David Edward Coxhead v Allan James Hubbard

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 181/01

BETWEEN	DAVID EDWARD COXHEAD
Appellant

AND	ALLAN JAMES HUBBARD
Respondent

Hearing:	19 February 2002
Coram:	McGrath J Robertson J Randerson J
Appearances:	D E Coxhead in person H C Matthews for the Respondent
Judgment:	20 February 2002

JUDGMENT OF THE COURT DELIVERED BY ROBERTSON J

The matter before the Court has been severally described as a Notice of Appeal and as An Application for Special Leave to Appeal. It is recorded in a document dated 18 July 2001 expressed in the following terms:
TAKE NOTICE that, at the first sitting of this Honourable Court to be held from the date of service of this notice, or so soon thereafter as counsel may be heard, counsel for the appellant will move the Court on appeal from the whole of the judgment of the High Court of New Zealand, Christchurch registry, delivered by the Hon Justice Fraser on the 25^th day of June 2001, CP 12/00 ex Timaru Registry UPON THE GROUNDS that the judgment was
1.THAT the judgment was Erroneous at Law.
2.THAT it is contrary to Natural Justice.
3.THAT the decisions have usurped the Common Course of Justice.
4.THAT the Plaintiff is denied Fairness of Judgment.
5.THAT that demanded by the Court rules was and is unreasonable.
6.THAT the matters demanded and denial allowed Defendant are of questionable legality.
7.THAT the fines and costs levied before judgment is contrary to our Legal Rights.
8.THAT the denial of time, as given by the Hon Justice Fraser, given the explanation for honourable portent, is a miscarriage of justice.
9.THAT the non extension of time in itself is contrary to natural justice.
10.THAT the verdict issued by the Hon Justice Fraser was in direct disregard of what was prescribed by the Plaintiff in his closing statement, which was forced upon him without benefit of recourse by the brevity of proceedings, in which summation had already been made.
11.THAT not sufficient consideration is given to all the issues expounded as in the original Amended Statement of Claim.
12.THAT the plaintiff was denied his right to the written verdict and was forced to apply to the court for same.

