Bevan-Smith v Reed Publishing (NZ) Ltd

[2006] NZCA 85

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 respondent sent to the LSA between November last year and March this year.

[7]        In June last year Associate Judge Sargisson set the case down for hearing on 8 May this year.  Seven hearing days were allowed for.  Thus the parties have had some 11 months notice of the fixture.   Since then there has been much interlocutory skirmishing and, since March this year, repeated efforts by the appellant to obtain an adjournment.  These attempts were rebuffed by Venning J in the decisions of 23 March 2006, 7 April 2006 and 24 April 2006.   When the last of the applications to Venning J was dismissed, counsel then acting for the appellant sought the assistance of Ms Duffy QC.  The LSA approved her engagement and she became directly involved with the case on 27 April.

[8]        On the basis of what we were told by counsel, there may be something of a disconnect between the case management and legal services systems.  Mr Katz QC, who appeared for the appellant in the Court, told us that the LSA will not commit to funding for experts until interlocutories are completed.  Here the interlocutories were not completed until March this year.  But by then the fixture was imminent. This undoubtedly made life difficult for the appellant’s advisers who felt that they could not engage experts (or make associated arrangements associated with video link facilities) without legal aid approval.

[9]        A funding commitment from the LSA in relation to expert witnesses was not sought until February this year and was not secured until 5 April (with notification occurring on 6 April). 

[10]     On the material before us, it seems that proposed expert witnesses were not prepared to engage in preparation over Easter or the four days concluding on ANZAC Day.  This provided the context for the last of the adjournment applications to Venning J which was dismissed on 24 April.  We should make it clear, however, that the appellant at this time was not maintaining an inability going to trial on 8 May.

[11]     Ms Duffy walked into a very difficult situation.  By the stage that she was engaged, the appellant was facing an unless order as to his own brief of evidence which was required by 2 May.  It is to her credit that she was prepared to accept a brief in those circumstances.  With what we suspect must have been real difficulty, Ms Duffy was able to ensure that this deadline was met.  Briefs of evidence of other supporting witnesses have also been completed.  But intractable difficulties arose in connection with expert witnesses.  The long and the short of it is that the experts’ briefs are still not available although apparently some progress has been made.  As well, as late as 8 May, the day fixed for the commencement of the trial, Ms Duffy had not prepared her opening.

[12]     What we have just said is not a criticism of Ms Duffy.  It simply reflects that state of preparation of the case as it was when she was instructed and the difficulties she has subsequently faced.  All of this emphasises the reality that the case has been prepared in circumstances of critical pressure.

The reasons given for declining the adjournments

[13]     Although the appeal addresses decisions given by Venning J on 23 March and 7 April, the grounds raised by the appellant for seeking an adjournment at that time did not involve the contention that the appellant would not be in a position to go to trial on 8 May.  The real relevance of these decisions is contextual, as indicating an apparent determination on the part of the appellant to secure an adjournment and an associated willingness to advance in support reasons of doubtful cogency.

[14]     In his minute of 24 April, Venning J observed:

[14]   The plaintiff has now filed a further application for adjournment of the fixture.  The grounds for this further application can be summarised as:

·     That when the Court extended the time for the plaintiff to exchange witness statements to 19 April the Court failed to take into account the Easter holidays;

·     Three of the eight documents directed to be disclosed by the defendants in the decision of 7 April have not been disclosed; and

·     Because of the late confirmation of legal aid, the plaintiff does not have sufficient time to finalise briefing witnesses for the fixture, including expert witnesses.

[5]     With respect it is not for counsel to say the Court failed to take into account the Easter break in fixing the extended timeline for the plaintiff’s witness statements.  The plaintiff’s witness statements were initially due by 29 March.  At the teleconference on 23 March the date was extended until 12 April.  At the application for judicial review the date was further extended to 19 April.  Because of the plaintiff’s default it will have to be further extended again.

[6]     The third ground advanced by the plaintiff is similar to the grounds raised on both earlier applications to vacate the fixture.

…

[8]     Ms Lewis again emphasised the difficulties for the plaintiff with the late confirmation of legal aid for the substantive hearing.  With respect that is not an acceptable reason for the plaintiff’s default in compliance with the orders of the Court. The fixture was allocated in June last year.  As has been observed the plaintiff has had ample time to resolve issues with Legal Services Authority and to confirm witness availability for the fixture.  Even on the plaintiff’s case the Legal Services Agency confirmed funding for the fixture by letter of 5 April.  There is no adequate explanation for the further delays by the plaintiff in preparing the case for hearing since then.

