Bevan-Smith v Raupo Publishing (NZ) Ltd

[2007] NZCA 579

IN THE COURT OF APPEAL OF NEW ZEALAND

CA57/07
[2007] NZCA 579

BETWEENJOHN BEVAN-SMITH

Appellant

ANDRAUPO PUBLISHING (NZ) LIMITED (FORMERLY REED PUBLISHING (NZ) LIMITED

Respondent

Hearing:3 December 2007

Court:Hammond, O'Regan and Ellen France JJ

Counsel:Appellant in person

D A Wood for Respondent

Judgment:14 December 2007 at 11.30 am

JUDGMENT OF THE COURT

AThe application for extension of time for applying for filing the case on appeal is dismissed.

BThe appellant must pay costs of $1,000 plus usual disbursements to the respondent.

REASONS OF THE COURT

(Given by O’Regan J)

Introduction

[1]        John Bevan-Smith seeks an extension of time in which to file a case on appeal in respect of an appeal against a judgment of Priestley J: Bevan-Smith v Reed Publishing (NZ) Ltd & Anor HC AK CIV 2003-404-3628 10 January 2007.  In that judgment Priestley J dismissed Mr Bevan-Smith’s claim that the respondent, Raupo Publishing (NZ) Ltd, had breached the terms of the publishing contract it had concluded with Mr Bevan-Smith.  Raupo was until very recently known as Reed Publishing (NZ) Ltd.  We will refer to it as Raupo, even though it was known as Reed at the time of the events leading to this litigation.

[2]        The application is made to this Court pursuant to r 43(2) of the Court of Appeal (Civil) Rules 2005 (the Rules), which provides:

43         Appeal abandoned if not pursued

(1)       An appeal is to be treated as having been abandoned if the appellant does not apply for the allocation of a hearing date and file the case on appeal within 6 months after the appeal is brought.

(2)       The Court, on application, may—

(a)grant an extension of the period referred to in subclause (1); and

(b)      grant 1 or more further extensions of any extended period.

(3)An application for the grant of an extension may be made before the expiry of the period to which the application relates or within 3 months after that expiry; but no extension may be granted on an application that is made later than 3 months after that expiry.

(4)This rule overrides rules 5(2) and 6.

[3]        Mr Bevan-Smith’s notice of appeal to this Court was received on 9 February 2007.  An amended notice of appeal was received by this Court on 26 February.  We will treat the amended notice of appeal as an amendment of the grounds of appeal in terms of r 34(1) of the Rules.   

[4]        On 27 August, six months and 18 days after the expiry of the period referred to in r 43(1), Mr Bevan-Smith filed an application for an extension of time for filing the case on appeal.  It is common ground that this was permitted as Mr Bevan-Smith had three months from 9 August in which to seek such an extension by virtue of r 43(3).  A further extension was sought on 16 September.  A further extension was sought on 2 November, together with extensive applications for discovery of documents, bank statements, financial information, court files, electronic archives and correspondence.  There was also a request that this Court order the extradition of a former employee of Raupo.

[5]        The issue on the appeal is whether the Court in its discretion should indulge Mr Bevan-Smith with a further extension of time, given that at the date of his most recent request almost nine months had elapsed since his notice of appeal was filed.

Background

[6]        The factual background to this appeal is lengthy and protracted.  Reference should be made to Priestley J’s judgment for the detail.  For present purposes, a short summary will suffice. 

[7]        Mr Bevan-Smith is the author of a book entitled The Shape of Speed, a biography of two expatriate New Zealand yacht designers.  On 1 May 1995 Mr Bevan-Smith entered into a contract with Raupo.  Clause 4 of the contract provided that the publishers (Raupo) were to “produce and publish the [book] at their own risk and expense and with due diligence”.  Clause 5 contained a number of warranties by Mr Bevan-Smith, including relevantly that the book contained no “libelous” material and that statements in it purporting to be facts were true.  Clause 7 provided that the publishers were to have “the entire control of the publication”.  Clause 20 provided that if the publishers failed to comply with the contract within one month after written notification from Mr Bevan-Smith, the contract would automatically terminate without prejudice to any claim in damages at Mr Bevan-Smith’s suit.

[8]        Raupo was concerned at the risk of defamation claims.  Much of the controversy at trial arose from its decision to seek a second legal opinion on defamation risk, having already had the manuscript vetted by a defamation lawyer.  Mr Bevan-Smith disputed Raupo’s motives for the second opinion.  Raupo said it was prompted by a defamation claim relating to another book it had published which had been vetted by the same lawyer as had first vetted Mr Bevan-Smith’s manuscript.  The delay caused by the second opinion and the rewriting required to deal with the many issues it raised led to a breakdown of relations between Mr Bevan-Smith and Raupo.  Publication which had been programmed for late September or early October 1999, did not happen until December 1999 – the book was available for retail sale in limited quantities on 13 December 1999. 

