IN THE SUPREME COURT OF NEW ZEALAND
SC 129/2015
[2016] NZSC 9
BETWEEN MALCOLM EDWARD RABSON
Applicant
AND TRANSPARENCY INTERNATIONAL
NEW ZEALAND INCORPORATED
Respondent
Court: William Young, Arnold and OʼRegan JJ
Counsel: Applicant in person
D R Kalderimis and K E Yesberg for Respondent
Judgment: 16 February 2016
JUDGMENT OF THE COURT
A The application for leave to appeal is dismissed.
B The applicant is to pay the respondent costs of $2,500.
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REASONS
[1] By a judgment delivered on 12 November 2015, the Court of Appeal struck
out an appeal by the applicant and Mr Creser against Transparency International
New Zealand Incorporated and ordered them to pay costs.1
[2] Mr Rabson seeks leave to appeal against that decision. The primary
contention he wishes to advance is that by 12 November, the appeal was already
abandoned pursuant to r 43 of the Court of Appeal (Civil) Rules 2005. He complains
that the Court of Appeal wrongly “resurrected” the appeal for the purposes of
striking it out and imposing costs.
1 Rabson v Transparency International New Zealand Inc [2015] NZCA 543 (Wild, Miller and
Cooper JJ).
[3] Mr Rabson had made a timely r 43(2) application for an extension of time
which was addressed by Wild J in a minute of 4 August 2015 but not, at least as we
read the minute, finally determined. On this basis, the application for an extension
of time was still current in November 2015. In those circumstances, it is at least
open to question whether the effect of r 43(1) was that the appeal was to be treated as
abandoned so as to obviate the need for, or appropriateness of, an order striking it
out. If Mr Rabson and Mr Creser considered the appeal to have already been
abandoned they could have told the Court they would not pay the security for costs
and abandoned their application for an extension of time. They could also have
notified the respondent that the strike out application was unnecessary as they did
not intend to pursue the appeal further. The strike out application could then have
been avoided or, if already made, granted by consent. That would have avoided the
incurring of costs by the respondent in relation to the strike out application. They
chose not to do any of this.
[4] Accordingly, we see no point of law of general or public importance in the proposed appeal and no appearance of miscarriage of justice.
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