CREQUER v THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT [2015] NZCA 582

CREQUER v THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT [2015] NZCA 582 [1 December 2015]IN THE COURT OF APPEAL OF NEW ZEALANDCA414/2015[2015] NZCA 582BETWEEN DAVID OWEN CREQUERAppellantAND THE CHIEF EXECUTIVE OF THEMINISTRY OF SOCIALDEVELOPMENTRespondentCourt: Randerson, French and Kós JJCounsel: Appellant in personN Bailey for RespondentJudgment:(On the papers)1 December 2015 at 10.00 amJUDGMENT OF THE COURTA The application for review is granted.B Mr Crequer's application for extension of time under r 43(2), filedelectronically, is to be accepted.____________________________________________________________________REASONS OF THE COURT(Given by Kós J)[1] Rule 43(2) of the Court of Appeal (Civil) Rules 2005 (the Rules) provides that application for extension of time to apply for a fixture (and file the case on appeal) may be made to the Court.[2] The principal question before us is whether a r 43 application may be accepted for filing electronically. Recast, and given that r 43 makes no express provision for filing, the question is whether:(a) rule 10; or(b) rules 5(4) and 16govern filing of this application. If the former, electronic filing is permissible. If the latter, it will not be.Background[3] Shorn of inessentials, Mr Crequer has appealed a decision of Gendall J relating to the contents of a case stated appeal from the Social Security Appeal Authority.1 A fee waiver application failed (including review by a Judge of this Court2 and an application for leave to the Supreme Court).3[4] Mr Crequer's appeal had been accepted pending determination of his feewaiver application. In terms of r 43(1), if Mr Crequer wished to avoid having his appeal treated as abandoned, he was required to apply for a fixture and file his case on appeal by 28 October 2015. He failed to do so. But on 4 October 2015 hepurported to file, by email, an application for six months' extension of time underr 43(2). A Deputy Registrar rejected this filing, citing the previous decision of this Court in King v ASB Bank Ltd.4 She said a hard copy had to be filed.[5] Mr Crequer sought review. Given there was ample time, one wonders why Mr Crequer did not just file a hard copy. In any event, he did not and the matter was set down as a miscellaneous motion. By consent it may be dealt with on the papers.1 Crequer v Chief Executive of the Ministry of Social Development [2015] NZHC 1603, [2015] NZAR 1395.2 Crequer v Chief Executive of the Ministry of Social Development [2015] NZCA 365.3 Crequer v Chief Executive of the Ministry of Social Development [2015] NZSC 176.4 King v ASB Bank Ltd [2014] NZCA 467.Prior authority: King v ASB Bank Ltd[6] In King v ASB Bank Ltd a Judge of this Court concluded that rr 5(4) and 16 governed, and that a r 43 application had to be filed in hard copy. The essential reasoning was:[9] The correct approach is that the Civil Rules prescribe no process for the filing of r 43(2) applications. Rule 5(4) governs such situations:(4) If any matter arises in a proceeding for which no form of procedure is prescribed by these rules, the Court must dispose of the matter as nearly as practicable in accordance with the provisions of these rules affecting any similar matter, or, if there are no such provisions, in the manner that the Court thinks best calculated to promote the ends of justice.[10] The filing of an application to extend time under r 43 is similar to an application for leave to appeal. In the case of both applications the applicant must apply to the Court to progress an appeal and the Court has a discretion whether or not to grant the application. On that approach, the requirements under r 10 for the filing of a document, which can be accepted by email, are not applicable. Rule 16 states applications for leave to appeal are brought only when delivered by hand or sent by post. The position is therefore thesame for applications under r 43(2). (Footnote omitted).[7] The applicant there was self-represented and there was no appearance from the respondent. The function of r 10 was not focused upon. Electronic filing has become more prevalent since that decision was delivered.Analysis[8] We have now considered the matter afresh. Rule 5(4) applies where no form of procedure is prescribed by the Rules. But r 10 is important here:10 Filing and service of documents(1) A document may be filed in the Registry—(a) by delivering it to the Registry by hand; or(b) by sending it to the Registry—(i) by mail to a postal address published by the Registrar; or(ii) by fax to a fax number published by the Registrar; or(iii) by email to an email address published by the Registrar.(5) If a document is, in accordance with this rule, filed or served by sending it to a fax number or to an email address, the document is filed or served at the time it is received by the relevant fax or email system.(6) However, if the document is received by the relevant fax or email system on a day that is not a working day or at a time that is not between 9 am and 5 pm, the document is filed or served at 9 am on the first working day after that receipt.(7) Despite subclauses (1) and (2),—(a) an application for leave to appeal or a notice of appeal must be filed in accordance with rules 16(1)(a), 31(1)(a), or32(1)(a); and(b) a bundle of authorities must be filed in accordance with rule 24(4) or rule 42(4); and(c) a bundle of authorities must be served in accordance withrule 24(5) or rule 42(5).[9] Rule 10 appears in Part 1, entitled "Preliminary and general matters". Thedefault position under r 10 is that a document may be filed electronically unless one of the exceptions specified in r 10(7) applies. The Rules envisage a variety of different types of application as we discuss below but the only application expressly excluded from r 10 is an application for leave to appeal under r 16.[10] Applications expressly provided for in the Rules are for:(a) review of a decision of the Registrar: r 7(2);(b) amendment of a slip or omission: r 8(2);(c) leave to appeal: r 14 (expressly provided that these must be filed in hard copy only: rr 10(7)(a) and 16(1)(a));(d) a stay of execution of judgment or grant of interim relief: r 12(3);(e) extension of time to appeal: r 29A;(f) amendment of grounds of appeal where out of time: r 34(2);(g) variation of security for costs: r 35(7) (expressly provided that these may be informal);(h) striking out (for non-payment of security for costs): r 37;(i) allocation of a hearing date: r 38;(j) extension of time post-filing of an appeal: r 43; and(k) adducing of further evidence: r 45.[11] The only applications for which any specific form of filing procedure is provided are those for leave to appeal (r 10(7), 14 and 16) and variation of security for costs (r 35(7)).[12] If the approach in King were applied, all other applications would need to be considered under r 5(4). The result would be that some might be found comparable to leave to appeal applications and require hard copy filing. Others would not. In each instance the Court would need to determine the most comparable or just manner of filing.[13] In our view, however, r 10 is the "form of procedure prescribed by these rules". Rule 5(4) is not engaged. It follows that all interlocutory applications in this Court noted in [10] may be filed electronically, other than applications for leave to appeal.55 Indeed, the application considered in this judgment made under r 7(2), to review the DeputyRegistrar's decision refusing to accept the r 43(2) application for filing, was itself filedelectronically on 19 October 2015 and accepted.Result[14] The application for review is granted.[15] Mr Crequer's application for extension of time under r 43(2), filedelectronically, is to be accepted.[16] We note that Mr Crequer must pay the filing fee on the appeal in accordance with the earlier decision of this Court referred to at [3], without further delay.Solicitors:Crown Law Office, Wellington for Respondent