CLARKE v KIWIRAIL LIMITED [2020] NZCA 501

CLARKE v KIWIRAIL LIMITED [2020] NZCA 501 [16 October 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA491/2019[2020] NZCA 501BETWEEN NEIL MARTIN CLARKEAppellantAND KIWIRAIL LIMITEDRespondentHearing: 7 September 2020Court: Miller, Cooper and Clifford JJCounsel: Appellant in personA J W O Lomas for RespondentJudgment: 16 October 2020 at 10.30 amJUDGMENT OF THE COURTThe application for an extension of time is declined.____________________________________________________________________REASONS OF THE COURT(Given by Clifford J)[1] This application is brought by Mr Clarke to extend the time in which he mustfile his case on appeal and apply for a hearing date under r 43 of the Court of Appeal(Civil) Rules 2005.Background[2] Mr Clarke filed proceedings against KiwiRail and the Police in the High Courton 6 November 2015 in relation to charges of trespass he faced between1 January 2000 and 7 November 2009. Mr Clarke did not serve the respondents atthat time, and before us candidly explained that he "forgot all about the case" forseveral years. KiwiRail was eventually served on 11 June 2019.1 It promptly appliedfor strike-out on the basis the proceeding was time-barred, had not been prosecutedadequately by Mr Clarke and disclosed no tenable cause of action. Associate JudgeJohnston granted the application.2[3] Mr Clarke filed an appeal in this Court within time on 25 September 2019.On 16 January 2020, the final day for compliance with r 43, he filed an application foran extension of time to file a case on appeal and apply for a hearing date on the basishe was applying for legal aid and had struggled to obtain legal advice over theChristmas period. At that time, Mr Clarke was litigating security for costs on theappeal. The Deputy Registrar therefore emailed Mr Clarke explaining that heintended to treat the application filed as one to suspend r 43 pursuant to r 43(1B)(c)— a power that could be exercised by the Registrar without an interlocutoryapplication — and granted a suspension to 17 February 2020 accordingly.3[4] The new deadline passed without any action by Mr Clarke. The appeal wasaccordingly deemed abandoned on 18 February 2020, and the parties alerted to thisfact on 17 March 2020.[5] Subsequently, on 21 May 2020, Mr Clarke applied for an extension of time tocomply with r 43. That application was made three working days outside the relevantthree-month deadline.4 Notwithstanding, the Deputy Registrar accepted theapplication for filing by granting an extension under r 5A(1)(c)(ii).5Submissions[6] Mr Clarke appeared in person before us to explain that he intended to apply toLegal Aid Services, the Police and the Department for Courts (now the Ministry of1 It appears the Police have never been served.2 Clarke v Kiwirail Ltd [2019] NZHC 2127.3 The Deputy Registrar also noted that his decision was reviewable by a Judge on application.Neither party chose to do so.4 Court of Appeal (Civil) Rules 2005, r 43(3)(b).5 Rule 43(9) does not exclude operation of r 5A(1)(c) to extend the otherwise hard backstop ofr 43(3)(b).Justice) for information they hold relevant to his trespass charges. He also pressed hisprimary complaint regarding the judgment below, being that he was not prepared tofully argue the case when the strike-out was called due a miscommunication by a caseofficer in the High Court.[7] For KiwiRail, Mr Lomas opposed the application for an extension.He submitted the appeal was meritless and pointed to the protracted delay caused byMr Clarke's failure to prosecute both the appeal and the underlying High Courtproceeding. He also noted Mr Clarke remains in default of security for costs, whichpursuant to a judgment of Brown J dated 16 March 2020 was payable no later than15 April 2020.6Assessment[8] The principles outlined by the Supreme Court in Almond v Read are ofassistance in determining whether an extension of time should be granted under r 43.7We see several as relevant here.[9] First, the length of the present delay is reasonably significant. Mr Clarkesought an extension some three months after his appeal was deemed abandoned.[10] Second, no adequate reasons have been presented for the delay.Mr Clarke identifies a need to obtain documents from various agencies in order toprogress matters. However, he has had years in which to do so. Any need to obtaindocumentation cannot explain matters.[11] Third, the conduct of this litigation discloses immense and whollyunsatisfactory delays on the part of Mr Clarke, most notably the years in whichthe High Court proceeding was apparently forgotten. In this Court, Mr Clarke hascontinued to require extensions from the Registrar and has repeatedly filed documentswithout serving them on KiwiRail.6 Clarke v KiwiRail Ltd [2020] NZCA 59.7 Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [35]–[40], applied to r 43 in Yarrow vWestpac New Zealand Ltd [2018] NZCA 601 at [4] and Smyth-Daveron v Mountbatten (bornWindsor) [2019] NZCA 186 at [7].[12] Finally, we consider that granting Mr Clarke's application would achievenothing, as Mr Clarke is not in a position to satisfy r 43. Brown J ordered in ajudgment dated 16 March 2020 that security for costs of $7,060 be paid by15 April 2020.8 Mr Clarke did not challenge that judgment. Nor did he pay securityas ordered. He confirmed before us that he did not have the means to do so.Accordingly, he is prevented from applying for a hearing date by r 37(2) and thus evenif we granted a further extension there is no prospect of him satisfying therequirements of r 43. An extension will thus inevitably lead to a further abandonment.Result[13] The application for an extension of time is declined.[14] There is no order as to costs.Solicitors:Russell McVeagh, Wellington for Respondent8 Clarke v KiwiRail Ltd, above n 6.