[9]     The plaintiff should have ensured its witnesses were available for the fixture date.  Indeed Ms Lewis was not able to say that the witnesses were not available.  Rather she said she was unsure of their availability.

[10]   The Court has to observe that if the energy put into these various applications to adjourn the fixture had been directed towards preparing this case for trial then it would have been ready for the 8 May fixture by now.

[11]   Insofar as the missing three documents are concerned, that might possibly amount to special circumstances to support a further application.  However, counsel for the defendants has confirmed that the documents are simply not available.  Inquires have been made of the instructing solicitors involved in the former case in question and also of former counsel. The documents are simply not available.  An adjournment will not affect that position.

[15]     The key passages from the judgment of Priestley J of 8 May are:

[9]       As a matter of principle I am not prepared to grant an adjournment.  The common denominator to the various problems the plaintiff faces is quite simply inadequate or last minute preparation.  I accept that litigants reliant on a grant of legal aid through the Legal Services Agency are frequently disadvantaged.  A grant of legal aid is no longer open ended.  Specific approval for various phases of the litigation and also for the costs involved in retaining expert witnesses must be obtained from the Agency.  Nonetheless these problems must have been readily apparent throughout the second half of calendar 2005.  The interests of justice cannot permit a last minute adjournment of this nature to succeed merely because of preparation difficulties.

[10]     The interests of justice, however, do oblige me to make some attempt to accommodate the short term difficulties of the plaintiffs.  Even making allowances for the constraints of legal aid grants I am satisfied that senior counsel of Ms Duffy’s competence, and with assistance no doubt from her learned junior, should be able to plug some of the more glaring gaps in the plaintiff’s case whilst the trial continues.  Long hours and multi-tasking will doubtless be required but these requirements are frequently accommodated by the Bar.

[11]     Mr Wood, properly so in my view, has indicated he would have no difficulty, if need be, in the plaintiff calling rebuttal evidence after the defendants’ evidence has been completed which would give an extra period of time during which expert witnesses retained by the plaintiff can come to grips with the case.  Mr Wood is less enthusiastic about my suggestion that if need be the hearing should proceed in two phases with an inquiry into damages following at some future date if the plaintiff succeeds on liability.  However, depending on how the evidence pans out, and of course totally dependent on whether the plaintiff succeeds in its two causes of action, I am currently minded to permit a resumed hearing on the question of quantitative damages should that be necessary.

[12]     The flurry of last minute activity and the short time frames faced by the plaintiff’s counsel have resulted in Ms Duffy candidly admitting to me this morning that she has not yet prepared her opening.  In such a situation I am prepared to grant the indulgence of adjourning the case today but on the basis that the plaintiff will open at 10am tomorrow (Tuesday 9 May).  The trial will then proceed in the normal way subject to the modifications relating to order of witnesses etc to which I have referred.

The current state of play

[16]     Ms Duffy opened the case for plaintiff on 9 May and the appellant began giving his evidence yesterday.  It is fair to say that progress seems to have been pretty slow and it is most unlikely that the case will be finished at the end of the seven days allocated for case even leaving aside the problems the appellant faces.  On the other hand, the Judge can sit all next week if necessary.

[17]     The respondents have made arrangements for a witness from France to give evidence and Mr Katz accepted that come what may, that witness must be permitted to give evidence in the time currently available. The respondents have another witness who is coming from New York to give evidence. Mr Katz indicated that it is possible that this witness is a New Zealander returning to New Zealand and that there accordingly there might be no practical requirement for that witness’ evidence to be taken. We are simply not sure what the position is as to this witness.

[18]     Given what has happened, there would be a significant waste of resources if we were to direct that the trial simply be aborted.

An overview of the situation

[19]     The situation is extremely unsatisfactory, at least from the point of view of the appellant:

(a)His expert witnesses have yet to be fully briefed.  Their evidence is material to both liability and damages.

(b)The appellant’s own brief is, according to Mr Katz, not well prepared, this given the pressure associated with the unless order and Ms Duffy’s late involvement.

(c)Ms Duffy is not well-placed to cross-examine the respondents’ witnesses.

