Jindal v Jarden Securities Limited (formerly OM Financial Limited)
[2022] NZCA 329
•22 July 2022 at 2:30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA584/2020 [2022] NZCA 329 |
| BETWEEN | GAUTAM JINDAL |
| AND | JARDEN SECURITIES LIMITED (FORMERLY OM FINANCIAL LIMITED) |
| Hearing: | 13 June 2022 |
Court: | Cooper P, Mander and Fitzgerald JJ |
Counsel: | Appellant in Person |
Judgment: | 22 July 2022 at 2:30 pm |
JUDGMENT OF THE COURT
AThe applications for leave to adduce further evidence on appeal are declined.
BThe application to disqualify counsel from acting for the first and second respondents on the appeal is declined.
C The appeal is dismissed.
DThe appellant must pay the respondents one set of costs for a standard appeal on a band A basis uplifted by 20 per cent and the usual disbursements.
____________________________________________________________________
REASONS OF THE COURT
(Given by Mander J)
Mr Gautam Jindal brought civil proceedings alleging negligence and breach of contract against Jarden Securities Ltd (Jarden) in the District Court at Auckland. Mr Jindal sought damages for a number of foreign exchange trades in which Jarden acted as his broker and caused him financial loss.[1] As part of those proceedings, Mr Jindal sought non-party discovery from NZX Ltd (NZX), a publicly owned company that operates the New Zealand Stock Exchange and has regulatory functions, including in respect of Jarden.
[1]Mr Jindal sued Jarden’s predecessor, OM Financial Ltd. OM Financial Ltd and Jarden Securities Ltd amalgamated on 7 March 2021 to become Jarden Securities Ltd.
The law firm MinterEllisonRuddWatts (MERW) acted for Jarden in the District Court proceedings. NZX also instructed MERW for the purpose of the non‑party discovery application. Mr Jindal objected to MERW representing both entities and applied to the District Court to disqualify it from acting for Jarden and NZX. Judge Harrison dismissed Mr Jindal’s application and declined to disqualify MERW.[2] Mr Jindal failed to appeal that decision within the stipulated timeframe. However, some eight weeks late, he applied to the High Court to file an appeal out of time. Powell J dismissed that application and Mr Jindal now appeals that decision.[3]
[2]Jindal v OM Financial Ltd [2020] NZDC 2162 [District Court judgment] at [12].
[3]Jindal v OM Financial Ltd [2020] NZHC 1993 [High Court judgment].
In support of his appeal against the High Court’s refusal to grant his application for an extension of time to appeal the District Court decision, Mr Jindal seeks leave to adduce further evidence.[4] He also applies to disqualify MERW from acting for Jarden and NZX on the appeal. Both applications are opposed, as is the substantive appeal.
Background
Mr Jindal’s application to the District Court
[4]Court of Appeal (Civil) Rules 2005, r 45.
Mr Jindal’s application to the District Court to disqualify MERW from acting for both Jarden and NZX appears, at least initially, to have arisen out of a concern that if MERW acts for NZX relevant documents harmful to Jarden’s case may not be discovered. Judge Harrison, in dismissing the application, noted there was no evidence to support such a serious allegation.[5] The Judge referred to the ethical obligations on solicitors with regard to the discovery of documents under the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (the Rules)[6] and noted no concerns had arisen regarding how MERW had discharged its obligations in respect of Jarden.[7] The Judge could discern no conflict of interest between Jarden and NZX. The latter was not a party to the proceeding and therefore no conflict arose which could disqualify MERW from acting.[8]
The High Court decision
[5]District Court judgment, above n 2, at [3]–[4].
[6]At [7] and [9], referencing Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rr 8.13 and 13.9.
[7]At [8] and [10].
[8]At [11].
The date for filing an appeal from the District Court’s decision expired on 11 March 2020. Mr Jindal did not file his notice of appeal until 4 May 2020. It was not served on the intended respondents until 12 May 2020. In support of his application for an extension of time to appeal, Mr Jindal argued his proposed appeal raised important issues of principle with regard to the relationship between the regulator (NZX) and a regulated party (Jarden), and that allowing the same counsel to act for both parties would be imprudent and potentially undermine the independence of the regulator. Mr Jindal maintained such a relationship gave rise to an inherent conflict of interest or, at least, created “a more than negligible risk” of such a conflict. This was a reference to r 6.1 of the Rules, which prohibits lawyers acting for more than one client in circumstances where they may be unable to fully discharge their obligations to each one.
