Clayton v Currie

[2015] NZHC 1044

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2011-409-001178 [2015] NZHC 1044

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

THE CROWN SOLICITOR AT CHRISTCHURCH

Third Defendant

AND

THE ATTORNEY-GENERAL Fourth Defendant

CIV-2013-409-001441

BETWEEN  PETER LLOYD MACHIRUS First Plaintiff

ANDNADIA MAVANA PELENATO Second Plaintiff

ANDGARY GEORGE MORRELL Third Plaintiff

ANDPHILIPPA ANNE CURRIE First Defendant

ANDRAYMOND DONNELLY & CO Second Defendant

ANDTHE CROWN SOLICITOR AT CHRISTCHURCH

Third Defendant

ANDTHE ATTORNEY-GENERAL Fourth Defendant

CLAYTON v CURRIE [2015] NZHC 1044 [18 May 2015]

Hearing:

15 May 2015

Appearances:

Plaintiffs all in person

P N Allan for Second Plaintt (L J Westbury) J C Pike QC and S Barr for Defendants

Judgment:

18 May 2015

RULING OF DUNNINGHAM J

[1]      One of the issues which arose for consideration at the case management conference on 15 May 2015 was whether the proceedings in Clayton and Ors v Currie and Ors, CIV-2011-409-1178 (“the Clayton proceedings”), should be heard together  with  the  proceedings  in  the  Machirus  and  Ors  v  Currie  and  Ors CIV-2013-409-1441 (“the Machirus proceedings”).

[2]      The defendants have sought an order that the proceedings be heard together as is provided for under High Court r 10.12.  The reasons for seeking joinder of the two proceedings are as follows:

(a)      Both sets of proceedings turn on the alleged consequences of the first defendant providing a letter to the plaintiffs, during the course of a trial against the plaintiffs, which gave incomplete information about the sentencing indication given to a co-accused, L, who was giving evidence in the plaintiffs’ trial, as a Crown witness. That incident lead to the convictions which were obtained against the plaintiffs being successfully appealed  and  the  Crown  elected  not  to  proceed  with another trial.  The plaintiffs’ claims both rely on those circumstances as giving rise to their claims and that common factual background requiring common evidence to be given is said by the defendants to point to joinder of the proceedings being appropriate.

(b)Furthermore, it is clear that there is commonality in the causes of actions  pleaded.    In  the Clayton  proceedings  there is  a  claim  for

Baigent damages under s 25(a), (e) and (f) of the New Zealand Bill of Rights Act 1990.   There is a parallel claim in the Machirus proceedings.    In  the  Clayton  proceedings  the  tort  of  deceit  was pursued, although that has been struck-out.   It also pleaded in the Machirus proceedings.   Both causes of action plead the tort of misfeasance in the Public Office.  The only obvious departure in the pleadings is that in the Machirus claim, the third plaintiff pleads malicious prosecution.  The defendants argue that the commonality of causes of action make it both more efficient to hear the matters together, and eliminates the risk of inconsistent findings on issues which arise out of the same factual background.

(c)      The defendants also point to the fact that both proceedings claim damages for loss of businesses.   In the Machirus proceedings, the second plaintiff alleges the loss of the Aranui Café Bar and Harrys On Gloucester, two licensed premises, and in the Clayton proceedings, the second plaintiff asserts the loss of the Embankment Tavern, the Masters  Sports  Bar  and ALAV8  Bar  which  are  also  all  licensed premises.   The defendants say that there will be lengthy, and overlapping, accounting evidence required to be given in both trials about how the values of those businesses are established. Running the proceedings separately, therefore, will require 15 to 20 hearing days each, whereas combining the two, will involve not significantly more hearing time than running either proceeding separately.

[3]      In summary, consolidation of the proceedings would, overall, save time and costs for the parties, would use judicial resources more efficiently and it would eliminate the risk of inconsistent findings where the pleadings in each case overlap significantly and arise out of the same factual circumstances.

[4]      The plaintiffs in the Machirus proceedings objected to the proceedings being consolidated.  Mr Machirus pointed out that the losses arising out of circumstances pleaded were different in the two proceedings, because they related to different

licensed premises and so would involve separate factual determinations on what losses have been incurred.

[5]      Mr Allan, for Ms Westbury, pointed out that she is legally aided, and that at present he was the only lawyer acting for any of the plaintiffs.  His client would be involved in a longer trial if the proceedings were consolidated, at greater cost to the Legal Services Agency, and where those costs could potentially be recovered from her.   For that reason he sought that the proceeding his client was involved in was heard separately from the Machirus proceedings.

[6]      Mr Clayton also pointed out that his proceedings had been on foot for a significant period of time, while the application to strike it out had been pursued.  He was concerned that the consolidation of the proceedings might delay his proceedings being disposed of promptly.

[7]      Ironically though, he also indicated he might seek leave out of time to appeal the striking out of the cause of action in deceit.   If granted, that could have the contrary effect if the proceedings were consolidated, of slowing down the Machirus proceedings.  He therefore opposed consolidation.

Discussion

[8]      The commonality of the two proceedings has already been acknowledged by the fact that the Machirus proceedings were placed on hold while the application to strike-out the Clayton proceedings was pursued.   That acknowledged the practical reality that if the causes of action were not arguable in the Clayton proceedings, they would not be arguable in the Machirus proceedings.  I accept, therefore, that there is commonality in the factual circumstances giving rise to the claim, and in the legal issues pleaded.  The same witnesses will be required to be called in both proceedings and the same legal issues explored.  It is logical therefore that the proceedings are heard together, both because that will be an efficient use of the Court’s resources and will eliminate the possibility of inconsistent findings in fact and law.

[9]      I accept that in terms of the damages claimed, particularly from loss of the

plaintiffs’ businesses, that there will be evidence which will have to be given and

tested in each proceeding, that will not be relevant to the other.  This is because in each case, it will have to be determined whether the business was lost as a consequence of the conviction or for some other reason, and, if so, what the value of the business was.

[10]     However, the only real prejudice arising from that is that Ms Westbury’s lawyer may be required to be present during evidence on claims for damages which are not relevant to his client.   However, I consider that can be met by excusing Mr Allan from being present during that part of the proceedings, should he so wish. It is not a sufficient detriment to outweigh the merits of having the proceedings consolidated.

[11]     Accordingly, I direct that these two sets of proceedings be consolidated on the basis that counsel for the second plaintiff in the Clayton proceedings is excused from attending the hearing when it relates to evidence of the losses suffered by the plaintiffs in the Machirus proceedings.

Solicitors:

Crown Law, Wellington

P N Allan, Barrister, Christchurch