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.

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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 filing submissions, but filed a brief memorandum indicating his clients’ position that the application ought to be dismissed for want of prosecution.

[7]        When the matter was called on 16 February 2010, there was no appearance for the appellant.  Just prior to the intended hearing a facsimile message from a barrister in Tauranga indicating that the barrister had attempted to find a lawyer to represent the appellant was received.  But neither that barrister nor the appellant participated in the hearing.  In those circumstances we dismiss the application for want of prosecution.

[8]        We reserve costs in relation to the application to adduce further evidence.

Solicitors:

O’Sullivan Clemens, Rotorua for Respondents