B and T Blind Specialists Rotorua Limited v Pepper

[2013] NZHC 3379

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CIV-2011-463-580 [2013] NZHC 3379

BETWEEN  B AND T BLIND SPECIALISTS ROTORUA LIMITED

Plaintiff

ANDCYRIL ROSS PEPPER Defendant

Hearing:                   On the Papers

Appearances:           P Mills for Plaintiff

Defendant in Person

Judgment:                16 December 2013

JUDGMENT (NO. 4) OF TOOGOOD J

This judgment was delivered by me on 16 December 2013 at 4:30 pm

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

B AND T BLIND SPECIALISTS ROTORUA LIMITED v PEPPER [2013] NZHC 3379 [16 December 2013]

Introduction and background

[1]      Following  my  quantum  and  costs  judgment  in  this  proceeding  dated

17 September 2013,1 the defendant, Mr Pepper, applied to this Court on 15 October

2013 for leave to appeal against that judgment to the Court of Appeal.  He intended also  to  appeal  against  the  interlocutory  judgments  issued  in  the  proceeding  on

18 December 20122 and 5 July 2013.3

[2]      In making his application to this Court, Mr Pepper (who is self-represented) purported to rely on r 20.3 of the High Court Rules.  Mr Pepper’s application was subsequently rejected by a Registry officer at the Court but he resubmitted it on

6 December 2013 with a supplementary memorandum in which he claimed to have been told by another Registry officer that what he had done was correct.  No doubt recognising that the time for appealing had well and truly expired, on 9 December

2013 Mr Pepper also filed in this Court an application for leave to appeal out of time.

[3]      On 29 October 2013, Ms Mills filed a memorandum on behalf of the plaintiff responding to Mr Pepper’s application for leave to appeal.  Ms Mills submitted that, if Mr Pepper had wished to appeal against this Court’s judgment, he should have filed a notice of appeal in the Court of Appeal; that he was then out of time to do so; and that he must seek leave of the Court of Appeal under r 29A and Part 2 of the Court of Appeal (Civil) Rules 2005.   Ms Mills submitted that the application of

15 October 2013 was a nullity; that it should be struck out; and that costs should be awarded to the plaintiff.

Decision

[4]      Rule 20.3 of the High Court Rules applies only to appeals to the High Court where an enactment provides that such an appeal may not be brought without leave. An application to the High Court for leave to appeal to the Court of Appeal may be

made under r 20.22 High Court Rules, but only when an enactment provides that a

1      B and T Blind Specialists Rotorua Ltd v Pepper [2013] NZHC 2431.

2      B and T Blind Specialists Rotorua Ltd v Pepper [2012] NZHC 3480.

3      B and T Blind Specialists Rotorua Ltd v Pepper [2013] NZHC 1713.

decision of the High Court may be appealed to the Court of Appeal with leave of the

Court.

[5]      Ms Mills is right, therefore, that the application initially filed by Mr Pepper on 15 October 2013 and re-filed on 6 December 2013, is a nullity in that this Court has no jurisdiction to deal with it. Accordingly, the application must be struck out.

[6]      Mr Pepper’s attempt to initiate an appeal against the judgments of this Court would  have  been  in  time,  at  least  in  terms  of  an  appeal  against  the  judgment delivered on 17 September 2013, if he had filed it in the Court of Appeal on or before 15 October 2013, as permitted by s 66 of the Judicature Act 1908 and r 29 of the Court of Appeal Rules.   Mr Pepper is not without a remedy, however, in that r 29A of  the  Court  of Appeal  Rules  provides  that,  although  the  appeal  period provided in r 29(1) has now expired, he may apply to the Court of Appeal for an extension of time in which to appeal.

Costs

[7]      Mr Pepper’s attempts to commence an appeal in this Court appears to have been based on a genuine misunderstanding of the applicable rules of court and it is possible that he may have been inadvertently misled by advice given by a Registry officer.  In the circumstances, although the plaintiff has been put to some expense, I consider it to be appropriate in the exercise of the Court’s discretion to determine that costs should lie where they fall.

Orders

[8]      Accordingly, I make the following orders:

(a)       I strike out the application for leave to appeal dated 6 December 2013 and the subsequent application for leave to appeal out of time dated

9 December 2013.

(b)I direct the Registrar to refund to Mr Pepper any filing fees paid in respect of his attempts to commence an appeal in this Court.

(c)       I dismiss the plaintiff’s application for costs.

.....................................................

Toogood J