Young v Ross

[2023] NZCA 411

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA196/2023
 [2023] NZCA 411

BETWEEN	PHILIP ROGER YOUNG First Applicant PROGRESSIVE ACCOUNTANTS LIMITED Second Applicant
AND	PHILIP NICHOLAS ROSS Respondent

Court:	Brown and Wylie JJ
Counsel:	First Applicant in person and on behalf of Second Applicant Respondent in person
Judgment: (On the papers)	1 September 2023 at 10.30 am

JUDGMENT OF THE COURT

AThe application for leave to bring a second appeal is declined.

BThe applicants must pay the respondent costs on a band A basis for a standard application for leave to appeal with usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brown J)

Introduction

1. On 17 February 2023 Churchman J dismissed appeals from two decisions of the District Court.[1]  The applicants’ application in the High Court under s 60(2) of the Senior Courts Act 2016 for leave to bring a second appeal to this Court was declined.[2]  The applicants now apply to this Court for leave to appeal from the High Court judgment.

Background

[1]Young v Ross [2023] NZHC 212 [Judgment under appeal].

[2]Young v Ross [2023] NZHC 750 [Leave judgment].

1. In a judgment dated 18 November 2021 Judge Kelly made an order striking out a claim by Mr Young alleging that Mr Ross had:

   (a)breached a settlement agreement contained in a notice of discontinuance in relation to earlier defamation proceedings;

   (b)misled the Hawke’s Bay Lawyers Standards Committee in relation to a complaint made by the first applicant; and

   (c)misled the Legal Complaints Review Officer on review.[3]

   [3]Ross v Young [2021] NZDC 22297.

2. Mr Young did not immediately appeal from that judgment.  Instead the second applicant, Progressive Accountants Ltd, of which Mr Young is the sole director, commenced a new proceeding raising similar issues to the previous claim.  In a judgment dated 19 July 2022 Judge Kelly struck out the second claim, observing that the commencement of the second claim was bordering on being vexatious or otherwise an abuse of process of the Court.[4]

   [4]Ross v Progressive Accountants Ltd [2022] NZDC 13340 at [48].

3. Appeals from both those decisions were heard by Churchman J in the High Court at Napier.  Both appeals were dismissed, the Judge observing that all the causes of action had no prospect of success and were properly struck out.[5]

   [5]Judgment under appeal, above n 1, at [72].

4. The application to the High Court for leave to appeal under s 60(2) advanced ten proposed grounds of appeal which were said to give rise to 16 questions of law for determination.  Churchman J addressed individually each of the ten proposed points on appeal and concluded that none raised a question of law or fact capable of bona fide and serious argument sufficiently important to outweigh the cost and delay of a further appeal.[6]

The application for leave to appeal

[6]Leave judgment, above n 2, at [29].

1. The application to this Court for leave to appeal is a detailed document which incorporates an appendix of 57 paragraphs which identify the same ten points on appeal advanced in the application in the High Court and 16 related questions which we infer are the same as those raised in the High Court.  The application and the appendix referred to five documents (which were subsequently filed) marked A, B, C, D and E.  It is apparent from the exhibit notes on those documents that they were in evidence in one or other of the two District Court proceedings.[7] 

   [7]All the documents were annexed to an affirmation of Mr Young dated 27 January 2022.  Document B was also an annexure to an affidavit of Mr Ross dated 20 June 2000.

2. The ten points on appeal are expressed as follows:

   (i)bankruptcy of the first [applicant];

   (ii)use of prohibited publicity in current proceedings;

   (iii)prospective nature of document A;

   (iv)conferring a benefit to a name, description or class;

   (v)did [the second applicant] need to exist to become a beneficiary;

   (vi)does [the second applicant] have beneficial standing as the second [applicant];

   (vii)is the respondent’s admission before the LCRO admissible;

   (viii)relevance of document D being a republication or not;

   (ix)respondent’s legal costs; and

   (x)are damages to the [applicants] claimable?

Relevant principles

1. The established principles relating to applications for leave to bring second appeals to this Court stated in Waller v Hider[8] continue to apply in respect of applications under s 60(2).  As this Court explained in Butch Pet Foods Ltd v Mac Motors Ltd:[9]

   [4]       The test for leave to bring a second appeal to this Court is well‑established.  The proposed appeal must raise some question of law or fact capable of bona fide and serious argument, in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of the further appeal.  On a second appeal this Court is not engaged in the general correction of error.  Its primary function is to clarify the law and to determine whether it has been properly construed and applied by the Court below.  It is not every alleged error of law that is of such importance, either generally or to the parties, as to justify further pursuit of litigation which has already been twice considered and ruled upon by a court.

Submissions

[8]Waller v Hider [1998] 1 NZLR 412 (CA) at 413.

[9]Butch Pet Foods Ltd v Mac Motors Ltd [2018] NZCA 276, (2018) 24 PRNZ 500 (footnotes omitted).

1. The applicants’ submissions explain that the purpose of their application is to determine whether the law was applied correctly in respect of the ten points on appeal, mainly to documents B, C, D and E.  The applicants state that the ten points on appeal arise because those four documents were never considered either by Judge Kelly or by Churchman J.  As a result the judges were unaware of important facts and misinterpreted the law.  The submissions proceed to address each of the ten points, in each instance with specific reference to one or more of the five documents.  The submissions conclude by addressing the threshold for a strike-out order and contend that Judge Kelly dismissed the second proceeding without examining any of the facts in documents B, C, D or E.

2. In submissions in response Mr Ross contends there are no obvious issues of broader public interest in the ten questions framed by the applicants, observing that they relate mainly to the specifics of the dispute between the parties rather than any broader question of law.  He submits that a matter of purely private interest, such as an argument over disputed facts, is unlikely to have any wider public interest.  His submission similarly proceeded to address individually the ten proposed points on appeal.

Analysis

1. The theme of the applicants’ submissions is that the courts below failed to engage with the substance of their claims and, as a consequence, have denied the applicants “their rightful day in Court”.  They state that they seek leave for a second appeal in order that they may have their day in court.  It is apparent that they have in contemplation a re-run in this Court of the full gamut of matters which they advanced in the courts below together with matters that they had wished to advance but consider they were precluded from doing so.  With reference to the latter point, we note that in their submissions they state that Churchman J stopped their submissions at paragraph [30], being the point at which they were about to explain the import of documents B, C, D and E. 

2. The applicants’ submissions do not reflect any comprehension of the important principle that on a second appeal this Court does not engage in the general correction of error.  Their submissions do not demonstrate that any of the proposed ten points on appeal satisfy the threshold requirement explained in Butch Pet Foods Ltd v Mac Motors Ltd.  We endorse the analysis by Churchman J of the proposed ten points on appeal.  We have reached the same conclusion as the Judge as to their unsuitability for consideration by this Court on a second appeal.

Result

1. The application for leave to bring a second appeal is declined.

1. The applicants must pay the respondent costs on a band A basis for a standard application for leave to appeal with usual disbursements.

Solicitors:
Cathedral Lane Law, Napier for Respondent