In dismissing the application for an extension of time to appeal, Powell J was satisfied that Mr Jindal was aware of the deadline for the filing of an appeal but had made an informed decision not to do so having taken legal advice prior to the filing deadline.[9] This was not a case of genuine error, nor one where Mr Jindal could point to some other party bearing responsibility for the delay.[10] In any event, the Judge was satisfied Mr Jindal’s appeal had no merit and he had failed to demonstrate there was a more than negligible risk of a conflict of interest requiring the disqualification of MERW from acting for NZX on the non-party discovery application.[11]
[9]High Court judgment, above n 3, at [14]–[15].
[10]At [16].
[11]At [17].
It was further observed that NZX was not a party to the substantive proceedings and had no interest in them.[12] Powell J noted both Jarden and NZX had consented to MERW acting for them and there was no basis to believe that, should any conflict emerge, MERW would not bring that to its clients’ attention or raise any difficulty with the Court.[13] Suggestions by Mr Jindal that there were COVID-19-related reasons for the delay in filing the appeal were rejected. It was noted the deadline for filing the appeal against the District Court’s decision fell well before the first nationwide COVID-19 lockdown.[14]
The appeal
[12]At [17].
[13]At [18].
[14]At [14].
Mr Jindal advanced his appeal on two main bases:
(a)He maintained there were valid reasons for him missing the appeal deadline and for the delay in filing his notice of appeal that should have resulted in him being granted an extension. He sought leave to adduce further evidence in support of this ground.
(b)The High Court had erred in concluding his appeal was without merit or, at least, was so weak as to justify declining his application to appeal out of time. In support of this aspect of his appeal, Mr Jindal submitted the District and High Courts failed to recognise the role of NZX and the public interest in it maintaining its independence which would be undermined if both the regulator and regulated are represented by the same lawyers.
A third ground raised by Mr Jindal was a claim the District Court lacked the necessary jurisdiction to hear his application to disqualify MERW and that its decision to dismiss it was a nullity. Mr Jindal maintained the correct course would have been for the District Court to have transferred the hearing of his application to the High Court in order to allow that Court to exercise its inherent jurisdiction. This submission is misconceived and can be dealt with in short order.
District Court’s inherent power
Mr Jindal drew on this Court’s discussion in Black v Taylor[15] of the High Court’s inherent jurisdiction to regulate who may appear before it on a particular proceeding to protect public confidence in the administration of justice as suggesting that only the High Court has the ability to regulate its processes in such a way. However, every court has inherent powers incidental or ancillary to its jurisdiction that are necessary to enable it to function effectively as a court of judicature.[16] An example of inherent judicial power is the control of solicitors appearing before the court.[17]
[15]Black v Taylor [1993] 3 NZLR 403 (CA).
[16]District Court atChristchurch v McDonald [2021] NZCA 353, [2021] 3 NZLR 585 at [27], citing Siemer v Solicitor-General [2013] NZSC 68, [2013] 3 NZLR 441 at [113]–[114] per McGrath, William Young and Glazebrook JJ; and Philip A Joseph Joseph on Constitutional and Administrative Law (5th ed, Thomson Reuters, Wellington 2021) at 901.
[17]At [27], citing Harley v McDonald [2001] UKPC 18, [2002] 1 NZLR 1 at [45]; and Black v Taylor, above n 15, at 408–409 per Richardson J.
There is a distinction between an inherent jurisdiction (which has a substantive quality) and inherent powers (which are parasitic to and support a court’s jurisdiction, be it inherent or statutory) which can give rise to confusion.[18] This point was made by the Supreme Court in Zaoui v Attorney-General:[19]
[35] Some confusion may arise because the term “inherent jurisdiction” is applied both to substantive and procedural powers. The ancillary inherent powers of Courts to regulate their own procedure arise equally in relation to their statutory and common law substantive jurisdictions. Courts which do not possess an inherent substantive jurisdiction (as is the case where their substantive powers are entirely statutory) nevertheless have inherent or implied procedural powers necessary to enable them to give effect to their statutory substantive jurisdiction.
