Butch Pet Foods Ltd v Mac Motors Ltd

[2017] NZHC 3133

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-411 [2017] NZHC 3133

BETWEEN

BUTCH PET FOODS LTD

Appellant/Respondent

AND

MAC MOTORS LTD Respondent/Applicant

Hearing:	(On the papers)
Appearances:	P T Finnigan for Appellant/Respondent M Wilkinson, Director of Respondent/Applicant
Judgment:	14 December 2017

JUDGMENT OF BREWER J

Solicitors:

Romaniuk & Associates (Auckland) for Appellant/Respondent

(M Wilkinson in person)

BUTCH PET FOODS LTD v MAC MOTORS LTD [2017] NZHC 3133 [14 December 2017]

[1]      Mac Motors Ltd has filed an application for leave to appeal that part of my Judgment of 10 October 2017 in which I reduced the District Court Judge’s award of disbursements to Mac Motors Ltd from $83,037 to $52,291.1     The application is opposed by Butch Pet Foods Ltd.

[2]      Since this would be a second appeal, leave is required.2

[3]      The opposition by Butch Pet Foods is on the basis that the proposed appeal does not raise any question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of the further appeal.

[4]      Mac  Motors  was  represented  in  the  District  Court  by  Mr Wilkinson,  its director.   Mr Wilkinson has continued to represent his company.   The documents filed by him demonstrate his lack of understanding of the law.  Generally, what he wants  to  do is  get  into  the factual  matters which he says  justified the original granting of disbursements by the District Court Judge.  Those are not the sorts of arguments that justify a second appeal.

[5]      However, my Judgment on disbursements responded to the submission by Butch Pet Foods that the District Court Judge was incorrect in allowing payment of experts for time spent by them outside of giving evidence and a reasonable preparation time.  I decided that issue without being aware that Mac Motors had filed submissions in reply.

[6]      I interpreted r 14.12(2) of the District Court Rules 2014 and made decisions on  what  I considered  to be  the proper  basis  for claims  for the costs  of expert witnesses.  I made no allowance for the fact that Mac Motors was essentially self- represented.

[7]      In my view, there is an argument that a self-represented party should be entitled to greater assistance from an expert witness than would otherwise be the

case.   The extent to which expert witnesses can participate in the trial process,

1      Butch Pet Foods Ltd v Mac Motors Ltd [2017] NZHC 2473.

2      Senior Courts Act 2016, s 60(1).

assisting the party that called them by considering the evidence through the prism of their expertise and giving advice accordingly, has not to my knowledge been authoritatively considered.  Given the increasing number of self-represented parties appearing before the Courts,  I think this is a matter of some general  or public importance justifying leave to appeal.

Decision

[8]      I grant leave to apply for leave to appeal to the Court of Appeal out of time.

[9]      I grant leave to appeal on the following question of law:

In assessing the reasonableness of Mac Motors Ltd’s expert witness costs,

should I have taken into account that it was not represented by counsel?

Brewer J