Smith v Electrix Limited - [2021] NZCA 67

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA669/2020
[2021] NZCA 67

BETWEEN	JOHN GOODWIN SMITH Applicant
AND	ELECTRIX LIMITED First Respondent THE FLETCHER CONSTRUCTION COMPANY LIMITED Second Respondent

Court:	Courtney and Goddard JJ
Counsel:	Applicant in Person K M Quinn and AHH Choi for First Respondent M N Rathod for Second Respondent
Judgment: (On the papers)	15 March 2021 at 3.30 pm

JUDGMENT OF THE COURT

The application for extension of time to appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Courtney J)

Mr Smith was granted access to a court file for the purposes of writing a paper about the construction of the Justice and Emergency Precinct in Christchurch. He made a further application for a large number of documents referred to by witnesses in the case. In a decision dated 9 September 2020, Palmer J declined the request on the basis that the documents contained commercially sensitive information and did not warrant the time and cost of the parties in providing them.[1]
[1]Electrix Ltd v The Fletcher Construction Co Ltd [2020] NZHC 2348.
Mr Smith did not appeal the September decision but instead made a further request to access a much smaller subset of the same documents. This request would, on his view, not have been objectionable by reason of commercial sensitivity or cost. However, in a minute dated 5 October 2020 Palmer J declined the request for access on the basis that it was essentially the same request as he had determined previously.[2] There was a delay in releasing the Judge’s minute of 5 October 2020 with the result that Mr Smith did not receive it until 5 November 2020. By then the time to appeal had expired.
[2]Electrix Ltd v The Fletcher Construction Co Ltd HC Auckland CIV-2018-404-378, 5 October 2020 (Minute of Palmer J).
Mr Smith has applied for an extension of time to appeal the October 2020 decision.[3] The respondents oppose the application; they point to Mr Smith’s failure to appeal the 9 September 2020 decision and say that the request that was the subject of the 5 October 2020 minute was an abuse of process and the proposed appeal has no merit.
[3]Court of Appeal (Civil) Rules 2005, r 29A.
In considering an application for an extension of time to appeal under r 29A of the Court of Appeal (Civil) Rules 2005, the relevant factors include the length of and reasons for the delay, the conduct of the parties (especially the applicant), prejudice to other parties and the significance of any issue raised in the proposed appeal. Ultimately, however, the ultimate question is what the interests of justice require.[4]
[4]Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [38].
It is accepted that the delay in applying for the extension was not long and was not in any way Mr Smith’s fault. We also accept that his decision not to appeal the 9 September 2020 decision most…

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: [2021] NZCA 67
Decision Date: 15 March 2021 at 3.30 pm

CaseChat Overview and Summary

In the New Zealand Court of Appeal, John Goodwin Smith applied for an extension of time to appeal a decision that denied his request for access to certain documents. The respondents, Electrix Limited and The Fletcher Construction Company Limited, opposed the application. The case concerns Smith's requests for access to documents relating to the construction of the Justice and Emergency Precinct in Christchurch, which were denied by Palmer J on the grounds of commercial sensitivity and cost. Smith did not appeal the initial decision but made a subsequent request for a smaller subset of documents, which was also denied on the basis that it was essentially the same as the previous request. Smith's application for an extension of time to appeal the second decision was delayed due to a late release of Palmer J's minute, resulting in Smith missing the appeal deadline.

The legal issues before the Court of Appeal involved whether the application for an extension of time should be granted under r 29A of the Court of Appeal (Civil) Rules 2005. The court considered the reasons for the delay, the conduct of the parties, prejudice to the respondents, and the significance of the issues raised in the proposed appeal. The court held that the delay was not significant and was not due to Smith's fault. However, the court found that Palmer J's view that Smith's subsequent request was essentially the same as the previous request and thus an abuse of process was correct. The court concluded that the appeal would be hopeless, and the interests of justice required the application for an extension of time to be declined. Smith is, however, still entitled to apply for an extension of time to appeal the initial decision.

The Court of Appeal declined Smith's application for an extension of time to appeal the decision that denied his request for access to certain documents. The court found that the delay in applying for the extension was not significant and was not due to Smith's fault. However, the court held that Palmer J's view that Smith's subsequent request was essentially the same as the previous request and thus an abuse of process was correct. The court concluded that the appeal would be hopeless, and the interests of justice required the application for an extension of time to be declined. Smith is, however, still entitled to apply for an extension of time to appeal the initial decision.

Orders