Terry v McLellan
[2013] NZHC 3045
•18 November 2013
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; (b) The merits of the appeal; and
(c) The overall justice of the case.
[12] In the present case, the appeal period being 20 working days from the date of the original decision under Rule 20.4(2) had long expired on each of the decisions appealed against when Mr Terry filed his present application on 23 September 2013.
[13] In considering an application for leave to appeal out of time, the Court is to consider the extent of the delay, the reasons for the delay, the prejudice to the respective parties and the strength of the appeal, having regard to the overall justice of the case.
[14] In this case, there is no explanation of any type and certainly no satisfactory explanation provided by Mr Terry as to the delay in bringing an appeal.
[15] In addition, as I see it, Mr Terry has placed nothing before the Court to suggest that there is any merit in his appeal. The 26 April 2013 decision of Judge Moran simply made orders to implement an earlier judgment given in the District Court on 29 January 2013 which was the substantive decision here. Everything that followed that 29 January 2013 judgment was simply to implement the substance of that decision.
[16] Nowhere in any material before the Court has Mr Terry indicated that his application for leave to appeal is against that 29 January 2013 decision.
[17] In any event, as I understand the background to this whole matter, Judge Moran had determined then that the property which was in question here was owned by Mr Terry and Ms McLellan as joint owners and under the wide discretion for disposal of this property provided under the Property Law Act 2007,
Judge Moran gave the parties an opportunity to make submissions upon a method of division of the property or its sale proceeds.
[18] In particular, in the order made in his 26 April 2013 decision and the minutes that followed which are in issue here, Judge Moran gave Mr Terry an opportunity to buy out Ms McLellan’s share in the property at a figure which is not in dispute. In doing so, he allowed some months for this to occur. Given that Mr Terry had no right to occupy the property in question, this first right of purchase seems to me to represent a generous approach under all the circumstances which, as I understand it, Mr Terry failed to take up. It necessarily followed therefore that the property then was able to be sold to Ms McLellan’s mother and Mr Terry’s one half share of the proceeds of sale was then held in trust and made available to him.
[19] There is in my view therefore no basis for suggesting that any of the decisions made by Judge Moran, which are the subject of this application for leave, are wrong. Indeed, it might even be said that, in giving these decisions, he took the option that was most favourable to Mr Terry throughout.
[20] For these reasons, I find therefore that, even if Mr Terry’s appeals against the
26 April 2013 orders and the minutes of 27 May 2013, 18 July 2013, and 26 July
2013 in the District Court are properly brought, there is no merit in those appeals.
[21] Turning now to consider the prejudice to the respective parties which might arise here, I am clearly of the view that if leave was granted to Mr Terry to bring these appeals this would cause significant prejudice to the respondent, Ms McLellan in this case. The property in question the subject of the appeals has been sold to Ms McLellan’s mother in terms of the specific orders made in this proceeding by Judge Moran. I am told that Ms McLellan has changed her position in reliance on these orders following the sale of the property. Indeed it is said she has expended her one half share of the sale proceeds in constructing a dwelling elsewhere. The title to the property has also passed to Ms McLellan’s mother. As noted above, Mr Terry’s one half share of the sale proceeds is still held in trust but is available to him to uplift at any time, but to date as I understand it, he has refused to do so.
[22] For all these reasons, I am satisfied that in the overall interests of justice Mr Terry’s application for leave to appeal what are really machinery decisions of Judge Moran here must be dismissed. An order to this effect is to follow.
[23] Finally for completeness, I need to note that, in his submissions before me on this application, Mr Terry endeavoured to raise issues concerning decisions of this and other Courts dating back to 1992, 1993, 1997 and a decision of Williams J in this Court dated August 2012. I reject these endeavours however. None of these matters have any relevance to the present application for leave to appeal the decisions of Judge Moran which is before me.
