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 2012 minute.  Ms Hargreaves sought review on the bases that the timetable orders were not fair to her, failed to take account of

the  extreme  difference  in  resources  between  her  and  the  respondents,  that  the

Associate Judge had been unsympathetic in relation to her ill health, and that the importance of the matters raised by her contempt proceedings required more time to be allowed for appropriate preparation.

[8]      In discursive argument before me, Ms Hargreaves acknowledged that she could not make out any error committed by Associate Judge Osborne on the basis of matters before him when he made his orders on 18 October 2012.   Rather, that further difficulties with her health and her inability to access a law library meant that she could not adequately prepare for the arguments she considered would be relevant to a striking out of her contempt proceedings, by 27 November 2012.  Her plea about on-going health difficulties was not supported by any fresh medical certificate or evidence from a medical practitioner.

[9]      Ms Hargreaves repeatedly raised a number of themes that underpinned her argument that forcing her to defend the tenability of her contempt proceedings on

27 November 2012 would be grossly unfair.  These included that her allegations of impropriety and obstruction by a Deputy Registrar of the Court, and deception and misleading conduct by Mr Jagose over a long period of time in relation to her 2002 proceedings, were matters of great significance in the national interest.  Further, that the actions of the respondents had contributed to her being deprived of justice since

1996, and that the current ultimate owners of the two companies that are the defendants in the 2002 proceedings have been misled by Chapman Tripp, to an extent that the Court should be concerned for their interests when she considers that they potentially have significant liabilities that they may be unaware of.

[10]     Ms Hargreaves  was  insistent  that  she  understood  detailed  factual  matters perfectly well, but was ignorant on matters of law.  She argued that she would need an unspecified further period to be ready to defend the tenability of her contempt allegations.

[11]     For  Ms Smith,  Mr Mackenzie’s  initial  point  was  that  the  application  for review was out of time by a number of days, and he opposed leave being granted to extend time.  He did not raise any specific prejudice that has arisen and argued that time ought not to be extended where there was no adequate explanation for the delay,

and on any view the Court ought to readily recognise that there was no merit in the application for review of the Associate Judge’s orders.

[12]     Mr Mackenzie argued that contempt allegations against a Deputy Registrar are extremely serious, and that anyone pursuing proceedings of this type should be prepared, from the very outset, to justify the tenability of the legal basis on which they were advanced.  The Supreme Court has confirmed that contempt proceedings of this type are criminal in nature and that they can be dealt with summarily.[2]   They are  therefore  proceedings  that  all  parties  should  expect  to  be  prepared  and determined expeditiously.

[2] Siemer v Solicitor General [2010] NZSC 54, [2010] 3 NZLR 767.

[13]     Mr Mackenzie characterised Ms Hargreaves as having assumed the role of a prosecutor and it was not good enough in that role to say that she did not know what she had got herself into.

[14]     As to the merits of the timetabling orders and allocation of a fixture for

27 November 2012, Mr Mackenzie pointed to the balancing exercise undertaken by the  Associate   Judge   in   the   competing   interests   of   granting   more   time   to Ms Hargreaves to prepare her argument, and not having the serious allegations of the type made here hanging over the respondents for any longer than was appropriate.

[15]     For  Mr Jagose,  Mr Galloway  adopted  the  grounds  of  opposition  to  the extension of time that had been advanced by Mr Mackenzie.   He also endorsed Mr Mackenzie’s arguments on the lack of any merits of the proposed review.

[16]     Mr Galloway argued that Ms Hargreaves’ claimed ill health, and complaints about limited access to computers and absence of access to legal texts were not sufficient prejudice when assessed in the context of a proceeding that Ms Hargreaves had felt competent to commence, but now seemed unwilling to prosecute promptly.

[17]     Mr Galloway  respectfully  suggested  that  the  content  of  Ms Hargreaves’

relatively voluminous documents filed since timetabling for the strike out application became an issue, and her ability to traverse diverse matters in her oral argument,

tended to demonstrate that she had capacities that did not warrant a grant of further time.  Certainly, no error was established in the approach adopted by the Associate Judge.

