RUSSELL v AUCKLAND DISTRICT HEALTH BOARD [2020] NZCA 250

RUSSELL v AUCKLAND DISTRICT HEALTH BOARD [2020] NZCA 250 [24 June 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA486/2019[2020] NZCA 250BETWEEN BRIAN LESLIE RUSSELLAppellantAND AUCKLAND DISTRICT HEALTHBOARDRespondentCourt: Kós P and Goddard JCounsel: Appellant in personA J F Perkins QC for RespondentJudgment:(On the papers)24 June 2020 at 11.00 amJUDGMENT OF THE COURTA The appeal is struck out.B There is no order as to costs.____________________________________________________________________REASONS OF THE COURT(Given by Goddard J)[1] Mr Russell has age-related wet macular degeneration in his left eye.He believes his right eye suffers from the same condition. He has been receivingtreatment for his eye condition at Greenlane Hospital, which is operated by therespondent, the Auckland District Health Board (ADHB).[2] Mr Russell was dissatisfied with the treatment he was receiving, and fileda claim in the High Court against the ADHB seeking exemplary damages and otherrelief. The High Court granted summary judgment to the ADHB on the basis that therewas no prospect of Mr Russell's claim succeeding.1[3] On 23 September 2019 Mr Russell filed an appeal to this Court. He appliedunder r 35(6)(c) of the Court of Appeal (Civil) Rules 2005 (the Rules) for security forcosts to be dispensed with on the appeal. The Deputy Registrar declined thatapplication. Mr Russell applied for review of the Deputy Registrar's decision.The application for review was declined.2 The Court directed that payment of securitymust be made on or before Friday, 3 April 2020.[4] On 22 April 2020 the date for payment of security for costs was extended to7 May 2020, having regard to the COVID-19 pandemic. Mr Russell did not paysecurity for costs.[5] In January 2020 Mr Russell requested the allocation of a hearing date.But without payment of security for costs, the Registrar could not allocate a hearingdate.3[6] On 27 May 2020 the Court issued a minute notifying Mr Russell that the Courtintended to make an order under r 44A(1) of the Rules striking out the appeal.[7] Rule 44A provides, as relevant:44A Court's power to strike out or stay appeal(1) In addition to any express power in these rules to strike out an appeal,the Court may, on an interlocutory application or on its own initiative,make an order striking out or staying an appeal in whole or in part if—(a) the appellant is in continuing default in complying with anyof these rules or with any procedural direction or order madeby a Judge; or(b) the appellant has failed to prosecute the appeal with duediligence and dispatch; or1 Russell v Auckland District Health Board [2019] NZHC 2097.2 Russell v Auckland District Health Board [2020] NZCA 40.3 Court of Appeal (Civil) Rules 2005, r 37(2).(c) the appeal is frivolous, vexatious, or otherwise an abuse of theprocess of the Court.(2) The Court must—(a) give the appellant 10 working days' prior notice of itsintention to consider making an order under this rule; and(b) give ancillary directions as to the filing and service of anywritten submissions.(3) The Court may make an order under this rule on the papers or after anoral hearing, as the Court thinks fit.[8] The minute advised Mr Russell that any submissions opposing the making ofan order under r 44A should be filed by 11 June 2020. Mr Russell did not file anysubmissions in response to the Court's minute.[9] We are satisfied that the appeal should be struck out. Mr Russell had theopportunity to pay security for costs but did not do so. It would be unfair to the ADHBfor the appeal to remain on foot in circumstances where Mr Russell has failed to paysecurity for costs as directed, and has failed to diligently prosecute his appeal.[10] An order for costs is not appropriate, as this matter was raised of the Court'sown motion rather than by interlocutory application.