Hargreaves v The Radio Network Limited

[2012] NZHC 2311

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2002-409-000725 [2012] NZHC 2311

BETWEEN  PENELOPE ANN HARGREAVES Plaintiff

ANDTHE RADIO NETWORK LIMITED First Defendant

ANDTHE RADIO NETWORK OF NEW ZEALAND LIMITED

Second Defendant

Hearing:         30 August 2012

Appearances: Plaintiff in Person

P R Jagose and C E Deans for Defendants

Judgment:      7 September 2012

RESERVED JUDGMENT OF ASSOCIATE JUDGE MATTHEWS

Introduction

[1]      In this judgment I determine six interlocutory applications:

1.Applications by Mrs Hargreaves dated 3 August and 26 August 2012 to stay the timetable ordered by Chisholm J on 4 July 2012, which are effectively one application.

2.Application  by  Mrs  Hargreaves  for  a  High  Court  Judge  to  quash directions given by Associate Judge Osborne, dated 13 April 2012.

3.     Application  by Mrs  Hargreaves  dated  30  July 2012  “to  view  their

informed and written consent giving authority for Chapman Tripp to act in these proceedings from all the past and present directors of the Radio

PENELOPE ANN HARGREAVES V THE RADIO NETWORK LIMITED HC CHCH CIV-2002-409-000725 [7

September 2012]

Network  Limited  and  the  new  owners  who  purchased  the  Ouruhia

Transmission site ... in 2008 ...”.

4.Application  by Mrs  Hargreaves  to  order the attendance of Norman Collison  to  be  cross-examined  on  the  contents  of  his  affidavits  in support of the first defendant and second defendant, dated 14 May

2012.

5.     Application  by  Mrs  Hargreaves  dated  28  February  2012  called

“Statement of Claim Application”.

6.Interlocutory  application  on  notice  by  the  defendants  for  orders dismissing the proceeding, and ancillary orders, dated 16 March 2012.

Background

[2]      Chisholm J issued a judgment in this proceeding on 16 March 2010.  In that judgment ([6] to [28]) the Judge set out a brief summary of the facts which gave rise to this litigation, and a summary of the principal steps in the litigation up to that time.    The  judgment  dealt  with  an  application  for  review  of  a  decision  of  an Associate Judge striking out the fourth amended statement of claim.  The Judge set aside  the  orders  made  by  the Associate  Judge  and  reinstated  the  claim.    It  is unnecessary in this judgment to repeat the background facts and history of the case recorded in that judgment.

[3]      After release of the judgment of 16 March 2010 an Associate Judge directed that an amended statement of claim be filed by 28 January 2011 (a date which was later extended) and a fifth amended statement of claim was filed and served on 29

April 2011.   This was met with an application by the defendants under r 7.52 for leave to obtain orders striking out all the causes of action and dismissing the proceeding, or alternatively making an unless order dismissing the proceedings.

[4]      On 19 October 2011 Chisholm J issued a judgment on these applications.  In that  judgment  the  Judge  recorded  that  although  there  was  no  direction  in  his judgment of 16 March 2010 that the statement of claim would need to be amended,

that was the view adopted by Associate Judges who had subsequently handled the

case, and “obviously that was the reality of the situation”.

[5]      The Court determined that there were special circumstances warranting the granting of leave, noting that the proceeding had been on foot for over nine years and a fifth amended statement of claim was before the Court which clearly did not comply with the earlier rulings of the Court, or with the High Court Rules.   The Judge noted that “in particular it does not recognise that neither the claim for bodily injury nor any other cause of action that accrued before 11 October 1996 can be pursued”.

[6]      The Court determined, however, that it would not strike out the proceeding, noting that in the judgment of 16 March 2010 the Court had allowed the plaintiff to pursue her causes of action to the extent that they accrued on or after 11 October

1996, and were not claims for bodily injury.  The Court also declined to make unless orders, given that the plaintiff was self-represented, but allowed her until 31 January

2012 to file and serve an amended statement of claim complying with the earlier rulings of the Court and the High Court Rules.  The Judge noted that if there were an issue about whether the sixth amended statement of claim has achieved that purpose the matter would need to come back to the Court.

[7]      The Judge then continued:

The plaintiff needs to understand that it is only causes of action that have accrued from and including 11 October 1996 that can be pursued: see [88] – [96] of the 16 March 2010 judgment.   Causes of action that have accrued before that time (and claims for bodily injury) will not be permitted.  The plaintiff  is  encouraged  to  obtain  legal  assistance  when  preparing  the amended statement of claim.

[8]      On 10 February 2012 Chisholm J issued a Minute extending time for Mrs Hargreaves to file and serve a statement of claim complying with the rulings of the Court, from 31 January 2012 to 29 February 2012.

[9]      Mrs Hargreaves has not filed a sixth amended statement of claim.

