Downey v Quirk
[2024] NZHC 578
•18 March 2024
[REDACTED JUDGMENT]
ORDER PROHIBITING PUBLICATION OF HIGHLIGHTED PARTS OF JUDGMENT. IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2018-409-737
[2024] NZHC 578
UNDER the Trusts Act 2019 IN THE MATTER
of the Estate of Peter Edward Culmer Read
BETWEEN
RICHARD WILLIAM DOWNEY as trustee of ST JOHN’S TRUST
Plaintiff
AND
TREVOR KINRED QUIRK as trustee and executor of the estate of PETER EDWARD CULMER READ
Defendant
Hearing: 11 March 2024 Appearances:
Mr Downey appears in person
H D P van Schreven and J D Kaye for Defendant
Judgment:
18 March 2024
JUDGMENT OF ASSOCIATE JUDGE PAULSEN
This judgment was delivered by me on 18 March 2024 at 4.30 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date:
DOWNEY v QUIRK [2024] NZHC 578 [18 March 2024]
[1] Mr Downey has brought this claim against Mr Quirk, who is the trustee and executor of the estate of Peter Read, to recover sums he says are owing for research services provided to Mr Read during his lifetime in relation to the settlement of Mr Read’s relationship property affairs and certain insurance claims following the Christchurch earthquakes.
[2] The proceeding was filed in October 2018 and has been set down for trial on three occasions. Presently it is due to be heard over five days commencing 29 April 2024. However, there is a history of Mr Downey failing to comply with pre-trial directions. Mr Downey has done so again, in that he has not exchanged his briefs of evidence, nominations for a draft chronology and index for the common bundle of documents as required by 12 January 2024.1
[3] Mr Quirk’s counsel, Mr van Schreven, raised concern about the breach of the timetable and I directed that both Mr Downey and Mr Quirk should file any applications they wished to make by 19 February 2024.2
[4]Mr Quirk has filed an application for an unless order.
[5]Mr Downey has filed applications for:
(a)adjournment of the trial;
(b)leave to bring interlocutory applications after close of pleadings date;
(c)further discovery and inspection of documents;
(d)an order that Mr Quirk attend for cross-examination; and
(e)that the Court reconsider an order made on 8 May 2023 denying the admission of a further affidavit from Mr Downey of an audio-recording as evidence of an alleged misrepresentation to the Court by Mr Quirk’s counsel.
1 Downey v Quirk HC Christchurch CIV-2018-409-737, 30 August 2023 (Minute).
2 Downey v Quirk HC Christchurch CIV-2018-409-737, 1 February 2024 (Minute).
[6] In a minute issued on 8 March 2024, I advised the parties that at the hearing scheduled for 11 March 2024 I would be dealing only with:
(a)the application for adjournment of the trial;
(b)the application by Mr Downey for leave to file further interlocutory applications after close of pleadings date; and
(c)the application by Mr Quirk for an unless order.
The application for an adjournment
[7] This proceeding has been beset by delays for several reasons. First, there have been many instances where both parties failed to comply with directions of the Court.
[8] Second, discovery has not run smoothly. There have been numerous challenges by Mr Downey to Mr Quirk’s discovery, resulting in many telephone conferences and time and resource consuming applications for further discovery requiring judgments of the Court.
[9] Third, Mr Downey suffers from physical [REDACTED] ill-health which he has raised to explain breaches of directions and periods when he has taken no steps, on occasions for several months. There is no doubt Mr Downey’s health issues are real and have had a major disruptive effect on the proceeding. The disruption was heightened because while Mr Downey was legally represented he chose to undertake a great deal of the legal work himself, and in more recent times he has been self- represented.
[10] Fourth, Mr Downey has a belief that Mr Quirk and his counsel have conducted themselves dishonestly and in a manner designed to inflict emotional harm upon him. He says they have deliberately taken advantage of his ill-health and weaponised the court process. Criticisms can be made of the management of the litigation on behalf of Mr Quirk, but Mr Downey views all steps taken in the proceeding through an intensively negative paradigm. He has pursued, and continues to pursue, applications and lines of enquiry which do not advance his claim and result in unnecessary delays.