[20]     We suspect that the appellant (and/or his advisers prior to Ms Duffy’s involvement) have contributed to the current problem.  For instance, we would be surprised if the LSA policy referred to in [8] above is immutable.  Further, we would have expected those advising the appellant to have made some assessment of their ability to establish the details of the case which the appellant is advancing.  If this required expert evidence, we would have expected the appellant to have made reasonable inquiry long ago as to the witnesses who could or would be called to support the case.  We find it hard to believe that it was beyond the ability of the appellant to locate expert witnesses and brief them between 6 April (when legal funding approval was notified) and 8 May when the trial was due to start; this despite Easter and ANZAC Day.  In any event, the briefs of evidence of the appellant and other available witnesses should have been prepared.

Jurisdiction

[21]     Section 66 provides:

66       Court may hear appeals from judgments and orders of the High Court

The Court of Appeal shall have jurisdiction and power to hear and determine appeals from any judgment, decree, or order save as hereinafter mentioned, of the High Court, subject to the provisions of this Act and to such rules and orders for regulating the terms and conditions on which such appeals shall be allowed as may be made pursuant to this Act.

[22]     As is well-known, this section has not been given a completely literal interpretation.

[23]     Winstone Pulp International Ltd v Attorney-General CA175/99 30 August 1999 was decided in the immediate context of s 24G of the Judicature Act (which is concerned with appeals against interlocutory decisions made in commercial list cases) but is material in this context, particularly what was said at [14]-[19]:

[14]     In any event, it is not every ruling or direction by a commercial list Judge which is an appealable decision for the purposes of s24G.  That section is the relevant appeal provision. Section 66, the general provision for "appeals from any judgment, decree or order save as hereinafter mentioned of the High Court" is then expressed to be "subject to the provisions of this Act".  Section 24G is the special provision governing appeals from interlocutory decisions in commercial lists.  As this court observed in Hudson v Wylie [(1994) 7 PRNZ 545] at p548, it is a comprehensive provision designed as a restraint on appeals against commercial list decisions and it would be wholly inconsistent with the object and scheme of that provision to allow the general jurisdictional provisions of s66 and the rules to apply - in that case to a refusal of extension of time.

[15]     Section 24G empowers the High Court to extend the time for applying for leave to this court. In Meates v Taylor [[1992] 2 NZLR 36] at p40, this court held that in the context of s24G "refusal to allow an extension of time is not to be regarded as an interlocutory decision from which an appeal may be brought" and following further argument in Hudson v Wylie the court reached the same conclusion and held it had no jurisdiction to entertain the application.

[16]     These judgments recognise that "decision" is a popular non-technical word of variable meaning and the particular meaning necessarily depends on the context in which it is used. In context, it may be employed in its broadest sense of any determination or conclusion, or in a narrow sense as confined to particular kinds of determination or determinations having particular effects. Thus, in context, "decision" has been held not to include criminal law matters (R v Chung Chuck [1930] AC 244) or a stay decision (Annheuser-Busch Inc v Carling, O'Keefe Breweries of Canada Ltd (1982) 142 DLR (3rd) 548) or an interlocutory ruling such as an order on discovery (R v Lands Tribunal, ex parte City of London Corporation [1982] 1 WLR 258) or the refusal of leave to appeal (Bland v Chief Supplementary Benefit Officer [1983] 1 WLR 263) or decisions in the course of proceedings "as to
times of hearings, adjournments, ... " (Children's Aid Society of Halifax (City) v H (1989) 90 NSR (2nd) 44) or as to the admissibility of evidence (New Brunswick Telephone Co Ltd v John Maryon International Ltd (1980) 116 DLR (3d) 581). And in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 337, Mason CJ said: "To take an example, the refusal by a decision-maker of an application for an adjournment in the course of an administrative hearing would not constitute a reviewable decision, being a procedural matter not resolving a substantive issue and lacking the quality of finality".

[17]     The context is all important. Section 24G(1) provides that no appeal shall lie "from an interlocutory decision of the High Court in respect of any proceeding entered on a commercial list" unless leave to appeal is given on timely application. There are two immediate points and one broader conclusion. First, "decision" has a different meaning in s24G from what the same word has in s24E. Unlike the position under s24E which provides that the parties to any proceeding entered on a commercial list may agree that "the decision of the court shall be final", "decision" in s24G does not refer to the substantive decision finally determining the rights of the parties. Second, s24G is an appeal provision dealing with interlocutory decisions but in a setting where procedures are designed to achieve the efficient and expeditious disposal of the commercial list cases.