The matter had its genesis in an amended statement of claim filed in the High Court at Timaru on 27 November 2000. The appellant sought from the respondent the sum of $52,000,000 because of allegedly wrongful acts and omissions of Mr Hubbard during the time of his involvement with the Mutual Group of companies in which both parties had an interest.
The allegations made are of a most serious and damning type and claim serious misconduct including criminal activities.
On 11 December 2000 the respondent made a request for particulars. At a telephone conference held before Master Venning on 18 December 2000 a formal order was made that Mr Coxhead was to file and serve a response to Mr Hubbard’s request for particulars by 2 February 2001. If that had not been complied with Mr Hubbard was to make a formal application for an order by 12 February 2001 and the matter was set down for a hearing on 22 February 2001 if that was necessary.
In correspondence during January 2001 Mr Coxhead indicated an unwillingness to provide particulars. On 5 February 2001 an interlocutory application seeking orders for further particulars or a more explicit pleading was filed.
There was a hearing before Master Venning on 22 February 2001 and on the 28 February 2001 in a carefully reasoned decision the Master having outlined the history of the matter concluded:
In summary, the Plaintiff must either amend and refine the claim, preferably with the benefit of legal advice, and provide proper particulars. Alternatively the Plaintiff must answer the particulars requested by the Defendant. The Plaintiff has had time to address these matters. I will allow further time for the Plaintiff to provide these answers, but as noted the Plaintiff has already had since 18 December 2000 and has taken no steps to provide the required particulars.
The Plaintiff is to either file an amended statement of claim with proper particulars, or to provide particulars requested by the Defendant, in either case by Friday, 30 March 2001.
I decline the Defendant’s application for an unless order at the present time. However, if the Plaintiff fails to comply fully with the above direction the Defendant may make application under r277.
On 3 April 2001 the Respondent filed an interlocutory application to dismiss the appellant’s claim under Rule 277 because of the failure to provide any particulars.
There was a further hearing before the Master on 26 April 2001. As has been the case throughout Mr Coxhead appeared in person. Although he had not filed a notice of opposition he addressed the Court.
In his judgment of that date the Master set out the history of events and the orders which had previously been made. He noted that there had been no compliance and a number of rules had not been adhered to and concluded:
While a Court does what it can to assist litigants in person the Court also has a responsibility to the other parties to the proceeding, in this case to the Defendant. The Court generally extends a degree of latitude to a litigant in person. The Court has already done so in this case. There must come a time when the Court cannot properly, in exercising the balance and fairness due to other parties to the litigation allow one party to ignore the rules and previous orders of the Court.
In this case the Court has granted a fair degree of latitude to the Plaintiff already. The Plaintiff has failed to comply with the directions made on 18 December 2000. The Plaintiff has failed to comply with the orders made in the judgment of 28 February 2001. The Court did not make an unless order in default of compliance, it has required the Defendant to bring this separate application. During the course of submissions today Mr Coxhead confirmed that he did not intend to amend the pleadings. The Plaintiff has made his position quite clear. He has not and does not intend to comply with the orders made by the Court. In those circumstances the Court is entitled to make an order under r277: Franklin v Baycorp Holdings (1990) 4 PRNZ 258.
I am also satisfied that given the serious nature of the allegations in these proceedings, including criminal activity by the Defendant, and the substantial damages claimed the Defendant is prejudiced by the state of the proceedings as they stand.
On 7 June 2001 an application was filed to review the Master’s decision in the following terms:
TAKE NOTICE that, at the first sitting of this honourable Court to be held from the date of service of this notice, or so soon thereafter as counsel may be heard, counsel for the appellant will move the High Court from the whole of the judgment of the High Court of New Zealand delivered by Justice Master Venning on the 26^th day of April 2001 in CP12/00, Timaru Registry, UPON THE GROUNDS:
1.THAT the judgment was erroneous at law.
2.THAT it is contrary to Natural Justice.
3.THAT the decisions have usurped the Common Course of Justice
4.THAT the Plaintiff is Denied Fairness of Judgment.
5.THAT that demanded by Court rules was and is unreasonable.
6.THAT the matters demanded and denial allowed Defendant are of questionable legality.
7.THAT the fines and costs levied before judgment is contrary to our Legal Rights.
The Plaintiff relies upon the Imperial Enactments in force in New Zealand.
The matter came on before Fraser J on 25 June 2001.
In his judgment of that date having reviewed the history of the matter the Judge concluded:
On 30 May Mr Coxhead filed an application to review the Master’s decision, and an application for an extension of time to enable that application to be heard. The rules provide that an application for review be filed within seven days and Mr Coxhead’s application was outside that period, being almost a month after the expiry of the prescribed period.
The factors relevant to the Court’s decision whether to enlarge time for an application for review are the delay in applying, the explanation for that delay, any prejudice resulting from that delay, and the substance or merit of the application.
The reason for the delay is that Mr Coxhead initially, was under the misapprehension that to challenge the Master’s decision he had to appeal to the Court of Appeal. He started that process and it was only when he found out that it was incorrect that the present application was filed. I do not think that there is any prejudice to the Defendant from the delay which I have already described.
If the application for review had merit, and was seriously arguable, I would have considered that the application for extension of time should be granted. I have to say, however, that in my opinion the application for review is wholly without merit and could not possibly succeed, even if an extension of time were granted. The application must be, and it is, refused. Both applications are dismissed.

It is against that litigation chronology that the matter is now before us. Rule 61C(6) and (7) of the High Court Rules provide:
“6. Except by leave of a Judge, no appeal shall lie from a decision of a Judge under this rule.
7. Notice of every application for leave to appeal under subclause (6) must be filed and served within 7 days after the decision of the Judge was given”.