[10]     On 27 March 2012 Associate Judge Osborne issued a Minute following a conference with Mrs Hargreaves and Mr Jagose.  By that point Mrs Hargreaves had filed the “Statement of claim application” referred to above.  The Associate Judge noted that this application failed to address the expectations of the Court in its orders dated 19 October 2011 and 10 February 2012 in relation to the filing of an amended statement of claim.  The defendants had filed their application for orders dismissing the proceeding (and for leave to apply for such orders).  The applications then before the Court were set down for argument on 31 May and other procedural directions were given.

[11]     This was followed by Mrs Hargreaves’ application to quash these directions, and the remaining applications decided in this judgment.  In May it was necessary for the allocated fixture to be vacated due to the unavailability of the assigned Judge and a fixture on 30 August was subsequently allocated.  On 4 July Chisholm J made directions for the filing and service of documents in advance of the fixture.

Applications for a stay

[12]     On 9 August and on 27 August 2012 Mrs Hargreaves filed two applications to stay the timetable in Chisholm J’s Minute of 4 July and, in the latter, the hearing in front of me on 30 August, until the Court determines, first, certain stated issues:

(a)    “First, the significance of Chapman Tripp being permitted to represent and file court documents for both The Radio Network Limited and The Radio Network of New Zealand Limited without leave of the court when they have not had the same interest in the subject matter of the proceeding either on 18th October 2002 or subsequently until 30th September 2008 when these companies were amalgamated pursuant to Part 13 of the Companies Act 1993”.

(b)“Secondly, until the court, properly determines the significance of Chapman Tripp’s counsel [Mr Jagose] a partner of that law firm, deliberately neglecting to advise the High Court at Christchurch  or [Mrs Hargreaves] that there were no longer the same two defendant

companies in existence, and that the second defendant, The Radio Network  of  New  Zealand  had  been  struck  off  the  Register  of Companies on 30th  September 2008 and ceased to exist as a separate corporate entity but [Mr Jagose] had still filed court papers signed on its behalf which must all now be invalid and not properly part of the court record of this proceeding”.

(c)    “Thirdly,  until  the  court,  properly  determines  the  significance  of Chapman  Tripp’s  counsel  [Mr  Jagose]  a  partner  of  that  law  firm, denying this plaintiff, for nearly four years, her statutory right under section 329 of the Companies Act 1993  restored to the Register of Companies, and continue being sued by this plaintiff as second defendant”.

(d)“Fourthly,  until  the  court,  summarily  determines  the  charges  of contempt made against the said [Mr Jagose] a partner of the law firm, Chapman Tripp.”

[13]     As  grounds  for  the  orders  Mrs  Hargreaves  says  it  was  a  gross  pre- determination of the significance of these four issues to timetable ahead and set obligations of the parties before they were determined.  She says that resiling from determining these would indicate judicial bias to any fair-minded observer and prejudice against those who self-represent, in favour of very large law firms and against  doing  anything  to  embarrass  them  or  their  partners  by upholding  a  lay person’s objections when these are not raised by lawyers.

[14]     In the second application which specifically sought an order that the hearing in front of me on 30 August be stayed, the issues which Mrs Hargreaves wishes to have  determined  beforehand  are  broadly  the  same,  only  include  reference  to contempt proceedings intended to be brought against a Deputy Registrar of the Court and Mr Jagose.  The grounds for the orders are also similar save that Mrs Hargreaves added reference to a decision I was said to have made, to continue with the hearing on 30 August, when Mr Jagose had failed to adequately respond to an application by her dated 30 July.  It is not clear which application Mrs Hargreaves refers to as there

is no application dated 30 July on the court record.   More detailed reference was made to Mrs Hargreaves’ view that any court papers signed by Mr Jagose with the name of the second defendant on them were unlawful.

[15]     When  asked  to  speak  in  support  of  her  applications  for  a  stay,  Mrs Hargreaves’ concerns appeared to be focused on two points.  First, her belief that the defendants have sold the properties on which the transmission facilities in issue stand, without informing the new owners of these proceedings, and secondly, her belief that Chapman Tripp and, in particular, Mr Jagose has acted improperly (she put it as high as being in contempt of Court) in continuing to represent the second defendant, and to file documents in its name, when that company had ceased to exist.

[16]     Responding to the applications, Mr Jagose explained that the land in question has not in fact been sold.   What has occurred is this.   Both of the defendants are subsidiaries of Australian Radio Networks.   This company was owned by Clear Communications  but  is  now owned  by Bain  Capital.   The consequence of  this change of corporate structure (which is based in the United States) necessitated an amended application to the Overseas Investment Office which had earlier given consent to overseas ownership of this land, to signify that the ultimate owner of the land was now the company which had acquired the assets of Clear Communications. On the form of application to the OIO the land had to be identified, as did the consideration paid for the transaction.   Bain Capital paid $317,000,000 for all the assets purchased.  Mrs Hargreaves had misconstrued this information as suggesting that the Ouruhia land had changed hands for $317,000,000.   Mr Jagose explained that the land has not changed hands, nor does that sum represent in any way the value of the land.

