NIELSEN V BODY CORPORATE NO 199348 AND ORS CA CA43/2009

NIELSEN V BODY CORPORATE NO 199348 AND ORS CA CA43/2009 25 March 2010IN THE COURT OF APPEAL OF NEW ZEALAND CA43/2009 [2010] NZCA 101BETWEEN GREGORY CAMPBELL OLIVER NIELSEN Appellant AND BODY CORPORATE NO 199348 First Respondent AND PROBIOTICS (NZ) LIMITED Second Respondent AND AUCKLAND CITY COUNCIL Third Respondent Hearing: 17 November 2009 24 March 2010 by telephone Court: Glazebrook, Chambers and Baragwanath JJ Counsel: E J Grove for Appellant C R Goode for Respondents Judgment: 25 March 2010 Reasons: 20 April 2010REASONS JUDGMENT OF THE COURTA The appellant's application for adjournment is declined. B This appeal is to be treated as having been abandoned. C Costs are reserved.____________________________________________________________________REASONS OF THE COURT(Given by Baragwanath J) [1] On 25 March 2010 we gave judgment that this appeal was to be treated as abandoned: Neilsen v Body Corporate 199348 [2010] NZCA 101. These are the reasons for that judgment. [2] Mr Neilsen's notice of appeal was originally filed on 22 January 2009. Since then, there have been a number of delays caused by Mr Neilsen's failure to pay security for costs as required by r 35 of the Court of Appeal (Civil) Rules 2005, or obtain legal aid which would exempt him from the requirement to pay security for costs (r 36). By r 43, the appeal is to be treated as abandoned if not pursued. [3] On 7 September 2009 the respondents applied to strike out the proceeding as an abuse of process because of the lengthy delays in paying security and arranging legal aid. [4] On 18 November 2009, the Court issued a minute to the Legal Services Agency (LSA) recounting that at the hearing on 17 November 2009 the Court was advised by counsel for Mr Nielsen that his application for legal aid was still pending. It continued:[5] We invite the Chief Executive of the Legal Services Agency to confirm that is the case and if so to advise: (1) when the application was made; (2) whether Mr Nielsen has been diligent in pursuing it; and if not, in what respects; (3) what further information is required before a determination by the Legal Services Agency will be made; (4) what else Mr Nielsen needs to provide and by what date; and (5) once it is provided, how quickly the Agency will be able to make a decision.[5] The LSA responded on 26 November 2009, stating that Mr Neilsen had not yet applied for legal aid in respect of the proceeding in this Court. It recorded thatMr Neilsen had applied for legal aid in respect of the High Court proceeding in early 2008 but that the LSA had not reached a decision, because of extensive delays by Mr Neilsen in providing information about his complex financial situation. [6] By memorandum of 5 February 2010 Mr Grove for Mr Neilsen advised that an application had been made to the LSA to vary the application in respect of the High Court proceeding to cover the Court of Appeal proceeding. [7] In a minute of 23 February the Court recorded the responses of the LSA and Mr Neilsen. It called for a telephone conference on 16 March, and for the filing of an affidavit showing that the LSA had granted legal aid or providing an explanation for the delays to date, without which the appeal would be struck out. [8] At the telephone conference Mr Grove advised that he had not seen the minute of 23 February. In a further minute, Baragwanath J recorded:[3] There will be a further hearing before the members of this Court on Wednesday 24 March 2010 at 9am unless there has been filed and served on behalf of Mr Nielsen on the respondents no later than 22 March 2010 an affidavit exhibiting either advice from Legal Services that legal aid has been granted or providing a satisfactory explanation of why the long delay should be countenanced, he may expect that the proceeding will be struck out.[9] By memorandum of 23 March Mr Grove advised that legal aid had been refused. He attached Mr Neilsen's affidavit which annexed correspondence from the LSA. The correspondence shows that the LSA did not have sufficient information about Mr Neilsen's financial position to grant legal aid, despite having made several requests for information over a two-year period. Mr Grove sought to ascertain whether respondent would be willing to accept a security interest in a property owned by Mr Neilsen in lieu of security for costs, and alternatively sought a two- week adjournment to attempt to raise finance against the property. [10] We heard counsel by telephone on 24 March and the following day delivered the result judgment. We declined the application for yet a further adjournment. Mr Neilsen has had well over a year to organise security and to pursue the appeal. There has been no satisfactory explanation for why the contingency of refusal of legal aid was not taken into account and why any alternative arrangements were notthen explored. It is essential that litigation be conducted efficiently. That theme is stated not only expressly in the High Court Rules but also by necessary implication in r 43 (of the Court of Appeal Rules) which states:Appeal abandoned if not pursued(1) An appeal is to be treated as having been abandoned if the appellant does not apply for the allocation of a hearing date and file the case on appeal within 6 months after the appeal is brought. ...Each is an expression of the principle stated in Chapter 29 of the Magna Carta of 1297, still in force in New Zealand: 1We will sell to no man, we will not deny or defer to any man either Justice or Right. (Emphasis added.)The delays in pursuing this appeal have been exorbitant. No satisfactory explanation for the delay having been advanced, the appeal is treated as abandoned under r 43. [11] We reserve costs. If counsel are unable to agree we should receive submissions from the respondents by 3 May 2010, and from Mr Neilsen by 17 May 2010.Solicitors: Farry & Co, Auckland for Appellant Heaney & Co, Auckland for Respondents1 Imperial Laws Application Act 1988, Schedule 1.