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.

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REASONS OF THE COURT

(Given by Brown J)

Introduction

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].

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.
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].
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].
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].

The application to this Court for leave to appeal is a detailed document which incorporates an appendix of 57 paragraphs which…

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 Young v Ross

Details

AGLC: Young v Ross [2023] NZCA 411
Case: [2023] NZCA 411
Decision Date: 1 September 2023 at 10.30 am

CaseChat Overview and Summary

Philip Roger Young and Progressive Accountants Limited sought leave to bring a second appeal to the Court of Appeal from a judgment of the High Court, which dismissed their application for leave to bring a second appeal from the decisions of the District Court. The applicants argued that the High Court failed to consider certain documents and thus misapplied the law, which led to the dismissal of their claims. The Court of Appeal was asked to determine whether the applicants' proposed grounds for appeal met the criteria for leave to bring a second appeal, including whether they raised questions of law or fact capable of serious argument and whether the appeal involved an interest of sufficient importance.

The Court of Appeal considered the established principles for granting leave to bring a second appeal, which require that the appeal must involve an issue of law or fact that is of significant importance, either to the parties or to the public. The Court reviewed the applicants' proposed points of appeal, which included issues related to the interpretation of documents and the application of legal principles in the context of the District Court's decisions. The Court found that the applicants' arguments did not meet the threshold for a second appeal as they largely pertained to the re-litigation of facts and issues already considered and dismissed by the courts below. The Court concluded that the proposed appeal did not involve questions of law or fact of sufficient importance to justify further litigation.

The Court of Appeal declined the application for leave to bring a second appeal. The applicants were ordered to pay the respondent's costs on a band A basis for a standard application for leave to appeal, along with usual disbursements. The Court emphasized that on a second appeal, the focus is on clarifying the law and ensuring its proper application, rather than on correcting errors or re-litigating facts.

Orders