[11] These features of the proceeding are reflected in Mr Downey’s present application to adjourn the trial a third time. Broadly, he says this is necessary due to:
(a)his ill-health;
(b)defects in Mr Quirk’s discovery;
(c)his desire to make further interlocutory applications; and
(d)the deliberate infliction of emotional distress upon him by Mr Quirk and counsel.
[12] Mr Downey’s applications need to be considered against the background of the circumstances under which the trial was adjourned on previous occasions and Mr Downey’s latest breach of the pre-trial timetable.
[13] The case was first set down for trial commencing 26 September 2022 at a case management conference on 21 June 2021. At that time I made pre-trial directions, including that the close of pleadings date was 1 December 2021. That date was chosen to allow Mr Downey time to make further applications, including in relation to discovery and the joinder of parties.
[14] It was not until 4 July 2022 that Mr Downey applied for an adjournment of the trial. That application was put before Dunningham J, who issued a minute on 5 July 2022 as follows:
The parties should be aware that it is unlikely a hearing date could be allocated until early 2024. In the context of a file that has been active since 2018 the Court would be highly unlikely to sanction such delay. With almost 4 months to go to the allocated hearing date every effort should be made to retain the fixture.
[15] There was then a hearing convened before Dunningham J by telephone on 8 July 2022. Mr Downey’s then counsel submitted the trial should be adjourned as Mr Downey:3
3 Downey v Quirk HC Christchurch CIV-2018-409-737, 8 July 2022 (Minute) at [2].
(a)did not consider further discovery had been provided by Mr Quirk in accordance with a judgment of 15 October 2021;4
(b)intended to issue interrogatories and join additional parties;
(c)had suffered further health complications which were preventing him from carrying out work on the case; and
(d)had discovered errors in his claim which needed to be explained and corrected and might require him to give further disclosure of documents.
[16] Mr Downey’s counsel explained that Mr Downey was personally undertaking the review of discovery, and further health issues had developed which hindered his ability to undertake the work.5
[17]Dunningham J did not adjourn the trial. Relevantly, she noted:
[12] Despite having some sympathy for Mr Downey’s health issues, he is clearly able to review the documents, albeit slowly, and has had all the defendant’s discovery since the beginning of the year. Any concerns about discovery should have been raised earlier and in any event the issues are primarily about the ease of reviewing the documents which can be addressed by extending timeframes.
[13] In respect of suggestion that the trial should be adjourned because further defendants may be joined, that seems unlikely given the limitation issues which would arise.
[14] In my view, the preferable option is to keep the hearing on track and for the plaintiffs6 to focus their limited resources on preparing for hearing.
[18] Dunningham J also made amendments to the timetable to afford Mr Downey extra time to prepare for trial.7
4 Downey v Quirk [2021] NZHC 2778.
5 Downey v Quirk, above n 3, at [10].
6 There was at that stage two plaintiffs, Mr Downey and Trust Group Ltd as trustees of St John Trust. Mr Downey is now suing as sole trustee.
7 At [15].
[19] On 26 August 2022, Dunningham J had a further conference with counsel.8 Mr Downey had failed to comply with the timetable for exchanging his evidence which was due on 12 August 2022. His counsel acknowledged no steps were taken to prepare the evidence. Dunningham J noted:
[2] … Instead, it seems Mr Downey has spent his time preparing a litany of complaints extending to some 31 pages, regarding the defendant’s conduct in these proceedings, including wide-ranging allegations of non-compliance with the defendant’s discovery obligations. It does not seem as though any of these are new issues, but Mr Downey has not to this point, raised them formally, by way of an application, so that they can be determined by the Court and the proceedings moved forward.
[20]Dunningham J also noted:
[4] [Mr Downey] cannot continue to raise informed [sic] allegations and complaints about the defendant’s conduct and non-compliance with procedural directions which are hampering [his] ability to proceed to trial, while at the same time, ignoring the Court’s directions to progress this matter to trial.
[5] In order to crystallise whether [Mr Downey’s] complaints have any substance, [Mr Downey is] to bring any applications for:
(a)adjournment of the trial;
(b)further and better discovery; and
(c)for a new party’s order (or similar) consequence on the change in trustees, no later than Friday, 2 September 2022.