[17]     The second point, dealing with the identity or status of the second defendant, was equally clearly explained.  It has been the subject of an amalgamation with other companies under Part 13 of the Companies Act.   Mr Jagose points out that Mrs Hargreaves selected the companies she wishes to sue, and still does so.

[18]     Mrs Hargreaves has presented for filing, as a new proceeding, an application for orders which, in general terms, would declare Mr Jagose and a Deputy Registrar

of this court to be in contempt for reasons similar to those contained in the applications for stay.  Acceptance of that application by the Registrar awaits further information  from  Mrs  Hargreaves.     Assuming  it  is  filed,  and  proceeds,  her allegations will be dealt with on that proceeding in due course.  Mr Jagose submits that it is quite unnecessary, and indeed would be incorrect, to stay this proceeding while the issues raised on that proceeding, as well as in this proceeding, are determined.

[19]     Mr Jagose  submits  that  the contempt  allegations  amount  to  a  request  to discipline him in relation to actions he is said to have taken improperly, but they could not affect his right to proceed as counsel, and delaying these applications would deprive his clients of the right to have the applications before the Court determined in a timely way.   He submits that it would be incorrect to defer the consideration of applications which have been timetabled for a considerable period because of other related proceedings.  His clients are unaffected by any criticism of their counsel either by way of these applications or in the separate proceedings which  are  to  be  filed.     They  are  entitled  to  just,  speedy  and  inexpensive determination of all the applications before the Court.

Discussion

[20]     The  allegations  against  Mr  Jagose  and  against  Chapman  Tripp  await resolution on a separate proceeding, in due course.  So far as the evidence on this proceeding is concerned, they appear to be without substance.  The Court has not been misled in any way at all by Mr Jagose or Chapman Tripp filing documents for, and continuing to represent, the named defendants in this proceeding.   Mrs Hargreaves has known at least some of the facts surrounding the identity of the second defendant for several years, it seems.  She has not taken any step to join any other  defendant,  nor  to  substitute  any other  company  for  either  of  the  existing defendants.

[21]     Secondly, it is not of any concern to the Court whether the former owners of the shares in Australian Radio Networks have told the new owners of these shares of

the existence of this case.  That information is irrelevant to any of the issues before this Court; it is a matter for the companies concerned.

[22]     Thirdly, in presenting her position Mrs Hargreaves also said that I should defer consideration of this application until I had a qualified lawyer present in court to explain her position.  She indicated that proceeding would be wasting court time because any decision I made would be the subject of a review.  Mrs Hargreaves told me that she has substantial assets so has not been eligible for legal aid, but has had limited cash resources, meaning she could not pay for a lawyer.  She told me that her financial circumstances  have changed so she can now instruct counsel, and she would be doing so in order to receive justice which, in her opinion, she had not had until now.

[23]     These grounds were not set out in either of the applications for a stay, nor do they have any substance. At various times during the decade that this proceeding has been on foot Mrs Hargreaves has been represented.  Mr Jagose told me that she has had five separate lawyers acting for her, at various points.  It is not my role to review or comment in detail on her financial position or reasons for not engaging counsel, but no ground has been made out which satisfies me that she is disadvantaged by not being represented by counsel in relation to the applications before me.  The reasons put forward by Mrs Hargreaves for wanting a stay are ill-founded.  The more likely consequence of her having legal representation is that they would not have been brought at all.

[24]     Finally, I note that in the Minute of Chisholm J dated 14 October 2011 he recorded that “the documents before the Court do not suggest to me that it ... would be improper for Chapman Tripp to continue to represent the Radio Network”.  There is nothing further before the Court now apart from the unsubstantiated allegations that Mrs Hargreaves has made, which could cause me to form a different view.

[25]     The applications for stay are dismissed.

Application to quash directions

[26]     It was common ground between Mrs Hargreaves and Mr Jagose that events have overtaken this application, as all the orders made by Associate Judge Osborne have been superseded. This application is dismissed.

Application relating to authority for Chapman Tripp to act

[27]     The full title of this application is:

APPLICATION TO VIEW THEIR INFORMED AND WRITTEN CONSENT GIVING AUTHORITY FOR CHAPMAN TRIPP TO ACT IN THESE PROCEEDINGS FROM ALL THE PAST AND PRESENT DIRECTORS OF THE RADIO NETWORK LTD AND THE NEW OWNERS WHO PURCHASED THE OURUHIA TRANSMISSION SITE OF 119 HECTARES OF LAND IN 2008 AND THEREBY ACCEPTED LEGAL LIABILITY FOR THE PAST AND PRESENT HARMFUL EMISSIONS EMANATING FROM THEIR LAND WHICH ARE THE SUBJECT MATTERS OF THESE PROCEEDINGS. THIS REQUEST IS MADE AS FROM 1996 TO 2012 CHAPMAN TRIPP HAVE FAILED TO COMPLY WITH RULE 14.12 OF THE LAWYERS AND CONVEYANCES ACT AND FROM 2008

MR JAGOSE OF CHAPMAN TRIPP HAS FAILED TO COMPLY WITH HIGH COURT RULE, SUBPART 7.5.36 AND THEREFORE ALL CHAPMAN TRIPP’S CURRENT LEGAL APPLICATIONS ARE UNLAWFUL.