[9]        By November 1999, relations had soured.  On 12 November 1999 Mr Bevan-Smith emailed Raupo’s managing director, Mr Smith, saying that Raupo was no longer permitted to publish the book and was required to return to Mr Bevan-Smith all relevant documents and materials it possessed.   Priestley J found at [103] of the judgment that this was a repudiation by Mr Bevan-Smith of the contract – if it had been a valid cancellation, Mr Bevan-Smith was required to follow the procedure stipulated in cl 20 of the contract.

[10]      On 16 November Mr Bevan-Smith’s lawyer sent a letter to Mr Smith purporting to cancel the contract under cl 20 because of Raupo’s failure to publish the book with “due diligence” in terms of cl 4.  Raupo’s lawyer replied asserting that Mr Bevan-Smith was in breach of his warranty that the book would not contain libelous material.  Mr Bevan-Smith’s lawyer then responded with a “sensible resolution” involving withdrawal of the purported cancellation notice and prompt publication of, and an agreed marketing campaign for, the book.

[11]      Priestley J found that this exchange of correspondence meant that the allegations made by Mr Bevan-Smith, that Raupo had breached the obligation to publish the book with due diligence, and Mr Bevan-Smith’s claim for damages, had been settled by compromise.  So too had any claim by Mr Bevan-Smith for damages flowing from alleged breach of contract.  Accordingly, Priestley J held that Raupo’s affirmative defence to Mr Bevan-Smith’s claim for breach of contract, that the dispute had been settled, succeeded.  Mr Bevan-Smith’s claim failed.

[12]      The Judge went on to consider, in the event he were wrong, whether Raupo had breached the obligation to publish with due diligence.  On the evidence he found Raupo had not done so.  Mr Bevan-Smith alleged that the book’s production and printing schedule had been unreasonably delayed, that Raupo had failed to supply sufficient printed stock to meet demand for the book, had acted unreasonably and unnecessarily in obtaining a second opinion, and had failed to provide promotional or advertising support.  Priestley J found that Raupo had not acted in bad faith or embarked upon unreasonable conduct designed to curtail Mr Bevan-Smith’s benefits under the contract.  Although Mr Smith’s decision to seek a second opinion was “rooted in self-interest” it was not actuated by bad faith and fell within Raupo’s rights to exercise “entire control” of publication under cl 7. 

[13]      The Judge relied upon expert evidence to the effect that it would have been unwise for Raupo to proceed to publication without the benefit of a second opinion.  Similarly the Judge held that Raupo’s failure to inform or consult Mr Bevan-Smith over its defamation concerns for nearly three weeks after it decided to seek the second opinion was not a breach of contract.

[14]      The Judge considered that the claim of a lack of promotion and distribution, not being the subject of an express clause in the contract, could not found a claim in breach, unless under cl 4 (due diligence).  He found that there had not been a breach of that clause in this respect. 

[15]      The Judge also went on to quantify damages in the event he were wrong in his conclusions as to settlement and breach.  He found that, if he had found a breach of contract he would have awarded damages of just over $8,000 (in contrast to Mr Bevan-Smith’s claim of over $1.2 million for lost royalties).  The Judge dismissed as meritless Mr Bevan-Smith’s claim that Raupo had breached the Fair Trading Act 1986.

Competing submissions in this Court

Mr Bevan-Smith on the merits

[16]      Mr Bevan-Smith’s core submission is that Raupo engaged in deceptive and dishonest conduct.  It is said that the decision to obtain a second opinion about the manuscript had nothing to do with the threat of defamation proceedings but was rather a ruse or pretext for delay to mask the fact that Raupo had lost interest in the book.  He says the defamation claim which Raupo said prompted the concern leading to its seeking the second opinion was not made until after the second opinion had been sought.  Mr Bevan-Smith submits that both Priestley J’s judgment, and evidence tendered by various employees of Raupo, are riddled with factual errors and misleading statements.   

[17]      Mr Bevan-Smith submits that Priestley J fundamentally misconstrued the key issues arising from the contract.  He says cl 7 gave Raupo “entire control” only of the mechanics of publication and promotion, rather than over the entire publishing process as the Judge found.  He says that at the point that the second opinion was solicited, there had already been a failure to expedite publication of the readied manuscript which constituted a breach of the due diligence obligation.

[18]      Mr Bevan-Smith argues that the settlement agreement was vitiated by the deceptive tactics of Raupo.  He alleges that, in any event, Raupo and Mr Smith denied him the proposed benefits outlined in the “sensible resolutions” tendered to Raupo’s lawyer by Mr Bevan-Smith’s lawyer. 

Mr Bevan-Smith on his delay

[19]      Mr Bevan-Smith dismissed his counsel near the end of the protracted High Court hearing: he alleged that this was because counsel had breached his privilege.  Without counsel, he had to undertake the steps to pursue his appeal to this Court unrepresented.  At the time of filing his notice on appeal, Mr Bevan-Smith had an incomplete copy of the High Court record, which he did not obtain until March 2007.  In May, Mr Bevan-Smith’s solicitor instructed a barrister to prepare his appeal.  Mr Bevan-Smith said the barrister seemed optimistic about the appeal until on 8 August, the day before the lapsing of the time limit under r 43(1), he unexpectedly withdrew.  There were then further delays as Mr Bevan-Smith sought to retrieve his files from the barrister’s possession.  This did not occur until 13 September 2007.

