GENET v SPCA [2016] NZHC 771

GENET v SPCA [2016] NZHC 771 [22 April 2016]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCRI-2016-404-000097[2016] NZHC 771BETWEEN MARTINE GENETApplicant/AppellantAND SOCIETY FOR THE PREVENTION OFCRUELTY TO ANIMALS (SPCAAUCKLAND)RespondentHearing: 22 April 2016Appearances: Applicant/appellant in PersonO Klaassen for RespondentJudgment: 22 April 2016JUDGMENT OF VENNING JThis judgment was delivered by me on 22 April 2016 at 4.45 pm, pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDateSolicitors: Meredith Connell, AucklandCopy to: Applicant/Appellant[1] On 1 April 2008 following a defended hearing on 18 March 2008, the applicant was sentenced on the following:(a) one count of breaching an order under s 169(1) of the Animal Welfare Act 1999 (namely by owning or exercising authority over five kittens);(b) five counts of failing to alleviate pain or distress of ill animals, an offence under s 12(b) of the Animal Welfare Act;(c) one count of breaching an order under s 169(1) of the Animal Welfare Act (namely by owning or exercising authority over one pig, eight geese, one cat, two kittens and two turtles).[2] The applicant was sentenced to one month's imprisonment and was made subject to an order disqualifying her from owning or exercising authority over animals for 10 years.[3] On 18 March 2016 (eight years after the substantive hearing) the applicant filed a notice of appeal. Although noted as an appeal of sentence it was effectively an appeal against conviction.[4] In its memorandum for the call-over the respondent noted that under s 116(1) of the Summary Proceedings Act 1957 the applicant had 28 days after sentence to file an appeal. That period expired on 29 April 2008. The applicant was required to seek an extension of time under s 123 of the Summary Proceedings Act to bring the appeal. Such application was opposed.[5] The appeal was listed for call in the appeals list on 22 April 2016. When the matter was called the Court confirmed to Ms Genet that leave would be required to bring the appeal out of time. The Court gave Ms Genet the option of having the matter adjourned for a week for the application for leave to be dealt with at 9.00 amon 29 April 2016 or for the application for leave to be dealt with at the end of the list. Ms Genet chose to proceed with the application for leave today.[6] The touchstone for granting an application to extend time is the interests of justice in the particular case. Assessing the interests of justice requires the proper interests of society in the finality of decisions to be balanced against the interests of the individual applicant. Factors of relevance include:(a) the strength of the proposed appeal;(b) the practical utility of the remedy sought;(c) the length of delay;(d) the reasons for delay;(e) the impact on others; and(f) general prejudice and prejudice to any other party.1Strength of the proposed appeal[7] The grounds of appeal noted in the notice of appeal are:(a) that a dog the subject of the charges was not put down;(b) that cats the subject of the charges did not suffer from cat flu but were poisoned by the Council and Ms Genet's lawyer refused to submit such evidence;(c) Ms Genet's lawyer and the presiding Judge ignored her request to have certain witnesses called and certain evidence put forward at trial.1 R v Lee [2006] 3 NZLR 42; and Mikus v R [2011] NZCA 298.[8] The proposed appeal does not appear to have any particular merit. As is apparent from the charges there was no issue concerning a dog. The other grounds of appeal involved a direct challenge to the evidence and factual findings of the Judge or otherwise challenged the way the appellant's counsel and Judge conducted the hearing.Utility of the remedy sought[9] Ms Genet has served the sentence of imprisonment but there may be some utility in the challenge to the disqualification order as it forms the basis of further charges that Ms Genet now faces.Length of delay[10] There is a substantial period of delay in this case. The appeal is almost eight years out of time.Reasons for the delay[11] In her memorandum Ms Genet says the reason for the delay is because it has taken her over eight years to get someone to help her with this and none of the lawyers she asked, including her former lawyer, wanted to deal with the matter.[12] That explanation is general in the extreme. It is entirely inadequate toexplain the delay of eight years before Ms Genet filed the current appeal.The impact on others[13] The appeal challenges counsel's conduct. If the appeal were to proceed on that ground counsel would be required to give evidence. Counsel is unlikely to have retained a file of this nature after eight years. With the passage of time it would be difficult for counsel to respond in detail to Ms Genet's broad complaints about his conduct.Prejudice[14] The respondent would be prejudiced in seeking to respond to the appeal at this very late stage. Inquiries of the District Court reveal that Court cannot locate the relevant tape from the hearing. Also parts of the District Court file are missing. In those circumstances it would be difficult for the respondent to properly reply to the appeal.Conclusion[15] Ms Genet's interests in having the right to challenge the conviction and particularly the order of disqualification are significantly outweighed by the lack of apparent merit in the appeal, the substantial and inadequately explained delay, the prejudice to her former counsel and the respondent and the public interests in the finality of litigation. The interests of justice are firmly against granting leave in this case.Result[16] The application for leave is dismissed as is the appeal.__________________________ Venning J