Pickard v Ambrose
[2011] NZCA 77
•18 March 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA724/2010 [2011] NZCA 77 |
| BETWEEN AMANDA PICKARD |
| AND TROY GEORGE TAYLOR |
| AND CHAS AMBROSE |
| AND RINNAI NEW ZEALAND LIMITED |
| Hearing: 15 March 2011 |
| Court: Chambers, Randerson and Wild JJ |
| Counsel: N J Russell and J F M Dunne for Applicants |
| Judgment: 18 March 2011 at 11 am |
JUDGMENT OF THE COURT
A The application to extend time for appealing is dismissed.
B The applicants must pay each of the respondents costs as if this were a standard application for leave to appeal on a band A basis and usual disbursements. The liability of the applicants is joint and several.
REASONS OF THE COURT
(Given by Chambers J)
We dismiss the application to extend time for appealing for the following reasons, taken together.[1]
[1]The principal factors normally considered when assessing “the overall interests of justice” are set out in My Noodle Limited v Queenstown Lakes District Council [2009] NZCA 224, (2009) 19 PRNZ 518.
First, there was excessive delay on the applicants’ part. The decision sought to be appealed against was delivered on 21 December 2009.[2] An application to extend time for appealing was not filed until 15 September 2010, almost nine months later. Even then, the application, running to some 800 pages, was hopelessly non‑compliant with the Court of Appeal (Civil) Rules 2005. It was not until Mr Russell became involved for the applicants that a proper application for an extension of time for appealing was filed – on 11 February this year, well over a year after delivery of the decision sought to be challenged. The applicants were well aware of their right of appeal. They have not satisfactorily explained their delay in this regard.
[2] Pickard v Ambrose HC Wellington CIV-2003-091-143, 21 December 2009.
Secondly, the applicants were responsible for numerous delays in the progress of this proceeding in the High Court. The heater at the heart of this litigation was installed in 1998. The applicants did not file proceedings until April 2003. The hearing in the High Court did not take place until October 2009. A significant cause of that lengthy delay was the applicants’ persistent failure to meet timetabling directions. Further, it is clear the applicants acted unreasonably in rejecting what this Court, on an earlier appeal, described as a “substantial September 2008 settlement offer”, contrary to the advice of their counsel and the opinion of the assessor consulted by the Legal Services Agency.[3]
[3] Ambrose v Pickard [2009] NZCA 502 at [41].
Thirdly, there would be considerable prejudice to the respondents if we were to allow this late appeal to go ahead. This litigation has now been on foot since 2003. The litigation has lacked any sort of proportionality, largely because, as this Court said, Ms Pickard had been and is “largely free of the usual disincentives which moderate the conduct of litigation”.[4] Mr Russell acknowledged that, if an extension of time for appealing were granted, he would want to mount a full scale appeal, including on the issue which occupied three weeks in the High Court. That was whether the applicants had suffered short term and long term health problems as a consequence of exposure to carbon monoxide (CO) leaking from a heater manufactured by Rinnai New Zealand Limited, the second respondent, and installed by Chas Ambrose, the first respondent. MacKenzie J found the applicants had not proved either that CO had escaped or that they had suffered harmful health consequences.
[4] At [41].
Fourthly, we assess the merits of the appeal. The principal issue in the High Court was, as we have said, whether CO had escaped from the heater and harmed the applicants. Mr Russell, while confirming that would be an issue – presumably, the principal issue – on the appeal, chose to present no submissions in support of the contention that MacKenzie J’s findings of fact were erroneous. In those circumstances, we assess the merits of that aspect as low.
Mr Russell instead chose to address “merits” on a different basis. He submitted MacKenzie J had failed to deal with certain causes of action and certain heads of damage. As to the former, we are satisfied the proposed appeal has little merit. All causes of action were contingent on the applicants establishing CO had escaped from the heater. As to the latter, it is very unclear, from the parties’ closing submissions in the High Court, whether the applicants were still pursuing damages relating to the cost of the heater. Further, it is unclear whether any financial loss (other than alleged loss of earnings relating to CO poisoning) was proved. In any event, the amount at issue under this head appears to have been, according to the applicants’ counsel’s opening in the High Court, “say $3,000”. There is no way in which a loss of that magnitude could be properly used as grounds for a discretionary appeal to this Court.
Finally, in so far as it is relevant on an application of this sort, we hold that the proposed appeal does not raise any issue of public importance.
Solicitors:
Chen Palmer, Wellington, for Applicants
Young Hunter, Christchurch, for First Respondent
McElroys, Auckland, for Second Respondent
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