Dunstan v Riddell

[2022] NZCA 88

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA406/2021
 [2022] NZCA 88

BETWEEN	TANYA FELICITY DUNSTAN Applicant
AND	CHRISTINA RIDDELL Respondent

CA417/2021
BETWEEN	TANYA FELICITY DUNSTAN Applicant
AND	ATTORNEY-GENERAL First Respondent FAMILY COURT AT MANUKAU Second Respondent

Counsel:	Applicant in person
Judgment: (On the papers)	28 March 2022 at 10.30 am

JUDGMENT OF BROWN J

The application for review of the Deputy Registrar’s decision is declined.

____________________________________________________________________

REASONS

1. On 18 February 2022 Ms Dunstan sought to file interlocutory applications in both CA406/2021 and CA417/2021, in both instances seeking an extension of time “to have the Court of Appeal overturn the requirement for security deposit”, being the security for costs which she had been required to pay on each of those appeals.[1]

   [1]Court of Appeal (Civil) Rules 2005, r 35.

2. The Deputy Registrar declined to accept Ms Dunstan’s documents for filing for the reason they did not concern active appeals in this Court.  He explained:

   You have provided two documents in relation to CA406/2021 and CA417/2021, both relating to the issue of security for costs and how you believe that requirement to pay security should be dispensed with.

   The first issue is that both of these appeals have been abandoned pursuant to rule 43.  CA406/2021 was abandoned on 7/10/2021 and CA417/2021 was abandoned on 08/10/2021.  As such, no further steps can be made in these proceedings.  These two appeals are now at an end.

   The second issue is that the matter for security for costs has already been settled in this court for at least one of these.  A judgment was issued in CA406/2021 on 29/10/2021 upholding a decision of Jacey McGrath declining your application to dispense security for costs.  There are no further ways to challenge this decision in the Court of Appeal.  The only avenue left is to seek leave to appeal against that judgment to the Supreme Court.

   As for CA417/2021, a judgment issued on 12/08/2021 upheld the Registry’s decision not to accept a promissory note as payment for security for costs.  Again, there is no further recourse in the Court of Appeal against this decision, you will need to seek leave to appeal to the Supreme Court.

   Therefore, on the basis that you have no active proceedings in this court and, even if you did, there is no further recourse against the decisions you are unhappy with in this court, we are unable to accept your documents for filing.

3. The Deputy Registrar drew to Ms Dunstan’s attention her right to review his decision.  On 22 February 2022 she sent an email which the registry has construed as an application for review and which has been referred to me for determination.

4. Ms Dunstan’s appeals in CA406/2021 and CA417/2021 were filed on 6 July 2021 and 7 July 2021 respectively.  Because the three month period prescribed in r 43(1) of the Court of Appeal (Civil) Rules 2005 (the Rules) expired without Ms Dunstan either applying for a hearing date or filing a case on appeal, her appeals were treated as having been abandoned on 7 October 2021 and 8 October 2021 respectively.

5. Under r 43(3) the Court may extend the three month period in r 43(1) only if an application for extension is made within three months after the expiry of that period.  Rule 43(4) extends the three month period to take into account the Christmas vacation period from 25 December in one year to 15 January in the following year.  Allowing for that extension, the Court’s jurisdiction to extend the r 43(1) period in respect of Ms Dunstan’s appeals expired by no later than 31 January 2022.

6. It follows that the Court did not have jurisdiction to entertain the interlocutory applications filed by Ms Dunstan on 18 February 2022.  The Deputy Registrar was accordingly correct to decline to accept those applications for filing. 

7. If Ms Dunstan wishes to pursue appeals in this Court against the decisions which were the subject of the abandoned appeals in CA406/2021 and CA417/2021, it will be necessary for her to apply under r 29A of the Rules for leave to file new appeals out of time.

8. The application for review of the Deputy Registrar’s decision is declined.