[28]     Although the application covers another four pages the gist of the application is encapsulated in its title.   In essence, Mrs Hargreaves says that Chapman Tripp needs to prove to the Court that it has authority to act; Mr Jagose as a partner in that firm, likewise. This is based on Mrs Hargreaves’ view:

•     that the land has changed hands for $317,000,000;

•    that from 2008 the second defendant has ceased to exist but has continued to be named in this proceeding;

•    that the new owners have not demonstrated that they have accepted their legal  obligations  as  the  defendant  in  this  proceeding  –  in  fact,  as “absentee landlords” (as described by Mrs Hargreaves) they may not even know that these proceedings relate to harmful emissions emanating from the land.   Mrs Hargreaves referred to r 5.36 which prevents a solicitor filing a document on behalf of a party unless the solicitor is authorised by or on behalf of that party to do so.

[29]     Mrs Hargreaves also refers to r 14.12 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008.  She relies on this rule to support a contention that Mr Jagose should not act when Chapman Tripp had acted for the defendant on earlier transactions related to their land and transmission facility.

[30]     In court Mrs Hargreaves said that neither she nor the Court has any evidence of Chapman Tripp’s authority to act, and stated that evidence presented by them on behalf of their clients to the Environment Court on resource consent issues was (at best) wrong.

[31]     There is no proper basis for making the order sought by Mrs Hargreaves. Mr Jagose  appeared,  as  he  has  numerous  times  since  the  inception  of  this proceeding, and informed the Court that he acts for the defendants.  Mr Jagose is an officer of this court.  I am not prepared on the material before me to require him to produce any evidence in support of his statement to the Court.   No evidence was presented by Mrs Hargreaves suggesting that there could be a shadow of doubt about whether Mr Jagose, or his firm, represents the defendants.  Nor is there any reason why Mr Jagose should not act because Chapman Tripp acts on other matters for the defendants.   Rule 14.12 relates to correspondence relating to litigation normally being carried out between instructing firms of barristers and solicitors, not between barristers.    It  is  completely  irrelevant  to  the  issues  raised  by  Mrs  Hargreaves. Mr Jagose is not an independent barrister.   Nor does any other rule support her position. The application is entirely without foundation and is dismissed.

Application to cross-examine Norman Collison

[32]     Mr Collison is the director of engineering of the second defendant.  He has sworn, according to the court register, five affidavits in this proceeding, though the last is dated 16 March 2012 and is described as his fourth.   This affidavit and an affidavit sworn on 18 May 2011 are relied on by the defendants in support of their application to dismiss the proceeding, which is determined later in this judgment.

[33]     In her application Mrs Hargreaves sets out three special circumstances under which her request to cross-examine is made:

(a)     Throughout   this   whole   matter   from   the   time   this   proceeding commenced,  11  October  2002  –  now  more  than  11  years  ago  – Mr Norman Collison has never been cross-examined under oath in respect of the contents of his affidavits which he has sworn to be true and correct in every way.

(b)     Throughout these proceedings Mr Jagose of Chapman Tripp contends reliance on the statements which Mr Collison has sworn was true and correct in every respect and this contention requires to be tested in court.

(c)     Mr Collison has continually defamed the plaintiff in attempting to blacken the character of the plaintiff in his false accusations documented in [reference to two affidavits] and his reasons for doing this and the grounds for his allegations require to be obtained from him and tested on oath.

[34]     Mrs Hargreaves swore an affidavit in support of this application.   In this affidavit she identified areas of Mr Jagose’s affidavits with which she disagreed. First, she stated that contrary to Mr Collison’s evidence, she has never been served with a trespass notice, a statement she repeated to me in court.

[35]     Secondly, Mrs Hargreaves sought to challenge Mr Collison’s evidence in relation to the suitability of the land for a radio tower, and then set out a substantial number of paragraphs recording her view, and opinions which have been given to her, about the effects of radio transmissions from the tower, and detailed statements about the effects of emissions from the towers.

[36]     Thirdly, Mrs Hargreaves took issue with the way certain matters before the Environment Court were handled, her position on whether conditions of the defendants’ resource consent have been complied with, various allegations against partners in Chapman Tripp in relation to their role, and a range of other evidentiary matters which cross refer from time to time to Mr Collison’s affidavits, but which are all directed at the substance of the issues Mrs Hargreaves has with the defendants’ activities on their land.

