Reid v Burt HC Palmerston North CIV-2011-454-336

[2011] NZHC 1632

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CIV-2011-454-336

UNDER  the Harassment Act 1997 and the New

Zealand Bill of Rights Act 1990

IN THE MATTER OF     an appeal of a Restraining Order made by the Palmerston North District Court

BETWEEN  JAMES ROBERT REID Appellant

ANDCHESTER HUGH BURT Respondent

Hearing:         25 October 2011

Counsel:         J R Reid (in person)

M Ryan for Respondent

Judgment:      26 October 2011

JUDGMENT OF WILLIAMS J

In accordance with r 11.5, I direct the Registrar to endorse this judgment with the delivery time of 10.00am on the 26 October 2011.

JAMES ROBERT REID V CHESTER HUGH BURT HC PMN CIV-2011-454-336 26 October 2011

[1]      On 24 August 2011 I issued a minute (inter alia) in the following terms:

Associate  Judge  Gendall  directed  that  security  for  costs  in  the  sum  of

$1,880.00 be paid into court.  It was paid into court on 12 August 2011, but Mr Ryan says this was late and renders the appeal a nullity in terms of the District Courts Act.

That question must be heard before further steps toward the substantive appeal can be timetabled and taken.

[2]      As Mr Ryan points out s 74 of the District Courts Act provides as follows:

74       Security for appeal

(1)       Unless  granted  legal  aid under  the  Legal  Services Act  2000,  an appellant under section 72 may be required by the High Court Rules to give the Registrar of the High Court security for cost.

(2)       If any security required is not given within the time required by the High Court Rules, the appellant’s appeal must be treated as having been abandoned.

[3]      As this court noted in Graham v Mills[1], that section does not exclude the High Court’s general jurisdiction under the rules to extend time within which to pay security.

[1] HC Hamilton 18 November 2005, CIV-2005-419-0396.

[4]      Mr Reid needed to apply for an extension of time – ideally at the same time as he appealed on 5 May 2011, since an appeal will not amount to a stay.

[5]      Associate Judge Gendall’s direction for the payment of security for costs was

made on 23 June making security for costs payable in terms of the High Court Rules,

10 working days later on 7 July. The payment in was 25 working days late. [6]       Mr Reid argues:

(a)      that the whole issue of timing for the payment of security for costs had  become  bound  up  in  applications  that  he  made  to  review Associate Judge Gendall’s decision to require security and then to

review the fee for applying for that review;

(b)the  amount  had  eventually  been  paid  in  any  event  so  there  is protection for the respondent;

(c)      there is no prejudice to the respondent by granting the extension at this point.

[7]      Mr  Ryan  argued  that  it  was  incumbent  upon  Mr  Reid  to  apply  for  an extension.    He  should  have  done  that  after  the  signal  given  in  the  minute  of

24 August but failed to do so.  Further, the various review and waiver applications are, he argued, irrelevant in terms of the court’s discretion to grant the extension. The delay had been considerable  and no relevant excuse had been given.   The prejudice argued by Mr Reid on behalf of Mr Burt was the need to attend court and oppose the application for extension.  Mr Ryan argued that was sufficient prejudice to warrant refusal of any application.

[8]      Given the terms of my minute, I am prepared to proceed on the basis that Mr Reid has made an oral application for extension of time.  I am prepared to do this because there is no real prejudice to the respondent in this approach.  After all it was Mr Ryan who raised the jurisdictional issue at the telephone conference, and there can be no doubt in the minds of either side that an extension of time for paying in security for costs would be the issue to be heard at yesterday’s hearing.

[9]      I consider that an extension of time should be granted in this case for the following reasons:

(a)      security for costs has in fact been paid meaning that there is some protection available for the respondent in the event that the appeal is unsuccessful;

(b)Mr Reid did indeed get tangled up in applications to waive fees on the appeal; the application to review Associate Judge Gendall’s decision, and on applications to review those refusals (themselves requiring fees for which an application for waiver was required).  I accept that Mr Reid had a genuine belief in the merits of his applications for

waiver of fees and genuinely felt that payment should not be made until those matters were resolved.   I note that on 24 August 2011, Mr Reid  withdrew  his  application  for  review  of  Associate  Judge Gendall’s direction in respect of security for costs and that this was well after 12 August when security was actually paid;

(c)      the substantive appeal is not devoid of merit.  There is, in my view, a genuine argument to be had in respect of whether the learned District Court Judge accorded Mr Reid natural justice.  Of course whether the appeal is successful is an entirely different matter. The point I make is that the appeal is not hopeless.

[10]     Looking at these factors together now, the balance favours the grant of an extension.  This is a serious appeal (as shown by the payment in) with at least some merit, and the application for review of the Associate Judge’s decision provides some justification for the late payment.

[11]     Having said that, there is prejudice to the respondent in having to appear to defend an application for extension of time.   Costs go some way to meeting that prejudice.   Costs will be awarded in favour of the respondent on a Category 1B

basis.

Williams J