Pool v Summerlee
[2019] NZCA 453
•24 September 2019 at 3.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA100/2019 [2019] NZCA 453 |
| BETWEEN | ANTHONY JOHN POOL |
| AND | RICHARD BENJAMIN SUMMERLEE, ALEXANDER JAMES SUMMERLEE AND SARAH ELIZABETH SUMMERLEE |
| Court: | Clifford and Collins JJ |
Counsel: | Applicant in person |
Judgment: | 24 September 2019 at 3.30 pm |
JUDGMENT OF THE COURT
AThe application for an extension of time to apply for allocation of a hearing date and to file the case on appeal is granted. Mr Pool is to apply for a hearing date and file the case on appeal within 20 working days of the day of delivery of this decision.
BThere is no order as to costs.
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REASONS OF THE COURT
(Given by Collins J)
Mr Pool has filed a notice of appeal from a summary judgment issued against him by Associate Judge Lester on 8 March 2019.[1]
[1]Summerlee v Pool [2019] NZHC 387.
In his judgment, the Associate Judge removed Mr Pool as a trustee of the Donald Pool Summerlee Children’s Trust (the Trust), and invested the Trust property in the remaining two trustees, Richard Summerlee and Alexander Summerlee and in a new trustee, the New Zealand Guardian Trust Company Ltd. The beneficiaries of the Trust — Richard Summerlee, Alexander Summerlee and Sarah Summerlee (the Summerlees) — are the respondents in these proceedings.
Mr Pool filed his notice of appeal on 14 March 2019, well within time. He has, however, not prosecuted the appeal with the diligence required by the Court of Appeal (Civil) Rules 2005.
On 13 June 2019, Mr Pool filed an application under r 43 for an extension of time to file a case on appeal and apply for a fixture. That application is opposed by the Summerlees on the basis that:
(a)Mr Pool has not adequately explained the reasons for his delay.
(b)Mr Pool has not paid the security for costs on appeal set by this Court.
(c)The appeal is devoid of merit.
While this application was made informally to the Registrar under r 43(1B), none of the grounds for an extension under that rule were met. Therefore, the application will be treated as an interlocutory application under r 43(2). The grounds that govern an application under r 43 are well settled.[2]
Reasons for delay
[2]Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801.
Mr Pool maintains the reasons for his delay relate to his medical condition. He says he is suffering severe fatigue and conditions that affect his chest and respiratory system.
Mr Pool supports his explanations about his medical condition with a letter from Dr Hlavac dated 30 October 2018. That letter confirms:
(a)Mr Pool was admitted into Dr Hlavac’s care in September 2018.
(b)Mr Pool has “ongoing” issues affecting his chest.
(c)Mr Pool has limited physical capacity.
It is striking Mr Pool relies on a medical certificate that is now almost 12 months old. While we are sure he probably does not enjoy good health, the onus is upon Mr Pool to explain the reasons for his delay. A medical certificate that is almost 12 months old is not an adequate response to the obvious questions about the reasons for Mr Pool’s delay.
Length of the delay
The application under r 43 was filed just within the three-month period prescribed in that rule. It has now been more than six months since the notice of appeal was filed. By the standards of many, the length of delay in this case has not been excessive.
Whether the proposed appeal is genuinely arguable
The grounds of appeal appear to be:
(a)The Associate Judge breached the principles of natural justice by not granting Mr Pool an adjournment on medical grounds.
(b)The Associate Judge was biased against Mr Pool.
(c)The High Court judgment contains a number of “serious flaws” and was unfair.
There is strength to the submissions from the Summerlees that the appeal lacks merit.
Self-represented litigant
Mr Pool is not represented by a lawyer. We appreciate latitude needs to be afforded to him on this account.
Decision
The factors that need to be considered when assessing Mr Pool’s application weigh against him. We are, however, in the overall interests of justice, willing to extend Mr Pool one opportunity to get the appeal on track. We do so primarily because Mr Pool is self-represented.
Mr Pool is to file the case on appeal and apply for a hearing date within 20 working days of the day of delivery of this decision. Failure to comply with this timetable will result in Mr Pool’s appeal being deemed to be abandoned.
There is no order as to costs.
Solicitors:
Saunders & Co, Christchurch for Respondents