[37]     It is not necessary to summarise the affidavit more fully.  It runs to nearly 60 pages and by it Mrs Hargreaves produces 113 exhibits.  It is clear from reading the

affidavit that most, if not all of it, deals with issues of substantive evidence and not specifically with issues related to the interlocutory applications before me.

[38]     I  therefore  asked  Mrs  Hargreaves  to  indicate,  by  reference  to  the  two affidavits of Mr Collison that are relied on by the defendants in support of their application to strike out, whether she could indicate to me specifically the basis upon which she would wish to cross-examine at this interlocutory stage.  Mrs Hargreaves referred first to Mr Collison’s evidence that the defendants have been broadcasting medium  frequency AM  transmissions  since  1993,  and  very high  frequency  FM transmissions since 1990, and to his statement that he was the executive responsible for the management of the defendants’ retrospective resource consent applications lodged in 1996, and the reasons for those applications.   This evidence, Mrs Hargreaves said, is wrong.   By reference to this and a further paragraph in his affidavit of 18 May in which he very briefly described the Environment Court appeal process, Mrs Hargreaves said she wanted to tell the Court the effects of radio transmission at that time and since.

[39]     Secondly, in relation to a paragraph describing damage to the transmission mast in recent earthquakes, Mrs Hargreaves said that the land had earlier been shown to be unsuitable for the mast due to liquefaction and she wished to cross-examine Mr Collison on this.

[40]     Thirdly, in paragraph 16 of the same affidavit Mr Collison listed the names and areas of expertise of five witnesses who are no longer available to give evidence for  the  defendants.    On  this  point  Mrs  Hargreaves  said  she  wished  to  put  to Mr Collison contrary evidence to that which these persons had  given on earlier occasions.

[41]     Fourthly,  in  relation  to  Mr  Collison’s  evidence  that  there  would  be  a substantial  additional  cost  to  the  defendants  of  locating  and  briefing  experts including those originally instructed, Mrs Hargreaves said she wished to question him about the evidence these witnesses gave to the Environment Court which she maintains deliberately misled the Court.

[42]     Fifthly, in relation to paragraph 21, in which Mr Collison gave evidence of the reasons for which signals, transmission strengths, modulation and frequencies may change, Mrs Hargreaves wishes to cross-examine him on her contention that emissions  of  harmful  effects  have  been  increased  and  the  defendants  have deliberately caused harm.

[43]     Sixthly, in paragraph 27 Mr Collison deposes that the defendants have spent nearly $240,000 opposing this claim up to May 2011.   Mrs Hargreaves wishes to cross-examine him on why the defendants would pay that sum of money when their solicitors were shown to be inefficient as long ago as 1997.

[44]     Seventhly,  turning  to  the  affidavit  of  16  March  2012  Mrs  Hargreaves challenges Mr Collison’s statement that the police have served a trespass notice on her, and also wishes to challenge Mr Collison in relation to his updated evidence that the  defendants  have  now  spent  over  $250,000,  saying  that  Chapman Tripp  has caused this by wrongful process.

[45]     Mr Jagose in response says he relies on parts of the affidavit to establish oppression by the continuation of this proceeding, particularly by reference to difficulties with witnesses who can no longer be called, and the cost of the proceedings to date.  He described Mrs Hargreaves’ affidavit as an all out attack on Mr Collison, not as a basis for leave to cross-examine on issues directly relevant to the interlocutory applications before the Court.

Discussion

[46]   Before cross-examination may be ordered on evidence presented on interlocutory procedures, special circumstances must be shown.   Whilst the Court should  take  a flexible approach,  something abnormal,  uncommon  or  out  of the ordinary, but less than extraordinary or unique, must be shown: Kidd v Van Heeren.[1]

Necessarily, the proposed cross-examination must relate to the issues arising on the

interlocutory applications before the Court.  It is not permitted merely as a means to adduce evidence that is relevant to the issues to be determined at a later trial.

[1] Kidd v Van Heeren (1997) 11 PRNZ 422 (CA).

[47]     The application does not come within this requirement, nor fit within the ambit of special circumstances.  Mrs Hargreaves did not make out any ground at all which relates to the interlocutory applications presently before me.  The grounds for cross-examination put forward by Mrs Hargreaves amount to a wish to present to Mr Collison a mass of information which Mrs Hargreaves maintains supports the substance of her case (and which is therefore necessarily material for trial only), criticisms of Mr Collison, criticisms of witnesses called for the defendants at the Environment  Court,  and  criticisms  of  the  defendants’ legal  representation  both before the Environment Court and in this court, and their charges in respect of the latter.

