Beere v Bullock

[2023] NZHC 867

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-2416

[2023] NZHC 867

IN THE MATTER OF

the Beere Family Trust

BETWEEN

WARREN ERNEST BEERE

Plaintiff

AND

GEORGE BULLOCK

First Defendant

PHILLIP RAYMOND NOTTINGHAM
Second Defendant

ROBERT EARLE McKINNEY

Third Defendant

Hearing:	13 September 2022 and 27 March 2023
Appearances:	Andrew J Steele for the Plaintiff Defendants are self-represented
Judgment:	21 April 2023

JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR

Application to rescind an order, pursuant to r 7.49

This judgment was delivered by me on 21 April 2023 at 3:00pm

pursuant to Rule 11.5 of the High Court Rules

…………………………. Registrar/Deputy Registrar

Solicitors:

Patterson Hopkins (William M Patterson), Auckland, for the Plaintiff

Copy for:
Andrew J Steele, Auckland, for the Plaintiff

WARREN ERNEST BEERE v GEORGE BULLOCK [2023] NZHC 867 [21 April 2023]

Introduction

[1]    This proceeding was the subject of a one-day hearing which took place on   13 September 2022. On 19 September 2022 the defendants attempted to file further submissions. Mr Steele, counsel for the plaintiff, opposed the Court allowing the submissions, submitting that:

(a)the defendants were given full opportunity to raise any matter they wished to raise in the first round of submissions and in reply submissions;

(b)no request for leave had been made to the Court for filing the further submissions by the defendants after the matter had been heard; and

(c)the plaintiff objected to the filing of the submissions on the basis that it was procedurally unfair and unjust.

[2]    On 21 September 2022 the Court issued a minute rejecting the submissions sought to be filed by the defendants on the basis that the matters raised could have been dealt with in submissions or the reply submissions at the hearing, and to allow the submissions to be filed without the plaintiff having an opportunity to respond to them was procedurally unfair to the plaintiff.

[3]    On 28 September 2022, the defendants filed an interlocutory application seeking orders set out at paragraphs (a) to (d) of the application, and an affidavit of Phillip Raymond Nottingham, sworn on 28 September 2022, in support. The plaintiff filed a notice of opposition dated 30 September 2022. Subsequently, the defendants have filed further memoranda dated 29 September 2022, 30  September 2022  and  13 October 2022.

[4]    Although the defendants’ application did not expressly rely on r 7.49 of the High Court Rules 2016, the Court treated the application as an application for rescission of the Court’s minute of 21 September 2022. The matter was set down for a hearing which was held on 27 March 2023.

Affidavits and memoranda filed in relation to the application

[5]    In relation to the application, the defendants have filed an affidavit of Phillip Raymond Nottingham, dated 28 September 2022, a memorandum dated 30 September 2022, further affidavits of Phillip Raymond Nottingham dated 28 November 2022 and 22 March 2023 respectively, and an affidavit of Jonathan Wayne  McGoram dated    7 February 2023.

[6]    In addition, the defendants have filed a memorandum dated 24 March 2023, responding to counsel for the plaintiff’s memorandum of 22 March 2023.

[7]    The defendants have also filed submissions dated 27 March 2023 and a further set of submissions of Phillip Raymond Nottingham dated 26 March 2023.

[8]    Mr Steele filed a memorandum dated 22 March 2023, and a second memorandum dated 23 March 2023 and also filed a synopsis of submissions dated 24 March 2023.

Preliminary matters

[9]    Mr Steele, in his second memorandum dated 23 March 2023, objects to the Court allowing the defendants’ affidavits, sworn by Phillip Raymond Nottingham dated 28 November 2022 and 22 March 2023, to be admitted to the Court file. He submits these affidavits do not address the issues before the Court in relation to the application, but instead the affidavits are directed towards the issues in the main proceeding and they are in the nature of submissions.

[10]   While there is some validity in Mr Steele’s objections to these affidavits, given the defendants are lay litigants, they should be provided with some latitude, and I will allow the affidavits to be admitted to the Court file.

Applicable law

[11]Rule 11.8A of the High Court Rules states:

(a)This rule applies after a proceeding or an application has been heard but before judgment has been given.

(b)A party may file a memorandum seeking leave to make further submissions.

(c)The Judge responsible for the judgment may grant leave to a party to make further submissions.