[18]     Broadly speaking, interlocutory rulings (to use a neutral word) fall into at least three categories: those that determine or affect the rights or liabilities which are in issue, that is the merits; those that decide the shape of the substantive proceedings; and those ancillary but important rulings on times and procedures. That classification corresponds broadly with the categories noted by Donaldson MR in Bland v Chief Supplementary Benefit Officer at p266 - decisions determining a matter in dispute; "possibly an order determining how the matter shall be determined - the ordinary interlocutory procedure order which is made in any form of legal proceedings"; and the grant or refusal of a permission "which determines nothing at all".

[19]     Section 24G cannot sensibly apply to all the myriad of decisions that commercial list Judges may make. Effective case management and timetabling necessarily involve directions, rulings and other decisions as to times and procedural aspects. In exceptional cases such a decision may affect rights and liabilities. An example discussed in Kersten v Stack (1992) 6 PRNZ 300 is USA v Callahan (M489/91, Auckland Registry, judgment 27 March 1991) where Tompkins J concluded that the adjournment for six months of an application for extradition carried such consequences as to affect the rights or privileges of the applicant, at least sufficiently to give the court jurisdiction to entertain the application. In the ordinary run, however, an adjournment is simply procedural or administrative, not affecting rights or liabilities as such, and the rights or liabilities immediately in issue will remain for substantive determination. As it is put in 4 Corpus Juris Secundum para 106, generally an order granting or refusing to grant a motion for continuance, postponement, adjournment or stay is not appealable but under some statutes an appeal will lie from such orders if they affect substantial rights.

[24]     Also relevant is what was said in this Court in Association of Dispensing Opticians of New Zealand v Opticians Board [2000] 1 NZLR 158 particularly at [34]-[36]:

[34]     Clearly s 66 could not be intended to confer jurisdiction to appeal every decision made by the High Court in relation to the proceeding and before delivery of the substantive judgment. As noted in Winstone at para [19] there are numerous rulings which are simply procedural or administrative, not affecting rights or liabilities as such and where the rights immediately in issue will remain for substantive determination. Such rulings may be made in the pretrial case management process or at trial. Next, rulings on matters of evidence and the scope of the hearing arise broadly in two ways: as a pretrial determination of the shape of the hearing and as decisions in the course of the hearing. Decisions in that second situation in the course of the hearing could not sensibly for policy and practical reasons have been intended to be subject to instant appeal before the completion of the hearing. Equally, interlocutory applications which, as pretrial determinations as to pleadings, discovery, evidence and the like, may substantially affect the shape of the hearing, are separate from the trial process and fit squarely and comfortably within s 66.

[35]     The real difficulty is to resolve in a principled way how to determine what decisions or rulings are sensibly intended to come within the description of judgment, decree or order for the purposes of s 66 and so where and how to draw the line.

[36]     We are inclined to the view that the broad classification of “decision” suggested in Winstone reflecting as it does similar considerations of the scheme and object of the relevant provisions and underlying policy and sound practice may be a helpful starting point. In that regard rulings made either in the course of the hearing of the proceeding (using that term in a broad sense, including for example an adjournment application), or as part of the trial conduct or management process would not ordinarily be susceptible to interlocutory appeal. On the other hand rulings which have some substantive effect on rights and liabilities in issue would be. Obviously the boundary lines will not be cut and dried and, as seen in Winstone, particular cases may fall into an exceptional category but that classification may be helpful at least as a matter of general approach.

[25]     It is possible to treat what we have cited as indicating that the question whether an adjournment decision is subject to appeal turns on its consequences and, in particular, that a refusal of an adjournment which in effect cuts a case off at the knees is susceptible to appeal.

[26]     We have some reservations about such an approach.  It would result in asymmetrical appeal rights (given that the granting of an adjournment would almost never be appealable).  As well, we are uncomfortable with the notion that a jurisdictional question should turn on open-textured test.  But, for present purposes, we are prepared to act on the basis that we have jurisdiction to entertain the appeal if the result of the decision or decisions challenged was that the appellant’s rights to a proper evaluation of his case were irretrievably compromised.

[27]     Of course, a conclusion that there is no jurisdiction to entertain an appeal against a refusal of an adjournment does not mean that an aggrieved party is without a remedy.  A litigant whose case is compromised by a wrongly refused adjournment may challenge the later substantive judgment on the basis that the trial was unfair.  The entitlement to challenge adjournment decisions post-trial is not a complete answer to the appellant’s concerns in this case (for obvious practical reasons).  But it nonetheless provides something of a back stop for a litigant aggrieved at the refusal of an adjournment, cf West v Martin [2001] NZAR 49.

