Young v Ross - [2023] NZHC 750

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2022-441-059

[2023] NZHC 750

BETWEEN
PHILIP ROGER YOUNG

Applicant

AND

PHILIP NICHOLAS ROSS

Respondent

CIV-2022-441-060

BETWEEN

PROGRESSIVE ACCOUNTANTS LIMITED

Applicant

AND

PHILIP NICHOLAS ROSS

Respondent

On the papers:

Counsel:

P R Young in person for Applicants

Judgment:

5 April 2023

JUDGMENT (NO. 4) OF CHURCHMAN J [LEAVE TO APPEAL]

Introduction

[1] On 17 February 2023, I issued a decision (the decision) dismissing the applicants’ appeals against two decisions of the District Court at Napier striking out the applicants’ respective claims.1

1 Young v Ross [2023] NZHC 212.

YOUNG v ROSS (NO. 4) [2023] NZHC 750 [5 April 2023]

[2] The applicants now seek leave to appeal my decision to the Court of Appeal. Mr Young, on behalf of both himself and second applicants,2 submits there are 10 grounds of appeal, said to give rise to 16 questions of law for determination by the Court of Appeal. The respondent opposes leave being granted. He says there is no merit in any of the issues the applicants wish to take on appeal.

[3] As this is an application for leave to bring a second appeal, the procedure set out in s 60 of the Senior Courts Act 2016 applies. This provides that the decision of the High Court on appeal from the District Court is final unless a party, on application to the High Court (or, if the High Court refuses leave, to the Court of Appeal) obtains leave to appeal the decision to the Court of Appeal.

[4] Leave for a second appeal is not lightly granted. Such leave requires the appeal to raise some question of law or fact capable of bona fide and serious argument involving some interest that is sufficiently important to outweigh the cost and delay of a further appeal.3 The Court of Appeal is not engaged in a second appeal in the general correction of error.4 Rather, the primary function of a second appeal is to clarify the law and determine whether it has been properly construed and applied by the Court below.5 It is not every alleged error of law that is of such importance as to justify further pursuit of litigation which has already been twice considered and ruled on by a Court.6 The test is restrictive. There must be sufficiently compelling reasons for a second appeal.7

Background

[5] As I noted in my decision, Mr Young and Mr Ross have had dealings going back more than 30 years.8 In February 1997, Mr Young brought defamation proceedings against Mr Ross in the High Court at Hamilton. These proceedings were

2      Gwyn J made directions granting the first applicant leave to represent the second applicant for the purposes of this application by minute dated 28 March 2023.
3      Waller v Hider [1998] 1 NZLR 412 (CA) at 413.
4      At 413.
5      At 413.
6      At 413.
7      See Parkins v Parkins [2022] NZHC 2257 at [5].

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] NZHC 750
Case: [2023] NZHC 750
Decision Date: 5 April 2023

CaseChat Overview and Summary

In Young v Ross, the applicants, Philip Roger Young and Progressive Accountants Limited, sought leave to appeal the High Court's decision dismissing their appeals against the District Court's orders striking out their claims. The applicants argued that the court's decision was based on errors of law, and they proposed 10 grounds of appeal, which they claimed raised 16 questions of law. The respondent, Philip Nicholas Ross, opposed the application, arguing that the applicants' grounds for appeal had no merit. The court examined each of the applicants' proposed grounds of appeal to determine whether any had merit and could justify a second appeal. The court found that none of the proposed grounds had merit and did not raise any question of law or fact capable of serious argument. The court held that the bankruptcy of the first applicant, the use of prohibited publicity in the current proceedings, the prospective nature of the agreement, the conferring of a benefit to a name, description, or class, the need for the second applicant to exist to become a beneficiary, the admissibility of the respondent's alleged admission before the Legal Complaints Review Officer, the relevance of Document D being a republication, the respondent's legal costs, and the claimability of damages did not give rise to any serious questions of law. Therefore, the application for leave to bring a second appeal was dismissed.

The court also determined that the matter should be characterized as 2B for the purposes of costs, and the respondent, as the successful party, was entitled to costs on a 2B basis. The court ordered the respondent to file a schedule for sealing.

Orders