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

B AND T BLIND SPECIALISTS ROTORUA LIMITED v PEPPER [2013] NZHC 3379 [16 December 2013]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYCIV-2011-463-580[2013] NZHC 3379BETWEEN B AND T BLIND SPECIALISTSROTORUA LIMITEDPlaintiffAND CYRIL ROSS PEPPERDefendantHearing: On the PapersAppearances: P Mills for PlaintiffDefendant in PersonJudgment: 16 December 2013JUDGMENT (NO. 4) OF TOOGOOD JThis judgment was delivered by me on 16 December 2013 at 4:30 pmPursuant to Rule 11.5 High Court RulesRegistrar/Deputy RegistrarIntroduction 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 plaintiffresponding 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 a1 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 havebeen 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 determinethat 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