FABIAN v ATTORNEY-GENERAL CA677/2013 [2014] NZCA 90
The application for an extension of time is dismissed because the Court of Appeal does not have jurisdiction to hear appeals against Associate Judges' strike out decisions and incidental costs orders (the correct remedy is review in the High Court), and the proposed appeal lacked a realistic prospect of success.
Source-derived case information.
- Citation
- [2014] NZCA 90
- Parties
- Applicant: Tyrone Maunga Urautunui Fabian; Respondent: Attorney-General
- Court
- Court of Appeal
- Jurisdiction
- New Zealand
- Judgment Date
- 24 March 2014
- Procedural Posture
- Extension of Time to Appeal / Application on the Papers in the Court of Appeal
- Outcome
- Application for an extension of time dismissed.
- Legal Topics
- Extension of Time, Strike Out, Costs, Jurisdiction, Judicial Review
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tyrone Maunga Urautunui Fabian
Applicant
Attorney-General
Respondent
Procedural Posture
Extension of Time to Appeal / Application on the Papers in the Court of Appeal
Legal Issues
- 1 Whether the Court of Appeal has jurisdiction to hear an appeal from an Associate Judge's strike out decision and incidental costs order
- 2 Whether an extension of time to file the appeal should be granted
- 3 Whether the proposed appeal has a realistic prospect of success
Ratio Decidendi
The application for an extension of time is dismissed because the Court of Appeal does not have jurisdiction to hear appeals against Associate Judges' strike out decisions and incidental costs orders (the correct remedy is review in the High Court), and the proposed appeal lacked a realistic prospect of success.
Court Disposition
Application for an extension of time dismissed.
Orders
- Application dismissed.
- Applicant to pay respondent costs calculated as for a standard application on a band A basis together with usual disbursements.
Full Case Text
Judgment text and source record
1 paragraphs
FABIAN v ATTORNEY-GENERAL CA677/2013 [2014] NZCA 90 [24 March 2014]IN THE COURT OF APPEAL OF NEW ZEALANDCA677/2013[2014] NZCA 90BETWEEN TYRONE MAUNGA URAUTUNUIFABIANApplicantAND ATTORNEY-GENERALRespondentCourt: Ellen France, Harrison and French JJCounsel: Applicant in personJ R Gough and L R McKay for RespondentJudgment:(On the papers)24 March 2014 at 12.30 pmJUDGMENT OF THE COURTA The application for an extension of time to appeal is dismissed.B The applicant must pay the respondent costs calculated as for a standard application on a band A basis together with usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by French J)[1] Mr Fabian wishes to appeal two decisions of Associate Judge Sargisson. In the first decision, the Judge struck out a statement of claim Mr Fabian had filed in the High Court against the respondent and dismissed the proceedings.1 The second decision was a subsequent costs decision awarding costs against Mr Fabian.21 Fabian v Attorney-General [2013] NZHC 1606.2 Fabian v New Zealand Government [2013] NZHC 1891.[2] Mr Fabian filed his appeal out of time. He has therefore applied for an extension of time under r 29A of the Court of Appeal (Civil) Rules 2005.[3] The parties have consented to the application under r 29A being dealt with on the papers.[4] The proposed appeal is misconceived. It is well-established that this Court does not have jurisdiction to hear appeals against decisions of Associate Judges on strike out applications and incidental costs. Instead, any challenge to those decisions must be by way of review in the High Court.3[5] That in itself is sufficient to dispose of the application. We also note that the proposed appeal, being based as it is on claims of personal sovereignty, has no realistic prospect of success.[6] The application for an extension of time is accordingly dismissed.[7] The respondent is entitled to costs on the application. Mr Fabian was made aware of the jurisdictional problem, but chose to proceed.Outcome[8] The application for an extension of time is dismissed.[9] The applicant must pay the respondent costs calculated as for a standard application on a band A basis together with usual disbursements.Solicitors:Crown Law Office, Wellington for Respondent3 Judicature Act 1908, s 26P.