[18]At [28].
[19]Zaoui v Attorney-General [2005] 1 NZLR 577 (SC) (footnote omitted).
In the case of the District Court, its inherent powers, by necessary implication, arise from its statutory jurisdiction[20] and are most frequently used to regulate its own procedures and give effect to its substantive jurisdiction.[21] Such powers include the Court’s ability to control those appearing before it as counsel and is one common to both the District and High Courts regardless of the powers’ jurisdictional source.
[20]McMenamin v Attorney-General [1985] 2 NZLR 274 (CA) at 276.
[21]Taylor v Attorney-General [1975] 2 NZLR 675 (CA) at 680.
We therefore reject Mr Jindal’s submission that the District Court lacked inherent power to hear and determine his application to disqualify MERW from acting for NZX on the non-party discovery application.
Reasons for failing to file notice of appeal within time
Before the High Court, Mr Jindal sought to explain his failure to file his notice of appeal within time by referring to correspondence between his lawyer, instructed for the purposes of a possible appeal, and MERW. It was this correspondence that led Powell J to conclude that Mr Jindal had been aware of the deadline for the filing of an appeal against Judge Harrison’s decision and had decided at that time not to appeal. Relevantly, the letter advised:
My client has considered appealing the refusal of the debarment application. He reserves his position to apply for extension of time to appeal if a conflict of interest arises in the course of the non-party discovery process. If it cannot be resolved, because it continues to be unreasonably contested with your firm in the middle, he may apply for leave to appeal, or he may renew his debarment application to the District Court on fresh grounds. Presently, he prefers to resolve the underlying issue of non-party discovery in a focused manner. He reserves his right to produce a copy of this letter to the Court on any application for leave to appeal.
While Mr Jindal purported to reserve his position, as Powell J observed, there was no suggestion he was seeking the consent of any of the intended respondents to an extension of the filing deadline.[22] Mr Jindal complained that he did not receive a reply from MERW until 9 April, at which point he was advised any application for an extension of time to appeal or revisit the District Court’s decision regarding disqualification would be opposed. MERW’s letter rejected the proposition NZX’s opposition to the non-party discovery application in its contemporaneous form was unreasonable and invited Mr Jindal to engage with MERW to resolve the non-party discovery issue by meeting NZX’s reasonable costs.
[22]High Court judgment, above n 3, at [15].
In the absence of any request for an extension, Powell J concluded the fact MERW did not respond until 9 April was irrelevant and that, in any event, despite Mr Jindal having been advised that any application to appeal out of time would be opposed, no such application was made until a further month had passed.[23] It was on the basis of those circumstances the High Court concluded Mr Jindal had made an informed decision prior to the filing deadline not to file an appeal and that any extension of time would, in the circumstances, defeat the purpose of the time limit.[24]
Mr Jindal’s application for leave to adduce further evidence
[23]At [15].
[24]At [16].
In support of his appeal, Mr Jindal seeks leave to adduce further evidence that he says is material to the High Court’s decision and demonstrates it was based on factual errors. Mr Jindal maintains this evidence shows that he insisted an appeal be pursued and that a notice of appeal be filed by the deadline of 11 March 2020.
This Court may grant leave to admit further evidence on an appeal if it is fresh, credible and cogent.[25] Evidence will not be regarded as fresh if it could, with reasonable diligence, have been produced at first instance.[26] It is not disputed the evidence sought to be adduced by Mr Jindal is not fresh. However, Mr Jindal maintains it is credible and cogent and that, because he was a layperson representing himself before the High Court, this is one of those rare exceptions where the evidence should be admitted notwithstanding it is not fresh.[27] The respondents oppose this additional evidence being accepted in the absence of any explanation as to why it was not tendered before the High Court, particularly given the centrality of the issue to which the proposed evidence relates and the fact Mr Jindal chose to adduce only some of this evidence before that Court.
