Turner v Davis
[2012] NZCA 576
•7 December 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA360/2012 [2012] NZCA 576 |
| BETWEEN RODERICK BRYAN TURNER |
| AND ALLISTER JOHN DAVIS |
| AND CLARK BOYCE |
| AND JAMES RAPLEY |
| Hearing: 27 November 2012 |
| Court: Randerson, Harrison and Stevens JJ |
| Counsel: Appellant in person |
| Judgment: 7 December 2012 at 3:00pm |
JUDGMENT OF THE COURT
AThe appeal is struck out on the application of the third respondent.
BThe appellant must pay one set of costs to the first and second respondents together and one set of costs to the third respondent as for a standard application to strike out together with usual disbursements.
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REASONS OF THE COURT
(Given by Randerson J)
Introduction
On 29 May 2012 the appellant Mr Turner filed an appeal against a decision of Whata J granting summary judgment in favour of the respondents.[1] In terms of r 35 of the Court of Appeal (Civil) Rules 2005, Mr Turner was required to pay security for costs by 27 June 2012. However the Registrar did not notify the parties of the amount of the security until 26 July 2012. On that date, security for costs was fixed at $11,760. The respondents are willing to accept for present purposes that the 20 working day period should run from the date the amount for security was notified. On that footing, Mr Turner was required to pay the security by 24 August 2012 but has not done so.
[1] Turner v Davis [2012] NZHC 841.
The third respondent, Mr Rapley, applies under r 37(1) of the Rules for an order striking out the appeal on the ground that security for costs has not been paid. Mr Turner had neither paid security for costs, nor applied under r 35(6) of the Rules for an order reducing the amount of security or dispensing with it. Mr Rapley further submits that the appeal has no merit and ought to be struck out as an abuse of process. The first and second respondents (Mr Davis and his law firm Clark Boyce) support Mr Rapley’s application.
On 20 November 2012 Mr Turner sought an adjournment of the application which was set down for hearing on 27 November 2012. The adjournment was declined by the Registrar on the ground that he had not paid the filing fee on the appeal and that, by virtue of r 7(3) of the Court of Appeal Fees Regulations 2001, he was not entitled to take any further step in the proceeding. Mr Turner’s prior application for a fee waiver had been declined and his application for a review of that decision dismissed by Wild J on 27 August 2012.
The application to strike out was due to be heard on 27 November 2012. Late in the afternoon immediately prior to the hearing date, Mr Turner requested the opportunity to appear at the hearing the following day by telephone. That request was declined by Harrison J. When the matter was called on 27 November, counsel for the respondents appeared by video link, having requested the opportunity to do so some weeks prior to the hearing. Mr Turner made no such request even though he had been informed of the opportunity to do so when he was notified of the fixture on 3 November 2012.
Mr Turner did not appear when the application was called on 27 November 2012. The Court decided that the application to strike out should be determined on the papers, having received written submissions from the appellant and from the respondents.
Background
In 2002 Mr Turner brought civil proceedings in the District Court in Christchurch against a Ms Sigglekow. Mr Davis acted for Ms Sigglekow in that proceeding. Evidence emerged during the course of the hearing that certain documents relevant to the proceeding had been altered. The District Court Judge found that the documents had been forged shortly before proceedings were commenced. He directed the Registrar to forward a transcript of the evidence and copies of the material exhibits to the police for investigation. In the meantime, Mr Davis had made a complaint to the police against Mr Turner and parties associated with him.
Thereafter, the police commenced criminal proceedings against Mr Turner who was convicted on two counts of fraudulently altering a document. Mr Rapley was Mr Turner’s counsel in the District Court and also represented him when he appealed unsuccessfully against his convictions.[2]
[2] R v Turner CA511/05, 11 August 2006.
Mr Turner then brought proceedings against the present respondents. Mr Turner alleged that Mr Davis and Clark Boyce had breached s 4(a) of the Lawyers and Conveyancers Act 2006 by failing to uphold the rule of law and to facilitate the administration of justice in New Zealand; and that they were liable for the torts of malicious process and abuse of process. Mr Turner alleged Mr Rapley had breached a duty of care owed to him which had resulted in a miscarriage of justice. In response, the respondents sought summary judgment against Mr Turner and/or an order striking out his statement of claim.