[6] If such applications are filed, a telephone conference is to be convened to set those applications down for hearing urgently, and to timetable the filing of notices of opposition and, if required, affidavit evidence.
[7] In the meantime, the trial date remains on foot, and the timetabling directions are amended to the extent that the defendant is not required to prepare and serve evidence until 20 working days after [Mr Downey has] done so.
[21]On 2 September 2022, Mr Downey filed an application seeking:
(a)leave to bring interlocutory applications after close of pleadings date;
(b)orders for discovery and inspection of documents;
8 Downey v Quirk HC Christchurch CIV-2018-409-737, 26 August 2022 (Minute).
(c)an adjournment of the trial; and
(d)the joinder of new parties.
[22] After hearing from counsel on 19 September 2022, Eaton J issued a minute in which he granted Mr Downey’s application to adjourn the trial and directed the Registrar to liaise with counsel to set the case down for a further five-day hearing date.9 As a result of that direction the case was set down to be heard on 18 September 2023.
[23] In giving reasons for his decision, Eaton J noted there was a dispute between Mr Downey and Mr Quirk concerning discovery which was not a matter that he was in a position to determine, and also that Mr Downey raised health issues that impacted on his capacity to progress the matter.10 Mr Downey’s counsel also advanced what was referred to as “financial strain”, meaning “Mr Downey has felt compelled to undertake a review of the discovery material personally rather than rely on counsel”.11 Eaton J said:
[8] I am not in a position to determine the merits of the ongoing discovery dispute. That will be resolved by Associate Judge Paulsen. I have every sympathy for [Mr Quirk] and more particularly the beneficiaries in the estate of Mr Read. However, given the health issues suffered by [Mr Downey] and the financial strain impacting on his capacity to retain legal representation, I am reluctantly prepared to grant the adjournment.
[9] I sense that if the application was declined, the trial date would regardless be in jeopardy, given the unlikelihood of Mr Downey filing evidence within a timeframe that would permit [Mr Quirk] the opportunity to fairly respond.
[11] It is essential the outstanding interlocutory applications are concluded and Mr Downey’s supporting evidence filed in order that the matter can proceed to an adjourned trial date in the New Year.
[24] The other interlocutory applications which had been made by Mr Downey came before me for hearing on 27 September 2022. Counsel advised me that a hearing was unnecessary. I made certain consent directions, except in relation to discovery
9 Downey v Quirk HC Christchurch CIV-2018-409-737, 19 September 2022 (Minute).
10 At [5]–[6].
11 At [6].
issues in respect to which counsel agreed to prepare and file a memorandum of consent orders.12
[25] On 9 December 2022, I made further pre-trial directions by consent which included that the close of pleadings date was now to be 31 May 2023 and Mr Downey was to exchange his briefs of evidence, draft chronology and index for common bundle by 23 June 2023.
[26] Unfortunately, the consent memorandum from counsel in relation to discovery issues left outstanding at the hearing on 27 September 2022 was never filed. Mr Downey’s application for further discovery was heard before me on 12 May 2023 and I issued a judgment on 16 May 2023.13
[27] At around this stage Mr Downey appears to have removed instructions from his solicitors, notwithstanding that the case was scheduled for trial in September 2023. On 1 June 2023, Mr Downey purported to file a third amended statement of claim adding several causes of action and six new parties.14 Objection was raised to this and on 21 June 2023, Dunningham J issued a minute that read:
… I note that leave is required to file the amended statement of claim naming multiple new defendants and further causes of action. Given the chequered history of this claim and the inevitable risk to a trial date that has already adjourned there is little prospect of leave being granted. The plaintiff may wish to reflect on this before the parties incur further costs in addressing the issues raised by the plaintiff’s attempt to file a third amended statement of claim.
[28] The matter came before Dunningham J at a telephone conference and she noted in her minute of 27 June 2023:15
[1] Early in the morning of 1 June 2023, Mr Downey sought to electronically file a third amended statement of claim in these proceedings naming a number of additional parties (including the lawyer acting for the current defendant Mr van Schreven), and a number of additional causes of action.