[25]Court of Appeal (Civil) Rules, r 45; and Paper Reclaim Ltd v Aotearoa International Ltd (Further Evidence) (No 1) [2006] NZSC 59, [2007] 2 NZLR 1 at [6], n 1, citing Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190 (CA) at 192.
[26]Rae v International Insurance Brokers (Nelson Marlborough) Ltd, above n 25, at 192.
[27]Mr Jindal relied on the cases of Complaints Committee No 1 of the Auckland District Law Society v P (2007) 18 PRNZ 760 (HC); and Slavich v R [2011] NZCA 457.
The evidence Mr Jindal seeks to introduce confirms he sought legal advice regarding the prospects of appealing the District Court decision, met with a solicitor and instructed counsel. The plan at that time was to file a notice of appeal and engage with MERW with the objective of having it step back from representing NZX. However, on 6 March, Mr Jindal’s solicitor informed him that his counsel had revised the merits of an appeal and advised against it. A draft of the letter that was ultimately sent to MERW and referred to by the High Court was attached for his comment. Mr Jindal replied to his lawyer later that evening. He was emphatic that an appeal should proceed and the deadline not to be missed. In that regard, he referred to the five‑day deadline proposed to be provided to MERW for a reply, which Mr Jindal insisted needed to fall within the time limit for filing a notice of appeal.
The following day, Mr Jindal’s solicitor expressed dismay at Mr Jindal’s response given his counsel’s careful consideration that his appeal was very unlikely to succeed and that the better course was to focus on narrowing the discovery application and progressing the substantive proceeding. Arrangements were made to meet with Mr Jindal on 9 March at 12.30 pm. Mr Jindal has offered no evidence of the discussion that took place at this meeting but, at 1.52 pm that day, the letter recording Mr Jindal’s position, in the terms set out at [14], was sent to MERW. Over the course of the following weeks, Mr Jindal made periodic inquiries of his solicitor regarding whether MERW had responded to the proposal set out in the letter to resolve the outstanding issues.
Analysis
The evidence Mr Jindal seeks to introduce includes a claim that his solicitor did not provide him with a copy of the 9 March letter before it was sent to MERW on that date and that he did not see or approve that letter. Mr Jindal does not mention in his affidavits the meeting he had with his lawyers shortly before the letter was sent that could only have been for the purpose of discussing its content and confirming his instructions regarding whether an appeal was to be progressed. Nor does Mr Jindal explain the messages he sent over the following two weeks to his lawyer asking whether there had been a reply by MERW to the 9 March letter. There is no mention of a failure to file an appeal on 11 March despite his enquiries on 13, 16 and 18 March asking whether MERW had responded to the proposal. On Mr Jindal’s version of events, such enquiries would have been redundant as the deadline for Mr Jindal’s offer to engage to resolve the issue of conflicted duties and obligations regarding non-party discovery would have passed.
There are other difficulties with Mr Jindal’s proposed evidence. The allegation that his counsel did not follow his instructions was never raised before the High Court. To the contrary, Mr Jindal affirmed in that Court he had sought legal advice regarding the District Court decision and relied upon the content of the 9 March letter sent by his solicitor that he annexed to his affidavit filed in support of his application for an extension of time. Before that Court he complained about the length of the delay before receiving a reply from MERW to his proposal seeking an “out of court resolution to the issues”. Mr Jindal’s argument in the High Court was that it was clear from this correspondence that he intended to file an appeal. However, there was no suggestion he was labouring under any misapprehension that an appeal had already been filed, that his counsel, contrary to his instructions, had failed to do so, that he did not know the content of the 9 March letter sent to MERW or that it had been sent without his approval. Mr Jindal had been aware of the 9 March letter and its content as far back as 6 March when he viewed and commented on a draft that was sent to him by his lawyers.
Mr Jindal’s evidence in the High Court was that he thought “it was best to wait for the respondent party’s response to the email sent 09 March 2020, before I should proceed with the filing of the appeal”. This is entirely contrary to his present evidence. Mr Jindal’s evidence before this Court was that he was unaware the 9 March letter had been sent in the form it was until much later, when he made an enquiry of his solicitor after they had not heard back from MERW. Given the importance of the 9 March letter to Mr Jindal’s application to appeal out of time, which he himself introduced and relied upon in support of his argument before the High Court, we consider it extraordinary that he now alleges the 9 March letter had been sent by his former lawyers in breach of their ethical obligations and contrary to his instructions. No reason has been provided as to why such a serious allegation was not raised before the High Court and an entirely contrary argument based on that letter presented before it.