[48]     The evidence within Mr Collison’s two affidavits which is material to the issues before me is relatively confined, and to the extent that it is relevant will be referred  to  later  in  this  judgment.    This  is  his  evidence  on  the  availability  of witnesses and the cost of this proceeding.

[49]     On the former of these topics, Mrs Hargreaves’ evidence would be directed not at their availability (which is relevant) but at the substance of their evidence at trial (which is not).  On the latter, Mrs Hargreaves wishes to cross-examine on the quality of the services of the defendants’ legal representatives.  That is irrelevant to the issues before me.  I would not be assisted by cross-examination of Mr Collison on any of the matters referred to by Mrs Hargreaves. As I endeavoured to explain to Mrs Hargreaves at the hearing witnesses are not cross-examined on interlocutory matters in order to generally challenge their evidence, or seek their responses on matters which are not relevant to the interlocutory issues being considered.

[50]     The application for leave to cross-examine Mr Collision is dismissed.

Application to restore the original statement of claim filed on 18 October 2002

[51]     It will be noted from the summary of the proceeding to date that in his judgment  dated  19  October  2011  Chisholm  J  gave  Mrs  Hargreaves  leave  until

31 January 2012 to file and serve an amended statement of claim; the terms are set out above.

[52]     That date was later extended to 29 February 2012.  Mrs Hargreaves did not file an amended statement of claim in accordance with the leave reserved to her; rather, she filed this application on 1 March.

[53]     Mrs Hargreaves told me that the first statement of claim, which she seeks to restore, was permitted to proceed on the basis of allegations of nuisance and negligence; the parts of the statement of claim which were struck out were the effects of her own health.  Mrs Hargreaves maintained that Chisholm J had told her that she should go back to the first statement of claim, and she said that in his judgment in March 2010, reversing the decision to strike out the proceeding, the Judge had said that the case could proceed for continuing harm that Mrs Hargreaves may be suffering.

[54]     Mrs Hargreaves noted that in the judgment, Chisholm J ordered that the claim

be reinstated, “with the limitation issue to be determined at trial”.

[55]     Mr Jagose says that the decision of Chisholm J to reverse the decision of the Court  striking  out  the  proceeding  was  based  on  his  decision  that  he  could  not exclude the possibility that separate and distinct damage/loss, arising from events after October 1996, could be pleaded.  Although in the pleading as it then stood, no cause of action was pleaded that was not time-barred, the Judge was prepared to give Mrs Hargreaves the opportunity to plead damage/loss based on events occurring after 11 October 1996.  Mr Jagose says that Mrs Hargreaves’ arguments before me are still based on the proposition which she put to Chisholm J, that time did not accrue until she realised or ought reasonably to have realised that the harm she was suffering was caused by the defendants’ radio frequency emissions.  The Court has already found that this is not the test.  Mr Jagose says that the first statement of claim was struck out because it was out of time, and all subsequent statements of claim have similarly been struck out as they are unsustainable as a matter of law.   Mr Jagose said that Mrs Hargreaves has been given every opportunity to assert a proper claim,  including  the  clear  guidance  and  direction  given  by  Chisholm  J  in  his judgment of October 2011, yet seeks to go right back to the very beginning notwithstanding all rulings that have been given.

Discussion

[56]     The decisions of the Court in relation to Mrs Hargreaves’ pleadings are clear.

In particular, the legal position was spelled out by Chisholm J in his judgment dated

19 October 2011 in a  way that left no  room  for misunderstanding ([7] above). Whilst I accept that it is not always easy for a litigant representing herself or himself to come to grips with the complexities of the laws of limitation, it was clear from Mrs Hargreaves’ submissions that she understands what had been said in the judgments,  but  that  she  wishes  to  continue  to  argue  that  her  claim  should  be permitted because she did not find out until 2002 about the correct readings of emissions from the defendants’ transmission mast, and only then, therefore, could she establish the cause of the harm she maintains she has suffered.  That argument has been repeatedly rejected.   Chisholm J  gave an opportunity for an  amended statement of claim to be filed which pleaded acts of the defendants within a period of six years prior to the issue of this proceeding from which loss is said to have been suffered.   It cannot be construed any other way, and it is in conformity with the consistent application of settled law to this case over the last ten years.

[57]     There is no basis upon which this Court could possibly order that the original statement of claim be reinstated.   This application, too, is without foundation. February 2012 was the time by which Mrs Hargreaves was to file a statement of claim complying with the very clear guidelines given by Chisholm J in October

2011. The application is dismissed.

Application by the defendants to strike out the proceeding

[58]     The  defendants  seek  orders  dismissing  the  proceeding,  with  leave.    The grounds cited in the application consist of a brief summary of the course of this proceeding culminating in the plaintiff ’s application to restore her original statement of claim, determined above.  On that basis it is said that the proceeding is frivolous, vexatious and otherwise an abuse of process of the Court.

