Bell v Anderson HC Dunedin CP14/98
[2001] NZHC 1306
•20 December 2001
IN THE HIGH COURT OF NEW ZEALAND
DUNEDIN REGISTRY CP14/98
BETWEEN JOHN ARTHUR BELL
Plaintiff
AND STUART JOHN ANDERSON AND ORS
Defendant
Hearing: 15 November 2001 at Dunedin
23 November 2001 at Christchurch
(Heard at Dunedin and Christchurch)
Appearances: J A Bell appears in person
(with Next Friend Mr Lees on 15 November and Mr Huia on 23 November)
A J Forbes QC for Defendants
Judgment: 20 December 2001
JUDGMENT OF MASTER VENNING
On Defendants’ Applications To Strike Out and for Judgment
Solicitors:
Woodward Toomey, Christchurch for Defendants
(Counsel - A Forbes QC, Christchurch)
APPLICATIONS
[1] The Defendants in CP14/98 have applied for orders:
• For judgment for the Defendants in CP14/98;
• Alternatively that the Plaintiff’s proceeding in CP14/98 be dismissed; and
• That judgment be entered in favour of the Respondents in AP10/98
upon the grounds that the Plaintiff in CP14/98 has failed to comply with orders of the Court.
[2] There is also an application by the Plaintiff before the Court. That is stated to be an application for an order:
“acknowledging substantial compliance by the plaintiff in complying with the order of the Court dated 14 June 2001 and compliance with his planning and desire to do so under the unusual and difficult circumstances set out as grounds and reasons for delay and the evidence filed today verifying all the different steps taken to comply with the order.”
[3] The Plaintiff’s application was filed on 12 July 2001. As was noted in a chambers minute on 22 August 2001, I take that application to be for a further extension of time for the Plaintiff to file and serve the balance of the witness statements required in this proceeding.
HEARINGS
[4] At both hearings Mr Bell sought leave to have a Next Friend present to assist him. He also sought leave of the Court to have other supporters attend the hearing although it was a hearing in Court for chambers. Mr Forbes did not oppose the Plaintiff’s applications. Leave was granted accordingly. Mr Bell was assisted by a Next Friend for part at least of the hearings in Dunedin and in Christchurch.
[5] The hearing commenced at 10.00am in Dunedin on 15 November 2001. It had to be adjourned at approximately 3.00pm that day because an examination of a bankrupt was scheduled at that time. As Mr Bell was still in the course of submissions it was adjourned part-heard. It was able to proceed in Christchurch on 23 November 2001 with Mr Bell’s co-operation. It proceeded from 10.00am until approximately 3.00pm that day.
[6] Mr Forbes’ submissions were limited to approximately 35 minutes on 15 November and approximately five to ten minutes in reply on 23 November. The balance of the time was occupied by Mr Bell’s submissions to the Court.
HISTORY TO THE PROCEEDINGS/GENERAL BACKGROUND
[7] To put this application in context it is necessary to refer to the general background to the proceedings.
[8] The Defendant is a firm of solicitors. Mr Bell instructed the Defendant firm to act as his solicitors in November 1994 to oppose a claim by the Trustee of his father’s estate for possession, to pursue a claim against the estate of his deceased father, and to assist him in a dispute with the Dunedin City Council over rates. Mr Bell is dissatisfied with the Defendants’ services. He says they were negligent in carrying out his instructions and in representing his interests to the extent he has sustained loss.
[9] The solicitors rendered the following bills of costs to Mr Bell on 16 August 1996:
• Family Protection claim against his father’s estate $10,361.25
• Dunedin City Council rates issue $3,166.90
• Proceedings by Public Trustee against Mr Bell $5,202.50
$18,730.65
[10] Mr Bell refused to pay. The solicitors issued summary judgment proceedings in the District Court to recover their fees. The application for summary judgment was heard on 28 January 1998. Judgment was entered for the solicitors for the accounts relating to the Dunedin City Council rates issue and the claim by the public Trustee against the Defendant. Leave was granted to Mr Bell to defend the claim for fees in relation to his Family Protection claim.
[11] Mr Bell took an appeal from the decision. On 3 August 1998 John Hansen J allowed the appeal in relation to costs for the proceedings by the Public Trustee and set aside the judgment in relation to the Dunedin City Council bill as to quantum but entered, judgment for liability on that issue.
[12] At the same time as taking the appeal Mr Bell issued separate proceedings in this Court in CP14/98, alleging that the Defendant firm had breached the implied conditions of its retainer with him. The proceedings were issued on 15 April 1998. Mr Bell claimed the following losses:
Costs and disbursements of employing other solicitors and counsel $19,000.00
Costs on wasted estate claim $5,202.30
Half share of unnecessary or wasted Public Trustee costs (estimate) $5,000.00
Loss of opportunity to acquire Avoca Street access $35,000.00
General damages $10,000.00
[13] Mr Bell’s claim for loss in relation to the Avoca Street access is based on the premise that a prompt resolution of the litigation with the Public Trustee would have assured the transfer to him of 23 Cairnhill Street in specie and have given him an opportunity to acquire adjoining land which in turn would have given access to other land.