The balance of Mr Jindal’s explanation for the near eight-week delay in filing his notice of appeal were difficulties relating to COVID-19 and with obtaining the assistance of replacement counsel. Mr Jindal cites his belief at the time that “court matters” had been “postponed” due to the lockdown that occurred on 25 March 2020 and relies upon a communication from the District Court regarding the adjournment of a hearing. However, Mr Jindal does not satisfactorily explain how that bears on his understanding of requirements regarding the filing of documents and the meeting of court deadlines.
Decision
We do not consider the additional material Mr Jindal seeks to introduce on his appeal is either cogent or credible. It does provide greater detail about the circumstances of the 9 March correspondence to MERW, but it makes no material difference to the conclusion reached by the High Court that he had deliberately chosen not to appeal. We accept Mr Jindal was initially intent on filing an appeal and was reluctant to accept the advice of his legal counsel. There is evidence Mr Jindal made enquiries about obtaining other legal representation around this time but, having regard to the content of the 9 March letter and the meeting he attended with his counsel immediately prior to that correspondence being sent to MERW, we do not consider those circumstances admit of any conclusion but that Mr Jindal was cognisant of its content and agreed to adopt the course he had been counselled to follow. That did not include pursuing an appeal at that time. We do not consider Mr Jindal’s claims to the contrary are credible.
The proposed evidence does not therefore advance Mr Jindal’s position. Instead it leads to the same conclusion reached by the High Court — that he was aware of the deadline for filing an appeal and decided not to meet it. It follows that the proposed evidence is not cogent. To the extent it was put forward for the purposes of establishing the stance taken in the 9 March letter was contrary to Mr Jindal’s instructions, we do not consider his evidence to be credible. We decline to admit the evidence.
For completeness, we note Mr Jindal waived privilege in respect of the correspondence that he sought to rely on as further evidence and had no objection to us having access to unredacted copies of that material.
This ground of Mr Jindal’s present appeal was reliant upon our acceptance he should be permitted to adduce further evidence and that such evidence would materially bear on the High Court’s findings regarding the circumstances of Mr Jindal not filing an appeal prior to the deadline. It follows from the reasons we have provided for declining Mr Jindal leave to adduce this further evidence that we do not consider he has demonstrated the High Court erred in its conclusion that he made a deliberate decision not to appeal the District Court’s decision before the lapse of the deadline for any such appeal.
The respondents’ application for leave to adduce further evidence
The respondents sought leave to adduce further evidence in response to Mr Jindal’s proposed evidence. Much of this material concerns ancillary issues relating to NZX’s position regarding non-party discovery, Mr Jindal’s application for leave to adduce further evidence, and demands that he pay outstanding costs. Given our refusal to grant Mr Jindal leave to adduce further evidence, we do not consider it is necessary to receive this information. The respondents’ application to adduce further evidence is declined.
Assessment of merits of proposed appeal in the High Court
Mr Jindal’s second ground of appeal challenged the High Court’s conclusion that his proposed appeal from the District Court’s refusal to disqualify MERW from acting for NZX was without merit.
Mr Jindal submitted that it was only if the merits of his proposed appeal were obviously “very weak” and “clearly hopeless” that the Court could legitimately reach a view about its merits when considering whether to grant an extension of time.[28] We accept that, while the merits of a proposed appeal may in principle be relevant to the exercise of the discretion to extend time, any decision to refuse an extension based substantially on that ground should only be made where the lack of merit is readily apparent. Mr Jindal claims his proposed appeal does have merit and he was critical of the High Court only viewing the issue through the lens of a potential professional conflict of interest under the Rules. He submitted that both the District and High Courts failed to address the issue in accordance with their inherent jurisdiction to control who appears before them, as discussed by this Court in Black v Taylor.[29]
[28]Citing Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [39].
[29]Black v Taylor, above n 15.
