POWER v WHITE [2022] NZCA 116

POWER v WHITE [2022] NZCA 116 [7 April 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA591/2021[2022] NZCA 116BETWEEN BRETT WILLIAM POWERAppellantAND KATHERINE MARIE WHITERespondentCourt: Clifford and Goddard JJCounsel: Appellant in personE S Butler for RespondentJudgment:(On the papers)7 April 2022 at 10.30 amJUDGMENT OF THE COURTA Extensions of time to file the application and notice of opposition aregranted.B The application for leave to appeal is declined.___________________________________________________________________REASONS OF THE COURT(Given by Clifford J)Introduction[1] Mr Power seeks leave to appeal an interlocutory decision of the High Court,having been declined leave from that Court. That interlocutory decision declinedMr Power's application for a transcript of a High Court hearing on 15 June 2021.11 We note both parties have required extensions of time: Mr Power to file the application for leave,having incorrectly filed it in the High Court, and Ms White to file her notice of opposition. In thecircumstances, and pursuant to r 5(2) of the Court of Appeal (Civil) Rules 2005, we grant therequired extensions.Background[2] Over the course of 2020 and 2021, Mr Power lodged six appeals from decisionsmade by the Family Court. Following a case management conference in February2021, the High Court directed Mr Power to pay $7,060 by way of security for costswithin 10 working days under r 20.13 of the High Court Rules 2016. The timelypayment of security by Mr Power became an issue, which risked his appeal beingdeemed abandoned pursuant to s 126(3) of the District Courts Act 2016.[3] In April 2021, the High Court gave Mr Power an extension to lodge therequired security by 20 May 2021. In granting that extension, and at two subsequentcase management conferences, Mr Power was warned of the consequences of notpaying the ordered security. Mr Power did not pay security, and accordingly Ms Whiteapplied for Mr Power's appeals to be dismissed.[4] Having recorded by way of minute that Mr Power's appeals had been deemedabandoned for his failure to pay security, at a hearing on 15 June 2021 Cooke J gaveMr Power the opportunity to respond to that issue. At that hearing, Mr Power argued,amongst other things, that hearing was null and void because of the lack of propernotice and that the High Court had not dealt with his appeals properly. Cooke J, havingbeen satisfied that none of the matters Mr Power had raised demonstrated his appealshad not been abandoned, ordered that Mr Power's appeals were to be treated as such.2[5] It is that hearing for which Mr Power applied for a transcript. On 1 July 2021,Cooke J declined that application. In doing so, he said:3[2] Were this application for a document on the Court file it would call tobe addressed under the Senior Courts (Access to Court Documents) Rules2017. But there is no transcript of that hearing in existence. I anticipate theremay be a digital recording of the proceedings, but in this Court transcripts areonly created if there is evidence given to the Court by witnesses. Interlocutoryhearings are not transcribed.[3] I see no reason to give any direction that a transcript be created. Ialso note that most of the hearing was taken up by Mr Power outlining hisposition, and that he interrupted counsel for Ms White near the2 Power v White HC New Plymouth CIV-2021-443-2, 15 June 2021 (Minute of Cooke J).3 Power v White HC New Plymouth CIV-2021-443-2, 1 July 2021 (Minute (No 2) of Cooke J)commencement of her submissions, and then left the courtroom.4 The onlymatter of substance that transpired after Mr Power elected to leave was theapplication by counsel for Ms White for costs, and as I said at the time I wasreluctant to make any decision on that in Mr Power's absence. For that reasonI reserved leave to Ms White to make an application for costs in the minute of15 June.[6] Mr Power was subsequently declined leave to appeal that decision by Cooke Jon 2 September 2021.5The application[7] Mr Power now seeks a grant of leave from this Court.6 In doing so, he submitsCooke J had failed to uphold his basic right to participate in proceedings in an appellatecourt; challenges the calculation of security for costs; relitigates his contention thatcourt documents have gone missing; and that the Judge breached his right to receive atranscript under the Senior Courts (Access to Court Documents) Rules.[8] We are satisfied this application falls well short of the high threshold to be metfor a grant of leave under s 56(3) of the Senior Courts Act 2016.7 Mr Power'sapplication raises no arguable error of law or fact. He has no right to a transcript.8We also refer to the Supreme Court's observation in Siemer v Heron:9There are obvious resource implications if judges direct court registries toprovide parties with transcripts of hearings of appeals and interlocutorymatters generally on demand by litigants. For that reason, judges shouldalways first satisfy themselves that there is good reason in the interests ofjustice for giving such directions.[9] Here, Cooke J was not satisfied there was a good reason in the interests ofjustice to direct a transcript be created. We agree. There is no reason to provide atranscript of the submissions Mr Power made at the hearing on 15 June 2021, or of thesubmissions made by counsel for Ms White while he was present. The abandonment4 The Judge noted, in his decision of 15 June 2021, that when leaving the courtroom, Mr Power"advised that he would be coming to Wellington to see the Minister of Justice, and suggested thatthis would also involve the scrutiny of [counsel for Ms White] and the Court. He indicated thatnow the matter was in the hands of the Police we would see where things would get to".5 Power v White [2021] NZHC 2291.6 Senior Courts Act 2016, s 56(5).7 Greendrake v District Court of New Zealand [2020] NZCA 122 at [6].8 Wiki v Police [2018] NZHC 2378 at [5]–[11].9 Siemer v Heron [2011] NZSC 116, [2012] 1 NZLR 293 at [9].of the appeal was the result of Mr Power's failure to pay the $7,060 in security forcosts he was ordered to pay in February 2021 and for which he was given an extension,and repeatedly warned of the consequences. That abandonment was not the result ofanything that happened at the hearing. And as the Judge explained, nothing ofsubstance happened after Mr Power chose to leave the hearing early, as the Judgedeclined to decide the question of costs in Mr Power's absence. In these circumstancesit is not reasonably arguable that a transcript should have been provided. The grant ofleave to appeal on that issue is not in the interests of justice.[10] In those circumstances the application for leave to appeal is declined.Solicitors:Connect Legal Taranaki, New Plymouth for Respondent