BARTON (DECEASED) v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS AND ORS [2023] NZCA 237

BARTON (DECEASED) v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS AND ORS[2023] NZCA 237 [15 June 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA230/2021[2023] NZCA 237BETWEEN DAVID SIMON BARTON (DECEASED)AppellantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONS ANDORSRespondentsCourt: French and Collins JJCounsel: Appellant self-representedS M Kinsler and E M Watt for RespondentsJudgment:(On the papers)15 June 2023 at 9.30 amJUDGMENT OF THE COURTA The appeal is struck out.B There is no order for costs.____________________________________________________________________REASONS OF THE COURT(Given by Collins J)Introduction[1] In July 2020, when the late Mr Barton was serving a sentence of imprisonment,he brought judicial review proceedings against, inter alia, the Chief Executive of theDepartment of Corrections, the Commissioner of Police and the New ZealandParole Board, seeking damages totalling approximately $16,720,000. Then, inSeptember 2020, Mr Barton was charged with two disciplinary offences. Mr Bartonsought various forms of injunctive relief relating to the misconduct proceedings.[2] In a judgment dated 12 February 2021, Venning J dismissed Mr Barton's mostrecent applications for interim relief and stayed the proceedings.1 The Judge directedthat the proceedings would be struck out on 31 May 2021 if Mr Barton failed, beforethat date, to file an amended statement of claim that was approved by a High CourtJudge.2[3] Mr Barton applied for recall of Venning J's judgment. That application wasdeclined on 31 March 2021. Mr Barton then applied for leave to appeal the recalljudgment and a stay of the 12 February 2021 judgment. Both applications weredeclined by Venning J, who also directed the Registrar not to accept any furthercommunications from Mr Barton on the file.[4] On 28 April 2021, Mr Barton filed an application in this Court for an extensionof time to appeal the 12 February judgment. He also applied to stay the striking outof the judicial review proceeding.[5] On 20 July 2021, this Court granted Mr Barton's application for an extensionof time to appeal but declined his stay application.3[6] Mr Barton passed away in May 2022. Thereafter, this Court issued a minuteon 23 May 2022 staying Mr Barton's appeal until 1 August 2022. The minute recordedthat Mr Barton's personal representatives were to advise the Court by 1 August 2022whether or not they wished to discontinue the appeal.[7] In a minute dated 17 April 2023, Goddard J recorded:(a) the Court had not received any communications from Mr Barton'spersonal representatives;1 Barton v Chief Executive of the Department of Corrections [2021] NZHC 152.2 At [47].3 Barton v Chief Executive of the Department of Corrections [2021] NZCA 328.(b) it was likely Mr Barton's family did not wish to continue the appeal;and(c) the Court would consider striking out the appeal pursuant to r 44A ofthe Court of Appeal (Civil) Rules 2005 (the Rules) on 15 May 2023 ifno communications opposing that course of action were received fromMr Barton's personal representatives by 5 May 2023.Rule 44A(1)[8] Under r 44A(1) of the Rules, the Court may, on its own initiative, make anorder striking out an appeal if:(a) the appellant is in continuing default in complying with any of theserules or with any procedural direction or order made by a Judge; or(b) the appellant has failed to prosecute the appeal with due diligence anddispatch; or(c) the appeal is frivolous, vexatious, or otherwise an abuse of the processof the Court.Analysis[9] It is in the interests of justice for the appeal to be struck out, on the basis thatMr Barton's personal representatives have failed to prosecute his appeal withdue diligence and dispatch.[10] Goddard J's minute of 23 May 2022 made very clear to Mr Barton's personalrepresentatives that it was necessary for them to advise the Court whether the appealwas to be progressed posthumously.[11] The nature of the applications for judicial review and relief, combined with theprotracted delays that have occurred in relation to this appeal, make it abundantly clearthat the Court should exercise its discretion to strike out the appeal.44 Jessica Gorman and others McGechan on Procedure (online ed, Thomson Reuters) at[CR44A.01]; and Lovie v Medical Assurance Society New Zealand Ltd [1992] 2 NZLR 244 (HC)at 253.Result[12] The appeal is struck out.[13] There is no order for costs.Solicitors:Meredith Connell, Wellington for Respondents