SUMMARISED CHRONOLOGY IN CP14/98
| 15 April 1998 | Claim filed. |
| 26 June 1998 | Statement of defence filed. |
| 12 August 1998 | Direction made for lists to be filed by 11 September 1998, inspection by 2 October 1998 and further interlocutory applications by 23 October 1998. |
| 30 September 1998 | Defendants’ list of documents sworn and filed. |
| 28 January 1999 | Direction extending the time for the Plaintiff to file and serve list of documents to 25 February 1999. |
| 11 May 1999 | Telephone conference during which counsel for the Plaintiff (Mr Atkinson QC) advises the Court that he has all the documents and will prepare a list within 10 days. Time for the Plaintiff to file and serve a verified list of documents extended to 21 May. |
| 30 June 1999 | Conference attended by Mr Batchelor for the Plaintiff and Mr Forbes for the Defendant. The conference minute records that the position in respect of the file is “unsatisfactory” and that Mr Batchelor wished to withdraw as solicitor. The minute notes that a formal application would be required. |
| 6 October 1999 | Chambers hearing. Order made granting Mr Batchelor’s application to cease being solicitor on record for the Plaintiff. |
| 20 December 1999 | File reviewed at a telephone conference attended by Mr Bell and Mr Forbes. Unless order made to the effect that: |
| “. . . unless the Plaintiff files and serves a verified list of documents by 11 February 2000 the Plaintiff’s claim/appeal against the Defendants/Respondents will be struck out and Judgment entered for the Defendants/Respondents against the Plaintiff.” | |
| [I should record that Mr Bell says he was disconnected from the call part way through. It is apparent from the minute, however, that he was aware an unless order was to be made.] | |
| 10 February 2000 | Mr Johnstone from Wynn Williams & Co enters on record for the Plaintiff. The Plaintiff’s list of documents filed. |
| 28 June 2000 | On Mr Johnstone’s application, Mr Bell not opposing, an order made declaring that Wynn Williams & Co and Mr Johnstone cease to be solicitors for the Plaintiff. Mr Bell attended the conference. The substantive case was set down for a hearing during the week of 4 December 2000 in Dunedin. |
| 10 August 2000 | Amended statement of claim filed. The quantum of Mr Bell’s claim was increased to $104,202.30 made up of: |
| • costs and disbursements of employing other solicitors and counsel $20,000.00 | |
| • costs wasted on estate claim $5,202.30 | |
| • half share of unnecessary or wasted Public Trustee costs (estimate) $10,000.00 | |
| • loss of opportunity to acquire 10 Avoca Street and vehicular access through to 43 Appold Street and the resultant loss of net value of 43 Appold Street $69,000.00 | |
| 15 August 2000 | Document described as interlocutory application filed by Mr Bell. It seeks an order declaring: |
| · Further interlocutory rights to Mr J A Bell re documents. | |
| · Continuation of a right to Mr J A Bell to bring an application for directions or a separate case relating to alleged breaches by the representatives of Race & Douglas. | |
| · Continuation, extension of or opening through the statement and meanings that should be taken or reasonably from those inferred in the minute of the telephone conference of 28 June 2000. | |
| Correspondence followed between the parties to clarify that application. | |
| 22 November 2000 | Telephone conference attended by Mr Bell and Mr Forbes before John Hansen J. Mr Bell seeks an adjournment of the fixture scheduled for 4 December. The application for adjournment was declined. Directions made as to the exchange of witness statements, statement of issues and bundle of documents. |
| 4 December 2000 | L B Bain, solicitor of Rangiora enters on record for the Plaintiff with Mr Hall as counsel. Hearing before John Hansen J at Dunedin. Mr Bell represented by Mr J M Hanan as agent. Mr Hanan sought adjournment of the fixture for 4 December. Adjournment granted on terms that costs of $2,500 plus disbursements as fixed by the Registrar to be paid by Mr Bell by the end of January. In addition John Hansen J directs: |
| “If it is not paid, it will have the effect of an unless order and there will be leave to Race & Douglas to enter judgment on both the claim and counterclaim.” | |
| John Hansen J also directs that Mr Bell’s brief of evidence and statement of issues are to be lodged by the last working day in January 2001. | |
| 31 January 2001 | Application made by Mr L B Bain for a declaration that he cease to be solicitor and by Mr Hall that he be granted leave to withdraw as counsel. |
| 19 February 2001 | Defendants/Respondents seek judgment on the grounds that Mr Bell has failed to comply with the orders made in the decision of John Hansen J of 4 December 2000. |
| 7 March 2001 | Hearing on the Defendants/Respondents’ application for judgment and Mr Bain’s and Mr Hall’s applications for leave to withdraw as solicitor and counsel respectively. Order made declaring that L B Bain cease to be solicitor on record, and a further order granting leave to Mr Hall to withdraw. Defendants/Respondents’ application for judgment dismissed upon terms on 9 March 2001. Terms include: |
| “(d) . . . unless those disbursements fixed by the Registrar and advised to Mr Bell are paid by 30 April 2001 then the Plaintiff’s claim in CP14/98 will be struck out and judgment entered for the solicitors in both CP14/98 and AP10/98. | |
| . . . | |
| (h) Unless Mr Bell complies with the order and files and exchanges his briefs by 31 May 2001 his claim in CP14/98 will be struck out and judgment entered for the solicitors in both CP14/98 and AP10/98.” | |
| 28 May 2001 | Document described as brief of evidence of Plaintiff filed. |
| 14 June 2001 | Telephone conference convened. Attended by Mr Bell and Mr Forbes. Minute of the conference records that the document filed by Mr Bell on 28 May is no more than a summary of the evidence Mr Bell proposes to call. The minute also records that Mr Bell sought and was granted an extension of a further 28 days to file and exchange his witness statements. Formal order made extending the time for Mr Bell to file and exchange his witness statements to 12 July 2001. The substantive fixture scheduled for the case for 5 September is vacated. |
| 12 July 2001 | Witness statements of Mr Timothy Tainui Tauwhare, Graeme Edward Johnston, and Shane G Waldron filed but not served. Application noted at para [2] above filed by Mr Bell. Not served on the Defendants. |
| 21 August 2001 | Plaintiff’s application served on Defendants by fax. |
| 22 August 2001 | Chambers hearing. First call of Mr Bell’s applications. |
| 24 August 2001 | Defendants file the current application for an order dismissing the Plaintiff’s claim. |
| 23 August 2001 | Defendants’ opposition filed. |
REPRESENTATION
[14] The Plaintiff has had a variety of firms of solicitors and counsel act for him from time to time. At other times he has represented himself.
