Page v Official Assignee
[2017] NZCA 134
•26 April 2017 at 3.00 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA623/2016 [2017] NZCA 134 |
| BETWEEN | ADRIAN NEIL PAGE |
| AND | OFFICIAL ASSIGNEE |
| WHANGANUI DISTRICT COUNCIL Second Respondent |
| Hearing | 10 April 2017 |
Court: | Harrison, French and Brown JJ |
Counsel: | Applicant in person |
Judgment: | 26 April 2017 at 3.00 pm |
JUDGMENT OF THE COURT
AThe application for an extension of time to appeal is declined.
BThe applicant must pay the second respondent costs as for a standard application on a band A basis and usual disbursements.
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REASONS OF THE COURT
(Given by French J)
Mr Page wishes to appeal a decision of Associate Judge Smith delivered in the High Court on 24 August 2016.[1] The time for filing an appeal expired on 21 September 2016.[2] Mr Page did not file his appeal until 8 December 2016. Mr Page now seeks an extension of time under r 29A of the Court of Appeal (Civil) Rules 2005.
[1]Page v Official Assignee [2016] NZHC 1988.
[2]Court of Appeal (Civil) Rules 2005, r 29.
The application is opposed by the second respondent.
In determining whether to grant an extension, the ultimate question for the Court is to determine where the interests of justice lie. Four factors are particularly relevant to that inquiry, namely:[3]
(a)the length of the delay and the reasons for it;
(b)the conduct of the parties;
(c)the extent of prejudice caused by the delay; and
(d)the merits of the proposed appeal.
[3]My Noodle Ltd v Queenstown-Lakes District Council [2009] NZCA 224, (2009) 19 PRNZ 518 at [19]; and Wardell v ASB Bank Ltd [2015] NZCA 334 at [12].
As the second respondent (the Council) acknowledges, the delay of 52 working days in this case has not of itself caused any specific prejudice. However, it is a significant period of time and the explanation for it is inadequate. Mr Page says he did not receive a hard copy of the High Court decision until 21 October 2016, the November earthquake impeded access to his regular typist (he does not himself own a computer or know how to use one), the earthquake impeded his ability to come to the Court and he works full time. None of those excuses is compelling. Mr Page did receive an electronic copy of the High Court decision in August and he could have filed a handwritten notice of appeal.
We are also satisfied the proposed appeal lacks merit.
In the decision at issue, the Associate Judge declined Mr Page’s application for annulment of an order adjudicating him bankrupt in 2011.[4] It was the fourth such application made by Mr Page and, as the Associate Judge noted, the Court will not entertain serial applications for annulment in the absence of new evidence sufficient to support a finding that the adjudication order should not have been issued.[5] The Judge found Mr Page had not raised any new issues, nor had he pointed to any defect in procedure or abuse of process in the adjudication order.
[4]Wanganui District Council v Page HC Wanganui CIV-2010-483-134, 24 February 2011.
[5]Page v Official Assignee, above n 1, at [38]–[40]. The three previous decisions were Wanganui District Council v Page HC Wanganui CIV-2010-483-134, 21 July 2011; Page v Wanganui District Council [2012] NZHC 2622; and Page v Whanganui District Council [2013] NZHC 1942.
The adjudication order in 2011 was made on the application of the Council. It was founded on a bankruptcy notice issued in respect of an outstanding costs judgment which the Council had obtained in the Environment Court in 2010.[6] The costs arose out of enforcement proceedings brought against Mr Page.
[6]Wanganui District Council v Page [2010] NZEnvC 73.
Mr Page never appealed the costs judgment, never appealed a decision declining to set aside the bankruptcy notice[7] and never appealed the judgment in which the adjudication order was itself made following a defended hearing.[8] Instead he has attempted to dispute the validity of the enforcement order and the associated costs through multiple applications, including the application that was before Associate Judge Smith. It is clear from the proposed grounds of appeal that Mr Page intends to do the same before this Court.
[7]Page v Wanganui District Council HC Wanganui CRI-2010-483-134, 18 August 2010.
[8]Wanganui District Council v Page, above n 4.
Mr Page says he did not appeal the costs judgment to the High Court because he was misled by various judges about the procedure he should follow. He says further he only became aware of the right to appeal to the High Court in 2015. However, that contention is not supported by the written record.
As has been said on many occasions, it is not in the interests of justice to grant an extension of time to pursue a hopeless appeal. The proposed appeal in this case is in that category. Indeed, having regard to the protracted and tortuous history of this litigation, it can fairly be characterised as an abuse of process. The Associate Judge’s decision was in accordance with established authority and his conclusion that there was no basis for an annulment order is unassailable.
In our judgment, the lengthy and largely unexplained delay combined with the hopeless nature of the proposed appeal are fatal to the application. It is accordingly declined.
There is no reason why costs should not follow the event. We accordingly order the applicant to pay the second respondent costs as for a standard application on a band A basis and usual disbursements.
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