[59]     Mrs Hargreaves raises three points in opposition to this application.   First, referring  to  the  evidence  of  Mr  Collison  about  the  difficulties  caused  for  the

defendants by this case, she submits that the effect of the defendants’ actions on her had been substantially greater as she had been required to leave her farm, obtain accommodation elsewhere and lose her business.  Mrs Hargreaves elaborated on this by starting to address me on her views of the actions of the defendants that she says have brought this about including her allegation that the defendants have deliberately caused more harm by increasing the strength of their transmission.  I was constrained to curtail her dissertation and explain to her carefully the issues before me on this application, but her response was to then address me on the fact that she did not know what was going on until 2002, a point which she has maintained throughout this case, but which remains irrelevant because the time limits with which Mrs Hargreaves is faced run from the date of the events in question, not from the date she learnt of them.

[60]     Mrs Hargreaves then raised again the issue of the correct identity of the second defendant, saying this should have been addressed before the hearing before me.  She said this case is a matter of public importance and told me that Chisholm J had no problem with going back to the original claim.   She sought to rely on the material put forward in her affidavit in support of her application to cross-examine Mr Collison.  I have reviewed that material earlier in this judgment and rejected Mrs Hargreaves’ application to cross-examine Mr Collison on any of these applications, for the reasons I have given.  The evidence demonstrates grounds for the claims Mrs Hargreaves makes about the effect of radio transmission.   Were this case to go to trial, it may be relevant, but this application concerns the issue of whether it can, given the legal difficulties that stand firmly in its way.

[61]     In support of his application for leave to bring this application, Mr Jagose notes that r 7.52 provides that a Judge may only grant leave, where there has been a former unsuccessful interlocutory application for the same order, if there are special circumstances.  This is the same threshold as applies in relation to cross-examination of the maker of an affidavit, in an interlocutory context, and Mr Jagose referred me to Kidd v Van Heeren which I have discussed above.

[62]     Mr Jagose refers first to a passage from the judgment of Chisholm J of

16 March 2010:

[52]  ... the effect of allowing the review [of the Associate Judge’s decision] would be to keep alive a fatally flawed claim that was bound to come to an end when the substantive hearing was reached.  No useful purpose would be served by prolonging the agony and putting the parties to unnecessary expense.

[63]     Given  that  Mrs  Hargreaves  has  not  taken  advantage  of  an  opportunity accorded to her as long ago as October 2011 to file a further amended statement of claim which does set out allegations which would not be statute-barred, but has instead tried to wind back the clock to the first statement of claim, Mr Jagose submits that no useful purpose can now be served by permitting the proceeding to remain alive.

[64]     Mr Jagose refers to Aon Risk Services Australia Ltd v Australian National

University:[2]

[2] Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27, (2009) 239 CLR 175 at [112] – [113].

A party has the right to bring proceedings.  Parties have choices as to what claims are to be made and how they are to be framed.   But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced.   That is why, in seeking the just resolution of the dispute,  reference  is  made  to  parties  having  a  sufficient  opportunity  to identify the issues they seek to agitate.

In the past it has been left largely to the parties to prepare for trial and to seek the court’s assistance as required.   Those times are long gone.   The allocation of power, between litigants and the courts arises from tradition and from principle and policy.   It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings.

[65]     Mr  Jagose  then  refers  me  to  the  effect  on  the  defendants’ operations  at Ouruhia (which I find from Mr Collison’s affidavits to be largely related to committing to expenditure, and inconvenience caused by Mrs Hargreaves allegedly entering the property) and difficulties with the conduct of their defence in terms of available witnesses and contemporaneous records.  He also refers to the defendants’ community relations in which they feel curtailed by a need to not be seen as trying to

influence  the  outcome  of  the  claim  by  discussing  safety  concerns  with  the

community, and difficulty in providing useful information about the case given the

uncertainty of the pleadings. As Mr Collison put it “We are battling ghosts”.

[66]     One witness has died and one has moved overseas.  One has moved out of the specific field of expertise, and two have changed positions.  Of these only two seem to be irreversibly unavailable though there may be increased difficulty in retaining the services of the others.

[67]     As to retaining relevant  records, difficulties are identified in determining which records are relevant given there is yet to be a version of the claim which adequately details the specific events which are said to cause harm, and the consequences of those occurrences.

[68]     Finally, Mr Jagose relies on the expense of the proceeding which, by March

2012, exceeded $250,000.

Discussion

[69]     Rule 15.1 of the High Court Rules provides:

15.1     Dismissing or staying all or part of proceeding

(1)      The court may strike out all or part of a pleading if it –

(a)   discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or

(b)   is likely to cause prejudice or delay; or

(c)   is frivolous or vexatious; or

(d)   is otherwise an abuse of the process of the court.

(2)       If the court strikes out a statement of claim or a counterclaim under subclause (1), it may by the same or a subsequent order dismiss the proceeding or the counterclaim.

