O'Neill v Toogood - [2017] NZCA 505

IN THE COURT OF APPEAL OF NEW ZEALAND

CA419/2017
[2017] NZCA 505

BETWEEN	CHRISTOPHER JOSEPH OʼNEILL Applicant
AND	KIT TOOGOOD, CECIL HARDING CROUCHER AND MATT AMON Respondents

Hearing:	30 October 2017
Court:	French, Winkelmann and Brown JJ
Counsel:	Applicant in person S M Earl for Respondent
Judgment:	9 November 2017 at 11.30 am

JUDGMENT OF THE COURT

AThe application for an extension of time is declined.
BThe applicant must pay the respondents costs for a standard application on a band A basis and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Winkelmann J)

Mr O’Neill brought proceedings in the High Court, styled as a “Petition to Call-Back” (the petition proceedings), seeking to recall a judgment of Toogood J in another set of High Court proceedings.[1] The named defendants in the petition proceedings were Toogood J and two registrars, one a court taker at the hearing before Toogood J and the other involved in the management of the court file. Cull J struck out the petition proceedings, finding they disclosed no reasonable cause of action, and were frivolous, vexatious and an abuse of process.[2]
[1]O’Neill v Accident Compensation Corporation [2015] NZHC 2823.
[2]O’Neill v Toogood [2017] NZHC 795 at [49].
The time to appeal the strike-out expired on 25 May 2017. On 21 July 2017 Mr O’Neill applied for an extension of time to appeal. The ultimate question when considering whether to grant an extension of time is what the interests of justice require.[3] This necessitates an assessment of the circumstances of the case, including:
(a)the length of the delay;
(b)the reasons for the delay;
(c)the conduct of the parties, particularly of the applicant;
(d)any prejudice or hardship to the respondent or others with a legitimate interest in the outcome;
(e)the significance of the issues raised by the proposed appeal, both to the parties and generally; and
(f)in principle, the merits of the proposed appeal.
[3]Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [38].
The respondents oppose the grant of leave. They say the delay is not adequately explained and the appeal is without merit.
In our assessment, the delay is not great and seems largely attributable to procedural confusion. That on its own would not be grounds to decline leave. As to the second ground of opposition, the merits of the proposed appeal, in Almond v Read the Supreme Court expressed the need for caution when declining an extension of time predominantly on the merits of the proposed appeal.[4] The Supreme Court did, however, accept that a lack of merit is likely to be decisive when there is an obvious problem with an appeal such as a legally untenable claim or a claim which is an abuse of process.
[4]At [39].
In this case, we consider that Mr O’Neill’s proposed appeal is so fatally flawed that it could not possibly succeed. Therefore, although the delay has not been great, the application for an extension of time should be declined.

Background

The…

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.

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Details

Case: [2017] NZCA 505
Decision Date: 9 November 2017 at 11.30 am

CaseChat Overview and Summary

The applicant, Christopher Joseph O’Neill, sought an extension of time to appeal a decision by Cull J to strike out his petition proceedings against Toogood J and two registrars. The appeal was filed beyond the deadline, and the respondents opposed the application on the grounds of delay and lack of merit. The Court of Appeal considered whether to grant the extension by examining the delay, reasons for the delay, conduct of the parties, prejudice or hardship to the respondent, significance of the issues, and the merits of the proposed appeal. The Court found that the delay was not significant and was largely due to procedural confusion. The appeal was deemed to be fatally flawed as it was frivolous, vexatious and an abuse of process, and had no reasonable cause of action. The Court concluded that the proposed appeal had no merit, and the application for an extension of time was declined. The applicant was ordered to pay the respondents' costs for a standard application on a band A basis and usual disbursements. The appeal was dismissed and the applicant was ordered to pay the respondents' costs.

Orders