Raupo

[20]      Raupo contends that the appeal is devoid of merit and that Mr Bevan-Smith’s conduct in the prosecution of the appeal is manifestly disentitling.  Counsel, Mr Wood, argues that Mr Bevan-Smith has challenged factual findings by reference not to evidence but to his own distorted view of reality.  That is said to be evidenced by the allegations of counsel misconduct and fabrication of evidence that underscore his appeal, notwithstanding that the High Court Judge dismissed these possibilities outright.

[21]      Raupo points to Mr Bevan-Smith’s conduct of the High Court proceeding as an example of disentitling conduct.  In this regard, Raupo likens his conduct to that of the appellant in Erwood v Maxted [2007] NZCA 161. In the High Court Mr Bevan-Smith made a series of five applications for adjournments of fixtures, including applications for reviews of refusals of adjournments and an appeal to this Court: see Bevan-Smith v Reed Publishing (NZ) Ltd (2006) 18 PRNZ 310.  Despite being given three extensions of time in which to exchange witness statements, Mr Bevan-Smith placed himself in breach of timetabling requirements well past the start of the hearing.  This had the effect of lengthening the trial significantly.  The quantum that Priestley J said he would have awarded had he been convinced of Mr Bevan-Smith’s cause of action – just over $8,000 − is insignificant in comparison with the amounts Mr Bevan-Smith was offered before the High Court hearing by Raupo on a Calderbank basis (between $30,000 and $150,000) in exchange for discontinuing the litigation.

Discontinuance against Mr Smith

[22]      In the High Court proceedings against Mr Smith were abandoned and a notice of discontinuance was filed.  Although Mr Smith is not intituled as a respondent in the notice of appeal and amended notice of appeal, the more recent applications have included Mr Smith as second respondent.  We have seen a notice apparently filed by Mr Bevan-Smith which presumably is intended to be an application to “discontinue” his notice of discontinuance.  Mr Smith is not a party to the appeal and should not have been listed as such on the documents recently filed by Mr Bevan-Smith in connection with the present application.

Principles for deciding whether to grant a further extension

[23]      The antecedent of r 43 was r 10 of the Court of Appeal (Civil) Rules 1997.  In Airwork (NZ) Ltd v Vertical Flight Management Ltd [1999] 1 NZLR 29 this Court discussed the principles applicable to r 10. Those principles are directly applicable, and have been often applied, under r 43 (see, for example, Harlow v Gemmell [2007] NZCA 101 at [12]). In Airwork Blanchard J for the Court said at 30 – 31:

The new rule implements the philosophy that once a matter has been the subject of a determination in the High Court any party wishing to challenge that determination by an appeal to this Court must do so expeditiously or forfeit the right to pursue the appeal.

Recognising, however, that sometimes there may be good reason to give an appellant a longer period to prepare for the hearing of the appeal, the Court is empowered to extend the period on one or more occasions provided that the appellant continues to be willing to pursue the appeal speedily and demonstrates that willingness by applying to the Court within the time allowed for an extension.  The appellant in so doing brings the further progress of the appeal within the control of the Court.

[24]      Blanchard J said that provided an appeal was not “devoid of merit” the Court would grant the indulgence of an extension of time as a matter of normal practice.

[25]      However, as this Court noted in Erwood v Maxted, the grant of an extension of time is an indulgence: Scenic Developments Ltd v Kelmarna Properties Ltd (2004) 17 PRNZ 489.  In Scenic Developments, this Court said at [29]:

First, on a leave application, what is being sought is an indulgence … [We] are required to have regard to the whole of the circumstances of the case …. The appellants have throughout the unfortunate history of this litigation continually failed to comply with timetabling orders and directions; and have had counsel in the proceedings in and out of them continually, with a disruptive and delaying effect on the proceedings.  Their conduct disentitles them to an indulgence.

Application of principles to this case

[26]      This case has many of the same features as Scenic Developments and Erwood v Maxted. We accept Mr Wood’s submissions in that respect, summarised at [1] above. Mr Bevan-Smith’s attempt to “discontinue” his notice of discontinuance against Mr Smith, and his applications to this Court for discovery and extradition (see [4] above) appear to indicate that little has changed.

[27]      While we accept Mr Bevan-Smith’s reason for failing to file the case on appeal on time is genuine, we are satisfied that, looking at the matter overall, the granting of the indulgence he seeks in this case is not justified.  As the Court did in both Erwood v Maxted and Scenic Developments, we conclude that, when the matter is looked at in the round, there are not good grounds for the granting of an extension of time in this case.

Result

[28]      We dismiss the application, with the result that Mr Bevan-Smith’s appeal to this Court is deemed to be abandoned under r 43(1) of the Rules.

[29]      Raupo is entitled to costs of $1,000 plus usual disbursements.

Solicitors:
Lovegroves, Auckland for Respondents