EIHANA V CROWN ISLAND ADMINISTERING BODY AND ANOR CA CA193/04

EIHANA V CROWN ISLAND ADMINISTERING BODY AND ANOR CA CA193/04 23 March 2005IN THE COURT OF APPEAL OF NEW ZEALAND CA193/04BETWEEN TONI COLIN REIHANA Applicant AND CROWN ISLAND ADMINISTERING BODY First Respondent AND TE RUNANGA O NGAI TAHU Second Respondent Court: McGrath, Hammond and O'Regan JJ Counsel: Applicant in Person R E Brown for Respondents Judgment (on the papers): 23 March 2005JUDGMENT OF THE COURT A The application for an extension of time to file the case on appeal is dismissed. B We give leave to file a fresh appeal, under r 5 of the Court of Appeal (Civil) Rules, on the terms that no fresh notice of appeal, security, or fixture application are required, but the case on appeal is to be lodged within 30 days of the delivery of this judgment.REASONS(Given by Hammond J)Introduction[1] We have before us an application for an extension of time to file the case on appeal in this proceeding. [2] The application has been dealt with, by consent, on the papers. [3] For reasons we will discuss later in this judgment, we are of the view that there is no jurisdiction to entertain the present application. However, we think the applicant has been misled by a published Practice Note, and we will allow a fresh appeal, on terms, on the basis we will set out later in this judgment.Background[4] Mr Reihana sought to challenge (in person) the manner by which the Crown Islands Administering Body was selected, in relation to the Crown Titi islands. [5] That proceeding was heard by Keane J on 22 June 2004 (CIV-2003-409-59). The Judge dismissed the proceeding, in a considered judgment delivered on 1 July 2004. [6] Mr Reihana then (timeously) filed an appeal in this Court against that judgment. [7] To maintain that appeal, Mr Reihana was required (pursuant to r 10 of the Court of Appeal (Civil) Rules 1997) within six months of the date the appeal was filed (that is to say by 19 January 2005) either to apply for a fixture and file a case on appeal or apply for an extension of time in which to do so. [8] Mr Reihana applied timeously (on 29 November 2004) for a fixture. But he did not file his case on appeal, as is required by r 10.[9] Mr Reihana says that this failure to file a case on appeal within time came about through no fault of his own. He says he relied on the Practice Note - Civil Appeals [1997] 3 NZLR 392, a copy of which was apparently provided to him by the Court of Appeal Registry. Materially, this Practice Note provides that the case on appeal must be filed no later than the time of filing of submissions ([4]); and that submissions must be filed not less than 20 calendar days prior to the hearing date ([3]). Mr Reihana says that he was misled by following this Practice Note. [10] It is in that context that, on 3 February 2005, Mr Reihana applied for an extension of time to file his case on appeal.The arguments for the respondents[11] The respondents oppose the application on the grounds that, under r 10, time having expired, the appeal must be taken to have been abandoned, and that there is no jurisdiction for an extension to be granted. [12] The respondents also say that the substantive appeal is without merit, and that even if jurisdiction were to exist, leave should be denied. They argue that the Notice of Appeal does not disclose any error of law or fact in the judgment of Keane J, nor is it said to be possible to discern any matter which could appropriately be determined on appeal. Rather, it is said, the applicant's concerns relate to the conduct of the case in the High Court.The disposition of the present application[13] The present application must fail. This Court held in Airwork NZ Ltd v Vertical Flight Management Ltd [1999] 1 NZLR 29 at 30-32 that this Court lacks any power to extend time under r 10. The appeal is deemed to be abandoned if the case is not filed. This Court confirmed that view in Scenic Developments Ltd v Whimp CA63/04 10 November 2004. [14] The application, as filed, must therefore be dismissed.Is a fresh appeal possible, and if so, should leave be granted?[15] In Airwork (supra) this Court noted that after a first appeal has been deemed abandoned under r 10, it may "in theory be possible for such an appellant to begin again by bringing another appeal [but such] power is unlikely to be exercised [under r 5] save in exceptional circumstances". [16] This is a case in which a litigant in person has, we think, been misled by a published Practice Note. We think there are here "exceptional circumstances" (seeAirwork, supra). We add that this is a most unusual case, and it seems difficult to conceive circumstances in which the problem might arise again, particularly as the Practice Note will shortly go out of existence. [17] We proceed therefore, of our own motion, on the footing that we should treat this matter as raising an application under r 5 to allow a fresh appeal, out of time. We allow that application. We do so without requiring Mr Reihana to file a fresh application, or Notice of Appeal. This grant of leave is however strictly on the terms that Mr Reihana is to lodge his case on appeal within 30 days from the date of delivery of this judgment. If he does not do so, the appeal will be dismissed for want of prosecution. [18] Thereafter, the Registrar is then to allocate a fixture for the hearing of the appeal. Mr Reihana need not further apply for a fixture. He has already done so. [19] We note that security for costs was paid on 27 July 2004. [20] In the circumstance there will be no order for costs on the matters before us.Solicitors: Bell Gully, Wellington for Respondents