Prescott v Auckland Transport

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV2013-404-004717 [2014] NZHC 228

BETWEEN  PETER RICHARD PRESCOTT Applicant

ANDAUCKLAND TRANSPORT Respondent

Hearing:                   19 February 2014

Appearances:           Appellant in Person

D Hughes for the Respondent

Judgment:                20 February 2014

[RESERVED] JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 20 February 2014 at 4.00 pm

Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

PRESCOTT v AUCKLAND TRANSPORT [2014] NZHC 228 [20 February 2014]

Introduction

[1]      Mr Prescott seeks leave to appeal out of time a judgment given by Judge BA Gibson in the District Court at Auckland on 25 June 2013.

Procedural Matters

[2]      Mr Prescott has referred in his application to r 20.3(6) of the High Court Rules.  As noted by the respondent, Auckland Transport, in its notice of opposition, Mr Prescott is in error.  Judge Gibson’s decision was open to appeal pursuant to s 72 of the District Courts Act 1947.  Pursuant to r 20.4(2)(b), any appeal was required to be filed within 20 working days after the decision appealed against is given.   No appeal was filed within that time.  Pursuant to r 20.4(3), the court, by special leave, can extend the time prescribed for appealing if the enactment that provides the right of appeal either permits the extension, or does not limit the time prescribed for bringing the appeal.  This provision applies, because the District Courts Act does not limit the time prescribed for bringing an appeal.   Nothing, however, turns on this minor error.

[3]      Mr Prescott, in his oral submissions, argued that an affidavit filed in support of the notice of opposition by a Pratistha Gautan was “invalid”, that it ought not to be accepted by the Court, and that the notice of opposition was accordingly void, because it has no evidential basis.  I observe as follows:

(a)      Ms Gautan is a solicitor employed by Auckland Transport’s solicitors, Kensington Swan.  She recorded that she was authorised to swear the affidavit on its behalf, and that she had knowledge of the matters to which the affidavit related.  She annexed copies of documents filed in related  bankruptcy  proceedings  between  Auckland  Transport  and Mr Prescott, and a copy of the judgment of the District Court;

(b)Mr Prescott  argued  that  the  affidavit  failed  to  comply  with  the Oaths and  Declarations  Act  1957,  and   with  various  provisions contained in the High Court Rules – namely rr 9.73, 9.76 and 9.82.  I cannot see that there is anything in any of the various arguments

advanced by Mr Prescott.  I do not, however, intend to lengthen this judgment  by  giving  detailed  reasons  for  this  observation  for  the reason which follows;

(c)       Nothing turns on whether or not Ms Gautan’s affidavit is admitted.

Her affidavit did no more than exhibit various documents.  Both the District Court Judge’s decision, and the papers filed in the bankruptcy proceedings – CIV 2014-404-3958, are in the public domain in any event.

I do observe that it is a matter of concern that…