SKELTON v BIRD [2016] NZCA 386

SKELTON v BIRD [2016] NZCA 386 [10 August 2016]IN THE COURT OF APPEAL OF NEW ZEALANDCA681/2015[2016] NZCA 386BETWEEN BEVIN HALL SKELTONApplicantAND CHARLES HENRY BIRDRespondentHearing: 1 August 2016Court: Kós J, Cooper and Winkelmann JJCounsel: Applicant in personRespondent in personJudgment: 10 August 2016 at 11.30amJUDGMENT OF THE COURTA The applications for leave to file additional evidence and for leave to file a second appeal are both declined.B There is no order for costs.____________________________________________________________________REASONS OF THE COURT(Given by Cooper J)[1] The applicant, Mr Skelton, seeks leave to appeal a judgment of the High Court delivered on 24 June 2015.1 In that judgment, Brewer J dismissed two appeals that Mr Skelton had brought against the decisions of District Court Judges. Consequently, in order to appeal the High Court decision, Mr Skelton needs leave under s 67 of the Judicature Act 1908.1 Skelton v Bird [2015] NZHC 1434.[2] In accordance with the requisite procedure, Mr Skelton sought leave from the High Court. However, in a judgment delivered on 2 November 2015, Brewer J declined leave, noting:2[4] My judgment decided Mr Skelton's appeals against decisions of twoJudges of the District Court. Mr Skelton wanted Judge Blackie to remove the proceeding with Mr Bird to the High Court. Judge Blackie refused. Mr Skelton then wanted Judge Harrison to stay or adjourn the trial of theproceeding in the District Court while he sought to have Judge Blackie'srefusal overturned. When Judge Harrison, on the morning of the trial, declined to stay or adjourn it, Mr Skelton walked out of the Court.[5] Mr Skelton told me today that a short time after leaving the Court he received a telephone call from the registrar inquiring on behalf of Judge Harrison as to whether Mr Skelton was going to return. Mr Skelton told the registrar that he would not return because he did not wish to acknowledge the authority of the District Court. Mr Skelton said to me in submissions that he felt there might have been some crucial issue estoppel that might hurt his related case in the High Court.[6] As far as I can make out, the issues that Mr Skelton would like to argue before the Court of Appeal are:(a) Whether I erred in ruling that any breaches of natural justice by Judge Blackie and Judge Harrison were of no consequence and that the procedures they adopted were justified; and(b) New evidence (of bank records) which Mr Skelton has lately obtained shows that his case against Mr Bird is materially stronger than it was before Judge Harrison, and this is a ground, on an interests of justice basis, for his appeal to be heard.[3] In summary, the High Court declined leave because Mr Skelton's case did not give rise to issues of significance justifying this Court's attention.[4] Mr Skelton, who was once Mr Bird's solicitor, has been engaged in litigationagainst him for many years. The dispute arises out of a loan that Mr Bird advanced to Mr Skelton in July 2002. Further advances were subsequently made and Mr Skelton made various payments in reduction of the amounts owing. A dispute arose as to the outstanding balance. Mr Bird commenced a proceeding in the District Court seeking to recover the money that he claimed Mr Skelton still owed him.2 Skelton v Bird [2015] NZHC 2697.[5] Mr Skelton's response was to commence a proceeding in which he sought torecover money he claimed he had overpaid on the loan. He applied for an order transferring both proceedings from the District Court to the High Court. That application was dismissed by Judge Blackie on 23 December 2014.3[6] The proceeding came on for hearing before Judge Harrison in the District Court on 3 March 2015. Mr Skelton applied for an adjournment through counsel but the adjournment was rejected. Counsel then sought and was granted leave to withdraw. Mr Skelton who had been present then left the Court and did not return. The hearing proceeded and in the result Judge Harrison entered judgment against Mr Skelton in the sum of $35,000 (together with interest at 10.5 per cent per annum) which he found was the balance of the loan then outstanding.[7] The appeal to the High Court was against both the decision refusing totransfer the claim to the High Court, and against Judge Harrison's judgment infavour of Mr Bird.[8] In addition to seeking leave to appeal from this Court Mr Skelton has sought leave to file documents that he claims are relevant as further evidence in this Court. In that respect, we note that Cooper J previously directed that if the parties wished to file anything further in relation to the application for leave Mr Skelton must do so by 16 March 2016 and Mr Bird by 31 March 2016.4 Mr Skelton's application for leave to adduce further evidence was not in fact filed until 25 July 2016.[9] The evidence that Mr Skelton now seeks to produce is BNZ bank statements and court documents relating to earlier stages of the proceeding. There is no proper explanation as to why the BNZ bank statements could not have been produced earlier. Mr Skelton simply says that the bank statements were not available until October last year. That does not explain why Mr Skelton waited until the last working day before the present hearing to produce the documents.3 Skelton v Bird DC Manukau CIV-2011-092-3862, 23 December 2014.4 Skelton v Bird [2016] NZCA 49 at [14].[10] We are not satisfied that the proposed additional evidence is either fresh or cogent, or that it could not with reasonable diligence have been produced at an earlier stage.[11] Mr Skelton has repeated in this Court what he evidently said to Brewer J, namely that when Judge Harrison declined the application for an adjournment, he deliberately left the Court, thinking that by doing so he would not then be bound by any issue estoppel arising from a judgment issued by the Court. This is to completely overlook the obligation parties have to present their full case at first instance, on which the efficient functioning of the civil litigation process relies.5If, as Mr Skelton now belatedly seeks to assert, he had a defence to the claim on the basis that Mr Bird did not advance the money that he sued to recover, the time for making that argument was at the substantive hearing. Having elected not to do so, Mr Skelton cannot be allowed now to make that assertion.[12] In order to justify a second appeal, the case must give rise to some question of law or fact capable of bona fide and serious argument in a case that involves some interest, public or private, of sufficient importance to outweigh the cost and delay of the further appeal.6 Mr Skelton's proposed appeal fails that test by a veryconsiderable margin.[13] The applications for leave to file additional evidence and for leave to file a second appeal are both dismissed. Because the parties appeared in person, we make no order for costs.5 Henderson v Henderson (1843) 3 Hare 100, 67 ER 313 (Ch).6 Waller v Hider [1998] 1 NZLR 412 (CA) at 413.