v Elders Pastoral Holdings Ltd (1999) 13 PRNZ 353 at [15] (CA) and Havanaco at [7].

[21] Although the delay in this case was significant, being approximately three and a half months (including the Christmas vacation), it has not produced any real prejudice to the respondents. Prior to the oversight being discovered, it was clear that all parties assumed the appeal was on foot. There was no doubt that the applicants intended to prosecute their appeal, and arrangements were well in hand: see above at [17]. In fact, the applicants have now been in a position for some months to file a case on appeal and seek a hearing date from the Registrar. Had the respondents consented to an extension of time, it is unlikely that the delay in filing the notice of appeal would have caused any delay in the setting down of the appeal.

[22]     In his written submissions, Mr Todd argued that this Court should refuse to grant an extension of time in which to appeal because the merits of the proposed appeal are weak and the issues raised are not of public importance.  Given leave to appeal has already been granted, we see no need to revisit the merits of that decision.  It is true that this Court will be reluctant to grant an extension of time where the proposed appeal appears hopeless: Ngati Tahinga & Ngati Karewa Trust v Attorney-General CA73/02 26 June 2002 at [3].  We are satisfied, however, that the issues raised in the proposed appeal are not hopeless: the High Court would not have given leave if they were.

[23]     For these reasons, we conclude that it is in the interests of justice to extend the time in which the applicants may file a notice of appeal. 

[24]     We do accept, however, that the respondents could suffer prejudice if the applicants do not apply promptly for a hearing date.  Accordingly, we direct that on or before 19 June 2009 the applicants are to:

(a)       File their notice of appeal;

(b)Pay the filing fee;

(c)Provide security for costs;

(d)Apply for the allocation of a hearing date; and

(e)File a case on appeal.

[25]     The extension of time is granted on condition that the directions in [24] are complied with.

[26]     We will ask the Registrar to allocate a fixture as soon as possible.  Both counsel indicated to us that they would accept a fixture at short notice if one were available.

Is an extension of time to file the case on appeal and seek a fixture required?

[27]     Mr Forbes was concerned that, as more than six months have passed since the date on which the appeal ought to have been filed, the proposed appeal was in danger of falling foul of rule 43(1), and that an extension was needed to avert this.  Rule 43(1) says an appeal is treated as having been abandoned if the appellant does not apply for a hearing date and file the case on appeal within six months after the appeal is brought.  However, r 31(1) provides that an appeal is only brought once a notice of appeal has been filed and copies of it have been served on all other parties.

[28]     We are satisfied that no extension is required.  Because the applicants have not yet filed and served their notice of appeal, they have not yet brought their appeal.  The six month period referred to in r 43(1) has not therefore started to run.  Indeed, as a result of the conditions we have imposed in this case, the six month period will have no relevance: the steps referred to in r 43 will need to be taken on or before 19 June 2009.

Costs

[29]     The applicants have been successful in their application.  Despite the fact that they were seeking an indulgence from the Court, we think it right to award them costs.  It should have been clear to the respondents that, in the circumstances of this case and for the reasons given, an extension of time would be granted.  Both time and resources would have been saved had they consented to an extension of time.  Rule 53G(2) and (6) apply.  This Court recently signalled that costs may be awarded against parties who oppose applications on flimsy grounds, regardless of whether or not the opposing party is seeking an indulgence: PAE (New Zealand) Ltd v Brosnahan [2009] NZCA 105 at [12].

Solicitors:
Cruickshank Pryde, Queenstown for Applicants
Macalister Todd Phillips, Queenstown for First Respondent