Conclusion on leave to appeal application
[24] For all the reasons outlined above, Mr Terry’s present application for leave to
appeal against the directions and orders of Judge Moran dated 26 April 2013,
27 May 2013, 18 July 2013 and 26 July 2013 is dismissed.
[25] As to costs on this application, before me Mr Brodie for the respondent, Ms McLellan, sought an order for indemnity costs on the basis that the application for leave to appeal was entirely hopeless and that Mr Terry’s approach here could only be seen as vexatious and an abuse of the Court. As to these aspects, Mr Brodie contended that the papers Mr Terry persists in filing here, and his confusing submissions, are simply a forlorn attempt to re-litigate matters heard and determined in several different court cases all concluded some time ago. Mr Brodie concluded that all this was extremely embarrassing and expensive for the respondent, Ms McClellan, who is Mr Terry’s niece. It is said there was no coherent or cogent reason for challenging any of the decisions of Judge Moran here, decisions which simply implemented earlier orders of the Court and which it was suggested were even, to an extent, favourable to Mr Terry.
[26] I agree. This application was hopeless from the outset and represents a clear situation in my view where in terms of the provisions in the High Court Rules, an order for indemnity solicitor and client costs is justified.
[27] An order is now made that Mr Terry is to pay indemnity solicitor and client costs on this application to the respondent, Rosalind McLellan, such costs and disbursements to be approved by the registrar of this Court.
Application to join Solicitor-General’s Office as a third party
[28] I turn now to the second application before the court filed by Mr Terry which he describes as an “Application to Join Solicitor-General’s Office as Third Party.” The grounds specified in this application are simply:
The Crown is expected to correct the errors made in these judgments before the Courts.
[29] As I have noted above, the application is opposed by the Solicitor-General in a Notice of Opposition dated 13 November 2013. In my view this application by Mr Terry is entirely misguided here and is quickly disposed of.
[30] The proceedings at issue are an attempted appeal brought by Mr Terry arising from litigation in the District Court against his niece, Ms Rosalind McLellan. The Solicitor-General was not a party to those proceedings which were simply a personal and private civil dispute between individuals.
[31] I find that the interests of the Solicitor-General are not in any way either directly or indirectly affected by matters in issue in those proceedings, and Mr Terry does not need to rely on the Solicitor-General to protect any rights he pursues there.
[32] Further, I am satisfied the Solicitor-General has no role in correcting supposed errors of the Courts in matters in which he has no direct or indirect interests. And, in any event here, given my decision on the application for leave above, there is no extant appeal from Mr Terry in this case.
[33] On all of this, the comments of the Supreme Court in Attorney-General v
Chapman1 are also in my view of some relevance here:
As far as we are aware, however, there is no case in which it has been successfully asserted that the Crown (or State) was vicariously liable for the
1 Attorney-General v Chapman [2012] NZSC 110 at [175].
actions of such Judges. Indeed, we think it clear that the Crown’s vicarious liability in tort does not extend to acts of persons discharging functions of a judicial nature – s 6(5) Crown Proceedings Act 1950.
Conclusion on joinder application
[34] The application by Mr Terry to join the Solicitor-General’s Office as a third party here is misguided and must fail. That application is dismissed.
[35] As to costs, the Solicitor-General also seeks costs against Mr Terry in opposing this application on an indemnity basis.
[36] In my view, my comments on costs awarded here to the respondent, Ms McLellan, as outlined at [25] – [27] above apply equally with respect to this joinder application.
[37] That application was inappropriately brought and was hopeless from the outset. The Solicitor-General was properly required to oppose the application and is clearly entitled to an award of indemnity costs here.
[38] Costs are therefore awarded to the Solicitor-General against Mr Terry with respect to the unsuccessful application for joinder on an indemnity solicitor and client basis together with disbursements in each case of amounts as are approved by the registrar of this Court.
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D Gendall J
Solicitors:
Geoffrey Brodie, Christchurch
Raymond Donnelley & Co, Christchurch
Copy to Appellant
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