NOTTINGHAM v ATTORNEY-GENERAL [2023] NZCA 122

NOTTINGHAM v ATTORNEY-GENERAL [2023] NZCA 122 [21 April 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA291/2022[2023] NZCA 122BETWEEN DERMOT GREGORY NOTTINGHAMFirst ApplicantROBERT EARLE McKINNEYSecond ApplicantAND ATTORNEY-GENERALRespondentCourt: Brown and Clifford JJCounsel: Applicants in personS M Kinsler and C E Sinclair for RespondentJudgment:(On the papers)21 April 2023 at 11.00 amJUDGMENT OF THE COURTA The application for an extension of the time to apply for the allocation ofa hearing date and file the case on appeal is declined.B The applicants must pay the respondent costs calculated for a standardinterlocutory application on a band A basis, and usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Clifford J)Introduction[1] This is an application by Messrs Nottingham and McKinney pursuant to r 43(2)of the Court of Appeal (Civil) Rules 2005 (the Rules) to be granted an extension of thetime within which, pursuant to r 43(1), they must apply for the allocation of a hearingdate and file their case on appeal.Background[2] Messrs Nottingham and McKinney are self-represented individuals who hadtheir substantive proceedings, brought to challenge the Government's response toCOVID-19, struck out.1 Their appeal to this Court related to the costs award madeagainst them (in favour of the Attorney-General) following the High Court's decisionto strike out those proceedings.2[3] Their notice of appeal was accepted for filing on 13 June 2022. Security forcosts were fixed at $7,060 under r 35 of the Rules. They applied for security to bedispensed with on 16 August. That application was dismissed by the Deputy Registraron 7 September. Rule 5A(3) provides for a judge to review such a decision pursuantto an informal application made within 20 working days of that date. The applicantsapplied for such a review on 21 September, within that 20-day period.[4] In the meantime, on 14 September the applicants' appeal was deemedabandoned pursuant to r 43 of the Rules as they had failed to apply for a fixture or filethe case on appeal within the three-month period stipulated by r 43. It is, we note,clear that the r 43 timeframe is not affected by the existence of an outstandingapplication to review a Registrar's decision declining dispensation with security forcosts, although that is not always appreciated by affected parties.3[5] Having been advised of the position, the applicants made this application foran extension of time to apply for the allocation of a hearing date and file the case onappeal pursuant to r 43(2) of the Rules.1 See Nottingham v Attorney-General [2022] NZHC 405.2 Nottingham v Attorney-General [2022] NZHC 1060.3 See for example McGuire v Secretary for Justice [2019] NZCA 512; and Nottingham v MalteseCat Ltd [2018] NZCA 387.[6] Were we to grant that application, with the effect of "reviving" the applicants'appeal that has been deemed abandoned, it would then be appropriate for a judge toconsider the question of security for costs.[7] Rule 43 provides, relevantly:43 Appeal abandoned if not pursued(1) An appeal is to be treated as having been abandoned if the appellantdoes not apply for the allocation of a hearing date and file the case onappeal within 3 months after the appeal is brought.(2) the Court, on an interlocutory application, may—(a) grant an extension of the period referred to in subclause (1);and(b) grant 1 or more further extensions of any extended period.Submissions[8] The applicants say:(a) the appeal was wrongly deemed abandoned since the application todispense with security costs had not been determined or had beendetermined within the last month (referring to r 43(1B)(c) of the Rules);(b) an application to review the Deputy Registrar's decision has been filedbut has been deferred until the abandonment issue is resolved;(c) the Court has jurisdiction to grant the extension under r 43(2) and (3);and(d) as soon as the applicants were emailed the notice of result, theyresponded, seeking clarification given that the security for costs matterhad not been resolved.[9] The Attorney-General opposes the application, saying:(a) the proposed appeal is not genuinely arguable;(b) there is inadequate explanation as to why the appeal has not beenprosecuted diligently;(c) the appeal was rightly deemed abandoned under r 43 of the Rules, andthe applicants could have applied for an extension under r 43(1B)(b)but failed to do so; and(d) Mr Nottingham, having extensive experience in appellate courts, isfamiliar with the applicable processes.Analysis[10] As this Court explained in Yarrow v Westpac New Zealand,4 the decision of theSupreme Court in Almond v Read,5 although concerned with r 29A of the Rules, notr 43, applies to any interlocutory application for an extension of time when there is aright of appeal.[11] The ultimate question when considering the exercise of the discretion to grantor decline an extension of time is what the interests of justice require. Factorsidentified as likely to require consideration include:6(a) the length of the delay;(b) the reasons for it;(c) the conduct of the parties, and particularly the applicant;(d) any prejudice or hardship to the respondent or to others with alegitimate interest in the outcome; and4 Yarrow v Westpac New Zealand Ltd [2018] NZCA 601 at [4].5 Almond v Read [2017] NZSC 80; [2017] 1 NZLR 801.6 At [38].(e) the significance of the issues raised by the proposed appeal, both to theparties and more generally.[12] The merits of an appeal may, in principle, be relevant but a decision to refusean extension of time based substantially on that ground should be made only wherethe appeal is clearly hopeless.7[13] As the Attorney-General has submitted, the applicants are well-familiar withthe applicable appellate processes. They were sent a reminder on 12 August that theyneeded to apply for the allocation of a hearing and file the case on appeal for theirappeal not to be deemed abandoned. Before this Court they have previously soughtto argue that a cross-appellant's appeal should be deemed abandoned on the basis thatthe cross-appellant did not file their case on appeal or apply for a fixture within threemonths of filing the cross-appeal.8 And Mr Nottingham has previously sought to arguethat his failure to apply for a fixture or prepare a case on appeal was justified on thebasis that his application that security for costs to be waived was pending, an argumentwhich this Court found wanting.9[14] Further, as noted, the Deputy Registrar's decision decline to dispense withsecurity for costs was released on 7 September. The applicants have not suggestedthat they had insufficient time between then and the r 43 deadline of 13 September toeither comply with r 43 or apply for an extension under s 43(1B). Nor, given thereminder to do so on 12 August, have they satisfactorily explained why they did notcomply with r 43 before the release of the Deputy Registrar's decision.[15] In any event, the interests of justice do not favour granting leniency to theapplicants. We agree with the respondent that there is no public interest and that theproposed appeal lacks merit. The grounds of appeal include wide-ranging,generalised, claims that the High Court was acting outside of its jurisdiction whenawarding costs, its orders breached international human rights norms, it was acting asa "'mouthpiece' for the incumbent Government" in a manner "akin to Jews being7 At [39].8 Nottingham v Real Estate Agents Authority [2021] NZCA 357.9 Nottingham v Maltese Cat Ltd, above n 3, at [5].denied the right to their lives because they did not know the specific dates and actsthat sentenced them to death " and were generally that the courts are "an intrinsicfault in the makeup of New Zealand as a 'failed state'".Result[16] The application for an extension of the time to apply for the allocation of ahearing date and file the case on appeal is declined.[17] The applicants must pay the respondent costs calculated for a standardinterlocutory application on a band A basis, and usual disbursements.Solicitors:Meredith Connell, Wellington for Respondent