Clayton v Currie

[2016] NZHC 2815

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2011-409-001178 [2016] NZHC 2815

BETWEEN

VINCENT JAMES CLAYTON

First Plaintiff

AND

LINDA JOYCE WESTBURY Second Plaintiff

AND

PHILIPPA ANNE CURRIE First Defendant

AND

RAYMOND DONNELLY & CO Second Defendant

AND

CROWN SOLICITOR AT CHRISTCHURCH

Third Defendant

AND

ATTORNEY-GENERAL Fourth Defendant

CIV-2013-409-001441

BETWEEN  PETER LLOYD MACHIRUS First Plaintiff

ANDNADIA MAVANA PELENATO Second Plaintiff

ANDGARY GEORGE MORELL Third Plaintiff

ANDPHILIPPA ANNE CURRIE First Defendant

ANDRAYMOND DONNELLY & CO Second Defendant

ANDCROWN SOLICITOR AT CHRISTCHURCH

Third Defendant

ANDATTORNEY-GENERAL Fourth Defendant

CLAYTON v CURRIE [2016] NZHC 2815 [23 November 2016]

Submissions:

(in writing)

16 September 2016 (Defendants)
19 October 2016 (1178 Plaintiffs)
30 September 2016 (1441 Plaintiffs)
20 October 2016 (Defendants in reply)

Representation

P L Machirus, N M Pelenato and G G Morell (1441 Plaintiffs)
in person (on this issue)
P N Allan for 1178 Plaintiffs
J C Pike QC and S K Barr for Defendants

Judgment:

23 November 2016

JUDGMENT OF ASSOCIATE JUDGE OSBORNE IN RELATION TO UNLESS ORDERS

Introduction

[1]      The Court imposed unless orders in relation to the discovery requirements in the plaintiffs’ very old proceedings.  The defendants assert that the plaintiffs did not comply with the unless orders.  The plaintiffs assert that they have now entirely met their discovery and inspection obligations, albeit late.   They seek relief from the consequences of any aspect of non-compliance.

Background

[2]      The  plaintiffs  pursue  claims  against  the  same  four  defendants  in  two proceedings.  Two of the plaintiffs issued their proceeding (the 1178 proceeding) in June 2011; the other three plaintiffs issued their proceeding (the 1441 proceeding) in August 2013.

[3]      Normal case management of the 1178 proceeding was delayed through the defendants’ only partially successful application to strike out causes of action in that proceeding, with judgment delivered in June 2012.1   This was followed by a partially

successful review application by the defendants in October 2012,2 which was in turn

1      Clayton v Currie [2012] NZHC 1475.

2      Clayton v Currie [2012] NZHC 2777, [2013] 1 NZLR 263.

followed by the defendants’ unsuccessful appeal and the plaintiffs’ successful cross- appeal in relation to the review judgment.3    Finally, the Supreme Court in March

2015 refused leave to the defendants to appeal to that Court.4

[4]      From   May  2015,   this   Court   was   able   to   recommence   normal   case management  of  the  two  proceedings.    By  that  time  Mr Allan  was  once  again representing Ms Westbury, with the remaining plaintiffs in both proceedings self- represented. More recently, he has resumed representation of Mr Clayton also.

The claims

[5]      The  plaintiffs’ claims  stem  from  a  prosecution  of  11  defendants  in  the Christchurch District Court in March 2015.  The prosecution resulted from a Police investigation called “Operation Rhino”.    A detailed factual background is conveniently set out in the judgment of the Court of Appeal.5

[6]      “Operation Rhino” was focussed on a network of individuals believed to be involved with stolen goods.  Following a trial in 2007 the plaintiffs (other than Ms Pelenato) were convicted and sentenced to varying…