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Bevan-Smith v Reed Publishing (NZ) Ltd

Bevan-Smith v Reed Publishing (NZ) Ltd

Case [2006] NZCA 85 11 May 2006

Civil Litigation & Procedure

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA85/06
BETWEENJOHN BEVAN-SMITH

Appellant

ANDREED PUBLISHING (NZ) LIMITED AND ALAN SMITH

Respondents

Hearing:10 May 2006

Court:William Young P, O'Regan and Robertson JJ
Counsel:J Katz QC for Appellant

M C Black for Respondents

Judgment:11 May 2006

JUDGMENT OF THE COURT

A              The appeal is dismissed.
B              There is no award of costs.
REASONS
(Given by William Young P)
Introduction
[1]        This is an appeal from a judgment of Priestley J delivered, on 8 May 2006 and from orders made by Venning J on 23 March 2006, 7 April 2006 and 24 April 2006. The first and last of the decisions of Venning J were in the form of minutes. In the decisions under appeal, Venning and Priestley JJ declined to adjourn a trial which was begin on 8 May 2006 and which commenced on 9 May. The appellant is the plaintiff in those proceedings.
[2]        We heard the appeal yesterday afternoon.
The case
[3]        The underlying proceedings involve a claim by the appellant against the first respondent (which is a publisher) and the second respondent (who is a director of the first respondent) for damages arising out of what the appellant claims was a breach of a book publishing contract and associated legal wrongs. The contract was entered into as long ago as 1995. Under it the appellant was to research and write, and the first respondent was to edit and publish, a book to be called The Shape of Speed. The subject matter of the book was yacht racing.
[4]        The appellant completed a manuscript in March or April 1999. There were subsequent delays in publication associated with concerns on the part of the first respondent of the risk of being sued for defamation and related arguments about rewrites. All of this led to a breakdown in the relationship between the appellant and first respondent which resulted in the appellant purporting to cancel the agreement. This was in late 1999. There appears then to have been something of an accommodation under which 5,000 books were printed of which some were subsequently sold. But the relationship between the appellant and first respondent again foundered.
[5]        The appellant issued proceedings in July 2003 seeking substantial damages. He complains primarily about the delays in publication (particularly in and around October 1999). As noted, The Shape of Speed is about racing yachts and the appellant’s position is that it should have been published in or around October 1999 to take advantage of the association with America’s Cup/Louis Vuitton Cup regattas then underway (or about to begin) in Auckland and the pre-Christmas marketing season.
Procedural history
[6]        Progress of the litigation has been slow. For the first 12 months of the litigation, the appellant was self-represented. Since mid-2004 he has been legally aided but the limits to the funding arrangements with the Legal Services Agency (LSA) have impaired progress. The appellant’s dealings with the LSA have perhaps been complicated by letters which counsel for the first…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bevan-Smith v Reed Publishing (NZ) Ltd

Details

AGLC: Bevan-Smith v Reed Publishing (NZ) Ltd [2006] NZCA 85
Case: [2006] NZCA 85
Decision Date: 11 May 2006

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal from John Bevan-Smith against Reed Publishing (NZ) Limited and Alan Smith. The appellant argued that the refusal to adjourn the trial irretrievably compromised his right to a proper evaluation of his case. The underlying dispute involves a claim by the appellant against the first respondent (a publisher) and the second respondent (a director of the first respondent) for damages arising from a breach of a book publishing contract and associated legal wrongs. The Court of Appeal found that the refusal to adjourn did not irretrievably compromise the appellant's rights to a proper evaluation of his case. Although the situation was unsatisfactory, the court found that the appellant's rights had not been irretrievably compromised. The appeal was dismissed, and no award of costs was made.

Orders