[18]     I indicated at the conclusion of the hearing that I was minded to extend time for the bringing of Ms Hargreaves’ application for review.   The application was brought a matter of days out of time, and no specific prejudice has been caused to either respondent, beyond the need to prepare further opposition and incur the expense of that and an appearance yesterday.  That matter can be addressed by an order as to costs.

[19]     The proceedings are obviously of significant importance to Ms Hargreaves and her concern at having inadequate time to prepare for the strike out appears to be a matter of real importance to her.

[20]     However, the longer I listened to Ms Hargreaves, the more concerned I was that her plea for more time is inappropriately influenced by her wish to raise matters in justifying the tenability of her allegations of contempt that would not be relevant at the hearing.  Both Messrs Mackenzie and Galloway confirmed that their clients’ applications to strike out are advanced on the conventional basis that there is no tenable basis for her claims as a matter of law.   Both respondents will make their arguments on the basis that the factual allegations in the statement of claim would be capable of proof at the substantive hearing.  In those circumstances, the tenability of claims of contempt is a legal argument within a relatively confined compass.

[21]     The sort of matters Ms Hargreaves foreshadowed are more relevant to the substantive 2002 proceedings.   Those proceedings were struck out by Associate Judge Matthews in a reserved judgment of 7 September 2012.  If the matters that do not have a direct bearing on her allegations of contempt are (at least for the context of  the  forthcoming  strike  out  hearing)  put  to  one  side  by  Ms Hargreaves,  her resources ought to enable her to be as prepared on 27 November 2012 as she could be after a further adjournment.

[22]     I am not persuaded that there has been any error by the Associate Judge.  I

agree with Mr Mackenzie that the timetabling orders made by the Associate Judge on

18 October 2012 represented a balancing of the interests of all parties, and there is no basis on which I could intervene.

[23]     The allegations against both respondents are very serious, and by its nature contempt ought to be determined as a matter of priority.   I understand from the Registry that the strike out applications are to be determined by other than a Christchurch Judge because of the involvement of Ms Smith, and rescheduling of the hearing (inevitably in the New Year) may well prove more difficult than would ordinarily be the case.

Application for stay pending receipt of evidence of Chapman Tripp’s authority

to act for defendants in the 2002 proceedings

[24]     On   9 November   2012   (the   last   working   day   before   the   hearing), Ms Hargreaves filed, and apparently served late in the day, a further application for a stay of her proceedings until evidence was produced confirming the authority of the directors of the first and second defendants in her 2002 proceedings to Chapman Tripp for that firm to act between 2002 and 2008, and from the new ultimate owners who acquired the businesses in 2008 from then until now.

[25]     Ms Hargreaves  was  under  the  misapprehension  that  the  factual  status  of Mr Jagose’s  firm’s  instructions  would  be  in  issue  on  hearing  of  the  strike  out applications. That is not the case.

[26]     This last application appears to cover the same ground as one that had been dealt with in the judgment of Associate Judge Matthews on the striking out of her

2002 proceedings.  In that context, the Associate Judge was satisfied that there was

no proper basis for making the order sought.[3]

[3] Hargreaves v The Radio Network Ltd [2012] NZHC 2311 at [31].

[27]     Given that it is not relevant to the strike out applications, and that if the proceedings are struck out there will be nothing left of them, I have adjourned that application for stay pending determination of the strike out application.

Outcome

[28]     Ms Hargreaves’ application to review the orders made on 18 October 2012 is dismissed.  Both respondents are entitled to costs on a 2B basis.

[29]     The application for stay filed on 9 November 2012 is adjourned, pending determination of the applications to strike the proceedings out.

Dobson J

Solicitors:

Crown Law, Wellington for first respondent

Chapman Tripp, Wellington for second respondent

Copy to:

P A Hargreaves, Riccarton