| 15 April 1998 to 6 October 1999 | D J Batchelor solicitor on record. C B Atkinson QC instructed as counsel (until May 1999). |
| 6 October 1999 to 10 February 2000 | Mr Bell represents himself. |
| 10 February 2000 to 28 June 2000 | C R Johnstone of Wynn Williams & Co solicitor on record. |
| 28 June 2000 to 4 December 2000 | Mr Bell represents himself. |
| 4 December 2000 to 9 March 2001 | L B Bain as solicitor on record with P H Hall instructed as counsel. |
| 9 March 2001 to present | Mr Bell represents himself. |
COMPLIANCE WITH PREVIOUS ORDERS OF THE COURT
[15] The Defendants’ application is based on the unless order made on 9 March 2001, extended on 14 June 2001, and the Plaintiff’s history of failure to comply with orders of the Court. The unless order itself was made as a result of Mr Bell’s earlier non-compliance. It is thus necessary to consider the background to the Plaintiffs’ compliance with previous orders.
Lists of documents
[16] On 12 August 1998 a direction was made for lists of documents to be filed and served by 11 September 1998. Neither the Plaintiff nor the Defendants complied. However, the Defendants filed their list on 30 September 1998, within three weeks of the date directed.
[17] On 28 January 1999 the time for Mr Bell to file and serve the verified list of documents was extended to 25 February 1999.
[18] On 11 May 1999 the time for Mr Bell to file and serve his verified list of documents was extended again, to Friday, 21 May 1999.
[19] On 20 December 1999 Mr Forbes recorded that the Plaintiff had still not filed and served a list of documents and sought an unless order. The Court made an unless order requiring compliance by 11 February 2000. On 10 February 2000 a new firm of solicitors entered on record for the Plaintiff and the list of documents was filed.
[20] The Plaintiff’s list of documents was filed some 17 months late and after two extensions of time and an unless order.
Preparation for fixture
[21] On 28 June 2000 the proceeding was set down for a hearing during the week of 4 December 2000 in Dunedin. Leave was reserved to both parties to make any further formal interlocutory applications or to amend pleadings. That leave expired 9 August. Mr Bell filed the amended statement of claim on 10 August 2000.
[22] On 22 November 2000 at a conference before John Hansen J Mr Bell sought an adjournment of the fixture scheduled for 4 December. That application was declined. John Hansen J made directions for briefs to be filed in the Court and served by 4.00pm on Wednesday, 29 November, and for Mr Bell to file a statement of issues by 4.00pm on 1 December. Mr Bell did not comply.
[23] On 4 December a fresh solicitor entered on record for Mr Bell. Mr Hanan appeared as agent to seek an adjournment of the fixture. The fixture was vacated against the Defendants’ opposition. The case was allocated a reserve fixture for 19 March 2001. It was not able to proceed that week. Later, the case was allocated a fixture for 5 September 2001. That fixture also had to be vacated.
[24] Mr Bell failed to comply with orders that were made to ready the case for hearing. Both the Court and the Defendants were ready to proceed with a fixture on 4 December, but that fixture had to be adjourned as Mr Bell was not ready to proceed.
Payment of costs
[25] On 4 December 2001 John Hansen J made an unless order requiring Mr Bell to pay the Defendants’ wasted costs of $2,500 and disbursements on the adjournment.
[26] Mr Bell paid the costs of $2,500 into Court but applied for an order that the costs not be paid out pending “final determination”. He refused to authorise the Registrar to pay the $2,500 out to the Defendants. The costs could only paid out when a direction to that effect was made in the decision of 9 March 2001.
Witness statements
[27] On 22 November 2000 John Hansen J directed that Mr Bell file and exchange his witness statements by 29 November 2000. Mr Bell failed to do so.
[28] On 4 December 2000 John Hansen J directed that Mr Bell file and exchange his witness statements by 31 January 2001. Mr Bell failed to do so.
[29] On 9 March 2001 an unless order was made requiring the Plaintiff’s witness statements to be filed and served by 31 May. Mr Bell filed a document described as a brief of evidence on 28 May 2001. In substance it was not a brief of evidence.
[30] Counsel for the Defendants filed a memorandum dated 31 May 2001 in which he drew the Court’s attention to the defects in the document filed by Mr Bell, and submitted that having regard to the extent of indulgences granted to Mr Bell previously the unless order ought to be invoked.
[31] A telephone conference was convened on 14 June 2001 to consider the Defendants’ memorandum. In the event the Plaintiff was granted a further extension to comply with the unless order for the filing and exchange of witness statements. The extension was to 12 July 2001.
[32] On 12 July Mr Bell filed the three witness statements referred to in the chronology above. He did not file any further witness statements, nor did he exchange any of the witness statements as had been directed by the Court.
[33] Later, on 22 August 2001, Mr Bell filed a letter with the Court in which he referred to the evidence that he had filed:
“In discussion with your staff yesterday I was advised that Master Venning would be inspecting relevant court files for the current session from 3-00pm yesterday.
1. I filed a one page memorandum yesterday pre 3-00pm and;
2 . Further advise that the public typing service I use have undertaken to have a further affidavit ready for me to have sworn this morning before list commencement. As per pt 4 of my memorandum of 21, Aug, 2001.
3. I further advise that witness statement evidence for myself is organised as below.
4. 1. Mr G E Johnston - filed
2. Mr T T Tauwhare - filed
3. Mr S Waldron - filed
4. Mr C B Atkinson QC - filed, with affidavit of Mr D J Batchelor
5. Mr M G Kirkland, barrister - prior filed and affidavit of Mr J A Bell
6. Mr K E Klinkert, barrister - prior filed and affidavit of Mr J A Bell
7. Mr G R Brook prior filed information advises the court pre list on 22 Aug, 2001
8. Mr J A Stevenson prior filed information advises the court pre list on 22 Aug, 2001
9. Mr J A Bell prior filed information advises the court pre list on 22 Aug, 2001
. . .”
[34] The only witness statements that follow the form of the r 441A et seq at all are the statements of Johnston, Tauwhare and Waldron.
