YOUNG v ROSS [2023] NZCA 411

YOUNG v ROSS [2023] NZCA 411 [1 September 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA196/2023[2023] NZCA 411BETWEEN PHILIP ROGER YOUNGFirst ApplicantPROGRESSIVE ACCOUNTANTSLIMITEDSecond ApplicantAND PHILIP NICHOLAS ROSSRespondentCourt: Brown and Wylie JJCounsel: First Applicant in person and on behalf of Second ApplicantRespondent in personJudgment:(On the papers)1 September 2023 at 10.30 amJUDGMENT OF THE COURTA The application for leave to bring a second appeal is declined.B The applicants must pay the respondent costs on a band A basis fora standard application for leave to appeal with usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Brown J)Introduction[1] On 17 February 2023 Churchman J dismissed appeals from two decisions ofthe District Court.1 The applicants' application in the High Court under s 60(2) of theSenior Courts Act 2016 for leave to bring a second appeal to this Court was declined.2The applicants now apply to this Court for leave to appeal from the High Courtjudgment.Background[2] In a judgment dated 18 November 2021 Judge Kelly made an order strikingout a claim by Mr Young alleging that Mr Ross had:(a) breached a settlement agreement contained in a notice ofdiscontinuance in relation to earlier defamation proceedings;(b) misled the Hawke's Bay Lawyers Standards Committee in relation to acomplaint made by the first applicant; and(c) misled the Legal Complaints Review Officer on review.3[3] Mr Young did not immediately appeal from that judgment. Instead the secondapplicant, Progressive Accountants Ltd, of which Mr Young is the sole director,commenced a new proceeding raising similar issues to the previous claim. In ajudgment dated 19 July 2022 Judge Kelly struck out the second claim, observing thatthe commencement of the second claim was bordering on being vexatious or otherwisean abuse of process of the Court.4[4] Appeals from both those decisions were heard by Churchman J in theHigh Court at Napier. Both appeals were dismissed, the Judge observing that all thecauses of action had no prospect of success and were properly struck out.51 Young v Ross [2023] NZHC 212 [Judgment under appeal].2 Young v Ross [2023] NZHC 750 [Leave judgment].3 Ross v Young [2021] NZDC 22297.4 Ross v Progressive Accountants Ltd [2022] NZDC 13340 at [48].5 Judgment under appeal, above n 1, at [72].[5] The application to the High Court for leave to appeal under s 60(2) advancedten proposed grounds of appeal which were said to give rise to 16 questions of law fordetermination. Churchman J addressed individually each of the ten proposed pointson appeal and concluded that none raised a question of law or fact capable of bonafide and serious argument sufficiently important to outweigh the cost and delay of afurther appeal.6The application for leave to appeal[6] The application to this Court for leave to appeal is a detailed document whichincorporates an appendix of 57 paragraphs which identify the same ten points onappeal advanced in the application in the High Court and 16 related questions whichwe infer are the same as those raised in the High Court. The application and theappendix referred to five documents (which were subsequently filed) marked A, B, C,D and E. It is apparent from the exhibit notes on those documents that they were inevidence in one or other of the two District Court proceedings.7[7] The ten points on appeal are expressed as follows:(i) bankruptcy of the first [applicant];(ii) use of prohibited publicity in current proceedings;(iii) prospective nature of document A;(iv) conferring a benefit to a name, description or class;(v) did [the second applicant] need to exist to become a beneficiary;(vi) does [the second applicant] have beneficial standing as the second[applicant];(vii) is the respondent's admission before the LCRO admissible;6 Leave judgment, above n 2, at [29].7 All the documents were annexed to an affirmation of Mr Young dated 27 January 2022.Document B was also an annexure to an affidavit of Mr Ross dated 20 June 2000.(viii) relevance of document D being a republication or not;(ix) respondent's legal costs; and(x) are damages to the [applicants] claimable?Relevant principles[8] The established principles relating to applications for leave to bring secondappeals to this Court stated in Waller v Hider8 continue to apply in respect ofapplications under s 60(2). As this Court explained in Butch Pet Foods Ltd vMac Motors Ltd:9[4] The test for leave to bring a second appeal to this Court iswell-established. The proposed appeal must raise some question of law or factcapable of bona fide and serious argument, in a case involving some interest,public or private, of sufficient importance to outweigh the cost and delay ofthe further appeal. On a second appeal this Court is not engaged in the generalcorrection of error. Its primary function is to clarify the law and to determinewhether it has been properly construed and applied by the Court below. It isnot every alleged error of law that is of such importance, either generally orto the parties, as to justify further pursuit of litigation which has already beentwice considered and ruled upon by a court.Submissions[9] The applicants' submissions explain that the purpose of their application is todetermine whether the law was applied correctly in respect of the ten points on appeal,mainly to documents B, C, D and E. The applicants state that the ten points on appealarise because those four documents were never considered either by Judge Kelly or byChurchman J. As a result the judges were unaware of important facts andmisinterpreted the law. The submissions proceed to address each of the ten points, ineach instance with specific reference to one or more of the five documents. Thesubmissions conclude by addressing the threshold for a strike-out order and contendthat Judge Kelly dismissed the second proceeding without examining any of the factsin documents B, C, D or E.8 Waller v Hider [1998] 1 NZLR 412 (CA) at 413.9 Butch Pet Foods Ltd v Mac Motors Ltd [2018] NZCA 276, (2018) 24 PRNZ 500(footnotes omitted).[10] In submissions in response Mr Ross contends there are no obvious issues ofbroader public interest in the ten questions framed by the applicants, observing thatthey relate mainly to the specifics of the dispute between the parties rather than anybroader question of law. He submits that a matter of purely private interest, such asan argument over disputed facts, is unlikely to have any wider public interest.His submission similarly proceeded to address individually the ten proposed points onappeal.Analysis[11] The theme of the applicants' submissions is that the courts below failed toengage with the substance of their claims and, as a consequence, have denied theapplicants "their rightful day in Court". They state that they seek leave for a secondappeal in order that they may have their day in court. It is apparent that they have incontemplation a re-run in this Court of the full gamut of matters which they advancedin the courts below together with matters that they had wished to advance but considerthey were precluded from doing so. With reference to the latter point, we note that intheir submissions they state that Churchman J stopped their submissions atparagraph [30], being the point at which they were about to explain the import ofdocuments B, C, D and E.[12] The applicants' submissions do not reflect any comprehension of the importantprinciple that on a second appeal this Court does not engage in the general correctionof error. Their submissions do not demonstrate that any of the proposed ten points onappeal satisfy the threshold requirement explained in Butch Pet Foods Ltd vMac Motors Ltd. We endorse the analysis by Churchman J of the proposed ten pointson appeal. We have reached the same conclusion as the Judge as to their unsuitabilityfor consideration by this Court on a second appeal.Result[13] The application for leave to bring a second appeal is declined.[14] The applicants must pay the respondent costs on a band A basis for a standardapplication for leave to appeal with usual disbursements.Solicitors:Cathedral Lane Law, Napier for Respondent