The appellant has never sought leave of a Judge of the High Court to advance this appeal.

Although all Judges sitting in this Court are High Court Judges, the question of whether they should exercise authority as such in these circumstances is subject to a settled approach. In Jenssen v Attorney General CA273/98, 25/5/99 it was noted:
“Since we are satisfied that no appeal could possibly succeed we decline to exercise authority as judges of the High Court (Judicature Act 1908 s57(4)) to give leave to pursue the appeal, which is accordingly struck out …”.

That is consistent with the approach in Attorney General v Shell CA77/95, 14/8/95:

“It follows that before there can be any appeal from the judgment of 22 November and the supplementary judgment of 11 April, the leave of the Judge is required. Mr Camp asked this Court to grant leave if leave were required, to avoid the necessity of having to go back to the High Court to seek an order from Doogue J. As was said by this court in Meates v Taylor [1991] 2 NZLR 173 at 175, the cases would be rare in which it would be proper for members of this Court to sit as High Court Judges. The present case is not one of a mere technicality, where leave would be granted as of course and by consent if application were made to the High Court. The question at issue is one of significance, and the parties are in opposition. Doogue J is already fully seized of the matter, and he is the High Court Judge appointed to supervise the proceeding. If the Crown wishes at this stage to apply for leave, that application should be made to the High Court”.

And in Nottingham v Registered Securities Ltd CA285/97, 5/2/99:

After hearing Mr Nottingham we indicated that we would not be prepared to exercise any High Court jurisdiction without the consent of both parties. Ms Meechan for RSL informed us that arrangements were in place for the High Court at Auckland to deal expeditiously with any matters we should remit in conjunction with other matters pending in that Court. She declined to consent to the exercise by the Judges of this Court of High Court jurisdiction. In the absence of that consent and in the circumstances of this case, we will not take the unusual course of sitting in the High Court jurisdiction”.

Having reviewed in detail the history of this matter, the nature of the statement of claim on the file and the unwillingness of the appellant to provide any further detail, we are satisfied that this is not a case where we should contemplate exercising that jurisdiction. Accordingly the matter is not properly before this Court.
For completeness however we should note that the present nature and form of the claim does not comply with the minimum requirement for particulars which any opposing party is entitled to have.
As this Court held in Price Waterhouse v Fortex Group Ltd CA179/98, 13/11/98 a claimant must:
Supply an outline of the case advanced, sufficient to enable a reasonable degree of pre-trial briefing and preparation. Discovery and interrogatories are only an adjunct, not a substitute for a pleading.
In the originating document which is on the file there is a multitude of vague and unstructured allegations including allegations of actual fraud and criminal acts in the broadest of terms. It alleges improper behaviour during half a century of business dealings. The claim is for a very substantial sum.
As has been made clear to the appellant on various occasions he was obligated to provide detail and he has refused to do so. Mr Coxhead had extended to him a sympathetic and liberal approach which recognised the fact that he was not legally represented.
In his written submissions Mr Coxhead argued at length about natural justice, fundamental principles, fairness and legal rights and sought aid from various historical documents. He does not however grapple with the core issues articulated so clearly by both the Master and Judge in the High Court.
There cannot be any doubt that what occurred justified the invocation of the sanctions provided for in Rule 277. Although Courts are always slow to strike out for non-compliance, where there has been a clear default and serious prejudice the Court has no option but to strike out to ensure the integrity of its processes.
We are satisfied that in the situation which developed in this case that even if this case had properly been in this Court there is no basis upon which there could be any alteration of the decisions made in the High Court. The rules of Court are not an impediment or barrier to justice but a framework to ensure the orderly and proper determination of disputes in a way which is professional and has integrity about it.
The Court has no jurisdiction to hear the application and it is accordingly dismissed. The respondent is entitled to costs which we fix at $3,500 plus disbursements.

Solicitors:

White Jones & Fox, Christchurch for the Respondent

[2002] NZCA 56

20 February 2002