PRESCOTT v DISTRICT COURT AT NORTH SHORE [2019] NZCA 14
The application for an extension of time was declined and the appeal deemed abandoned because the proposed appeal was plainly hopeless given binding Supreme Court authority reaffirming the primary rule limiting costs for litigants in person; short delay and lack of prejudice did not overcome hopelessness or...
Source-derived case information.
- Citation
- [2019] NZCA 14
- Parties
- Applicant: Peter Richard Prescott; First Respondent: District Court at North Shore; Second Respondent: Malcolm Denmead
- Court
- Court of Appeal
- Jurisdiction
- New Zealand
- Judgment Date
- 20 February 2019
- Procedural Posture
- Civil Appeal (judicial Review) / Application for Extension of Time Under R 43 of the Court of Appeal (civil) Rules 2005; Appeal Deemed Abandoned
- Outcome
- Application for extension of time declined; appeal deemed abandoned
- Legal Topics
- Judicial Review, Extension of Time, Costs for Litigants in Person, Abandonment of Appeal
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Richard Prescott
Applicant
District Court at North Shore
First Respondent
Malcolm Denmead
Second Respondent
Procedural Posture
Civil Appeal (judicial Review) / Application for Extension of Time Under R 43 of the Court of Appeal (civil) Rules 2005; Appeal Deemed Abandoned
Legal Issues
- 1 Whether to grant an extension of time under r 43 to file the case on appeal and apply for a hearing date
- 2 Whether an unrepresented litigant is entitled to an award of costs beyond disbursements
- 3 Whether the proposed appeal has any real prospect of success given binding Supreme Court authority
Ratio Decidendi
The application for an extension of time was declined and the appeal deemed abandoned because the proposed appeal was plainly hopeless given binding Supreme Court authority reaffirming the primary rule limiting costs for litigants in person; short delay and lack of prejudice did not overcome hopelessness or exceptional circumstance requirements.
Court Disposition
Application for extension of time declined; appeal deemed abandoned
Orders
- Application for an extension of time under r 43 of the Court of Appeal (Civil) Rules 2005 to file the case on appeal and apply for a hearing date is declined.
- The appeal is deemed to have been abandoned.
Full Case Text
Judgment text and source record
1 paragraphs
PRESCOTT v DISTRICT COURT AT NORTH SHORE [2019] NZCA 14 [20 February 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA192/2018[2019] NZCA 14BETWEEN PETER RICHARD PRESCOTTApplicantAND DISTRICT COURT AT NORTH SHOREFirst RespondentAND MALCOLM DENMEADSecond RespondentCourt: French and Gilbert JJCounsel: Applicant in personA F Todd for First RespondentN A Speir for Second RespondentJudgment:(On the papers)20 February 2019 at 10 amJUDGMENT OF THE COURTA The application for an extension of time under r 43 of the Court of Appeal(Civil) Rules 2005 to file the case on appeal and apply for a hearing dateis declined.B The appeal is deemed to have been abandoned.____________________________________________________________________REASONS OF THE COURT(Given by Gilbert J)[1] Mr Prescott appeals against a judgment of Davison J declining to make anaward of costs in his favour (other than disbursements) on his successful applicationfor judicial review.1 The Judge had earlier found that the District Court erred inrefusing to accept charging documents presented for filing by Mr Prescott tocommence a private prosecution against an Auckland Council officer.2 In declining toaward costs to Mr Prescott as an unrepresented litigant in the judicial reviewproceedings, the Judge applied settled principles affirmed in recent decisions ofthis Court.3[2] Mr Prescott failed to file the case on appeal or apply for the allocation of ahearing date within three months after the appeal was brought. As a result, he nowapplies under r 43 of the Court of Appeal (Civil) Rules for an extension of time to doso. The respondents abide the decision of the Court.[3] We are satisfied that the application should be declined for the followingreasons. While the delay was short and there is no prejudice to the respondents, thisis one of those rare cases where it is readily apparent that the appeal is truly hopelessand cannot succeed. It is settled law that, absent exceptional circumstances notapplicable here, a litigant in person is not entitled to an award of costs, other than fordisbursements. This "primary rule" was reaffirmed by the Supreme Court as recentlyas November 2018 in McGuire v Secretary for Justice.4 The Supreme Court concludedthat the primary rule is to be applied and any reform of the law should be effectedfollowing proper consultation either by the legislature or the High Court RulesCommittee, not by the courts.5 Mr Prescott's proposed appeal to this Court, in whichhe seeks to challenge the primary rule, is doomed to fail in the light ofthe Supreme Court's decision.[4] The application for an extension of time under r 43 of the Court of Appeal(Civil) Rules 2005 to file the case on appeal and apply for a hearing date is declined.[5] The appeal is deemed to have been abandoned.1 Prescott v The District Court at North Shore [2018] NZHC 485.2 Prescott v District Court at North Shore [2017] NZHC 2828.3 Re Collier (A Bankrupt) [1996] 2 NZLR 438 (CA); Commissioner of Inland Revenue vChesterfields Preschools Ltd [2010] NZCA 400, (2010) 24 NZTC 24,500; and Joint ActionFunding Ltd v Eichelbaum [2017] NZCA 249, [2018] 2 NZLR 70.4 McGuire v Secretary for Justice [2018] NZSC 116.5 At [88] and [90].Solicitors:Crown Law Office, Wellington for First RespondentRice Speir, Auckland for Second Respondent