12 Downey v Quirk HC Christchurch CIV-2018-409-737, 27 September 2022 (Minute).
13 Downey v Quirk [2023] NZHC 1181.
14 The new parties included Mr van Schreven who was forced to temporarily cease acting for Mr Quirk.
15 Downey v Quirk HC Christchurch CIV-2018-409-737, 27 June 2023 (Minute).
[2] Associate Judge Paulsen directed that close of pleadings was to be 1 December 2021. However, pursuant to a consent memorandum dated 8 December 2022, the parties agreed that close of pleadings should be 31 May 2023 and directions were made accordingly. It is common ground that Mr Downey’s third amended statement of claim was not filed on this date, but on the following day. Mr Downey seeks to explain this default by referring to technical issues outside of his control that prevented it from being filed before midnight on 31 May 2023. I note, as an aside, that the Court Registry hours are 9 am to 5 pm and there should have been no expectation that a document would be received for filing outside these hours.
[3] On receipt of this document, counsel for Mr van Schreven, and counsel for the other newly named defendants, immediately pointed out, by way of memoranda, that leave was required to file this document under rr 7.77(4) and 7.7 of the High Court Rules. They also pointed out that some of the causes of action were, in their view, statute barred. They advised that if leave to file the third amended statement of claim after proceedings was pursued, it would be opposed, noting in particular that the hearing date of 18 September would undoubtedly be lost if the plaintiff was allowed to proceed with the amended statement of claim.
[4] Mr Robertson, for Mr van Schreven, also noted that if the third amended statement of claim proceeded it would place Mr van Schreven in an untenable position. He has been representing Mr Quirk as the executor of the estate since September 2019 and if the third amended statement of claim was to proceed, it would force the estate to obtain alternative representation.
[5] At the hearing I advised Mr Downey that regardless of the reasons for the late filing of the third amended statement of claim, it would require leave of this Court to be granted before he could proceed in reliance on it. The need for leave arises because of the late filing and because it seeks to add causes of action which are said to have arisen since the claim was filed.
[29] Dunningham J made directions for Mr Downey to file an application for leave to serve a third amended statement of claim by 30 June 2023. That application was heard by me on 3 August 2023. Mr Downey represented himself with a support person. At the conclusion of the hearing, Mr Downey indicated he wished to withdraw the application. He considered the matter overnight and emailed the Court the following day with confirmation that he withdrew the application so far as it sought to add additional causes of action and join new parties. I made a direction accordingly and also in relation to the filing of submissions on costs.
[30] On 14 August 2023, I convened a further telephone conference. Mr Downey raised objections to further discovery that had been provided by Mr Quirk in response to my judgment of 16 May 2023 and also raised his health issues, and said the trial scheduled for 18 September 2023 had to be adjourned. It was conceded by
Mr van Schreven that realistically the trial was not able to proceed as scheduled. I recorded:16
[10] I will grant an adjournment of the trial but, in case it is subsequently relevant in relation to costs or applications made in the proceeding, I record my reasons for doing so. They are that Mr Downey has failed to take steps to prepare and exchange his evidence, made a very late application for amendment of the pleadings, and because he is suffering from health issues that have hindered him in his preparation. I do not accept that the issues raised by Mr Downey concerning discovery ought to have prevented the trial from proceeding.
[31] I directed the case be set down for trial over five days commencing 29 April 2024 and that the parties confer as to suitable pre-trial directions.17
[32] On 30 August 2023, the case was again set down for a telephone conference before me. Mr Downey advised he was in no fit state to comment on proposed pre- trial directions and raised the prospect, again, of yet further interlocutory applications.
