Wislang v White Island Tours Limited
[2022] NZCA 126
•12 April 2022 at 10.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA351/2021 [2022] NZCA 126 |
| BETWEEN | MILES ROGER WISLANG |
| AND | WHITE ISLAND TOURS LIMITED |
| Court: | Cooper and Brown JJ |
Counsel: | Appellant in Person |
Judgment: | 12 April 2022 at 10.30 am |
JUDGMENT OF THE COURT
AThe application for an extension of time is dismissed.
BThe appellant must pay costs to the respondent for a standard interlocutory application on a band A basis and usual disbursements.
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REASONS OF THE COURT
(Given by Brown J)
Introduction
On 11 June 2021 the appellant, Dr Wislang, was adjudicated bankrupt on the application of the respondent (WIT).[1] He filed a notice of appeal in this Court on 15 June 2021. However he failed to file a case on appeal or apply for a hearing date within three months and consequently his appeal was treated as abandoned under r 43 of the Court of Appeal (Civil) Rules 2005.
[1]White Island Tours Ltd v Wislang [2021] NZHC 1386 [Bankruptcy judgment].
On 6 October 2021 he filed the application for an extension of time for compliance with r 43, the subject of this decision. WIT opposes the application.
Relevant background
Dr Wislang commenced judicial review proceedings against the Attorney‑General, WIT and WorkSafe New Zealand claiming that the White Island tragedy on 9 December 2019 would not have occurred had WIT been regulated in the manner Dr Wislang suggested. On 31 August 2020 part way through the hearing in the Wellington High Court he abandoned his claim against WIT but continued with his claims against the other respondents. His claims were dismissed in a judgment delivered on 1 October 2020.[2]
[2]Wislang v Attorney-General [2020] NZHC 2588 [Judicial review].
Following the dismissal of the proceeding orders for costs were made in favour of all three respondents.[3] WIT was awarded costs on a 2B basis with a 50 per cent uplift.
[3]Wislang v Attorney-General [2020] NZHC 3172 [Costs judgment].
On 22 December 2020 WIT made demand on Dr Wislang for payment of the costs order. In the absence of payment or a response WIT served a bankruptcy notice on Dr Wislang on 11 February 2021. Dr Wislang’s failure to comply with that notice constituted an act of bankruptcy.[4]
[4]Bankruptcy judgment, above n 1, at [8]–[10].
On 10 March 2021 the respondent served on Dr Wislang an application for an adjudication order.[5] On 22 April 2021 Dr Wislang filed in this Court an application for an extension of time to appeal against the costs order (CA225/2021). That application has not been determined.
Relevant principles
[5]At [12].
The principles applicable to applications for an extension of time under r 43 are the same as those explained by the Supreme Court in Almond v Read in relation to r 29A.[6] The ultimate question when considering the exercise of a discretion is what the interests of justice require. Factors identified as likely to require consideration include:[7]
(a)the length of the delay;
(b)the reasons for the delay;
(c)the conduct of the parties, particularly of the applicant;
(d)any prejudice or hardship to the respondent or to others with a legitimate interest in the outcome; and
(e)the significance of the issues raised by the proposed appeal, both to the parties and more generally.
[6]Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 see Yarrow Westpac New Zealand Ltd [2018] NZCA 601 at [4].
[7]Almond v Read, above n 6, at [38].
While the Court recognised that the merits of a proposed appeal may, in principle, be relevant to the exercise of the discretion to extend time, a decision to refuse an extension of time based substantially on that ground should be made only where the appeal is clearly hopeless. The lack of merit must be readily apparent.[8]
Discussion
[8]At [39(c)].
The period between the date when the appeal was treated as abandoned (16 September 2021) and the date of filing of the application for an extension (6 October 2021) was short. However WIT submits that the appeal is not genuinely arguable and is without merit and the application for an extension should consequently be declined.
Dr Wislang’s appeal against the adjudication order is based on two grounds.
1. [The Judge] [f]ailed to take sufficient account of the fact that before this Court there is an application for extension of time to appeal the costs order of Grice J in the judicial review proceedings CIV-2020-485-6 in respect of all three respondents, including [WIT], in those proceedings; and
2. [The Judge] [f]ailed to properly address and take account of my disputing both the base and the lifted costs orders made by Grice J in favour of [WIT] who I additionally claimed filed a suspect and inflated invoice in support of their memorandum as to the costs upon which their petition for having me adjudicated bankrupt was based.
So far as the first ground is concerned, WIT correctly says that the Associate Judge did recognise the fact of Dr Wislang’s application for an extension of time to appeal the costs order and that leave to appeal the stay decision had not been granted.[9] The hearing of the former application had been deferred consequent upon the adjudication of bankruptcy.
[9]Bankruptcy judgment, above n 1, at [34].
WIT further submitted that Dr Wislang’s complaints about the costs order in its favour could at best have resulted in a reduction of no more than $4,000, again citing from the High Court Bankruptcy judgment:
[35] … even if Dr Wislang was granted an extension of time to appeal the costs order and achieved some success, he accepts that WIT was entitled to an award of costs and all that is in issue is the quantum of the award. There would remain a significant sum owing to WIT which Dr Wislang has not and cannot pay immediately. That sum would be sufficient to found WIT’s creditor’s application.
[36] I note at this juncture, I have considered Dr Wislang’s latest memorandum to the Court of Appeal of 8 June 2021. I also discussed that memorandum with him at the hearing today. He considers fees charged by WIT’s lawyers in the substantive proceeding to be staggering. However, WIT was not awarded costs on an indemnity basis. Even on Dr Wislang’s own assessment, WIT’s 2B scale costs and disbursements of the substantive proceeding total $39,177. With a 50 per cent uplift the total is $58,655.50. There is really little difference between this last figure and the amount WIT was actually awarded of $62,240.50.
There does not appear to be any error in that analysis. In any event we consider that there would be no realistic prospect of the grant of an extension of time to appeal the costs judgment. The application was made on the grounds that it included an award of indemnity costs which was unjustly excessive and wrongly punitive. Dr Wislang also suggested that his judicial review proceeding was brought solely in the public interest and consequently he should not have been unfairly penalised in costs.
However as Grice J recorded, Dr Wislang did not argue that his claim was brought in the public interest, such that costs should be reduced, and the Judge held in any event that there was no public interest element involved.[10] Furthermore Dr Wislang’s assertion that indemnity costs were awarded is not correct. The WIT award was at scale with an uplift to reflect Dr Wislang’s failure to accept a Calderbank offer made at a point where Dr Wislang had already been warned by the Court that his claim as pleaded faced difficulties.[11] Dr Wislang waited until his oral argument before abandoning his claim, giving WIT no opportunity to avoid or mitigate the costs it was incurring.[12]
[10]Costs judgment, above n 3, at [20].
[11]At [46].
[12]At [47].
We are satisfied that Dr Wislang’s appeal brought on the grounds recorded at [10] above has no realistic prospect of success. We note that confronted with the cogent arguments in WIT’s detailed memorandum in opposition dated 26 October 2021, Dr Wislang took no steps in support of his application. He did not file submissions. Nor has he responded to communications from the Court.
Result
The application for an extension of time is dismissed.
The appellant must pay costs to the respondent for a standard interlocutory application on a band A basis and usual disbursements.
Solicitors:
Anthony Harper, Auckland for Respondent
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