JUST HOTEL LTD V JESUDHASS CA CA69/06

JUST HOTEL LTD V JESUDHASS CA CA69/06 17 October 2006IN THE COURT OF APPEAL OF NEW ZEALAND CA69/06BETWEEN JUST HOTEL LIMITED Applicant AND JAMES JESUDHASS Respondent Court: Chambers, Robertson and Arnold JJ Counsel: M A F Gilkison for Applicant B A Corkill for Respondent Judgment: 17 October 2006 at 3 pmJUDGMENT OF THE COURT Special leave to appeal out of time is granted. ____________________________________________________________________ REASONS OF THE COURT(Given by Chambers J) [1] On 13 April this year, Just Hotel Limited, the applicant, applied for leave to appeal against a decision of the Employment Court. James Jesudhass, the respondent, consented to leave being granted. In accordance with r 26 of the Court of Appeal (Civil) Rules 2005, this court dealt with the application for leave on the papers, and, on 11 May this year, granted leave. [2] Just Hotel, in accordance with r 29(1)(b)(ii), if it wished to pursue the appeal for which leave had been granted, was required to file a notice of appeal within20 working days after the date of the decision giving leave (namely, in this case, 11 May 2006). Just Hotel did not file a notice of appeal within that time. Subsequently, it purported to file a notice of appeal, but by then it was too late. Mr Corkill, for Mr Jesudhass, brought that to the attention of Mr Gilkison, Just Hotel's solicitor. [3] That has now led to Just Hotel bringing a fresh application for leave, purportedly pursuant to r 29(4). Mr Jesudhass consents to the fresh application. [4] The application is not in fact in correct form. Just Hotel has purported to make application for leave under r 29(4) "to continue the appeal filed on 11 July 2006". That is not what r 29(4) permits. What r 29(4) envisages is a fresh application for leave to appeal out of time in accordance with Part 2 of the Rules. [5] We are prepared to treat the application as if it were in correct form, given that Mr Jesudhass has consented to the appeal being allowed to proceed. We deal with this matter on the papers under r 26(4)(b)(ii) and (6). We grant special leave to appeal out of time. [6] So that there is no misunderstanding, we record that, in accordance with r 29(1)(b)(ii), it will be necessary for Just Hotel, if it wishes to continue with the appeal for which fresh leave has been given, to bring that fresh appeal within 20 working days after the date of this decision. That means that a fresh notice of appeal must be filed and served: see rr 30 and 31. The fresh notice of appeal should specify the question of law in respect of which leave was previously granted. We note that question needs some tidying up, as, taken literally, it does not make sense. The intent, however, is clear. Presumably Mr Gilkison and Mr Corkill will be able to agree on the clarification of the question. In the unlikely event they cannot, memorandums can be filed and this court will resolve the matter.Solicitors: Mackay & Gilkison, Wellington, for Applicant, Alan Cressey, Lower Hutt, for Respondent