[35] The reference to Mr Atkinson’s evidence is in fact Mr Atkinson’s opinion and advice to Mr Bell which, somewhat unusually, was attached to an affidavit by Mr Batchelor and filed at Court on 21 August 2001.
[36] Mr Kirkland and Ms Klinkert acted for Mr Bell at an early stage of the District Court proceedings. They swore affidavits in opposition to the application for summary judgment. Mr Bell advised the Court by memorandum (on 22 August 2001) that he had been advised to call them for cross-examination on their affidavits. Mr Brook also swore an affidavit in the summary judgment proceedings. There is also an (unsigned) statement by him filed at Court on 21 August 2001.
[37] In short, Mr Bell failed to comply with the extension of time granted to him on 14 June 2001. I note that in his letter of 22 August 2001 to the Court he made no reference to the need for any further witness statements or evidence concerning his father’s medical history. However, Mr Bell placed some emphasis on that issue during the course of the hearing before me.
AUTHORITIES
[38] The Defendants’ application for an order dismissing the Plaintiff’s proceeding is made on the grounds the Plaintiff has failed to comply with the unless order made in the judgment of 9 March 2001 as extended by the order on 14 June 2001; and has failed to comply with a number of orders of the Court.
[39] An unless order is made by the Court exercising its inherent jurisdiction to control its own processes. As was noted in the decision on 9 March 2001 the special character of an unless order has been described by the English Court of Appeal in Hytec Information Systems Ltd v Coventry City Council [1997] 1 WLR 1666 as:
“(1) An unless order is an order of last resort. It is not made unless there is a history of failure to comply with other orders. It is the party’s last chance to put his case in order. (2) Because that was his last chance, a failure to comply will ordinarily result in the sanction being imposed. (3) This sanction is a necessary forensic weapon which the broader interests of the administration of justice require to be deployed unless the most compelling reason is advanced to exempt his failure. (4) It seems axiomatic that if a party intentionally or deliberately (if the synonym is preferred) flouts the order then he can expect no mercy. (5) A sufficient exoneration will almost inevitably require that he satisfies the court that something beyond his control has caused his failure to comply with the order. (6) The Judge exercises his judicial discretion in deciding whether or not to excuse. A discretion judicially exercised on the facts and circumstances of each case on its own merits depends on the circumstances of that case; at the core is service to justice. (7) The interests of justice require that justice be shown to the injured party for the procedural inefficiencies caused by the twin scourges of delay and wasted costs. The public interest in the administration of justice to contain those two blights upon it also weighs very heavily. Any injustice to the defaulting party, though never to be ignored, comes a long way behind the other two.”
P1674-1675
[40] Those principles were cited with approval by Paterson J in Ko v Ko 14 PRNZ 362.
[41] In the Ko case an unless order was made on 10 March 2000. The order required two matters to be attended to by 20 March 2000. First, a list of documents was to be filed and served; and second, copies of the documents were to be provided to the defendant at the plaintiff’s cost. The list of documents was filed and served but copies of the documents were not provided until seven days after 20 March 2000. Subsequently the plaintiff sought to file a further amended statement of claim and a third supplementary list of documents. The plaintiff sought an order enlarging the time to comply with the unless order. The defendant opposed the application and after a hearing Master Kennedy-Grant dismissed the plaintiff’s application. The unless order was given effect to.
[42] After reviewing the Hytec and New Zealand authorities Paterson J, on a review of Master Kennedy-Grant’s decision, noted:
“[18] An “unless order” is an order of last resort. Case management principles should not in ordinary circumstances override the justice of the situation but in a situation where a judicial officer has felt compelled to make an “unless order”, unless it can be established that there were no grounds for making such an order or that reasons beyond the party’s control caused non-compliance, the order should be upheld. An “unless order” is a last chance order and counsel must be aware that non-compliance with it will in normal circumstances bring the proceedings to an end. It is only in extreme circumstances, which will normally require evidence that the non-compliance was caused by something beyond the control of the party, that a Court should intervene and set aside the order. This is particularly so in a case such as the present one where counsel, knowing that the order was an “unless order”, did not apply before the expiry of that order for an extension of time to comply with it. In the circumstances of this case, such an extension may not have been granted but the failure to apply may arguably in this case be another example of the manner in which the plaintiff has treated Court orders. It would seriously reduce the value of “unless orders” if the defaulting party could without adequate explanation and without evidence of intervening extraneous circumstances have such orders set aside.
. . .
[22] English authority establishes that failure to comply with an “unless order” will generally be considered to be contumelious unless the defaulting party can show that there was no intention to ignore or flout the order and the failure to comply with the order was due to extraneous circumstances (see Re Jokai Tea Holdings Ltd [1992] 1 WLR 1196; [1993] 1 All ER 630). Further, the English Court of Appeal in Caribbean General Insurance Ltd v Frizzell Insurance Brokers Ltd [1994] 2 Lloyd’s Rep 32, noted that a Judge in concentrating on the prejudice to the defendants and disregarding the plaintiff’s persistent failure to comply with peremptory orders of the Court, had failed to ask himself the right question and therefore erred in law. The Court of Appeal, at p 40, noted that:
“It is important that breach of such orders should not be incautiously condoned or overlooked. Otherwise the notion that the Court will readily allow further time, will encourage those who have not troubled to comply with its peremptory orders to apply to set aside judgments entered in default.”
This principle undermines the submission on behalf of the plaintiff that the Master erred in failing to consider the merits of the plaintiff’s case.”
P366-368
[43] Mr Forbes submitted that Mr Bell had breached a number of orders, but in particular had failed to comply with the unless order made on 9 March and extended on 14 June.
[44] Apart from relying upon the unless order the Defendants also rely upon r 277. Rule 277 provides that:
“277. Enforcement of interlocutory order
(1) Where a party makes default in complying with any order made on any interlocutory application, the Court may, subject to any express provision of these rules, make such order as it thinks fit.
