Hargreaves v Smith - [2012] NZHC 3316

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2012-409-1892 [2012] NZHC 3316

BETWEEN PENELOPE ANN HARGREAVES Applicant

ANDKEROLI SMITH First Respondent

ANDPHEROZE JAGOSE Second Respondent

Hearing: 27 November 2012

Counsel: Applicant in person
D J Boldt and D L Harris for First Respondent
T C Weston QC and CEJ Deans for Second Respondent

Judgment: 10 December 2012

In accordance with r 11.5 I direct that the delivery time of this judgment is 3pm on the 10th day of December 2012.

RESERVED JUDGMENT OF MACKENZIE J

[1] There are applications by both respondents to strike out the applicant’s proceeding, an originating application alleging that the respondents are in contempt of court.

[2] In 2002, Ms Hargreaves commenced proceedings against Radio Network Ltd as first defendant and Radio Network of New Zealand Ltd as second defendant. She sought damages for bodily injury and other loss and damage alleged to have been caused by emissions from a radio mast operated by the defendants. Those proceedings (which I refer to as “the earlier proceedings”) have a long and chequered interlocutory history. They were finally disposed of by a judgment
delivered by Associate Judge Matthews on 7 September 2012. In that judgment, he

HARGREAVES V SMITH HC CHCH CIV-2012-409-1892 [10 December 2012]

dismissed the proceedings, on the grounds that it was clear, to the standard required on a strike-out application, that the claim could not succeed because no cause of action had been pleaded, or could be pleaded, that was not barred by the Limitation Act 2010.

[3] The allegations of contempt of court made by Ms Hargreaves in this proceeding relate to actions of the respondents in the course of the earlier proceedings. The first respondent, a member of the staff of the High Court Registry in Christchurch, was the case officer for the earlier proceedings. The second respondent was, from February 2004, the solicitor for both defendants in the earlier proceedings.

[4] The principles to be applied in an application to strike out a proceeding are clear. They are set out by the Court of Appeal in Attorney-General v Prince.[1] A strike-out application proceeds on the assumption that the facts pleaded in the statement of claim are capable of proof. However, the court is not obliged to accept as capable of proof allegations which are speculative and without foundation. Before the court may strike out a proceeding, causes of action must be so clearly
untenable that they cannot possibly succeed. The jurisdiction is one to be exercised sparingly and only in a clear case where the court is satisfied that it has the requisite material. The fact that the application may raise difficult questions of law and require extensive argument does not exclude jurisdiction.[2]

[1] Attorney-General v Prince [1998] 1 NZLR 262 (CA).

[2] At 267.

[5] The applicant’s claim is for contempt of court. The purpose of the law of contempt is to preserve an efficient and impartial system of justice and public confidence by dealing with challenges to the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hargreaves v Smith

Details

AGLC: Hargreaves v Smith [2012] NZHC 3316
Case: [2012] NZHC 3316
Decision Date: 10 December 2012

CaseChat Overview and Summary

The case of Hargreaves v Smith involved an application by Penelope Ann Hargreaves to strike out proceedings alleging contempt of court against Keroli Smith and Pheroze Jagose, who were involved in earlier proceedings between Hargreaves and the Radio Network Ltd. The earlier proceedings, which were dismissed, involved claims by Hargreaves for damages for bodily injury and other loss and damage caused by emissions from a radio mast. The contempt allegations related to actions by Smith, a case officer, and Jagose, a solicitor, in the course of the earlier proceedings.

The court was required to decide whether the contempt allegations were tenable and could proceed. The principles for striking out a proceeding were considered, including the requirement that the causes of action must be so clearly untenable that they cannot possibly succeed. The court also considered the nature of contempt of court, distinguishing between criminal and civil contempt, and the requirements for establishing a claim of criminal contempt.

The court found that none of the allegations of contempt could possibly succeed. The allegations related to aspects of the earlier proceedings that had been finally disposed of, and there was no evidence to support the claims that the respondents had acted in a way that could be considered contempt of court. The court also noted that the issues raised were not relevant to the contempt allegations and that the proceeding was not an opportunity to relitigate the earlier issues. The court concluded that the proceedings should be struck out and ordered costs in favour of the respondents on a 2B basis, plus disbursements to be fixed by the Registrar.

Orders