IN THE Court of appeal OF new Zealand
	
CA185/2013
[2013] NZCA 382

BETWEEN	
JOHN ANTHONY EDWARDS
Appellant	

AND	
THE DISTRICT COURT, DUNEDIN
First Respondent	

AND	
THE DISTRICT COURT, OAMARU
Second Respondent	

AND	
WAITAKI DISTRICT COUNCIL
Third Respondent	

Court:	
Ellen France, Harrison and French JJ	

Counsel:	
Appellant in person
P J Gunn for First and Second Respondents
P G Hope for Third Respondent	

Judgment:
(On the papers)	
20 August 2013 at 2.30 pm	

JUDGMENT OF THE COURT
A	The application for an extension of time is dismissed.
B	The application for a stay of proceeding is dismissed.
C	The appellant must pay the third respondent costs on the applications in the sum of $300 plus usual disbursements.
____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

Introduction
[1]	Mr Edwards seeks an extension of time under r 43 of the Court of Appeal (Civil) Rules 2005 and also seeks a stay of a judicial review hearing pending in the High Court.
Factual Background
[2]	The applications are made against the following factual background.
[3]	Mr Edwards has filed judicial review proceedings in the High Court.  The proceedings relate to a hearing in the District Court in 2010 which resulted in a judgment being entered against Mr Edwards in favour of the Waitaki District Council for the sum of $9,871.55.  Mr Edwards contends that the procedure adopted by the District Court was defective and unfair.  He did not appeal the District Court judgment but chose instead to file judicial review proceedings.
[4]	Since the judicial review proceedings were filed, there have been a number of case management conferences in the High Court.
[5]	On 25 March 2013 Whata J issued a judgment dismissing an application for leave to cross-examine a deponent of an affidavit.  The Judge wrongly stated that the application had been made by Mr Edwards and that Mr Edwards was seeking to cross-examine a representative of the Waitaki District Council.  In fact, it was the other way round.  The Waitaki District Council wanted to cross-examine Mr Edwards.
[6]	During the course of his judgment, Whata J commented adversely on the clarity of the statement of claim and also wrongly stated that it was Mr Edwards who had joined the Waitaki District Council as a third respondent.  The correct position was that the Council had sought to be joined in the proceeding itself.
[7]	The judgment concluded by saying that the proceeding needed to be put on a proper footing.  The Judge directed that the respondents confer with a view to reaching agreement on the key issues, with a joint memorandum setting out points of disagreement and agreement to be filed prior to the hearing.  The Judge also stated that he intended to convene a conference call on 28 March for the purpose of confirming timetabling to a hearing.
[8]	The day after the judgment was delivered, 26 March 2013, Mr Edwards filed a notice of appeal in this Court “against the whole of Whata J’s judgment”.  The grounds of appeal (as further amended) are that the Judge made the two errors mentioned above, that the Judge’s comments on the quality of the statement of claim were unfounded, that it was wrong for the Judge to exclude Mr Edwards from his direction regarding the issues memorandum and that it was wrong for Whata J to intervene in the case management process when matters had already been appropriately decided by another High Court Judge, Chisholm J, at a previous case management conference.
[9]	The filing of the appeal came to the attention of Whata J and on 5 April 2013 the Judge issued two minutes.  The first minute acknowledged the two errors he had made in his judgment and invited the parties to consider how the matter could be resolved.  The second minute formally recalled the judgment on account of the two errors.
[10]	The High Court then allocated a fixture of 12 April 2013 for the substantive hearing.  However, in a minute dated 10 April 2013, Whata J recorded that Mr Edwards appeared to have disengaged from the High Court process and had no intention of attending the hearing date, preferring to pursue his appeal.  The Judge considered there was no option but to adjourn the substantive hearing.
[11]	In a further minute dated 1 May 2013, Whata J noted that Mr Edwards had failed to participate in a scheduled telephone conference call.  Given Mr Edwards’ absence, the Judge said little could be advanced and adjourned the matter to the first available conference in June.  The Judge declined to make an order that unless Mr Edwards attended the next conference his claim would be struck out, saying that in his view the appeal needed to run its course.
[12]	Another telephone conference call was scheduled for 17 June 2013, this time with Fogarty J.  Mr Edwards again failed to participate.  In a subsequent minute dated 17 June 2013, Fogarty J set the substantive proceeding down for hearing on 29 August 2013.  In his minute, Fogarty J said that the litigation smacked to him of an abuse of process and he put Mr Edwards on notice that the Court would of its own motion be considering that issue at the hearing.
[13]	On 27 June 2013, Mr Edwards’ appeal to this Court was deemed to have been abandoned under r 43, Mr Edwards having failed to file a case on appeal and apply for a hearing date.
[14]	Mr Edwards then applied for an extension of time and a stay of the High Court proceeding.
[15]	He has also filed a memorandum further amending the appeal to include the four minutes issued by Whata J and the minute issued by Fogarty J.  In addition, Mr Edwards has requested that this Court address the substantive judicial review proceeding concurrently with the appeal rather than have it heard by Whata J in the High Court.
[16]	The application for an extension of time and the stay of proceeding are opposed by the Waitaki District Council.  In accordance with usual practice, the District Court has not taken any active part but is abiding the decision of the Court.
Discussion
[17]	The principles governing applications for extension are well established.  In deciding whether to grant Mr Edwards an extension of time, the ultimate question for this Court is to determine where the interest of justice lies.  Four factors are particularly relevant to that inquiry, namely:
(a)	the length of the delay and the reasons for it;
(b)	the conduct of the parties;
(c)	the extent of prejudice caused by the delay; and
(d)	the prospective merits of the appeal.
[18]	The reason given for the delay in this case appears to be that Mr Edwards, being a lay person, was confused by the rules.  The delay is not overly long but there has been prejudice to the Waitaki District Council in that Mr Edwards’ failure to prosecute his appeal has contributed to delay in the High Court. 
[19]	However in the circumstances of this case, the decisive factor must be that the appeal is doomed to failure.  Essentially, it is an appeal against a judgment which has been recalled and against various matters stated in minutes which in the main do not contain any judgments, orders or decrees so as to give this Court jurisdiction.  The only matters in the minutes that would qualify as orders or decrees are Whata J’s recall of his judgment, his adjournment of the hearing and Fogarty J’s direction setting the matter down for hearing.  The first two orders were to Mr Edwards’ benefit and there are no grounds for appellate intervention in the third.
[20]	For completeness we should record that it is for the High Court and not this Court to hear the substantive proceeding and that there was nothing wrong or inappropriate in Whata J assuming the case management of the proceeding.  It is unclear from the file whether Whata J amended procedural directions that had been made earlier by another Judge but even if that did happen it is not grounds for an appeal.
[21]	In circumstances where an appeal is doomed to fail, it would be unjust to grant an extension of time.
[22]	The application for an extension of time is accordingly dismissed.
[23]	Because of the view we have taken of the application for an extension of time, the appeal is deemed to be abandoned under r 43.  This eliminates any need for a stay of the High Court proceeding.  The application for a stay is accordingly dismissed.
[24]	Mr Edwards has been unsuccessful in his applications.  The Waitaki District Council, which opposed the applications, is entitled to costs.  However, because the matter was dealt with on the papers, these should be limited to $300 together with usual disbursements.

Solicitors:
Crown Law Office, Wellington for First and Second Respondents
Hope & Associates Legal, Oamaru for Third Respondent