(2) In particular, but without limiting the generality of subclause (1), the Court may-
(a) If the party in default is a plaintiff, order that the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by him on the proceeding:
. . .”
[45] The Defendants’ application is based in the alternative on r 277.
[46] As the authors to ‘McGechan on Procedure’ note in the commentary to r 277, the New Zealand Courts’ traditional approach to non-compliance has been benevolent. In Lees Trading Co (NZ) Ltd v Loveday (3/6/98, Young J, HC Christchurch CP70/96) His Honour said (at p 11):
“There is a problem matching the general demands of case management . . . with the provision of individual justice in each case, particularly given the aversion Judges have to dismissing claims otherwise than on their merits. For better or worse, the compromises the Courts have made are weighted very much in favour of the second of these two considerations.”
[47] However, there are exceptions to that general proposition particularly where there has either been wilful or ongoing default or serious prejudice.
REASONS/EXPLANATIONS FOR DELAY
[48] I turn to deal with the application to dismiss for non-compliance with the unless order.
[49] The authorities on the effect of an unless order establish that the onus is on the party in default, in this case Mr Bell, to satisfy the Court that something beyond his control caused his failure to comply with the unless order.
[50] The default under the unless order relates to the exchange of the Plaintiff’s witness statements in preparation for the hearing. As long ago as 28 June 2000 the case was allocated a fixture for 4 December 2000. On 22 November 2000 John Hansen J made directions for the exchange of witness statements by 29 November 2000. The Plaintiff failed to comply with those directions.
[51] When the hearing commenced on 4 December 2000 counsel instructed at the last moment for Mr Bell sought and obtained an adjournment of the fixture. At the time John Hansen J directed that Mr Bell’s statements of evidence (and a statement of issues) were to be lodged on the last working day in January 2001 (31 January). Mr Bell again failed to comply with that direction.
[52] The Defendants then applied to dismiss Mr Bell’s proceeding for failure to comply with the orders of John Hansen J of 4 December. For the reasons given in the judgment of 9 March 2001 the orders were not made. The Court took into account that following Mr Atkinson’s death his files, including Mr Bell’s file, were held by Mr Dean Palmer, a partner in the firm of Duncan Cotterill. Mr Bell explained to the Court that he had experienced difficulty in obtaining documents from that firm. There was the additional complication in that Messrs Duncan Cotterill were also Mr Forbes’ instructing solicitors at the time. That was dealt with immediately prior to the hearing on 4 December 2000. Duncan Cotterill retired from the record and Messrs Woodward Toomey entered on the record on 1 December 2000. However, in declining the Defendants’ application to dismiss Mr Bell’s proceedings the Court, in the judgment of 9 March 2001, took into account those factors as explanations tendered by Mr Bell for non-compliance with the above orders.
[53] The comments made by the Court and the directions given to Mr Bell in the judgment of 9 March 2001 were quite clear:
“[31] Having considered the background to the matter, the reasons why Mr Bell has found himself in the position he now is in, and the nature of the orders made by Hansen J on 4 December 2000, on balance I am satisfied that it is not appropriate, and nor would it be in the interests of justice, to bring the proceedings to an end and deny Mr Bell a substantive hearing of his claim against the solicitors at this stage.
[32] However, the matter is very finely balanced and while at present the scales just, but only just, tip in Mr Bell’s favour that may not be the case in the event of any further default by Mr Bell.
. . .
[43] I do not want Mr Bell to be under any misapprehension as to his position in these proceedings and the seriousness of that position. He was granted an indulgence by the Court on 4 December 2000 when the fixture was vacated at his request. It was granted upon terms that he pay costs. Those costs must be paid. The Judge was concerned enough to make the payment subject to an unless order. I take Mr Bell’s submission to me that he wants this case heard on its substantive merits at face value. If that is the case then Mr Bell must prepare for a substantive hearing. He has the responsibility for that. There can be no further excuse or latitude on the grounds that Mr Bell represents himself.
[44] I propose to extend the time for Mr Bell to provide his briefs of evidence to enable the case to be dealt with on its substantive merits. If, however, he fails to comply with that order than he should be under no illusion whatsoever of the consequences of non-compliance. As noted in the se to extend the time for Mr Bell to provide his briefs of evidence to enable the case to be dealt with on its substantive merits. If, however, he fails to comply with that order than he should be under no illusion whatsoever of the consequences of non-compliance. As noted in the Hytec Information System Ltd (supra) case, public interest in the administration of justice to contain the “twin scourges of delay and wasted costs” weighs very heavily with the Court. Mr Bell was granted an indulgence by Hansen J on 4 December and has been granted another one by this decision. There must be no doubt that this is the last indulgence that will be granted to him.”
[54] The Court then went on to make orders inter alia:
“(d) . . . unless those disbursements fixed by the Registrar and advised to Mr Bell are paid by 30 April 2001 then the Plaintiff’s claim in CP14/98 will be struck out and judgment entered for the solicitors in both CP14/98 and AP10/98.
(e) Mr Bell is to file and exchange his briefs of evidence by 31 May 2001. I observe that normally parties are not required to file briefs of evidence but in this case the briefs are to be filed so that if any dispute arises out of whether the briefs have been filed and served on time the Court will have a record.
. . .
(h) Unless Mr Bell complies with the order and files and exchanges his briefs by 31 May 2001 his claim in CP14/98 will be struck out and judgment entered for the solicitors in both CP14/98 and AP10/98.
[47] Mr Bell should be under no illusion that, whatever he may think, he is being granted an indulgence by the Court and that it is a very last opportunity to him to put his house in order. If he fails to comply then he can be under no doubt whatsoever as to the consequences.”
