Rewi v Attorney-General - [2010] NZCA 328

IN THE COURT OF APPEAL OF NEW ZEALAND
CA717/2009
[2010] NZCA 328
BETWEENBELLA REWI

Applicant

ANDATTORNEY-GENERAL

First Respondent
ANDMINISTER OF LAND INFORMATION

Second Respondent
ANDTSB BANK LIMITED

Third Respondent
ANDBARFOOT & THOMPSON LIMITED

Fourth Respondent

Hearing:20 July 2010

Court:Glazebrook, Randerson and Stevens JJ
Counsel:T Davis for Applicant

G Gardner for First and Second Respondents
R B H Hern for Third and Fourth Respondents

Judgment:27 July 2010 at 2.30 p.m.

JUDGMENT OF THE COURT

A There is no jurisdiction to entertain this appeal.
BIf there is jurisdiction, the application for an extension of time to appeal is dismissed.

C        There is no order for costs.
____________________________________________________________________
REASONS OF THE COURT
(Given by Randerson J)
Background
[1]        On 13 November 2009 the applicant filed an appeal against a decision of Associate Judge Robinson delivered in the High Court at Whangarei on 9 October 2009.[1] The effect of that decision was to strike out three sets of civil proceedings brought by the applicant against the respondents relating to three properties in Northland.
[1]Bella Rewi v Attorney-General HC Whangarei CIV-2009-488-332, CIV-2009-488-419,
CIV-2009-488-420, 9 October 2009.
[2]        The notice of appeal was out of time. It should have been filed by 6 November 2009. In consequence, the applicant applied for an extension of time for appealing.
[3]        When this matter was called before us, the applicant’s brother Mr T Davis appeared. He informed us that the applicant had passed away since filing the appeal. We are grateful to Mr Davis for his courtesy in appearing and providing us with a brief statement.
[4]        Counsel for the respondents opposed the application for an extension of time on two principal grounds:
(a)        there is no jurisdiction to entertain the appeal;
(b)if there is jurisdiction, the application to extend time should not be granted.

Jurisdiction
[5]        We are satisfied this Court has no jurisdiction to consider this appeal. In striking out the proceedings, the Associate Judge was exercising the powers of a Judge sitting in Chambers under s 26J of the Judicature Act 1908. The application to strike out the proceedings was interlocutory in nature. Any such application must be heard in Chambers unless a Judge otherwise directs.[2] There is no suggestion that the Judge directed this matter be heard other than in Chambers. The decision was made on the papers as the applicant did not appear.
[2]      High Court Rules, r 7.34.
[6]        By virtue of s 26P(2) of the Judicature Act 1908 there is no right of appeal from a decision made in Chambers.[3] If the applicant wished to challenge the decision of the Associate Judge her only recourse was to seek a review of the decision under s 26P(1). She did not do so.
Extension of time
[3]See New Zealand Defence Force v Berryman [2008] NZCA 392 at [4]; Vero Liability Insurance Ltd v Symphony Group & Ors [2008] NZCA 419 at [3].
[7]        Even if there were jurisdiction to entertain the appeal, we are satisfied there is no proper basis to extend the…

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.

Continue reading Rewi v Attorney-General

Details

AGLC: Rewi v Attorney-General [2010] NZCA 328
Case: [2010] NZCA 328
Decision Date: 27 July 2010

CaseChat Overview and Summary

In the case of Rewi v Attorney-General, Bella Rewi, the applicant, appealed against a decision by Associate Judge Robinson, delivered in the High Court at Whangarei on 9 October 2009, which had the effect of striking out three sets of civil proceedings she had initiated against four respondents concerning three properties in Northland. The appeal was filed out of time, and the applicant sought an extension of time to appeal. The case was heard by Glazebrook, Randerson, and Stevens JJ. The applicants' counsel, T Davis, informed the Court that the applicant had passed away since filing the appeal.

The primary legal issues in this case were whether the Court of Appeal had jurisdiction to hear the appeal, and if so, whether the application for an extension of time to appeal should be granted. The Court examined the nature of the decision made by the Associate Judge and the available legal avenues for the applicant to challenge that decision. The Court also considered whether there were any arguable grounds for appeal, given the brief delay in filing the appeal and the reasons for the Associate Judge's decision.

The Court found that it had no jurisdiction to entertain the appeal as the decision made by the Associate Judge was interlocutory in nature and made in Chambers, which is not subject to appeal under the Judicature Act 1908. Furthermore, even if there had been jurisdiction, the Court found that there were no arguable grounds for appeal. The Associate Judge had correctly determined the strike-out application in the applicant's absence, as there was no reasonably arguable cause of action. The Court concluded that there was no basis to grant the application for an extension of time to appeal.

There was no order for costs as the respondents did not seek any.

Orders