Reid v Canterbury Regional Council

[2009] NZCA 585

IN THE COURT OF APPEAL OF NEW ZEALAND

CA183/2009
[2009] NZCA 585

BETWEENJAMES ROBERT REID

Appellant

ANDCANTERBURY REGIONAL COUNCIL

Respondent

Hearing:1 December 2009

Court:William Young  P, Chambers and Ellen France JJ

Counsel:No appearance for Appellant

J W A Johnson for Respondent

Judgment:11 December 2009 at 11 am

JUDGMENT OF THE COURT

AAn adjournment of the respondent’s application to strike out the appeal is granted. 

B            Costs reserved. 

REASONS OF THE COURT

(Given by Chambers J)

Introudction

[1]        The Canterbury Regional Council, the respondent, applied to strike out the appeal of James Reid, the appellant, on the ground that he had failed to pay security for costs.  The hearing of that application was due to take place on 1 December, but in the end could not proceed because that morning Mr Reid advised he was unwell and in hospital.  In those circumstances, we had no alternative but to adjourn, although we advised Mr Johnson, for the Council, that the adjournment might be on terms, which we would take time to consider. 

Chronology

[2]        This appeal has got into a dreadful mess.  Mr Reid is a frequent litigator in this Court and always acts for himself.  He has no fewer than four appeals currently pending in this Court.  His court documents frequently do not comply with relevant court rules, which leads at times to confusion.  For instance, this appeal was filed under the names Canterbury Regional Council v The Attorney-General of New Zealand, whereas it should have been filed as Reid v Canterbury Regional Council (as set out above).  Incidentally, the above intituling should be used henceforth. 

[3]        For the assistance of the parties and the panel which may ultimately hear the Council’s application (not necessarily the current panel), we set out the history of this appeal, so far as relevant. 

[4]        In 2008, the Council commenced a proceeding in the High Court under the Declaratory Judgments Act 1908, seeking declarations as to the lawfulness of certain procedures the Council intended to adopt in hearing and considering submissions on changes it proposed to the Canterbury Regional Policy Statement.  It stipulated the Attorney-General as respondent on the basis that he would fulfil the role of contradictor. 

[5]        Mr Reid, despite the fact he lives in Woodville, took an interest in this Canterbury proceeding and applied to be joined as second respondent.  On 25 March this year, Dobson J declined his application: Canterbury Regional Council v Attorney-General HC WN CIV‑2008‑485‑2652. 

[6]        On 30 March, Mr Reid appealed.  On that day, the Registrar of this Court fixed security for costs at $4,740.  Mr Reid has never paid that sum or any part thereof. 

[7]        On 14 August, Miller J granted the Attorney-General’s application to be struck out as a party: Canterbury Regional Council v Attorney-General [2009] NZAR 611 (HC). The absence of a defendant/respondent did not mean that the Council’s proceeding under the Declaratory Judgments Act failed, for reasons Miller J explained. The Judge said that an amicus would be appointed to argue the opposing case, effectively as a contradictor.

[8]        On 24 August, the Council applied in this Court to strike out Mr Reid’s appeal on the basis that he had failed to pay security. 

[9]        On 4 September, the Registrar of this Court rejected Mr Reid’s application to dispense with security for costs.  The Registrar was slow in dealing with that application, but that, at least in part, resulted from confusion in the paperwork flowing from Mr Reid’s four extant appeals in this Court.  Mr Reid has never sought to review the Registrar’s decision. 

[10]       The next date of relevance in the chronology is 30 September.  That was the six month anniversary of the filing of the appeal.  By that date, Mr Reid should have applied for the allocation of a hearing date for the appeal and should have filed the case on appeal.  In fact, by that date, he had taken neither step.  Nor has he taken either step since.  The effect of that failure is that, by virtue of r 43(1) of the Court of Appeal (Civil) Rules 2005, his appeal “is to be treated as having been abandoned”. 

Where to from here?

[11]       If Mr Reid wishes to continue with his appeal, then the first thing he must do is apply for an extension of time for applying for the allocation of a hearing date and for filing the case on appeal.  He must file and serve any application to that effect on or before 5 January 2010.  See Court of Appeal (Civil) Rules, r 43(3).  The actual expiry of the nine month period occurs on 30 December 2009, but the court registry will be closed on that date and in the period up to 5 January 2010.  By analogy with r 1.18 of the High Court Rules, the period within which the application must be filed and served is extended to 5 January. 

[12]       Mr Reid would also be well advised to pay the security for costs forthwith.  He must also pay any outstanding filing fees. 

[13]       If Mr Reid does pursue this appeal and files an application for an extension of time under r 43, then that application will be heard in February 2010, at a date and time to be fixed by the Registrar.  In that event, the Council’s application to strike out will be heard at the same time. 

[14]       If Mr Reid decides not to pursue the appeal and does not make application under r 43, then the appeal’s current status of “having been abandoned” will be confirmed.  In that event, the Council’s application to strike out will never need to be heard.  The only outstanding matter will in that event be costs, which we shall deal with on the papers. 

Costs

[15]       We reserve costs with respect to the aborted hearing on 1 December.  It may be relevant to the assessment of costs as to when Mr Reid knew he was going to require hospitalisation on 1 December 2009.  In this regard, we require Mr Reid, on or before 29 January 2010, to file and serve a memorandum advising when he suspected he might have to go into hospital on 1 December or when he knew he would have to go into hospital that day. 

Solicitors:

Wynn Williams & Co, Christchurch, for Respondent