Simes v Tennant - [2005] NZCA 80

IN THE COURT OF APPEAL OF NEW ZEALAND
CA257/04
BETWEENDOUGLAS GILBERT SHAW SIMES

Appellant

ANDMARGARET TENNANT

Respondent

Hearing:14 March 2005

Court:McGrath, Hammond and O'Regan JJ
Counsel:C Y Simes for Appellant

H N McIntosh for Respondent

Judgment:28 April 2005

JUDGMENT OF THE COURT

A. The application to strike out or dismiss the appeal is dismissed.
B.The appellant is entitled to costs of $2,500 together with disbursements (including travel and accommodation costs of counsel, if any) to be agreed by counsel or, in the absence of agreement, to be fixed by the Registrar.

REASONS
(Given by O’Regan J)
Table of Contents

Para No

Introduction   [1]
High Court decision  [2]
Appeal  [4]
Relevant provisions  [6]
Submissions for Professor Tennant  [8]
           Rule 704(3)  [9]
           Section 66 of the Judicature Act  [13]
Submissions for Mr Simes  [20]
Discussion  [31]
Merits  [48]
Strike out  [49]
Costs  [50]
Postscript: Dating of Judgments  [51]
Introduction
[1]        This is an application by the respondent, Professor Tennant, for an order to strike out or dismiss the appeal filed by the appellant, Mr Simes, against a decision of Potter J in the High Court. In that decision, Potter J granted leave to Professor Tennant under r 704(3) of the High Court Rules extending the time prescribed for appealing against a costs judgment in the District Court. That costs judgment was to the effect that costs should lie where they fell. It followed the discontinuance of proceedings which had been brought in the District Court by Mr Simes against Professor Tennant and the University of Waikato claiming defamation and breach of confidence.
High Court decision
[2]        Potter J set out the circumstances in which the appeal to the High Court came to be filed out of time. She said it was clearly the result of a mistake or oversight by the solicitors for Professor Tennant, and there was no evidence that Professor Tennant herself was at fault. The mistake was partly attributable to the fact that the District Court decision was undated, so the date by which the right of appeal had to be exercised was not readily apparent. Potter J said that if Professor Tennant were denied the opportunity to pursue her appeal, she would be prejudiced by solicitor error and that, in such circumstances, Courts have been influenced towards exercising their discretion in favour of granting leave, especially in the absence of significant prejudice to the other party. She cited in support of that proposition State Insurance Limited v Brooker [2003] 15 PRNZ 493 and Grey v Elders Pastoral Holdings Limited (1999) 13 PRNZ 353.
[3]        In the present case, the Judge determined that, as Mr Simes had not demonstrated that he had suffered or would suffer any prejudice if leave to appeal out of time were granted, it was appropriate to grant leave. Accordingly, she did so.
Appeal
[4]        Mr Simes then appealed to this Court against the decision of Potter J. We are thus faced with the unusual situation of an appeal to this Court against a High…

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 Simes v Tennant

Details

AGLC: Simes v Tennant [2005] NZCA 80
Case: [2005] NZCA 80
Decision Date: 28 April 2005

CaseChat Overview and Summary

In Simes v Tennant, the Court of Appeal of New Zealand addressed an appeal against a High Court decision to grant leave for an appeal to be filed out of time. The High Court's decision was made under rule 704(3) of the High Court Rules, which allows the Court to extend the time prescribed for appealing if certain conditions are met. The respondent, Professor Tennant, sought to have the appeal dismissed or struck out on the grounds that there was no right of appeal against the High Court's decision to grant leave.

The court considered submissions from both parties, focusing on the relevant provisions of the High Court Rules and the Judicature Act 1908. The appellant, Mr. Simes, argued that there was a distinction between a grant or refusal of special leave to bring a further appeal and a grant or refusal of an extension of time for the giving of notice of an appeal. He also contended that section 66 of the Judicature Act did not exclude a decision of the kind sought to be appealed in the present case.

After careful consideration, the Court of Appeal concluded that there was a right of appeal against the High Court's decision to grant an extension of time for the bringing of an appeal. The court found that the decision was a "judgment, decree, or order" for the purposes of section 66 of the Judicature Act and that there was no provision in the Act or the relevant rules to the contrary. Therefore, the application to strike out or dismiss the appeal was dismissed. The court also awarded costs of $2,500 to Mr. Simes, together with disbursements to be agreed upon by counsel or, in the absence of agreement, to be fixed by the Registrar.

Orders