He said he continued to have health issues.18
[33] In light of Mr Downey’s expressed intention to file yet further applications, I agreed to incorporate provision for that in the further pre-trial directions I would make. Those directions included:
[9]The directions I make are as follows:
Interlocutory matters
…
(b)I grant Mr Downey leave to file an application seeking compliance by the defendant with the discovery orders previously made in this proceeding by no later than 20 September 2023;
(c)If Mr Downey wishes to file any further interlocutory applications, then he must seek leave to do so and any such applications (accompanied by an application for leave) must also be filed by 20 September 2023;
…
16 Downey v Quirk HC Christchurch CIV-2018-409-737, 14 August 2023 (Minute).
17 At [16].
18 Downey v Quirk, above n 1, at [5].
(e) The applications shall be set down for hearing before me at
10.00 am on 10 October 2023;
…
Pre-trial directions
(g)The plaintiff’s briefs of evidence and nominations for the draft chronology and index of documents for the common bundle shall be exchanged by 12 January 2024;
…
(m) Any non-compliance with this timetable is to be reported immediately to the Court by memorandum with a full explanation for the reasons for such non-compliance and any request to vary the timetable.
[34]Relevantly, I also said in my minute:
[6] I have previously made it clear, and did so again today, that I intend to case manage this proceeding to ensure it goes to trial as scheduled. I also advised Mr Downey that while the Court has and will continue as far as possible to accommodate his health issues, if he is not in a position to manage this litigation on his own behalf, he must make alternative arrangements and instruct counsel.
[35] Mr Downey sought extensions of time to file costs submissions on his unsuccessful application to add new causes of action and join additional parties. He was granted extensions on two occasions but on 25 September 2023 I advised that no further extension would be granted.19
[36] Relevantly, I also noted that Mr Downey had not applied for leave to file further interlocutory applications in accordance with the timetable. I therefore vacated the hearing which had been scheduled for 10 October 2023 in anticipation of such applications being made.20 I said:
[4] Should Mr Downey now apply for leave to file further interlocutory applications after close of pleadings date I shall deal with them at that time. Mr Downey’s failure to comply with the existing timetable and the resulting prejudice to both the defendant and the pre-trial directions are matters that will be considered in deciding whether Mr Downey is granted leave.
19 Downey v Quirk HC Christchurch CIV-2018-409-737, 25 September 2023 (Minute). On 6 October 2023, I issued a costs judgment: Downey v Quirk [2023] NZHC 2810.
20 At [3].
[5] Mr van Schreven has asked for a further telephone conference, which I understand is because he is concerned that Mr Downey’s non-compliance with the timetable could not be accommodated when he will be overseas from 11 October 2023. As I have vacated the hearing on 10 October 2023, I infer that a further teleconference is unnecessary at this time. If Mr van Schreven considers otherwise he may advise the Registry by email of the matters he wishes to be addressed and I will reconsider the matter.
[37] Mr Downey took no further steps in the proceeding until Mr van Schreven applied on 16 January 2024 for an urgent telephone conference upon Mr Downey’s failure to provide his briefs of evidence.
The grounds for an adjournment
[38] Mr Downey’s primary reason for seeking a further adjournment is his ill-health. [REDACTED].
[39][REDACTED].
[40][REDACTED].
[41] Mr Downey continues to maintain that Mr Quirk has withheld discovery and failed to comply with Court orders. A major criticism is that Mr Quirk’s fifth affidavit of documents, filed in response to orders in my judgment of 16 May 2023, does not list documents chronologically.21 [REDACTED]. He says it is impossible for him to prepare for trial until Mr Quirk complies with the Court’s orders and he is given the further discovery.
[42] Mr Downey raises many grievances against Mr Quirk and his counsel relating to the conduct of this and a related proceeding. These are set out in his notice of application of 5 March 2024 and include alleged perjury, failure to preserve evidence, destruction of evidence, malicious prosecution, fabrication of evidence, and entering into a contract under false pretences. One of the principal matters concerns the deletion of data from Mr Read’s computer hard drive in which Mr Downey considers Mr Quirk and his counsel were complicit.
21 Downey v Quirk, above n 13.
[43] Mr Downey says he intends to file further interlocutory applications which need to be determined before the case can be set down for hearing, including for amendment of the pleadings, joinder of parties, interrogatories, and that Mr Quirk and/or his counsel be held in contempt of court.
[44] Finally, Mr Downey says that he has also not yet provided full discovery. He is in possession of many audio-recordings of Mr Read which he has not discovered. I understand him to say that he has not yet had an opportunity to go through all the audio-recordings but that at least some of them contain relevant material.