Whata J granted the summary judgment application brought by the respondents on 1 May 2012. His reasons in relation to Mr Davis and Clark Boyce are broadly summarised:
·Mr Davis was entirely justified in raising the allegation of fraudulent alteration of documents given the outcome of both the civil and criminal proceedings.
·Mr Davis’ conduct was consistent with his professional responsibilities to his client since the allegations of fraud provided a defence to Mr Turner’s claims against Ms Sigglekow in the civil proceedings.
·The claim based on malicious process could not succeed because Mr Davis had clearly acted with reasonable or probable cause.
·Similarly, Mr Davis’ actions could not constitute an abuse of process since he had clear evidence of the fraudulent alteration of documents and it was reasonable to infer that the alternations had been undertaken to enable Mr Turner to maintain his claim against Ms Sigglekow.
Mr Turner had alleged that Mr Rapley had failed to advance certain matters in relation to the criminal proceedings. Given that Mr Turner had admitted making the alterations, the Judge accepted Mr Rapley’s evidence that the defence of honest belief was the only one sensibly available to Mr Turner. The Judge found that, ultimately, that basic contention was rejected by a jury and by this Court.
The Judge concluded:[3]
[29] In summary, and without the need to make any comment on whether or not the alleged claims have a proper legal basis, I have little doubt that Mr Turner’s claims are bound to fail. They have no prospect of success. I would add further that notwithstanding his protestations to the contrary, Mr Turner’s claims are little more than a collateral challenge to both the civil and jury findings against him. While that may or may not be his intention, it is the logical effect of them. He must, to succeed, challenge the civil and jury findings of dishonesty. That is another reason to grant summary judgment in favour of the defendants.
[30] As a final comment, whatever loss Mr Turner has suffered, it was caused by the findings of the Judge in the civil hearing and then by a jury that Mr Turner had fraudulently altered documents. That has nothing at all to do with Mr Davis’ conduct. While he may have made the various allegations, and vigorously, Mr Turner had his day in Court and was unable to justify those alterations. He stands accountable for them, not Mr Davis. Therefore there is no prospect of an award of damages against Mr Davis.
Mr Turner’s grounds for opposing the application to strike out the appeal
[3] Turner v Davis, above n 1, at [29][30].
Mr Turner has informed the Court that his primary objection to the application to strike out the appeal is that Whata J’s decision was inherently flawed since he claimed to have raised a disputed argument relating to issues of material fact and law, in particular, whether there was a fraudulent alteration of the documents in issue. Mr Turner also advised that he was seeking legal representation and that a Wellington barrister, Mr Andrew Beck, had agreed to receive instructions on 20 November 2012. Legal aid forms had been prepared and an application for legal aid was pending.
Discussion
We are satisfied for the reasons given by Whata J that this appeal has no prospect of success. The relevant issues of fact have been comprehensively determined against Mr Turner in the prior civil and criminal proceedings.
Mr Turner is not able to rely on r 36 of the Court of Appeal (Civil) Rules which provide that an appellant whose application for legal aid has not been determined at the time the appeal is brought does not need to pay security while that application is pending. We are satisfied that no application for legal aid had been made at the time the appeal was filed. The fact we are told that it has been made subsequently does not assist Mr Turner.
An application to strike out under r 37(1) will be granted where the appellant has failed to pay security for costs within the allowed time[4] and the appeal has no realistic prospect of success.[5] Given that Mr Turner has not paid security for costs in terms of the rules nor sought a dispensation from that obligation, and in the absence of any realistic prospect of success, we grant the third respondent’s application to strike out the appeal.
[4] Corbett v Legal Complaints Review Officer [2011] NZCA 223 at [17].
[5] Riccarton Construction Ltd v Coljon Ltd [2010] NZCA 430 at [8].
The appellant must pay one set of costs to the first and second respondents together and one set of costs to the third respondent as for a standard application to strike out together with usual disbursements.
Solicitors:
McElroys, Auckland for First and Second Respondents
Michael E Parker, Queenstown for Third Respondent
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