Russell v Auckland District Health Board

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA486/2019
[2020] NZCA 250

BETWEEN	BRIAN LESLIE RUSSELL Appellant
AND	AUCKLAND DISTRICT HEALTH BOARD Respondent

Court:	Kós P and Goddard J
Counsel:	Appellant in person A J F Perkins QC for Respondent
Judgment: (On the papers)	24 June 2020 at 11.00 am

JUDGMENT OF THE COURT

AThe appeal is struck out.
BThere is no order as to costs.

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REASONS OF THE COURT

(Given by Goddard J)

Mr Russell has age-related wet macular degeneration in his left eye. He believes his right eye suffers from the same condition. He has been receiving treatment for his eye condition at Greenlane Hospital, which is operated by the respondent, the Auckland District Health Board (ADHB).
Mr Russell was dissatisfied with the treatment he was receiving, and filed a claim in the High Court against the ADHB seeking exemplary damages and other relief. The High Court granted summary judgment to the ADHB on the basis that there was no prospect of Mr Russell’s claim succeeding.[1]
[1]Russell v Auckland District Health Board [2019] NZHC 2097.
On 23 September 2019 Mr Russell filed an appeal to this Court. He applied under r 35(6)(c) of the Court of Appeal (Civil) Rules 2005 (the Rules) for security for costs to be dispensed with on the appeal. The Deputy Registrar declined that application. Mr Russell applied for review of the Deputy Registrar’s decision. The application for review was declined.[2] The Court directed that payment of security must be made on or before Friday, 3 April 2020.
[2]Russell v Auckland District Health Board [2020] NZCA 40.
On 22 April 2020 the date for payment of security for costs was extended to 7 May 2020, having regard to the COVID-19 pandemic. Mr Russell did not pay security for costs.
In January 2020 Mr Russell requested the allocation of a hearing date. But without payment of security for costs, the Registrar could not allocate a hearing date.[3]
[3]Court of Appeal (Civil) Rules 2005, r 37(2).
On 27 May 2020 the Court issued a minute notifying Mr Russell that the Court intended to make an order under r 44A(1) of the Rules striking out the appeal.
Rule 44A provides, as relevant:
44A Court’s power to strike out or stay appeal
(1)In addition to any express power in these rules to strike out an appeal, the Court may, on an interlocutory application or on its own initiative, make an order striking out or staying an appeal in whole or in part if—
(a)the appellant is in continuing default in complying with any of these rules or with any procedural direction or order made by a Judge; or
(b)the appellant has failed to prosecute the appeal with due diligence and dispatch; or
(c)the appeal is frivolous, vexatious, or otherwise an abuse of the process of the Court.
(2)The Court must—
(a)give the appellant 10 working days’ prior notice of its intention to consider making an order under this rule; and
(b)give ancillary directions as to the filing and service of any written submissions.
(3)The Court may make an order under this rule on the papers or after an oral hearing, as the Court thinks fit.
…
The minute advised Mr Russell that any submissions opposing the making of an order under r 44A should be filed by 11 June 2020. Mr Russell did not file any submissions in response to the Court’s minute.
We are satisfied that the appeal should be struck out. Mr Russell had the opportunity to pay security for costs but did not do so. It would be unfair to the ADHB for the appeal to remain on foot in circumstances where Mr Russell has failed to pay security for costs as directed, and has failed to diligently prosecute his appeal.
An order for costs is not appropriate, as this matter was raised of the Court’s own motion rather than by interlocutory application.

The Court of Appeal of New Zealand was asked to consider an appeal filed by Brian Leslie Russell against the Auckland District Health Board. Mr Russell, who has age-related wet macular degeneration in his left eye and believes his right eye suffers from the same condition, sought exemplary damages and other relief against the Board for the treatment he received at Greenlane Hospital. The High Court had previously granted summary judgment in favour of the Board, and Mr Russell appealed this decision to the Court of Appeal. The appeal hinged on whether the Court of Appeal should strike it out due to Mr Russell's failure to pay security for costs and diligently prosecute the appeal.

The central legal issues before the Court of Appeal were whether Mr Russell's appeal should be struck out under Rule 44A of the Court of Appeal (Civil) Rules 2005 and whether an order for costs should be made against Mr Russell. Specifically, the Court needed to determine if Mr Russell's failure to pay security for costs and diligently prosecute the appeal constituted a continuing default under Rule 44A(1)(a), whether his actions amounted to a failure to prosecute the appeal with due diligence and dispatch under Rule 44A(1)(b), and whether the appeal was frivolous, vexatious, or an abuse of the court process under Rule 44A(1)(c).

The Court of Appeal held that Mr Russell's appeal should be struck out under Rule 44A(1) of the Court of Appeal (Civil) Rules 2005. The Court noted that Mr Russell had the opportunity to pay security for costs but did not do so. Additionally, he failed to diligently prosecute his appeal, particularly in light of the COVID-19 pandemic, which led to an extension of the deadline for payment of security. The Court concluded that it would be unfair to the Auckland District Health Board to allow the appeal to proceed under these circumstances. The Court did not make an order for costs as the matter was raised of the Court's own motion rather than by interlocutory application.

The Court of Appeal struck out the appeal and made no order as to costs.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established