RKW v GET

[2014] NZHC 1747

NOTE: PURSUANT TO S 125 OF THE DOMESTIC VIOLENCE ACT 1995, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO

11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2014-470-52 [2014] NZHC 1747

IN THE MATTER	of the Domestic Violence Act 1995
BETWEEN	RKW Appellant
AND	GET Respondent

Hearing:	24 July 2014
Appearances:	Appellant in person No appearance by or on behalf of Respondent (not served)
Judgment:	25 July 2014

JUDGMENT OF BREWER J

This judgment was delivered by me on 25 July 2014 at 4:30 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Copies to:               Appellant

Respondent

RKW v GET [2014] NZHC 1747 [25 July 2014]

Introduction

[1]      The appellant seeks special leave to extend the time for him to appeal from a decision of Judge SJ Coyle dated 20 April 2011.   However, he has not served the respondent with notice of the appeal.1    Given the history of this matter, I told the appellant that I would strike out the application unless he could establish that it has merit. The appellant then put his argument to me in full.

Background

[2]      On 2 November 1999 following a defended hearing his Honour Judge Neal confirmed a protection order and an occupation order that had been previously made on an application without notice.

[3]      The  following  year  the  appellant  made  application  to  have  the  order discharged but the application was dismissed by Judge Neal on 4 July 2000.   A further application to discharge the orders was dismissed by Judge Sommerville on

20 November 2002.   The appellant filed a notice of appeal against that decision which was dismissed by Chambers J.

[4]      On 20 July 2010 the appellant filed a further application to discharge the orders made on 2 November 1999.  That application was considered and dismissed by Judge Coyle on 20 April 2011 in the judgment which the appellant now seeks to appeal.

[5]      It appears that the appellant took no steps in relation to that decision until filing the current application for leave to appeal out of time on 9 April 2014.

Applicable principles

[6]      There is a right of appeal to the High Court under s 91 of the Domestic

Violence Act 1995 (“the Act”) against a decision declining to discharge a protection order.  As no time for appeal is specified in the Act, the time for appealing is that

1      The appellant told me he could not do so because it would breach the protection order.  But, of course, he could have engaged a process server.

specified  in  High  Court  r 20.4(2)(b),  namely  within  20  working  days  after  the decision appealed from.

[7]      High Court r 20.4(3) provides for the making of applications for special leave to appeal out of time.  It provides:

(3)       By  special  leave,  the  court  may  extend  the  time  prescribed  for appealing if the enactment that confers the right of appeal—

(a)      permits the extension; or

(b)     does not limit the time prescribed for bringing the appeal.

Rule 20.4(3)(b) applies to this case.

[8]      An extension of time is an indulgence and a proper explanation is required as to the circumstances relating to the failure to appeal within time.  The factors to be taken into account in the exercise of the Court’s discretion include the following:

(a)       The length of the delay; (b)      The reason for it;

(c)       The parties’ conduct;

(d)      The extent of the prejudice caused by the delay; (e)     The prospective merits of the appeal; and

(f)       Whether the appeal raises any issue of public importance;2

[9]      The ultimate test is whether granting leave would meet the overall interests of justice.3   Special leave to appeal will not be granted in respect of an intended appeal

which has no merit.4

2      My Noodle Ltd v Queenstown-Lakes District Council (2009) 19 PRNZ 518 (CA).

3      Havanaco Ltd v Stewart (2005) 17 PRNZ 622 (CA) at [5].

4 At [11].

Decision

[10]     The period of delay in the present case is almost three years.   That is a significant period of time itself.   However that delay has to be considered in the particular  circumstances  of  appeals  against  decisions  under  the  Act  which  are required (by s 94) to be brought as soon as practicable.

[11]     The grounds on which the application is made are:

It is in the interests of justice that the applicant be heard.  The appellant has only recently become aware of the Principles and Rules of Equity.

[12]     Those grounds are supported in an affidavit of the appellant dated 4 April

2014 in which he states:

[He]  only  became  aware  of  the  rules  and  principles  of  equity  and  the existence of courts of equity in mid 2013.

[He] was not aware of the Star Chamber nature of Family Court proceedings. [He] has only recently become aware that the respondent had fraudulent

intentions.

The Family Court Judgment was based on false information.

The Family Court as a Court of Equity neglected to apply the principles and rules of equity.

The  respondent  gained  exclusive  possession  of  the  plaintiff’s  chattels

through a legal technicality.

The conditions of unconscionable bargain and unjust enrichment were well established.

The Judgment as it stands is a miscarriage of justice.

Strict adherence to statute law will cause this matter to remain a miscarriage of justice.

[13]     The appellant repeated these grounds in his oral submissions.   He told me also that the benefit to him if the order is put aside is that he would be able to apply for a firearms licence.  The appellant was a keen competition shooter and he has an idea for improving the link between trigger and discharge.

[14]   I do not consider that the appellant’s contentions provide a satisfactory explanation for the almost three year delay in applying for leave to appeal from the decision declining to discharge the protection order.  It is difficult to discern how the appellant’s contentions bear on the basis for the decision of Judge Coyle.  However in any event ignorance of the law is no excuse.

[15]     The appellant has not proceeded diligently with the application for leave.  He failed to provide a schedule 6 memorandum for the case management conference before Keane J on 13 May 2014.  He was not able to be contacted for the conference at  the  telephone  numbers  he  had  supplied.    Consequently  that  conference  was vacated.

[16]     Keane J directed that a further case management conference was to take place on 24 June 2014 at 9 am and that in order to pursue his appeal the appellant was required to file a schedule 6 memorandum for that conference.  The appellant failed to do so. A memorandum received by the Court on 16 May 2014 simply expanded in significant detail on the propositions in the affidavit dated 4 April 2014.

[17]     On 24 June 2014 Mr Williams was again not able to be contacted for the conference by telephone albeit that, because of the hearing of another matter, the calls to him were made later than 9 am.  Brown J then directed that the application for leave be heard on Monday 30 June 2014 at 10 am.  His Minute of 24 June 2014 refers.    That  hearing  could  not  proceed  either,  and  so  yesterday’s  hearing  was directed. As I said at the outset, it could not proceed because the respondent has still not been served.

[18]     I do not consider that there are any justifiable grounds for permitting the appeal to proceed.  It does not raise any issue of public importance.  Having read the file, and given the appellant full scope to address the issues, I consider the intended appeal has no merit.

Decision

[19]     The application for leave to appeal out of time is struck out.

Brewer J