Introduction
[1] By notice of appeal filed on 19 July 2013 Mr Mawhinney purported to appeal against a judgment of Associate Judge Christiansen given on 24 June 2013.[1] The notice of appeal named the two respondents referred to in the intituling above. Accordingly, the Registrar set security for costs at $11,760.
[2] On 12 August 2013, Mr Mawhinney filed an application for a waiver of security for costs, which was refused by the Registrar. By letter dated 2 September 2013, Mr Mawhinney was advised of this decision, and of his right to review it.[2] Any application for review to a Judge must be made within 10 working days of the Registrars decision.[3] Therefore, an application to review was required to be filed by 16 September 2013.
[3] The application for review of the Registrars decision was not filed until 15 January 2014, some four months out of time. Mr Mawhinney now seeks an extension of time for that application.
Background
[4] On 20 September 2013, Mr Mawhinney first sought an extension of time, advising the case officer that œI can file my application [for review of the Registrars decision] ... by Tuesday 24 September 2013?. Mr Mawhinney failed to file the application for review by that date.
[5] The case officer then emailed Mr Mawhinney on 18 October 2013, advising that the application for review had not yet been filed and, if Mr Mawhinney still intended to apply, he was to do so immediately. Further correspondence from the case officer on 29 October 2013 confirmed that Mr Mawhinney had still failed to file the application for the review. He was also advised that his appeal was deemed abandoned under r 43 of the Court of Appeal (Civil) Rules 2005 (œthe Rules?).
[6] As noted, Mr Mawhinney eventually filed an application for review of the Registrars decision refusing to waive security for costs on 15 January 2014. In the accompanying memorandum, Mr Mawhinney stated that if an extension of time to apply for the review was granted he would seek to file œan affidavit in support of the draft application annexed hereto?. At the same time Mr Mawhinney filed two further documents:
(a) a document entitled œDraft Application for review of registrars determination on application by Appellant for waiver or reduction of security for costs?; and
(b) an application for an extension of time under r 43 of the Rules.
[7] It is necessary to determine whether the application for extension of time for filing the application for review should be granted.
The law
[8] Under the Rules the Court may give any directions that seem necessary for the just and expeditious resolution of any matter that arises in a proceeding.[4]
[9] Specifically in relation to extending time, the Court may extend time appointed by the Rules for doing any act or taking any step in the proceeding œon any terms that the Court thinks just?.[5]
Analysis
[10] In the normal course, appeals and associated applications are to be progressed promptly. Mr Mawhinney has been dilatory in the extreme in advancing his application for review of the decision of the Registrar. An intention to file an application for review was first signalled on 20 September 2013. Despite two requests from the case officer, this application for review was not filed until 15 January 2014. Even then the œapplication for review? was in a draft form and was unsigned. The overall delay was approximately four months.
[11] When an application for extension of time is sought, the applicant will normally provide reasons for the delay and explain any relevant factual background in detail, usually supported by an affidavit. The Court needs to know why the relevant time limit could not be complied with. Here, no explanation was provided and no affidavit in support was filed.
[12] The most that can be said by way of justification for his delay is a suggestion in the chronology attached to Mr Mawhinneys eventual application for extension of time. This notes that Mr Mawhinney did not receive the email from the Registrar on 18 October 2013 requesting the prompt filing of his application for review as his œcomputer breaks down, [and] email not received until December 2013?. However, the case officer also wrote a letter to Mr Mawhinney on 29 October 2013 setting out the chronology of defaults in detail and advising Mr Mawhinney that he had not filed his application for review of the Registrars decision on security for costs, and that he had been informed to that effect by email. Mr Mawhinney does not suggest that he did not receive this subsequent letter.
[13] Given the absence of any adequate explanation for the late filing of the application, I am satisfied that the application to extend the time for filing the application to review should be refused. Mr Mawhinney has not demonstrated any good reasons why it is in the interests of justice that an extension should be granted under r 5(2) of the Rules.
[14] There are two additional reasons why I am satisfied that it is just to refuse an application for extension of time. First, there are no obvious errors in the Registrars decision refusing to waive security for costs. While Mr Mawhinney is a recently discharged bankrupt, owning no personal assets and receiving only national superannuation by way of income, impecuniosity alone is not usually sufficient to justify a waiver.[6] Mr Mawhinney has not demonstrated that it is in the interests of justice to waive or reduce the quantum of security for costs. Certainly there do not appear to be exceptional circumstances for doing so.
[15] Secondly, in respect of the purported appeal, counsel for the first respondent has noted that this Court does not have jurisdiction to determine it. As noted above, the notice of appeal refers to an appeal against a judgment of an Associate Judge in the High Court. This decision was in the nature of an interlocutory application dealt with in Chambers.[7] Pursuant to the High Court Rules, the only means of challenging a judgment of an Associate Judge is by way of a review of that decision in the High Court.[8] Accordingly, Mr Mawhinney was required to file an application to review the judgment of the Associate Judge. As such, this Court has no jurisdiction to hear the appeal because the applicant ought to have proceeded by way of review in the High Court.[9]
Result
[16] The application for extension of time is refused.
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[1] Mawhinney v Nags Head Horse Hotel Ltd [2013] NZHC 1530.
[2] Court of Appeal (Civil) Rules 2005, r 7(2).
[3] Rule 7(3).
[4] Court of Appeal (Civil) Rules, r 5(1); Erwood v Maxted [2009] NZCA 542 at [26]; Churchill Group Holdings Ltd v Aral Property Holdings Ltd [2010] NZCA 562 at [7].
[5] Rule 5(2); Weston Ward and Lascelles v Primosso Holdings Ltd CA152/04, 14 December 2005 at [6]; Jong v Yang [2010] NZCA 343 at [8].
[6] Fava v Zaghloul [2007] NZCA 498, (2008) 18 PRNZ 943 at [9].
[7] High Court Rules, r 2.1; Judicature Act 1908, s 26P.
[8] Rule 2.3.
[9] Nottingham v Registered Securities Ltd (in liq) (1998) 12 PRNZ 625 (CA) at 628; Lawrence Riverside Ltd v CP Holdings Ltd [2011] NZCA 547 at [4]; Rewi v Attorney-General [2010] NZCA 238 at [5]; Reid v Reid [2013] NZCA 322 at [6].