[55] Despite those clear directions Mr Bell failed to comply. His “witness brief” was no more than a summary of the evidence he proposed to call. It did not comply with the requirements of the rules. Apart from filing the one, plainly defective, brief in his name, Mr Bell did not file any other witness statements by 31 May 2001. No other witness statements were filed or served as had been directed by the Court. This despite the fact that the Defendants had exchanged the witness statement of Mr Bellamy in preparation for the hearing of 4 December. Mr Bell would, or should, have been aware of the form required.
[56] However, after hearing from Mr Bell and Mr Forbes on 14 June 2001 the Court gave Mr Bell further benefit of the doubt and accepted that he had made an effort to comply with the unless orders by filing the, albeit deficient, witness brief. The Court agreed to extend the time for compliance with the unless order. Mr Bell was asked to suggest a time period within which he could comply. Mr Bell suggested 28 days. The Court extended the time for Mr Bell to file and exchange his witness statements to comply with the unless order for a further 28 days to 12 July 2001. However, because of Mr Bell’s default it became necessary to vacate an alternate hearing which had been scheduled for 5 September.
[57] The matter was recorded in the minute of the 14 June conference in this way:
“[4] During the course of the telephone conference Mr Bell addressed a number of points. A large number of the points Mr Bell addressed were irrelevant. In summary insofar as Mr Bell’s submissions were relevant they were to the effect that:
• If there was a breach of the Court order it was unintentional and was not contumelious; and
• He had not fully understood the requirement for the detail to be included in the witness statements and indeed had received conflicting advice about what was required.
. . .
[7] After discussing the above matters [the requirements of the rules relating to witness statements] with Mr Bell I invited him to advise how much more time he would need to complete, file and exchange the witness statements for this case. He suggested that he should be able to do it within a period of 28 days but sought the full period of 28 days.
[8] In the circumstances there will be an order extending the time for Mr Bell to file and exchange his witness statements to 12 July 2001.
. . .
[11] I emphasise to Mr Bell that he must adduce the full evidence he relies upon in the witness statements that are to be exchanged by 12 July.”
[58] Mr Bell then filed the witness statements of Mr Tuawhare, Mr Johnston and Mr Waldron on 12 July 2001. He has, however, not filed a full updated brief from himself, and nor, despite the clear order of the Court requiring service of the witness statements, has he served the witness statements on the Defendants.
[59] The Defendants say enough is enough and the unless order made on 9 March, initially for compliance by 31 May and extended on 14 June 2001 to 12 July, ought to be given effect to.
[60] The explanation for the failure to provide all witness statements by 12 July (the extended date) is now, as I understand it, that Mr Bell wanted to obtain medical records relating to his late father. Mr Bell advised the Court that he had experienced a number of difficulties in obtaining the records. As I understood Mr Bell’s submissions, in essence that was the reason he did not file the witness statements on time. In a memorandum he has filed Mr Bell says that from a practical perspective he experienced difficulties with:
“. . . hospital staff and doctors staff not providing me with opportunity of reasonable inspection, verification (even if simply number of pages in total, attachments listed) provision, whether total or only pertinent pages, but verified and legible production. . . .”
[61] It appears from references in the copies of correspondence that Mr Bell has delivered to the Court file (which are not in any proper affidavit or evidentiary form) that he made an application to the Otago Area Health Board on 21 May 2001 for the medical/old age records of his deceased father. He then made another request to them on 22 June 2001.
[62] The Otago District Health Board confirmed to Mr Bell that it held records relating to his late father but advised that they would require the written consent of the trustee or executor of his late father’s estate to make that information available. In a letter written on 12 October 2001 the Board’s officer says:
“I note your concerns relating to delays in providing you with information but believe that the staff with whom you have had contact have endeavoured to provide you with the prime direction - to obtain the written permission of the trustee or executor. We are not able to act on directions that a person is “probably entitled to” access information as intimated in your correspondence.”
The letter would suggest that Mr Bell had previously been advised that he would need his late father’s trustee’s consent to obtain the records.
[63] Mr Bell also appears to have requested documents from his late father’s general practitioner, Dr Wood. Again, by reference to the copies of Mr Bell’s correspondence on the file it appears he made a formal application to the doctor on 28 June 2001 for the records.
[64] Mr Bell submits that the delays in completing the witness statements have been caused by the Health Board, the general practitioner and the failure of the Public Trustee to agree to co-operate and provide that information to him.
[65] However, even on the material that Mr Bell has presented to the Court, it appears that he only initiated correspondence in May or June of this year to attempt to obtain the records. That against the background that in June 2000 he was directed by the Court to prepare for a fixture on 4 December 2000. There is no explanation in any proper evidentiary form before the Court as to the steps Mr Bell took after delivery of the judgment on 9 March 2001 to obtain the evidence he required or to file and exchange the witness statements. There is no proper explanation as to why he left it so late to try and obtain the medical records (if they are relevant). When Mr Bell was asked on 14 June to nominate how long would be required to comply, he nominated 28 days. The Court extended the time for compliance for 28 days at his request. He failed to meet that timetable.
[66] To the extent that Mr Bell relies upon the difficulty that he has experienced in obtaining his father’s medical records as an excuse for the delay, he must accept responsibility for it by leaving his approach to the medical advisers as late as he has.
[67] More significantly, however, Mr Bell has failed to serve even the witness statements he has filed as was required. The service of the witness statements was dealt with in the decision of 9 March. In that decision it was noted:
“[41] During the course of his submissions Mr Bell seemed to take the view that he ought not have to make his briefs of evidence available to the solicitors until their briefs of evidence were made available. He suggested a simultaneous exchange would be appropriate.
[42] For the assistance of Mr Bell I can indicate to him that the High Court Rules provide a default provision that exchanges of briefs of evidence are generally sequential rather than simultaneous (rr 441A et seq). In any event, the nature of the proceedings must be considered. The solicitors sue for fees for work done. The real issue in the case will not be the solicitors’ fees but rather the allegations by Mr Bell of negligence on the part of the solicitors. Mr Bell has the burden of establishing that negligence. In those circumstances it is appropriate that he exchange his briefs of evidence first. In any event, I understood Mr Forbes to say that the solicitors had already made their briefs available to Mr Bell, although the briefs have not been filed.”
