Stockman v New Zealand Association of Counsellors Incorporated

[2014] NZCA 531

IN THE COURT OF APPEAL OF NEW ZEALAND

CA665/2013
[2014] NZCA 531

BETWEEN	PETER GERARD STOCKMAN Applicant
AND	NEW ZEALAND ASSOCIATION OF COUNSELLORS INCORPORATED Respondent

Court:

Wild, French and Miller JJ

Counsel:

Applicant in person
C Heaton for Respondent

Judgment:

(On the papers)

3 November 2014 at 3.00 pm

JUDGMENT OF THE COURT

AThe application for an extension of time under r 43(2)(a) of the Court of Appeal (Civil) Rules 2005 is dismissed.

B        There is no order as to costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

1. Mr Stockman has applied under r 43(2)(a) of the Court of Appeal (Civil) Rules 2005 for an extension of time to apply for a hearing date.

2. The respondent abides the decision of the Court.  Both parties have consented to the matter being dealt with on the papers.

3. Mr Stockman filed his notice of appeal on 30 September 2013.  Under r 43(1), he was required to apply for the allocation of a hearing date within three months of that date if the appeal was not to be deemed abandoned.  Rule 43(2) allows an appellant to seek an extension of time to apply for a hearing date, but the right to make an application for an extension of time is itself circumscribed by time limits.

4. Rule 43(3) states:[1]

   An application for the grant of an extension may be made before the expiry of the period to which the application relates or within 3 months after that expiry; but no extension may be granted on an application that is made later than 3 months after that expiry.

The effect of the italicised words is that the application for an extension must be made within six months of the date of filing the notice of appeal.  Mr Stockman did not file his application for an extension of time until 14 July 2014.  That was more than six months after his notice of appeal was filed.

[1]Emphasis added.

1. It follows that this Court has no jurisdiction to consider Mr Stockman’s application under r 43.

2. The Court drew the jurisdictional difficulty to Mr Stockman’s attention and indicated it would be willing to treat his existing application as an application under r 29A without the need for him to file a fresh application.[2]  Mr Stockman was also invited to make any further submissions addressing the r 29A criteria.

   [2]Stockman v New Zealand Assoc of Counsellors Inc CA665/2013, 22 September 2014 (Minute of French J).

3. In response Mr Stockman has filed memoranda emphatically stating that he does not wish the Court to treat his application as an application under r 29A.  He also questions the assertion that the Court has no jurisdiction under r 43.  Mr Stockman points to the fact that in an earlier judgment the Court granted him an extension of time in relation to payment of security for costs.[3]

   [3]Stockman v New Zealand Assoc of Counsellors Inc [2013] NZCA 647.

4. However, r 43(3) expressly states that “no extension may be granted” after the stipulated period.  Further, to reinforce that the Court does not have any residual discretion to relax the time limits under r 43, r 43(4) states that r 43 overrides rr 5(2) and 6.  Those are the rules that give the Court power to extend time limits and excuse non-compliance.

5. The upshot is that Mr Stockman’s application must be dismissed for want of jurisdiction.  The appeal is deemed abandoned by operation of r 43.

6. There will be no order as to costs.

Solicitors:
Morrison Kent, Wellington for Respondent