Terry v McLellan - [2013] NZHC 3045

IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY

CIV-2013-418-000106 [2013] NZHC 3045

BETWEEN ROBERT FRANK TERRY Appellant

ANDROSALIND MCLELLAN Respondent

Hearing: 14 November 2013

Appearances: Appellant Appears in Person
G Brodie for Respondent
MAJ Elliott for Solicitor-General

Judgment: 18 November 2013

JUDGMENT OF D GENDALL J

[1] Before the Court are two applications by the appellant, Robert Frank Terry (Mr Terry). The first filed in this Court on 23 September 2013 was headed “Notice of Appeal against Directions and Orders given by Judge Phil Moran in Chambers at the Greymouth District Court.”

[2] The second application filed by Mr Terry on 31 October 2013 is headed

“Application to Join Solicitor-General’s Office as Third Party.”

[3] Each application is opposed.

[4] I will now consider each application in turn.

Notice of leave to appeal

[5] The first application noted above states in the body of the appeal that:

TERRY v MCLELLAN [2013] NZHC 3045 [18 November 2013]

Robert Terry will file appeal proceedings in the High Court at Christchurch for leave to appeal against all the Orders and Directions given by Judge Phil Moran given in Chambers in the Greymouth District Court...

[6] It seems therefore that the application before the Court is essentially one for leave to appeal out of time. Although the Notice of Appeal document does not seem to comply with the High Court Rules, nevertheless I will proceed to consider the substance of the application here. It refers specifically to “leave to appeal against all the Orders and Directions given by Judge Phil Moran given in Chambers in the Greymouth District Court.”

[7] Although the “Orders and Directions given by Judge Phil Moran” are not identified, from the submissions advanced to me at the hearing of this matter, it appears that Mr Terry wishes to appeal against orders made by Judge Moran on 26
April 2013 and minutes of Judge Moran which followed dated 27 May 2013, 18 July

2013 and 26 July 2013.

[8] The starting point here is that Mr Terry’s endeavour to appeal these directions and orders of Judge Moran is out of time. Rule 20.4(2)(b) High Court Rules provides that an appeal must be brought within 20 working days after the decision appealed against is given.

[9] Rule 20.4(3) provides that by special leave the Court may extend the time prescribed for appealing if the enactment that confers the right of appeal:

(a) Permits the extension; or

(b) Does not limit the time prescribed for bringing the appeal. [10] Rule 20.4(4) provides that an application for an extension of time:
(a) Must be made by an interlocutory application on notice to every other party affected by the appeal; and

(b) May be made before or after the expiry of the time for appealing.

[11] It is clear that an appeal may only be brought out of time with the leave of the

Court. In granting leave the Court is required to consider:

(a) Whether there is any proper explanation for the delay;…

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 Terry v McLellan

Details

AGLC: Terry v McLellan [2013] NZHC 3045
Case: [2013] NZHC 3045
Decision Date: 18 November 2013

CaseChat Overview and Summary

Robert Frank Terry has appealed two decisions by the High Court of New Zealand. The first appeal is against the directions and orders of Judge Phil Moran in the Greymouth District Court. The second appeal is an application to join the Solicitor-General’s Office as a third party. Each appeal is opposed. The court considered the first appeal, which was essentially an appeal for leave out of time. The appeal period being 20 working days from the date of the original decision had long expired when Mr Terry filed his present application. The court found that there was no satisfactory explanation provided by Mr Terry as to the delay in bringing an appeal. The court also found that there was no merit in Mr Terry’s appeal. The court found that if leave was granted to Mr Terry to bring these appeals this would cause significant prejudice to the respondent, Rosalind McLellan. The court dismissed Mr Terry’s present application for leave to appeal the decisions of Judge Moran. The court awarded indemnity solicitor and client costs to the respondent, Rosalind McLellan. The court considered the second appeal, which was an application to join the Solicitor-General’s Office as a third party. The court found that the interests of the Solicitor-General were not in any way either directly or indirectly affected by matters in issue in those proceedings, and Mr Terry did not need to rely on the Solicitor-General to protect any rights he pursued there. The court found that the Solicitor-General had no role in correcting supposed errors of the Courts in matters in which he had no direct or indirect interests. The court dismissed Mr Terry’s application to join the Solicitor-General’s Office as a third party. The court awarded indemnity solicitor and client costs to the Solicitor-General.
The final orders of the court were that Mr Terry’s application for leave to appeal the decisions of Judge Moran was dismissed, and that Mr Terry was to pay indemnity solicitor and client costs to the respondent, Rosalind McLellan. The court also ordered that Mr Terry’s application to join the Solicitor-General’s Office as a third party was dismissed, and that Mr Terry was to pay indemnity solicitor and client costs to the Solicitor-General.

Orders