Power v White

[2022] NZCA 116

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA591/2021
 [2022] NZCA 116

BETWEEN	BRETT WILLIAM POWER Appellant
AND	KATHERINE MARIE WHITE Respondent

Court:	Clifford and Goddard JJ
Counsel:	Appellant in person E S Butler for Respondent
Judgment: (On the papers)	7 April 2022 at 10.30 am

JUDGMENT OF THE COURT

AExtensions of time to file the application and notice of opposition are granted.

BThe application for leave to appeal is declined.

___________________________________________________________________

REASONS OF THE COURT

(Given by Clifford J)

Introduction

1. Mr Power seeks leave to appeal an interlocutory decision of the High Court, having been declined leave from that Court.  That interlocutory decision declined Mr Power’s application for a transcript of a High Court hearing on 15 June 2021.[1] 

Background

[1]We note both parties have required extensions of time: Mr Power to file the application for leave, having incorrectly filed it in the High Court, and Ms White to file her notice of opposition.  In the circumstances, and pursuant to r 5(2) of the Court of Appeal (Civil) Rules 2005, we grant the required extensions.

1. Over the course of 2020 and 2021, Mr Power lodged six appeals from decisions made by the Family Court.  Following a case management conference in February 2021, the High Court directed Mr Power to pay $7,060 by way of security for costs within 10 working days under r 20.13 of the High Court Rules 2016.  The timely payment of security by Mr Power became an issue, which risked his appeal being deemed abandoned pursuant to s 126(3) of the District Courts Act 2016. 

2. In April 2021, the High Court gave Mr Power an extension to lodge the required security by 20 May 2021.  In granting that extension, and at two subsequent case management conferences, Mr Power was warned of the consequences of not paying the ordered security.  Mr Power did not pay security, and accordingly Ms White applied for Mr Power’s appeals to be dismissed. 

3. Having recorded by way of minute that Mr Power’s appeals had been deemed abandoned for his failure to pay security, at a hearing on 15 June 2021 Cooke J gave Mr Power the opportunity to respond to that issue.  At that hearing, Mr Power argued, amongst other things, that hearing was null and void because of the lack of proper notice and that the High Court had not dealt with his appeals properly.  Cooke J, having been satisfied that none of the matters Mr Power had raised demonstrated his appeals had not been abandoned, ordered that Mr Power’s appeals were to be treated as such.[2] 

   [2]Power v White HC New Plymouth CIV-2021-443-2, 15 June 2021 (Minute of Cooke J).

4. It is that hearing for which Mr Power applied for a transcript.  On 1 July 2021, Cooke J declined that application.  In doing so, he said:[3]

   [2]       Were this application for a document on the Court file it would call to be addressed under the Senior Courts (Access to Court Documents) Rules 2017.  But there is no transcript of that hearing in existence.  I anticipate there may be a digital recording of the proceedings, but in this Court transcripts are only created if there is evidence given to the Court by witnesses.  Interlocutory hearings are not transcribed. 

   [3]       I see no reason to give any direction that a transcript be created.  …  I also note that most of the hearing was taken up by Mr Power outlining his position, and that he interrupted counsel for Ms White near the
   
   

   commencement of her submissions, and then left the courtroom.[4]  The only matter of substance that transpired after Mr Power elected to leave was the application by counsel for Ms White for costs, and as I said at the time I was reluctant to make any decision on that in Mr Power’s absence.  For that reason I reserved leave to Ms White to make an application for costs in the minute of 15 June. 

   [3]Power v White HC New Plymouth CIV-2021-443-2, 1 July 2021 (Minute (No 2) of Cooke J)

   [4]The Judge noted, in his decision of 15 June 2021, that when leaving the courtroom, Mr Power “advised that he would be coming to Wellington to see the Minister of Justice, and suggested that this would also involve the scrutiny of [counsel for Ms White] and the Court.  He indicated that now the matter was in the hands of the Police we would see where things would get to”. 

5. Mr Power was subsequently declined leave to appeal that decision by Cooke J on 2 September 2021.[5]

The application

[5]Power v White [2021] NZHC 2291.

1. Mr Power now seeks a grant of leave from this Court.[6]  In doing so, he submits Cooke J had failed to uphold his basic right to participate in proceedings in an appellate court; challenges the calculation of security for costs; relitigates his contention that court documents have gone missing; and that the Judge breached his right to receive a transcript under the Senior Courts (Access to Court Documents) Rules. 

   [6]Senior Courts Act 2016, s 56(5).

2. We are satisfied this application falls well short of the high threshold to be met for a grant of leave under s 56(3) of the Senior Courts Act 2016.[7]  Mr Power’s application raises no arguable error of law or fact.  He has no right to a transcript.[8]  We also refer to the Supreme Court’s observation in Siemer v Heron:[9]

   There are obvious resource implications if judges direct court registries to provide parties with transcripts of hearings of appeals and interlocutory matters generally on demand by litigants.  For that reason, judges should always first satisfy themselves that there is good reason in the interests of justice for giving such directions.

   [7]Greendrake v District Court of New Zealand [2020] NZCA 122 at [6].

   [8]Wiki v Police [2018] NZHC 2378 at [5]–[11].

   [9]Siemer v Heron [2011] NZSC 116, [2012] 1 NZLR 293 at [9].

3. Here, Cooke J was not satisfied there was a good reason in the interests of justice to direct a transcript be created.  We agree.  There is no reason to provide a transcript of the submissions Mr Power made at the hearing on 15 June 2021, or of the submissions made by counsel for Ms White while he was present.  The abandonment of the appeal was the result of Mr Power’s failure to pay the $7,060 in security for costs he was ordered to pay in February 2021 and for which he was given an extension, and repeatedly warned of the consequences.  That abandonment was not the result of anything that happened at the hearing.  And as the Judge explained, nothing of substance happened after Mr Power chose to leave the hearing early, as the Judge declined to decide the question of costs in Mr Power’s absence.  In these circumstances it is not reasonably arguable that a transcript should have been provided.  The grant of leave to appeal on that issue is not in the interests of justice.

4. In those circumstances the application for leave to appeal is declined. 

Solicitors:
Connect Legal Taranaki, New Plymouth for Respondent