Hopkins v New Life Upholstery Limited HC Whangarei CIV-2010-488-106

[2010] NZHC 2426

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV-2010-488-106

BETWEEN  ALAN BRETT HOPKINS AND SUZANNE HOPKINS Appellants

ANDNEW LIFE UPHOLSTERY LIMITED Respondent

Hearing:         7 December 2010

Appearances: S Hopkins in person

W McNeil as Appellants' McKenzie friend
G Ellis for the Respondent

Judgment:      7 December 2010 17:00:00

JUDGMENT OF WOODHOUSE J (Adjournment on conditions)

This judgment was delivered by me on 7 December 2010 at 5:00 p.m. pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar

……………………………………

Parties:

Mr A B Hopkins and Mrs S Hopkins
Mr W McNeil

New Life Upholstery Limited, C/o Mr G Ellis, Ruakaka

HOPKINS AND HOPKINS V NEW LIFE UPHOLSTERY LIMITED HC WHA CIV-2010-488-106 7 December

2010

[1]        This proceeding is an appeal in form but an application for judicial review in substance.  It arises out of a decision of the Disputes Tribunal dated 2 September

2009 awarding a sum of $4,127.25 to the respondent on the respondent’s claim against Mr and Mrs Hopkins.  This was followed by an appeal to the District Court. The application for judicial review relates to the District Court judgment of 29

January 2010.

[2]        The proceeding was set down for hearing tomorrow, 8 December 2010. This Court had earlier approved an application by Mr and Mrs Hopkins for Mr Wayne McNeil to act as their McKenzie friend: see the minute of Gendall J dated 16

March 2010.  Yesterday the Court received an e-mail from Mr McNeil seeking an adjournment on the grounds that he had that day received advice that his aunt had died, the funeral is to take place in Rotorua on 8 December 2010 and Mr and Mrs Hopkins had been “totally reliant” on Mr McNeil to “prepare and present their case”.

[3]        I arranged an urgent telephone conference.  I also directed that Mr McNeil’s e-mail be sent to Mr Ellis, the principal of the respondent.  Mr Ellis made himself available  for  the  conference  at  very  short  notice  and  without  having  seen  Mr McNeil’s letter because he had not been able to get to his e-mails.

[4]        I was reluctant to grant an adjournment.  This is not related to Mr McNeil’s circumstances, in respect of which the Court naturally has sympathy.  The reluctance to grant an adjournment arises from the fact that Mr McNeil’s role is that of a McKenzie friend.  Without seeking to put too fine a point on it, it does seem to me that Mr McNeil’s role has evolved substantially beyond the usual role of a McKenzie friend.  There seems to be no reason why Mr and Mrs Hopkins, who remain litigants in person, should not present their own case and, if need be, obtain the assistance of another  person  as  McKenzie  friend.    These  considerations,  of  course,  have  no bearing on the Court’s natural sympathy for Mr McNeil’s circumstances relating to his aunt.

[5]        Mr McNeil advised that if he is not present it will cause particular difficulty because Mr and Mrs Hopkins have simply left matters with him.   This in itself is somewhat problematic because it assumed that the Court would permit Mr McNeil to effectively act as an advocate.  There can be no assurance of that.  In fact, this is recognized in the application of Mr and Mrs Hopkins for Mr McNeil to act as a McKenzie friend.  Nevertheless, if this is the reality there could be unfairness to Mr

and Mrs Hopkins if they are required at such late notice to try to present their case themselves without any assistance from another person familiar with the issues.

[6]        Mr Ellis opposed an adjournment; and at least in part for reasons that I have already noted, relating to Mr McNeil’s role.   Mr Ellis was also  understandably concerned about the delays that have already occurred, and further delay which is bound to occur with an adjournment, and difficulty in getting a further early fixture.

[7]        As I indicated to Mr McNeil and Mr Ellis in the course of the discussions (and I note that Mrs Hopkins was also on line) I was in the end minded to grant an adjournment but on condition that the amount of the existing judgment and accrued interest is paid into this Court to be held pending the final decision and paid out in accordance with it, and on the further condition that if payment is not made the proceeding will be dismissed.  Mr McNeil, on behalf of the appellants, accepted the imposition of those conditions.

[8]        Accordingly, I made, and now formally record, the following orders:

a)       The proceeding is adjourned for a fixture to be allocated on the first available date.   The matter should be set down for a half day, but submissions should be confined to no more than an hour on each side. In that regard I note that Mr McNeil estimated that no more than 40 minutes would be required for the presentation of the applicants’ case. And Mr Ellis did not anticipate that the response would be any longer.

b)The adjournment is granted on condition that the applicants pay into Court on or before 15 December 2010 the sum of $4,566.07 being the judgment sum together with interest calculated at the prescribed rate of 8.4% per annum from 2 September 2009 to 8 December 2010. That sum is to be held by the Court pending determination of the application and is to be paid out in accordance with the decision of the Court.

c)       If  the  payment  has  not  been  made  by  15  December  2010  the application (formerly the appeal) of Mr and Mrs Hopkins shall be deemed to have been dismissed.

[9]        Mr  Ellis  noted  that  he  had  lost  time  and,  in  consequence,  income  in attending the telephone conference and in anticipation of the hearing tomorrow.   I record the point, but it is not a matter in respect of which the Court at this stage in this proceeding can grant any particular remedy to Mr Ellis’ company.

Peter Woodhouse J