The order was then made. It directed the witness statements be filed and exchanged. It is fundamental that a defendant, particularly in a case with a claim such as the present one, will require the plaintiff’s witness statements in order to fully understand the claim and answer it.
[68] When Mr Bell was asked during the course of this hearing why he had not exchanged the witness statements he had filed, he replied that he did not foresee that the process would take so long and the witness statements filed were not very much use without the other documents he was awaiting. The conclusion that despite the clear order of the Court, Mr Bell chose, for his own reasons, not to comply with it is inescapable. Mr Bell apparently took the view he knew best. That despite the clear message that the Court had given to him as to the seriousness of his situation and the need to comply with orders of the Court. The message and direction was given to Mr Bell both in the oral judgment of John Hansen J on 4 December 2000 where His Honour had referred to “one last opportunity”, and in the clear statements made by the Court in the judgment of 9 March 2001 which were made to underline the seriousness of the position Mr Bell found himself in.
[69] This case is now at the stage where Mr Bell’s default comes within the category referred to by the English Court of Appeal in Hytec (supra) and where there has been a deliberate flouting of the order of the Court. It is not something beyond Mr Bell’s control that has caused his failure to comply with the order. He has failed to file and exchange the witness statements as directed on at least three occasions by the Court. He has not properly explained why he delayed in seeking the medical records. He has failed to meet even the extended time for compliance that was fixed by the Court at his suggestion. Finally, for his own reasons he has chosen not to exchange the witness statements with the Defendants, despite the clear direction of the Court requiring him to do so.
[70] Every allowance that could be made for Mr Bell has been made in this case to date. The unless order striking out Mr Bell’s claim must be given effect to, at least to the extent of dismissing Mr Bell’s claim in CP14/98 and entering judgment for the Defendants in that proceeding on Mr Bell’s claim. It follows that Mr Bell’s application for an extension of time is dismissed.
GENERAL ISSUES
[71] The Defendants’ principal submission was that the unless order ought to be given effect to. The unless order was made on 9 March, requiring compliance by 31 May. It was not complied with. However, on 14 June the time for compliance was extended to 12 July. Although the minute from that conference on 14 June does not expressly record that the compliance required by 12 July was on an unless basis, I have construed it in that way. The initial unless order required compliance by 31 May. The order of 12 June extended the time for compliance, implicitly on the basis the unless order would take effect if Mr Bell did not remedy his default by that extended date. The order in relation to which time was extended was the unless order.
[72] However, in the event I am wrong to construe the direction of 14 June in that way, it is necessary to consider the application under the alternative head, r 277.
[73] The history to the proceeding and Mr Bell’s conduct is also relevant to whether an order under r 277 is appropriate, particularly in relation to whether there has been wilful or ongoing default by Mr Bell or prejudice to the Defendants.
[74] Mr Bell is a litigant in person. However, he cannot rely on that to avoid the consequences of his actions. He has had the opportunity to have and obtain legal advice throughout. It is significant that when a particularly important deadline has been reached Mr Bell has often arranged, at the last moment, for representation. That was so with the filing of the list of documents on 10 January 2000, and it was also so with the instruction of a solicitor and counsel to seek the adjournment of the fixture scheduled for 4 December 2000.
[75] Despite the number of solicitors and counsel who have represented Mr Bell he has been unable to maintain a relationship with them. In fact, during the course of his submissions to me Mr Bell made a number of critical comments about all the solicitors who had represented him, with the exception of the late Mr Atkinson. Mr Bell submitted that there had been “utter deceit” in relation to Mr Johnstone, that Mr Bain and Mr Hall had been a “massive disappointment”, and it is apparent from the affidavits filed in earlier proceedings that he took issue with Mr Batchelor’s representation as well. Mr Bell filed oppositions to the applications by Mr Batchelor and Mr Bain to withdraw. He alleged that Mr Batchelor had made “untrue statements” in his affidavit in support of the application for leave to withdraw. Mr Bell seems to blame his former advisers for most, if not all, the difficulties he has experienced throughout the life of this file. He appears to be unable, or unwilling, to accept any responsibility himself.
[76] Further, during the course of submissions, Mr Bell unreasonably attempted to criticise senior counsel, Mr Forbes, and also John Hansen J. Despite my indication to him that I was not prepared to have the hearing before me used as a forum to air complaints against those parties and that if he had complaints he could pursue them through appropriate channels, Mr Bell persisted with those allegations.
[77] In the circumstances, while considerable latitude and assistance has been provided to Mr Bell by the Court, there comes a time when the fact he is a litigant in person cannot be used as an excuse for his non-compliance with Court orders. That time has come on this file.
[78] While it is not possible to form a firm view on the merits of the Plaintiff’s claim at this interlocutory stage, it is relevant to consider the merits when considering whether to exercise the discretion to strike out or dismiss.
Costs and disbursements of employing solicitors
[79] In relation to this first head of claim, to the extent that the costs claimed are costs incurred in opposing the application for summary judgment or in these proceedings, they would be costs in the cause and would not constitute a separate claim for general damages. To the extent that they represent costs properly incurred by Mr Bell to pursue the various claims he had instructed the Defendants to pursue, then to a large degree they would be costs that would have been payable if the work had been carried out in any event. The issue is whether they are payable to the Defendants as they claim or, as Mr Bell claims, to other parties. However, if Mr Bell is successful in opposing the Defendants’ claim for costs and has no liability to the Defendants for costs then this claim would be pro tanto diminished.
Costs on estate claim
[80] The costs on the wasted estate claim appear to simply be the costs that the Defendants have rendered Mr Bell. Mr Bell has refused to pay those costs. There is no basis for recovery of those costs.
Public Trustee costs
[81] The claim for a one half share of unnecessary or wasted Public Trustee costs estimated at $10,000 is difficult.
