DERMOT NOTTINGHAM v MALTESE CAT LIMITED [2018] NZCA 387

DERMOT NOTTINGHAM v MALTESE CAT LIMITED [2018] NZCA 387 [24 September 2017]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA571/2017CA572/2017[2018] NZCA 387BETWEEN DERMOT NOTTINGHAMAppellantAND MALTESE CAT LIMITEDFirst RespondentCLYDE ALEXANDER MACLEANSecond RespondentELILZABETH MAY CURRIEThird RespondentJOHN DOE AND/OR JANE DOEFourth RespondentHearing: 17 September 2018Court: Kós P, Miller and Williams JJCounsel: Appellant in personDJD van Hout for RespondentsJudgment: 24 September 2017 at 3.00 pmJUDGMENT OF THE COURTThe application for an extension of time to file the case on appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Miller J)[1] Mr Nottingham moves for an extension of time for dispensing with securityfor costs under r 35(6) and for seeking a hearing and filing the case on appeal underr 43 of the Court of Appeal (Civil) Rules 2005.[2] The proceeding is an action for defamation to which Mr Nottingham has beenjoined as a defendant. This appeal is brought against two interlocutory decisions ofFogarty J.1 The only relevant decision made in those decisions was a ruling that thestatement of claim is not time-barred.[3] The appeal was brought on 17 August 2017, though that was not confirmeduntil 4 October 2017 when Cooper J directed that it should be accepted for filing as at17 August. The appeal was then deemed abandoned on 20 November 2017 asMr Nottingham had neither sought a hearing date nor paid security, which had beenset at $6,600. He had however sought an application for dispensation from securityand an extension of time to pay it. For this reason a fresh application for extensionwas granted on 31 January, with Miller J writing that: "I extend time to seek a hearingand to seek waiver of security for costs. Both steps must be taken by 27 March 2018."[4] Mr Nottingham moved for dispensation from security before 27 March, butthat application had not been determined by that date. He did not seek a hearing dateor prepare a case on appeal. His appeal was accordingly deemed abandoned on28 March 2018. He brought the present r 43 application on 23 April 2018.[5] Mr Nottingham accounts for the delay by saying there was no point in applyingfor a hearing date because he would not progress the appeal unless security waswaived. This is not an adequate explanation. He was obliged to progress the case byfiling a case on appeal and seeking a hearing date in the time allowed. He had alreadyhad many months since filing his appeal. Further, this is an interlocutory appeal andthe case on appeal ought not be large or complex.[6] Before us Mr Nottingham argued that his appeal has merit. We accept that thelimitation point is arguable, but limitation is ordinarily a trial issue because it turns onthe facts, and the limitation defence remains available to him in an appeal after trial1 Maltese Cat Ltd v Doe [2017] NZHC 1634; and Maltese Cat Ltd v Doe [2017] NZHC 1728.on the merits. He argued in the alternative that the present appeal ought to be permittedto continue because the claim against him is an abuse of process. There is no findingbelow on that question, however, and we would not be prepared to decide it without afirst instance decision on the point.[7] Lastly, Mr Nottingham pleaded that the court also ought to extend anindulgence to him as a lay litigant and he asserted that health problems have affectedhis ability to prepare. We are not prepared to extend time on this ground. He appearsregularly enough in the courts to eliminate any claim to dispensation for limitedresources or unfamiliarity with process. There was an element of indulgence in thedecision of 31 January, and it was not open to him to decide unilaterally to fail tocomply with it.2[8] The application for an extension of time to file the case on appeal is declined.It follows that the appeal is deemed abandoned and it is not necessary to deal with theapplication under r 35.Solicitors:Jones Law, Auckland for Respondents2 Erwood v Official Assignee [2015] NZCA 620 at [9].