[12]The Court has issued a Practice Note1 which states:

Where either counsel after the hearing of a matter is concluded, but before delivery of judgment, desires to make further submissions, application must first be made to the Judge for leave. It is only in exceptional circumstances that leave will be granted as, for example, where some pertinent consideration or authority has been overlooked or a new matter has arisen since the hearing which has not been anticipated by counsel. In the event of either counsel desiring to make such an application, an appointment should be sought with the Judge in chambers through the Registrar. No submissions or memoranda filed without leave will be considered.

[13]Rule 7.49 of the High Court Rules states:

7.49     Order may be varied or rescinded if shown to be wrong

(1)A party affected by an interlocutory order (whether made on a Judge’s own initiative or on an interlocutory application ) or by a decision given on an interlocutory application may, instead of appealing against the order or decision, apply to the court to vary or rescind the order or decision, if that party considered that the order or decision is wrong.

(2)A party may not apply under subclause (1) if the order or decision was made or given –

(a)with the consent of the parties; or

(b)if it is made by a party who was present or represented when the order was made or the decision given, within 5 working days after the order was made or the decision was given;

(c)if it is made by a party who was not present and not represented, within 5 working days after receipt by the party of notice of the making of the order or the giving of the decision, and of its terms.

(4)The application does not operate as a stay unless a Judge so orders.

(5)Unless a Judge otherwise directs, the application must be heard by the Judge who made the order or gave the decision.

1 Practice Note – (1968) NZLR 608.

(6)The Judge may, -

(a)if satisfied that the order or decision was wrong, vary or rescind the order or decision; or

(b)on the Judge’s own initiative or on the application of a party, transfer the application to the Court of Appeal.

Defendants’ submissions

[14]   The defendants filed relatively extensive submissions, being those spoken to by Mr Dermot Nottingham and separate submissions spoken to by Mr Phillip Nottingham. In summary, the defendants say that the memorandum of 19 September 2022 should be admitted as it, in their view, emphasises to the Court matters they considered were not brought out at the hearing being:

(a)issues in the pleadings and referred to in the hearing which the defendants allege are untrue;

(b)procedural issues relating to compliance or otherwise by the plaintiff with rr 5.62 and 5.63 of the High Court Rules and the consequences of non-compliance by the plaintiff with those rules in the statement of defence, in particular the defendants refer to the effect of Associate Judge Andews’ minute dated 30 May 2022;

(c)that pre-proceeding with discovery which if taken by the plaintiff would have, in the defendants’ contention, produced documents which would have been an answer to the claim;

(d)other matters raised in the memorandum.

Plaintiff’s submissions

[15]   Mr Steele then submits that the Practice Notes anticipates that additional submissions will only be allowed when “exceptional circumstances” exist for their admission. The kind of circumstances highlighted in the Practice Note include where some pertinent consideration or authority has been overlooked, or a new matter has

arisen since the hearing which has not been anticipated by counsel. Mr Steele submits none of these matters are present in the defendants’ memorandum, interlocutory application or supporting affidavit.

[16]   Mr Steele, at [19] to [22] of his submissions, points to matters raised in the  19 September 2022 memorandum and submits that these points have previously been raised in submissions and are repeats of the submissions made at the hearing by     Mr Nottingham.

[17]   In conclusion, Mr Steele submits the defendants’ application and affidavit are simply no more in the nature of “reply” submissions and that r 7.49 is not designed to be, nor has it been interpreted by the Courts as, a vehicle for one party to make “reply” submissions.

Decision

[18]Having reviewed the 19 September 2022 memorandum, the submissions in the

19 September 2022 memorandum delivered by Mr Dermot Nottingham, the submissions by Mr Phillip Nottingham, and the submissions made by Mr Steele, I am cognisant of the fact that the defendants are self-represented and should potentially be granted some lenience in respect of compliance with the High Court Rules.

[19]   Following the hearing on 13 September 2022, the defendants clearly held the view that the number of issues they considered important had not been dealt with by the Court or had been overlooked by the Court.

[20]   While I accept Mr Steele’s submissions that the 19 September 2022 memorandum and supporting affidavit and other documents filed by the defendants do not fit well within the Practice Note, in my view, in the interests of justice and having regard to the position of the defendants as lay litigants wishing to ensure that the court had not overlooked the points raised, the submissions of 19 September 2022 should be allowed.

Defendants’ application for strike-out

[21]   As this decision disposes of the defendants’ application, treated as an application under r 7.49, the defendants’ application for strike-out of the plaintiff’s claim heard on 13 September 2022 will now be determined by the Court.

Orders

[22]I make the following orders:

(a)The Court’s minute of 21 September 2022 is rescinded and the submissions filed by the defendants dated 19 September 2022, shall be admitted to the Court file.

(b)There is no order as to costs.

…………………………….. Associate Judge Taylor