Steinbauer v Steinbauer

[2022] NZCA 297

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA252/2022
 [2022] NZCA 297

BETWEEN	MATTHEW VINCENT STEINBAUER Appellant
AND	KURT RITCHIE STEINBAUER Respondent

Counsel:	Appellant in Person A R Davie for Respondent
Judgment: (On the papers)	7 July 2022 at 10.00 am

JUDGMENT OF BROWN J
(Review of Deputy Registrar’s decision)

AThe application for review of the Deputy Registrar’s decision is declined.

BThe appellant must pay the respondent costs in respect of an interlocutory application on a band A basis and usual disbursements.

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REASONS

1. On 27 May 2022 the appellant filed a notice of appeal from a judgment of Associate Judge Johnston granting the respondent summary judgment.[1]  On 15 June 2022 the respondent filed a notice of appearance as required by r 33A of the Court of Appeal (Civil) Rules 2005 (the Rules).  The appellant took the position that the notice of appearance had been filed out of time.  Acting pursuant to r 5A(1)(c)(ii) of the Rules, the Deputy Registrar granted the respondent an extension of time of one day for the filing of the notice of appearance.  His email to the parties read:

   We are in receipt of the notice of appearance for the above matter filed by respondent counsel.  I note this should have been filed no later than 14 June 2022, however it was not received until 15 June 2022 making it one day out of time.

   However, pursuant to rule 5A(1)(c)(i) of the Court of Appeal (Civil) Rules 2005, I extend the time for respondent counsel to file a notice of appearance by one day to 15 June 2022.  This delay is minimal and causes no real prejudice to the appellant.

   Please note that there is a right to review my decision.  Any such application must be made in writing and a decision will be made by a Judge of this Court.

   [1]Steinbauer v Steinbauer [2022] NZHC 911.

2. On 27 June 2022 the appellant filed a request for a review of the Deputy Registrar’s decision, stating:

   I highly object this approval by the Court of Appeal to allow the Respondent 11 working days to complete the Court of Appeal rule as I was denied the request for an adjournment on the 3^rd May 2022 at the Wgtn High Court by the Respondent, hence the requirement to file a Court of Appeal in my defense since no consideration for an adjournment was made and going by the rejection of an adjournment, I would of not been granted and extra day under any Court ruling if the requirements were reversed (sic). 

3. In a memorandum of response filed on 1 July 2022, Mr Davie for the respondent first challenged the proposition that the notice of appearance was filed outside the 10 working day period specified in r 33A, drawing attention to the fact that he was served with the notice of appeal by the Court on 31 May.  When allowance was made for the fact that 6 June[2] was not a working day, Mr Davie submitted that the notice of appearance was filed in time on 15 June.

   [2]The Sovereign’s birthday: see the definition of “working day” in s 4(1) of the Senior Courts Act 2016.

4. In any event he submitted that there could be no prejudice to the appellant arising from the grant of an extension of time of only one day.

5. There is no affidavit of service of the notice of appeal on the respondent.  However in an email to the Court of 13 June 2022 the appellant stated that the notice of filing was sent to the respondent’s lawyer on 31 May 2022.  If the notice of appeal was not served until 31 May then Mr Davie is correct that the notice of appearance was filed within time on 15 June.

6. However if the converse is the case then in my view the Deputy Registrar’s decision to grant an extension of time of one day was entirely appropriate.  In Almond v Read, the Supreme Court settled the principles relating to the grant or denial of extensions of time to appeal.  It discussed a situation where a litigant misses a specified time limit by a day or so as a result of an error or miscalculation, especially by a legal adviser.  It stated that in reality there has simply been a minor slip-up in the exercise of a right and in such a case an application for an extension of time should ordinarily be dealt with on that basis.  The application should generally be granted, desirably without opposition.[3]  I consider that that approach should apply by analogy to an extension of time to file a notice of appearance under r 33A of the Rules.

   [3]Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [37].

7. Consequently (on the assumption it was in fact necessary) I consider the Deputy Registrar acted entirely appropriately in granting to the respondent an extension of time of one day for the filing of a notice of appearance.  Hence the application for review is dismissed.

8. The appellant must pay the respondent costs in respect of an interlocutory application on a band A basis and usual disbursements.

Solicitors:
Treadwells, Wellington for Respondent