Loss of opportunity to acquire Avoca Street property
[82] The real difficulty for the Plaintiff with his current claim in terms of causation and the causative link between the alleged negligence on the part of the Defendants and his failure to obtain the opportunity to purchase 10 Avoca Street. The pleading is severely deficient. Detailed particulars would be required to support it. They are absent at present.
[83] In summary, overall it cannot be said that Mr Bell’s case could be classed as a particularly strong claim. The quantum is also limited.
CONCLUSION
[84] In summary, even if the Defendants can not rely on the effect of the unless order, and have to rely on r 277, I am satisfied that it is appropriate there be an order that the Plaintiff’s claim is struck out and judgment entered for the Defendants on the Plaintiff’s claim. The history of this proceeding records default by Mr Bell throughout its course. He has continually failed to comply with orders of the Court, even where time limits have been extended. He has had the consequences of default spelled out to him. The defaults are such that I am led to the inevitable conclusion that Mr Bell has deliberately decided not to exchange the witness statements as directed.
[85] Further, the stage has now been reached where it can properly be said the Defendants are prejudiced by Mr Bell’s default. The Defendants could reasonably have expected this case to be dealt with some time ago. The proceeding has been on foot since April 1998. The Defendants lost the opportunity of having the matter dealt with as a fixture in December 2000. I am conscious that dismissing Mr Bell’s claim denies him the right to have his case heard on its merits. That is something a Court is reluctant to do. However, Mr Bell only has himself to blame. Mr Bell has had opportunity to have his case heard on its merits on at least one occasion (4 December 2000).
[86] Further, in this case the Defendants have been put to additional and unnecessary expenses occasioned by hearings that are only necessary because of Mr Bell’s conduct.
THE DEFENDANTS’ COUNTERCLAIM
[87] That leaves the issue of the Defendants’ claim for fees. The Defendants’ claim for fees was initially made in the District Court proceedings. They obtained a judgment. The appeal was successful. In the ordinary course of events the proceeding would then have continued in the District Court. However, as Mr Bell had issued these proceedings in this Court, the solicitors’ claim was transferred to this Court to be heard at the same time.
[88] I am not satisfied that the Court should go so far as to enter judgment for the Defendant on that particular claim at this time. The basis of the order striking out the Plaintiff’s claim is that the Plaintiff has failed to pursue his substantive claim for negligence against the solicitors. He has had the running with that claim. It was for that reason he was required to file and exchange the witness statements. His claim has been struck out on the basis he has failed to pursue that claim by complying with the orders of the Court.
[89] The Defendants’ claim against Mr Bell for fees is a separate claim. Although it has been directed to be heard at the same time, the proceedings have not been formally consolidated. The Defendants’ claim stands as a separate claim. The Defendants must be entitled to pursue that claim if they wish, but if they do so I consider, particularly given the comments of John Hanson J as to the respective merits of the claim in his oral judgment on the appeal, that Mr Bell should have the opportunity to defend that claim on the grounds of the solicitors’ negligence. Whether the Defendants pursue it or not is a matter for them.
[90] If the solicitors choose to pursue the claim then Mr Bell may defend it on the grounds of negligence, but he may not pursue a counterclaim. Any counterclaim would effectively be barred by this decision which dismisses his claim for damages against the solicitors.
COSTS
[91] Having succeeded on the substantive application the Defendants are entitled to costs on the application and in the proceedings generally.
[92] Mr Forbes has sought costs and disbursements in accordance with a memorandum filed on 15 November, at the outset of the first hearing. The total costs sought in these proceedings as distinct from the Defendants’ claim for fees, and after taking account of the $2,500 directed to be paid by John Hansen J on 4 December, are $31,880. The net figure for disbursements, after the allowance for disbursements approved by the Registrar and ordered to be paid, is $2,526.71.
[93] In an earlier memorandum Mr Forbes submitted that 50% of the costs and 75% of disbursements at that stage would be fair.
[94] Although these proceedings were commenced in 1998 before the new regime for costs came into effect, most of the conferences and events of particular significance have occurred after the rules came into effect. To the extent that any steps were taken in the proceedings before the new costs rules came into effect on 1 January 2000, I propose to apply the new costs rules to those steps on the basis they lead to a fair result for both parties.
[95] Putting the costs award made by John Hansen J to one side and also noting that no order for costs was made on the earlier application of 9 March, the Defendants have taken the following steps in the proceeding for which they are entitled to costs:
| Step | Time allowance |
| Statement of defence | 2.0 days |
| List of documents | 1.5 days |
| Inspection/other issues in relation to discovery | 1.5 days |
| Conferences (there were 12 conferences which I propose to treat as mentions hearings or callovers) | 2.4 days |
| Current application to dismiss | 0.6 day |
| Preparation time (measured in quarter days) | 1.5 days |
| Hearing time (measured in quarter days) two hearings of 3/4 day each | 1.5 days |
| 11.0 days | |
| $1,300.00 per day | |
| $14,300.00 |
[96] In addition, I propose to allow the disbursements of $1,398.18 referred to in Mr Forbes’ memorandum of 15 November 2001, they being disbursements incurred subsequent to the earlier hearing. I disallow the application for disbursements incurred earlier than that as the Registrar has ruled on disbursements from the earlier hearing.
ORDERS
[97] The Plaintiff’s application for an extension of time is dismissed. The Plaintiff’s claim against the Defendants in CP14/98 is dismissed and judgment is entered for the Defendants on the Plaintiff’s claim.
[98] The Plaintiff is to pay the Defendants costs of $14,300.00 together with disbursements of $1,398.18, in total $15,698.18.
[99] That leaves the Defendants’ claim against the Plaintiff for fees. Counsel for the Defendant is to file a memorandum to advise whether that claim is to be pursued. That memorandum is to be filed and served by 1 February 2002. If the Defendants are to pursue that claim it would seem appropriate for the file to be transferred to the District Court at Dunedin.
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