The law
[45] Rule 10.2 of the High Court Rules 2016 provides that the Court may, before or at a trial, if it is in the interests of justice, postpone or adjourn a trial for any time, to any place, and upon any terms it thinks just.
[46] In considering the application for adjournment, I adopt the approach of Wylie J in Shanghai Neuhof Trade Co Ltd v Zespri International Ltd where the Judge said:22
[14] The rule confers a wide discretion on the Court. The essential question which the Court must ask itself is whether or not an adjournment is necessary in order to do justice between the parties. It is necessary to consider the interests not only of the party seeking the adjournment, but also the interests of the party who wishes to retain the benefit of the fixture. A balancing exercise is called for.
[15] Relevant considerations bearing on the exercise of the discretion can include the following:
(a)when the unavailability of a witness forms the basis of the application, the reasons for the unavailability and the impact of the unavailability in proceeding to trial;
(b)whether the applicant has acted reasonably and done everything practicable to avoid the need for an adjournment;
(c)the right of the parties to a fair trial and the need for resolution of the proceedings, including the likely impact of further delay on the quality of the evidence, the difficulties of reorganising witnesses for a later trial date, and the like;
(d)the prejudice likely to be caused to each party as a result of the exercise of the discretion the one way or the other; and
22 Shanghai Neuhof Trade Co Ltd v Zespri International Ltd [2019] NZHC 3479 (footnotes omitted).
(e)the public interest in the efficient administration of justice.
[47] Mr Downey has not acted reasonably or done everything practical to avoid the need for an adjournment. Since the hearing of his unsuccessful application to add new causes of action and additional parties he has not advanced the proceeding, and has not cooperated in attempts by Mr Quirk to do so. He did not constructively engage in the making of pre-trial directions, and although obtaining extensions of time to file costs submissions on his unsuccessful application he ultimately did not do so.23 While I understand Mr Downey says this was due to his ill-health, he did not raise that constructively so that it could be incorporated in the pre-trial directions or apply for an adjournment at an early stage. He simply did nothing to comply with the Court’s directions.
[48] I note also that on previous occasions when Mr Downey has raised his ill- health as an issue he has still been able to prepare applications, lengthy affidavits and submissions as he has done in this instance. Further, I have suggested to Mr Downey that if he is unable, due to ill-health, to conduct his own case he should instruct a lawyer, and if he cannot afford one to apply for legal aid. Mr Downey has expressed an intention to apply for legal aid but has not done so.
[49] Mr Downey’s concern that Mr Quirk has failed to comply with his discovery obligations has been a continual issue since shortly after the proceeding was commenced. He raises historical complaints, including matters that have been resolved by judgments of the Court. He also complains Mr Quirk has not complied with his obligations under the most recent judgment on discovery of 16 May 2023.24 However, as set out in Mr Quirk’s affidavits, Mr Downey has not cooperated to enable full compliance with the Court’s orders. Further, the pre-trial directions made on 30 August 2023 granted Mr Downey leave to apply to seek compliance with the discovery orders made in this proceeding by no later than 20 September 2023.25 No such application was made.
23 Downey v Quirk, above n 1, and Downey v Quirk CIV-2018-409-737, 11 September 2023 (Minute).
24 Downey v Quirk, above n 13.
25 Downey v Quirk, above n 1, at [9(b)].
[50] Further, to the extent that Mr Downey complains that Mr Quirk has failed to list documents in a strictly chronological order, there can be no suggestion but that Mr Downey has had adequate time to either raise that objection in an application to the court or to familiarise himself with the documents. I understand the format in which they have been provided is fully searchable. As Dunningham J said in her 26 August 2022 minute, Mr Downey cannot complain about non-compliance with procedural directions whilst simply ignoring the Court’s directions to progress the case to trial.26
[51] I do not accept Mr Downey’s intention to file further applications is a ground for an adjournment. The pre-trial directions that have been made were tailored to allow him to make such applications, but he never took that step. Mr Downey would, of course, require leave to make further interlocutory applications after close of pleadings and I can see no reason in the interests of justice for such leave to now be given.
