Scott v Scott - [2010] NZCA 21

IN THE COURT OF APPEAL OF NEW ZEALAND
CA711/2009
[2010] NZCA 21
BETWEENLEWTYN MICHAEL SCOTT

Appellant

ANDROSEMARY ANN SCOTT

First Respondent
ANDLEE MCNEILLY

Second Respondent
ANDALISON SCOTT

Third Resondent
ANDCARA ANN CLARE

Fourth Respondent

Hearing:16 February 2010

Court:O'Regan, Arnold and Baragwanath JJ
Counsel:No appearance

Judgment:23 February 2010 at 11.15 am

JUDGMENT OF THE COURT

AThe application for leave to adduce further evidence is dismissed for want of prosecution.

B            Costs are reserved.
____________________________________________________________________
REASONS OF THE COURT
(Given by O’Regan J)
[1]        The appellant’s application for leave to adduce evidence in support of his appeal against a decision of Stevens J[1] was listed for hearing in the Miscellaneous Motions list on 16 February 2010.
[1]      Scott v Scott HC Tauranga CRV 2004-470-094, 5 August 2009.
[2]        The present appeal continues protracted litigation instituted by the appellant, the history of which is set out in earlier decisions of this Court[2] and in the decision of the Supreme Court refusing leave to appeal against those judgments.[3]
[2]      Scott v Scott [2009] NZCA 255 and Scott v Scott [2009] NZCA 417.
[3]      Scott v Scott [2009] NZSC 111.
[3]        The solicitor and counsel representing the appellant were given leave to withdraw by Arnold J on 18 December 2009.
[4]        The appellant’s written submissions in support of the application to adduce further evidence were due on 19 January 2010, and those of the respondents were due by 9 February 2010. No submissions were received by that date. A telephone conference was convened before O’Regan J on 3 February 2010. The appellant did not take part in that conference, despite repeated efforts of the case officer to contact him. Following that telephone conference, O’Regan J issued a minute in which he made a direction that, unless the appellant’s submissions were filed and served by 9 February 2010, counsel for the respondent would be excused from filing any submissions and from appearing at the hearing on 16 February 2010, and that the Court would deal with the matter on that day, in light of the failure by the appellant to prosecute the application.
[5]        On 9 February 2010, the appellant filed a document seeking various orders, but did not file submissions as required. O’Regan J issued a further minute on 11 February 2010 in which he said that, as a result of the failure of the appellant to file submissions by 9 February 2010, the ‘unless’ order made in the 3 February minute had now come into effect. Thus counsel for the respondent was excused from filing any submissions and from appearing at the hearing on 16 February 2010.
[6]        O’Regan J stated in the minute that the only matter which would need to be determined at the hearing on 16 February 2010 was whether the appellant’s application should be dismissed for want of prosecution or adjourned. The appellant was invited to appear (either in person or by video link) to address the Court on that issue. Counsel for the respondent was excused from…

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 Scott v Scott

Details

AGLC: Scott v Scott [2010] NZCA 21
Case: [2010] NZCA 21
Decision Date: 23 February 2010

CaseChat Overview and Summary

In the New Zealand Court of Appeal case of Scott v Scott, Lewtyn Michael Scott, the appellant, sought leave to adduce further evidence in support of his appeal against a decision by Stevens J. The respondents were Rosemary Ann Scott, Lee McNeilly, Alison Scott, and Cara Ann Clare. The appellant had a history of protracted litigation with the respondents, which had been previously considered by the Court of Appeal and the Supreme Court. The Court of Appeal dismissed the appellant's application for leave to adduce further evidence for want of prosecution. The appellant had failed to file his written submissions by the specified deadline and did not participate in the hearing despite repeated attempts to contact him. The Court excused the respondents' counsel from filing submissions and appearing at the hearing due to the appellant's failure to prosecute the application. Consequently, the Court dismissed the application for want of prosecution and reserved costs in relation to the application to adduce further evidence.

Orders