Smyth-Davoren v Parker - [2019] NZCA 139

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA523/2018
[2019] NZCA 139

BETWEEN	DWAYNE RUSSELL WARAKIHI MAAKA SMYTH-DAVOREN Applicant
AND	DAVID PARKER First Respondent JACINDA ARDERN Second Respondent ANDREW LITTLE Third Respondent

Court:	Brown and Gilbert JJ
Counsel:	Applicant in person V McCall for Respondents
Judgment: (On the papers)	6 May 2019 at 11.30 am

JUDGMENT OF THE COURT

The application for an extension of time to file the case on appeal and apply for the allocation of a hearing date is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brown J)

The applicant applies under r 43 of the Court of Appeal (Civil) Rules 2005 for an extension of time to apply for the allocation of a hearing date and to file the case on appeal.

Background

On 27 August 2018 the applicant filed a notice of appeal against an order that the applicant’s proceeding in the High Court against David Parker, Jacinda Ardern and Andrew Little be struck out. In her minute of 21 August 2018 Katz J observed that, while it was somewhat difficult to decipher the applicant’s intended causes of action in his proceeding, it was clear that the proceeding did not disclose a cause of action justiciable in the High Court.[1]
[1]Smyth-Davoren v Parker HC Hamilton CIV-2018-419-238, 21 August 2018 at [4].
Rather the proceeding relating to issues concerning the ownership of Māori land and associated entitlements. Pursuant to s 18 of Te Ture Whenua Maori Act 1993 issues relating to Māori land are justiciable in the Māori Land Court. Consequently the Judge ruled that the applicant should file his proposed proceeding in the Māori Land Court.
The applicant failed to file the case on appeal or apply for a hearing date within the three month period specified in r 43(1) of the Rules. Consequently his appeal was deemed abandoned on 28 November 2018. Hence the present application for an extension of time.

Discussion

The principles applicable to an application for an extension of time under r 43 are essentially the same as those explained by the Supreme Court in Almond v Read relating to applications under r 29A for leave to file appeals out of time.[2] The Court accepted that the merits of a proposed appeal may in principle be relevant to the exercise of the discretion to extend time but subject to three qualifications. With reference to the third qualification the Court said that a decision to refuse an extension of time based substantially on the lack of merit of a proposed appeal should be made only where the appeal is clearly hopeless.[3] One example was where the Court lacks jurisdiction.
[2]Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [35]–[40].
[3]At [39(c)].
While counsel for the respondents supported the High Court’s finding, the very detailed submissions filed by the applicant did not engage with the issue of jurisdiction.
In our view the Judge’s conclusion that the issues raised in the applicant’s…

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: [2019] NZCA 139
Decision Date: 6 May 2019 at 11.30 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand considered an application by Dwayne Russell Warakihi Maaka Smyth-Davoren for an extension of time to file a case on appeal against an order that his proceeding in the High Court against David Parker, Jacinda Ardern, and Andrew Little be struck out. The application was brought under rule 43 of the Court of Appeal (Civil) Rules 2005. The High Court had struck out Smyth-Davoren’s proceeding, finding that it did not disclose a cause of action justiciable in the High Court, and instead, the issues related to Māori land, which are justiciable in the Māori Land Court. The applicant failed to file the case on appeal or apply for a hearing date within the three-month period specified in rule 43(1), leading to his appeal being deemed abandoned.

The legal issues before the Court of Appeal were whether the Court should grant an extension of time for the applicant to file the case on appeal, and whether the appeal had merit. The Court noted that the principles for granting an extension of time under rule 43 are similar to those under rule 29A for leave to file appeals out of time. The Court highlighted that the merits of a proposed appeal might be relevant but subject to certain qualifications, including that a decision to refuse an extension of time based on the lack of merit should only be made where the appeal is clearly hopeless. The Court found that the High Court's conclusion that the issues were justiciable in the Māori Land Court was correct and that the applicant’s claim brought in the High Court was hopeless, as was the appeal to the Court of Appeal from the High Court’s order.

The Court of Appeal declined the application for an extension of time. The Court found that the appeal was clearly hopeless, as the issues were properly justiciable in the Māori Land Court, and the applicant’s claim in the High Court was therefore outside its jurisdiction. The Court held that the appeal had no merit and declined the application for an extension of time. The appeal was dismissed, and no further appeal could be filed without leave from the Court of Appeal.

Orders