[52] This proceeding has been on foot since October 2018. It is long overdue for trial. Mr Quirk deposes that a further adjournment will be prejudicial to the beneficiaries of the estate of Mr Read, as a final distribution is not possible pending the outcome of this proceeding. He also says there will be prejudice to witnesses who have already given briefs of evidence.
[53] I accept there is prejudice to the ultimate beneficiaries of the estate. I also accept it is a real possibility that further significant delay may prejudice Mr Quirk’s defence of the claim. The events which Mr Downey says give rise to this proceeding date back as far as 2008. Mr Quirk will have to call evidence in response to matters Mr Downey says occurred many years ago and the quality of such evidence, and the ability of witnesses to recall and respond, will not be enhanced by a further adjournment.
[54] I also consider it is in the interests of Mr Downey that this proceeding be resolved as soon as possible. The litigation has taken both a physical and emotional toll on Mr Downey. [REDACTED].
26 Downey v Quirk, above n 8, at [4].
[55] I must also consider the public interest. The public at large, and also other litigants, have an interest in ensuring that cases that come before the court are dealt with fairly, quickly and efficiently. As Wylie J said in Shanghai Neuhof Trade Co Ltd v Zespri International Ltd:27
[24] Repeat adjournments, particularly of long case matters, are unfair to other deserving litigants, who are seeking to bring their cases on for hearing. Litigants cannot expect to tie up considerable amounts of Court time and then seek to adjourn the trial. Obtaining a lengthy fixture in this Court is already difficult and this fact causes understandable frustration for litigants.
[56] The factors I have referred to above all suggest no further adjournment should be granted. However, the final matter, and the one that weighs heavily with me, is that as the trial is scheduled for 29 April 2024 to refuse Mr Downey an adjournment will almost certainly result in the dismissal of his claim. I do not consider there is any prospect he would be able to prepare his evidence in time for the trial. While I consider he alone is responsible for that, and have considerable sympathy for Mr Quirk’s position that no adjournment should be granted, a decision that will have the effect of depriving Mr Downey of a hearing of his claim on its merits should not be made lightly. The approach I intend to take will give him one final opportunity to have his claim heard.
[57] I propose to deal with the matter by granting Mr Downey a further, and last, indulgence by way of a short adjournment of the trial coupled with a strict timetable and an unless order, as set out below. Should Mr Downey fail to strictly comply with the further directions his claim shall be struck out.
Unless order
[58]Rule 7.48 of the High Court Rules relevantly provides:
7.48 Enforcement of interlocutory order
(1)If a party (the party in default) fails to comply with an interlocutory order or any requirement imposed by or under subpart 1 of Part 7 (case management), a Judge may, subject to any express provision of these rules, make any order that the Judge thinks just.
(2)The Judge may, for example, order—
27 Shanghai Neuhof Trade Co Ltd v Zespri International Ltd, above n 22.
(a)that any pleading of the party in default be struck out in whole or in part:
(b)that judgment be sealed:
(c)that the proceeding be stayed in whole or in part:
(d)that the party in default be [fined, ordered to do community work, or committed to prison under section 16 of the Contempt of Court Act 2019]:
(e)if any property in dispute is in the possession or control of the party in default, that the property be sequestered:
(f)that any fund in dispute be paid into court:
(g)the appointment of a receiver of any property or of any fund in dispute.
…
[59] Although not mentioned, under r 7.48(2) the Court may make an unless order the purpose of which is to enforce compliance with the Court’s orders and ensure the efficient conduct of proceedings.28 The leading case is SM v LFDB.29 There, the Court of Appeal recognised that an unless order is an order of last resort, only to be made where there is a history of failure by a party to comply with earlier orders. Relevantly, the Court also said:
[27] Case management plainly matters to the immediate parties in any given case. It matters to litigants in other cases too, because it affects the time their cases will take to come to trial and influences their expectations of the Court; expectations matter because they influence the settlements in which the majority of civil proceedings end. And it matters to potential litigants — the public at large — because they should feel confident that the Court can try cases fairly, quickly and efficiently. From the perspective of a judge dealing with any given case, all these interests are relevant; all form part of the interests of justice.
[28] Obedience is the foundation upon which the Rules operate. From time to time the Court encounters a party who chooses not to obey, seeking perhaps to avoid accountability to the other party or to secure an unfair settlement. In such a case the interests of justice require that the Court do whatever is necessary to enforce obedience to its orders.