Did the refusal to adjourn irretrievably compromise the appellant’s rights to a proper evaluation of his case?

[28]     The situation in relation to this litigation is most unsatisfactory and we are seriously troubled by what has happened. 

[29]     We have been particularly dismayed at the prospect that the appellant might  be required to complete the trial on the basis of an inadequately prepared brief, without expert witnesses and represented by a recently briefed counsel who has deposed that she is not adequately prepared for trial.  Preparation for trial has occurred in what must have been an atmosphere of complete crisis.  We accept that some responsibility for the current state of affairs lies at the door of the appellant’s legal representatives.  On the other hand, we are also conscious of the reality that it is:

(a)Not easy to conduct major litigation on a shoe string budget; but

(b)Easy to be critical of the efforts of those who do work in these circumstances. 

It is particularly easy to underestimate the pressure on recently briefed counsel to conduct a case under these conditions.

[30]     Although troubled by what has happened, we see indications in the judgment of Priestley J of a willingness to be flexible.  Further, in his submissions to us, Mr Black made it clear that the respondents:

(a)Would not resist the appellant being permitted to call his expert witnesses despite not having provided briefs of evidence; and

(b)Would accept that the appellant could lead additional evidence after the respondents’ case, in effect by way of rebuttal, including whatever evidence was necessary to tidy up infelicities in his existing brief of evidence.

[31]     Implicit in all of this is the likelihood that the case will not be able to be finished next week before Priestley J and that the appellant will be given extra time to get his case in better order before it is completed.  We think it inevitable that there be a pause for some weeks before the trial is completed.

[32]     In that context, and in light of what we have already said in [18] above, it would be very wasteful of resources to treat the hearing of the case as not having started. For this reason, the current controversy very much relates to the way in which the case should be run.  On this basis, the decision to refuse an adjournment cannot be seen, in itself, as irretrievably compromising the appellant’s entitlement to a fair trial. Accordingly, we are satisfied that we do not have jurisdiction to interfere with the refusal of an adjournment.

Discretionary considerations

[33]     Although the conclusion just expressed means that the appeal must be dismissed, it is appropriate, given the possibility that the case might go further, for us to address some of the discretionary considerations about which we heard argument.

[34]     Case management is fundamental to the efficient administration of justice, a concept which in this case embraces the interests of not only the appellant but also the respondents and, as well, the interests of other litigants waiting to have their cases heard.  But case management is, for all this, merely a means to an end, see for instance McEvoy v Dallison [1997] 3 NZLR 11.

[35]     We have no difficulty with the decisions delivered by Venning J.  When he was dealing with the case, the appellant was not alleging an inability to go to trial if the 8 May fixture was adhered to.  It is understandable that Venning J would seek to hold on to the fixture.  It is likewise understandable that as time went on, there would be a sense of impatience with the appellant’s preference for attempts to defer, rather than preparation for, trial, a sense of impatience which comes through in what Venning J said.  As is apparent from what we have said, we are particularly concerned at the appellant’s failure in the period between 6 and 26 April to prepare for trial and we are left with the impression that if the appellant had, at this stage concentrated on trial preparation, the present shambles may not have developed.

[36]     By the time the issue came before Priestley J, the situation had moved on and the position had been reached that the appellant was not in a position to proceed with a trial, at least in any orthodox way.  As late as 8 May, his counsel had not even prepared an opening. We think that Priestley J struck an inappropriate balance between case management principles and the appellant's right to a fair trial, particularly allowing for the fundamental constraints imposed on the appellant by the legal aid system. 

[37]     If we were satisfied that the result of the judgment of 8 May was to compromise irretrievably the appellant’s rights to a proper evaluation of his case (ie so that we had jurisdiction to entertain the appeal) we would have been inclined to allow the appeal.  However, essentially for the reasons (and undertakings) given by Mr Black and our sense that the Judge is prepared to be flexible, we have concluded that the appellant’s rights have not been irretrievably compromised.  We should make it clear, however, that our decision in this respect was reasonably closely balanced.

[38]     Of course, if the case is required to be completed under the same pressured conditions which have obtained to date, and if the appellant’s ability to mount his case is thus unfairly compromised, this can be addressed on an appeal against any substantive judgment.

Disposition

[39]     The appeal is dismissed.  But as the appellant has achieved, at least in substance, a reasonable measure of success, we make no award of costs.

Solicitors:
Otene & Ellis, Onehunga for Appellant
Lovegroves, Auckland for Respondents