Hargreaves v Smith - [2012] NZHC 3000

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2012-409-1892 [2012] NZHC 3000

BETWEEN PENELOPE ANN HARGREAVES Applicant

ANDKEROLI SMITH First Respondent

ANDPHEROZE JAGOSE Second Respondent

Hearing: 12 November 2012

Counsel: Applicant in person
T J Mackenzie for first respondent
G N Galloway for second respondent

Judgment: 13 November 2012

RESERVED JUDGMENT OF DOBSON J

[1] The principal matter in issue when I heard the parties in this proceeding yesterday morning was an application by the applicant (Ms Hargreaves) to review certain timetabling orders made by Associate Judge Osborne on 18 October 2012, in relation to steps up to and including the hearing of applications on behalf of both respondents to strike out Ms Hargreaves’ proceeding.

[2] These proceedings were commenced by an originating application dated

24 August 2012, seeking orders that the first respondent, a Deputy Registrar of the High Court in Christchurch (Ms Smith), and the second respondent, a partner in the Wellington office of solicitors Chapman Tripp (Mr Jagose), have committed
contempt in various steps each of them has taken in other proceedings commenced

HARGREAVES v SMITH HC CHCH CIV-2012-409-1892 [13 November 2012]

by Ms Hargreaves in this Registry of the Court in 2002 against The Radio Network

Limited and Radio Network of New Zealand Limited (the 2002 proceedings).[1]

[1] Hargreaves v The Radio Network Ltd HC Christchurch CIV-2002-409-000725.

[3] Applications have been filed on behalf of both respondents seeking to strike out the present contempt proceedings. On 25 and 28 September 2012, Ms Hargreaves sought an adjournment of an initial case management conference for her contempt proceedings. On 2 October 2012, Associate Judge Osborne declined a second adjournment and foreshadowed allocating a fixture for the respondents’ strike out applications in mid November 2012.

[4] On 4 October 2012, Associate Judge Osborne duly made timetabling orders, leading up to a fixture for the strike out applications that he set down for
27 November 2012.

[5] The timetable then ordered took account of a medical certificate in respect of Ms Hargreaves that suggested she would not be able to attend to the proceedings until 10 October 2012.

[6] Then on 12 October 2012, Ms Hargreaves filed a further request for the proceedings to be stayed until she recovered her health. It was supported by a further certificate from her medical practitioner dated 12 October 2012, certifying that she was unfit to actively pursue the proceedings for the next two weeks, needing to rest to allow recovery. On the basis of that information, Associate Judge Osborne issued a further minute on 18 October 2012. In it, he adjusted the timetable so far as it required steps to be taken by Ms Hargreaves, allowing her until 9 November 2012 to serve any notice of opposition and evidence in opposition to the respondents’ strike out applications. In other respects, the timetable leading up to, and the fixture for, 27 November 2012 were confirmed.

[7] On 6 November 2012, Ms Hargreaves filed an application for review of Associate Judge Osborne’s 18 October…

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 3000
Case: [2012] NZHC 3000
Decision Date: 13 November 2012

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Hargreaves v Smith was heard by Justice Dobson. The applicant, Penelope Ann Hargreaves, sought a review of certain timetabling orders made by Associate Judge Osborne in relation to applications by the respondents, Keroli Smith and Pheroze Jagose, to strike out Ms Hargreaves' contempt proceedings. The legal issues before the court were whether the Associate Judge's timetabling orders were fair, and if there was any error in the orders that warranted a review.

The court considered the arguments presented by both parties. Ms Hargreaves argued that the orders were unfair due to her health issues and lack of access to a law library, while the respondents argued that the application was out of time and there was no merit in it. The court found that while Ms Hargreaves' concerns were valid, they did not amount to an error in the Associate Judge's orders. The court also noted that the tenability of the contempt claims was a legal argument within a confined compass and that the matters Ms Hargreaves wished to raise were more relevant to the substantive 2002 proceedings.

The court dismissed Ms Hargreaves' application to review the orders and awarded costs to both respondents on a 2B basis. The court also adjourned the application for a stay pending determination of the applications to strike the proceedings out.

Orders