Rachelle v Cadogan - [2021] NZCA 69

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA614/2020
[2021] NZCA 69

BETWEEN	GEORGINA RACHELLE Applicant
AND	TIMOTHY CADOGAN First Respondent LYNETTE MARGARET MCFARLANE Second Respondent BERNADETTI NONI SCURR Third Respondent ALLWASTE CROMWELL DESPATCH/TROJAN HOLDINGS COMPANY Fourth Respondent STEVE GEE Fifth Respondent

Court:	Collins and Goddard JJ
Counsel:	Applicant in person F B Barton and S A McClean for First to Third Respondents
Judgment: (On the papers)	16 March 2021 at 10.00 am

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal under r 29A of the Court of Appeal (Civil) Rules 2005 is declined.
BThe applicant must pay costs to the first to third respondents for a standard application on a band A basis, with usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Goddard J)

Introduction

The applicant, Ms Rachelle, has applied under r 29A of the Court of Appeal (Civil) Rules 2005 (Rules) for an extension of time to file an appeal against a decision of Dunningham J delivered on 12 June 2020 (High Court decision).[1]

Background

[1]Rachelle v Cadogan HC Invercargill CIV-2020-425-27, 12 June 2020 [High Court decision].

The High Court decision struck out Ms Rachelle’s appeal from a decision of the District Court[2] on the basis that the appeal was an abuse of process.
[2]Rachelle v Cadogan [2020] NZDC 8374.
Ms Rachelle’s claim in the District Court appears to have arisen out of an incident in which her lawnmower ran over a stone on the grass verge outside her property, and the stone was thrown out of her lawnmower, damaging the lawnmower and causing an injury to Ms Rachelle’s leg. Ms Rachelle filed proceedings against five defendants, including the Mayor of the Central Otago District Council (Council), a current employee of the Council and a former employee of the Council (the first to third respondents).
The relief Ms Rachelle claims against the five respondents is:
a. Compensation in the sum of $200,000 for humiliation, loss of dignity, and injury to feelings pursuant to Section 123(1)(c)(i) under the Human Rights Act 1993 as well as Property Relationships Act 1976.
b. A well-deserved justified amount from Central Otago District Council to be paid to the Plaintiff Ms Georgina Rachelle for the pain and suffering she has endured.
The District Court proceeding was struck out by Judge Hunt on 13 May 2020. The Judge concluded that Ms Rachelle’s claims suffered from fundamental flaws in terms of pleading and that no reasonable cause of action was disclosed anywhere against any of the defendants.[3]
[3]At [64].
Ms Rachelle then filed a notice of appeal in the High Court. It was struck out by Dunningham J on 12 June 2020 on the basis that it was plainly an abuse of the process of the Court.[4] The Judge held that the notice of appeal suffered from the same deficiencies that were identified by Judge Hunt in relation to the underlying claim. It could not be amended so as to remedy…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NZCA 69
Decision Date: 16 March 2021 at 10.00 am

CaseChat Overview and Summary

Georgina Rachelle, the applicant, sought an extension of time to appeal a decision of the High Court, which dismissed her appeal against a decision of the District Court. The District Court had struck out Ms Rachelle's claims against the respondents for being an abuse of process. The claim arose from an incident where Ms Rachelle's leg was injured when her lawnmower ran over a stone. The High Court dismissed the appeal on the basis that it was plainly an abuse of process. Ms Rachelle subsequently sought to appeal to the Court of Appeal. The Court of Appeal must decide whether to grant an extension of time under r 29A of the Court of Appeal (Civil) Rules 2005. The Court of Appeal held that the application for an extension of time to appeal was hopeless. The delay was unjustified, and the appeal had no prospect of success. The principles relating to strike-out are well settled, and were applied by both the District Court and the High Court. The Court of Appeal declined the application for an extension of time to appeal. The applicant must pay costs to the first to third respondents for a standard application on a band A basis, with usual disbursements.

Orders