(3)       Instead of striking out all or part of a pleading under subclause (1), the court may stay all or part of the proceeding on such conditions as are considered just.

(4)      This rule does not affect the court’s inherent jurisdiction.

[70]     The defendants rely on r 15.1(2) and ask that the proceeding be dismissed. The principles to be applied by the Court in considering an application under this rule were summarised in Attorney-General v Prince[3] and are as follows:

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

(a)     Pleaded facts, whether or not admitted, are assumed to be true.  This does not extend to pleaded allegations which are entirely speculative and without foundation.

(b)     The cause of action or defence must be clearly untenable.

(c)     The jurisdiction is to be exercised sparingly, and only in clear cases.

This reflects the Court’s reluctance to terminate a claim or defence short of trial.

(d)The  jurisdiction  is  not  excluded  by  the  need  to  decide  difficult questions of law requiring extensive argument.

(e)     The Court should be particularly slow to strike out a claim in any developing area of the law, perhaps particularly where a duty of care is alleged in a new situation.

[71]     In Couch v Attorney-General,[4] Elias CJ and Anderson J said, in relation to the second of these criteria, that it is inappropriate to strike out a claim summarily unless the Court can be certain that it cannot succeed.

[4] Couch v Attorney-General [2008] NZSC 45.

[72]     First, I am satisfied that it is appropriate to grant leave for this application to be brought.   I have noted the breadth of the discretion given to the Court on this issue.  I am satisfied that the test of establishing an abnormal, uncommon or out of the ordinary circumstance, as required by Kidd v Van Heeren (above) is met by:

(a)     The fact that despite the judgments of the Court in March 2010 and

October  2011,  no  statement  of  claim  has  been  filed  which  takes advantage of the opportunity given by the Court to plead this case in

accordance with its directions extending as far back as the first strike- out application of the first statement of claim.

(b)Far from pleading her case correctly, and in the only way that it could be pleaded in order to meet the time limitation difficulties Mrs Hargreaves faces, she has deliberately tried to reinstate the first statement of claim which could not possibly have been permitted.

[73]     While every opportunity has been given by the Court to Mrs Hargreaves to plead her case correctly, she has not done so, yet the defendants continue to be subjected to ongoing legal expenses as well as a deteriorating ability to meet the claim if it were ever brought to trial, as Mr Collison has deposed.   Whilst on the evidence he has given the latter of these two factors is of less weight, 10 years after the commencement of this proceeding no tangible progress has been made towards advancing any aspects of this case (if there are any) which might not be banned by the Limitation Act or other restrictions at law, despite Mrs Hargreaves having had every opportunity to do so.  All the causes of action Mrs Hargreaves has sought to bring occurred over 16 years ago, and despite opportunities to do so, she has not sought to plead causes of action which arose within the period of six years prior to her commencing the proceeding.

[74]     There is sound reason for me to doubt that if the case were not struck out, Mrs Hargreaves would plead causes of action which are not time-barred.   This is because she has not done so and when given a clearly-worded written opportunity to do so in the judgment of Chisholm J issued in October 2011, her response was to try to go right back to the way her case started.  This is not a case where there is any tangible indication at all that given more time the pleadings would be remedied.  To the contrary, in argument Mrs Hargreaves still maintains that her case should remain on foot because she could not plead it, through lack of knowledge, until 2002. Whether that is correct or not, the date on which she acquired knowledge of the matters she needed to know in order to plead her claim is not the relevant date for assessment of the limitation period, it is when the events in question occurred, and this point has not been recognised by Mrs Hargreaves in her pleadings at any point.

[75]     I acknowledge without hesitation that the jurisdiction of this Court to strike out a proceeding must be exercised sparingly, but in my opinion this is a clear case where the interests of the defendants outweigh the interests of Mrs Hargreaves in having access to justice.  This is not a case within an emerging or developing area of the law.  The application to strike it out is not based on a difficult question of law, and there has not been any impediment to this case being pleaded during the last 10 years in a way which brings before the Court causes of action, if there are any, that are not banned by the Limitation Act.  If such causes of action did arise within the six year limitation period they could by now have been pleaded.  Lack of knowledge, which is not relevant, is the only reason that has been advanced before me for this not having occurred.

[76]     This  is  a  case  where  the  correct  outcome  is  clear.    The  proceeding  is dismissed.

Costs

[77]     The defendants are entitled to costs.  They are to file a memorandum within

15 working days, and serve it on Mrs Hargreaves.   Mrs Hargreaves is to file a memorandum on costs, in response, within a further 15 working days.   Both memoranda are restricted to no longer than five pages.  I will then make a decision

on costs on the papers.

J G Matthews

Associate Judge

Solicitors:

Ms P A Hargreaves, 69B Yaldhurst Road, Christchurch. Email: [email protected]

Chapman Tripp, PO Box 993, Wellington. Email: [email protected]