(footnotes omitted)
28 Robert Osborne and others (eds) McGechan on Procedure (online ed, Thomson Reuters) at [HR7.48.01(3)].
29 SM v LFDB [2014] NZCA 326, [2014] 3 NZLR 494.
[60] There is a history of repeated failures by Mr Downey to comply with pre-trial directions justifying the making of an unless order. I fully expect that unless there is a sanction that enforces compliance with the Court’s directions Mr Downey will again breach any pre-trial directions that are made.
Application for leave to file applications out of time
[61] Mr Downey sought leave under r 7.7 to file interlocutory applications after the close of pleadings date. The applications Mr Downey wished to pursue were an application under r 7.28 to have Mr Quirk attend the court for cross-examination at the hearing on 11 March 2024, and for reconsideration of the direction I made on 8 May 2023.
[62] The proposed cross-examination of Mr Quirk concerned Mr Downey’s allegations of dishonesty and impropriety in the conduct of his duties as a trustee and in this proceeding. These allegations have been set out at length in Mr Downey’s affidavits and submissions on several occasions. The cross-examination of Mr Quirk would not have assisted me determine the adjournment application. There were no special circumstances justifying the making of such an order.
[63] In relation to my direction of 8 May 2023, Mr Downey did not challenge it at the time it was made. The application to which it relates was determined largely by consent on terms set out in my judgment of 16 May 2023.30 Mr Downey did not challenge that decision either. Leave to apply to rescind my 8 March 2023 direction would serve no purpose and is not granted.
Result
[64]The directions I make are as follows:
(a)The trial scheduled for 29 April 2024 is vacated and this proceeding shall now be heard over five days commencing 22 July 2024. While the case is presently set down on that date as a back-up fixture (subject
30 Downey v Quirk, above n 13.
to the direction I make at [65] below), I understand there is a good prospect it will be heard on that date;
(b)Mr Downey’s briefs of evidence and nominations for the draft chronology and index of documents for the common bundle shall be exchanged by 13 May 2024;
(c)Mr Quirk’s briefs of evidence and any amendments to the proposed chronology and index of documents for the common bundle shall be served by 10 June 2024;
(d)Mr Downey’s briefs of evidence strictly in reply shall be exchanged by
24 June 2024;
(e)Mr Downey shall file and serve the electronic common bundle which is compliant in all respects with the relevant Practice Notes and Protocols relating to the use of electronic casebooks in Senior Courts by 1 July 2024;
(f)Mr Downey shall file his opening submissions by 8 July 2024;
(g)There will be a pre-trial conference on a date allocated by the Registrar after 8 July 2024 to make any special arrangements for the trial. The parties shall file memoranda for the conference at least two working days prior; and
(h)If Mr Downey fails to comply with any of the directions above by a period of more than two working days then his third amended statement of claim shall be struck out and judgment entered for Mr Quirk.
[65] I note that the 22 July 2024 date may cause Mr van Schreven (as counsel) difficulty due to other trial commitments. If that is the case, I reserve leave for Mr Quirk to seek a variation to the timetable after making enquires of the Registrar of alternative dates, but at the present time I understand there are no alternative dates
available until the last quarter of 2025. That simply highlights the need to have this case heard on the dates allocated.
[66] Mr Quirk is entitled to costs on the applications determined by this judgment on a 2B basis plus reasonable disbursements as fixed by the Registrar.
[67] I raise two further matters. First, I note that there is the prospect that Mr Downey will seek to raise at trial allegations against Mr Quirk’s counsel. Mr van Schreven may wish to consider now what consequences that may have on the trial and his position as counsel. I acknowledge an assessment of that may need to await receipt of Mr Downey’s briefs of evidence.
[68] Second, I make an order in the exercise of the Court’s inherent jurisdiction that there shall be no publication of any details contained in this judgment of Mr Downey’s health issues outlined at [9], [38]-[41] and [54].
O G Paulsen Associate Judge
Solicitors:
Clark Boyce, Christchurch
Copy to: Mr Downey
1
4
0