Roderick Bryan Turner v Allister John Davis - [2013] NZSC 30

IN THE SUPREME COURT OF NEW ZEALAND

SC 7/2013
[2013] NZSC 30

BETWEEN RODERICK BRYAN TURNER
Applicant

AND ALLISTER JOHN DAVIS
First Respondent

AND CLARK BOYCE
Second Respondent

AND JAMES RAPLEY
Third Respondent

Court: Chambers and Glazebrook JJ

Counsel: Applicant in person
A C Challis for First and Second Respondents
A J Nash for Third Respondent

Judgment: 12 April 2013

JUDGMENT OF THE COURT

A The application for leave to appeal is dismissed.

BThe applicant is to pay costs of $2,500 to the first and second respondents and $2,500 to the third respondent, in each case plus reasonable disbursements to be fixed if necessary by the Registrar.

REASONS

In 2002 Mr Turner and his wife brought civil proceedings in the District Court against a real estate agent, Ms Sigglekow. Mr Davis and his firm (Clark Boyce) acted for Ms Sigglekow in that proceeding. Shortly before the proceedings were to be heard, Mr Davis found out that certain relevant documents had been altered by Mr Turner. He alerted Mr Turner’s barrister and made the Court aware of the situation before the hearing.
In the District Court, Judge Somerville found in favour of Ms Sigglekow.[1] In the course of his judgment, he rejected Mr Turner’s explanation for making the alterations. He also directed the Registrar to forward a transcript of the evidence and copies of the material exhibits to the police.
[1]R & M Turner trading as Ronal Developments v Rolle Ltd DC Christchurch NP2108/01, 10 November 2003.
The police brought charges against Mr Turner who was convicted on two counts of fraudulently altering a document. Mr Rapley was Mr Turner’s counsel in those criminal proceedings and the subsequent appeal.[2] The jury by its verdict must have rejected Mr Turner’s claims that he had altered the documents with an honest belief that he was merely tidying up his records.
[2] R v Turner CA511/05, 11 August 2006.
Mr Turner then brought proceedings against Mr Davis and his firm and against Mr Rapley. With regard to the former, he alleged that Mr Davis had instigated false charges against him in order to defeat his civil claim. With regard to Mr Rapley, Mr Turner’s complaint is that Mr Rapley was negligent in performing his role in the criminal proceedings.
On 1 May 2012, Whata J granted summary judgment in favour of the respondents.[3] On 7 December 2012, Mr Turner’s appeal against Whata J’s judgment was struck out under r 37(1) of the Court of Appeal (Civil) Rules 2005 on the basis that Mr Turner had failed to pay security for costs on time and that the appeal had no reasonable prospect of success.[4]
[3] Turner v Davis [2012] NZHC 841.
[4] Turner v Davis [2012] NZCA 576 at [15].
Mr Turner seeks leave to appeal against the decision of the Court of Appeal.
Mr Turner does not challenge the principles upon which the Court of Appeal determined the r 37(1) applications. Rather, he seeks to relitigate whether he did fraudulently alter 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.

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Details

Case: [2013] NZSC 30
Decision Date: 12 April 2013

CaseChat Overview and Summary

Roderick Bryan Turner brought an application for leave to appeal to the Supreme Court of New Zealand against the Court of Appeal's dismissal of his appeal against a summary judgment entered in favour of Allister John Davis and Clark Boyce, and James Rapley. The appeal arose out of a civil proceeding in the District Court in which Turner was found to have fraudulently altered documents. Turner's appeal against the summary judgment was dismissed on the basis that he had failed to pay security for costs on time and that the appeal had no reasonable prospect of success. Turner seeks leave to appeal against the decision of the Court of Appeal on the basis that there is a disputed material fact which he wishes to argue before the Supreme Court as a question of mixed law and fact.

The legal issue before the Supreme Court was whether Turner's application for leave to appeal met the criteria for an appeal under section 13 of the Supreme Court Act 2003. Turner argued that his appeal was not a collateral attack on findings in earlier proceedings, but rather a question of mixed law and fact that met the criteria of section 13. However, the Supreme Court held that Turner's appeal was a collateral attack on findings in earlier proceedings and that it did not meet the criteria of section 13. Turner did not submit that the issue of whether he fraudulently altered the document was a question of general or public importance, and the Supreme Court was far from satisfied that a substantial miscarriage of justice will occur unless the appeal is heard.

The Supreme Court dismissed Turner's application for leave to appeal, and ordered that he pay costs of $2,500 to the first and second respondents, and $2,500 to the third respondent, in each case plus reasonable disbursements to be fixed if necessary by the Registrar. The Supreme Court held that Turner's appeal was a collateral attack on findings in earlier proceedings and that it did not meet the criteria of section 13 of the Supreme Court Act 2003. Turner's appeal was dismissed, and the summary judgment entered in favour of the respondents was upheld.

Orders