Mr Jindal submitted the question of a conflict of interest arising from MERW acting for both Jarden and NZX extends beyond whether NZX is a party to the proceeding, but turns on its responsibilities as a regulator and the appropriateness of it being represented by the same solicitors who act in respect of the same matter for an entity over which it has regulatory responsibilities. Mr Jindal argued the public interest in the administration of justice requires the maintenance of an unqualified perception of fairness in the eyes of the general public.[30] He submitted where the regulator and a regulated party are represented by the same lawyer in the same proceeding that standard is not being maintained. Mr Jindal submitted NZX must be seen to act independently of those it regulates and there is a potential clash of interests.
[30]Citing Deliu v Auckland Standards Committee (Counsel: Debarment) [2014] NZHC 2530, [2014] NZAR 1473 at [22].
Insofar as any theoretical conflict could be identified, Mr Jindal submitted regulatory compliance issues may arise out of the non-party discovery process about which NZX must be seen to act independently. Mr Jindal’s concern was with the perception of the regulated party’s lawyer also acting for the regulator rather than with the prospect of such issues arising from the District Court litigation. He submitted the merits of this argument are sufficiently strong to support his application for an extension of time to appeal or, at least, are not so hopeless as to justify his application being rejected by the High Court. Mr Jindal also claims there is an element of public importance in the issue raised by his proposed appeal.
Analysis
We do not consider the High Court erred in its assessment of the merits of Mr Jindal’s proposed appeal. It needs to be re-emphasised that NZX is not a party to the substantive proceeding and has only become involved in the litigation as a result of an application made by Mr Jindal for non-party discovery. It has no role in the narrative of events upon which Mr Jindal’s claim against Jarden is based. Its only relevance to the proceeding is as the repository of information which Mr Jindal seeks. Insofar as there has been resistance to his application, this appears to have primarily been because of the breadth of his request for discovery that potentially involves tens of thousands of documents and Mr Jindal’s apparent reluctance to pay the reasonable costs that attach to carrying out what is likely to be an onerous and expensive exercise, at least on the basis of what Mr Jindal was initially intent on pursuing. As found by the Judge in the District Court, there is no basis to suggest MERW would not comply with its professional obligations under the Rules in relation to the discovery process.[31] Nor is there any viable basis to impeach the High Court’s view that NZX and Jarden instructed MERW on an informed basis.
[31]District Court judgment, above n 2, at [7]–[10], citing Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules, rr 8.13 and 13.9.
As will be apparent from our earlier discussion of Black v Taylor, a court has the inherent power to restrain lawyers from appearing in proceedings before it where the integrity of the judicial process would be impaired by counsel’s adversarial representation of one party against the other.[32] That inherent power extends to protecting public confidence in the administration of justice by preventing lawyers from acting where a conflict of interest may prevent justice being seen to be done.[33]
[32]Black v Taylor, above n 15, at 412 per Richardson J.
[33]At 408 per Richardson J.
The identification and application of the relevant principles will depend upon the circumstances of the particular case, but the overall assessment will turn on how the conduct in question — here, MERW acting for NZX on the non-party disclosure discovery application — would appear to those reasonable members of the community knowing the background to NZX’s involvement.[34] In making that assessment, the ethical responsibilities of practitioners, as set out in the profession’s own rules, will often provide appropriate guidance.[35] The court will also have to take due regard of the public interest in a person not being deprived of their counsel of choice without good cause.[36] Considerations of delay, inconvenience and expense arising from a change in representation may also be important in determining, in particular cases, whether the interests of justice truly demand disqualification.[37]
[34]At 408 per Richardson J.
[35]At 409 per Richardson J.
[36]At 409 per Richardson J.
[37]At 412 per Richardson J.
Black v Taylor concerned a perceived conflict arising from a practitioner acting against a former client and much of the discussion in that case is premised on the potential difficulties arising from that lawyer acting against a party in respect of whom they had previously been engaged and knew well. This is not the situation that arises in the present case. We accept the court’s power to intervene extends more widely than the ethical responsibilities set out in the Rules and includes situations where a perceived conflict may prevent justice from being seen to be done. However, like the District and High Courts, we do not consider this case remotely approaches the threshold requiring the Court to exercise its inherent powers.
As already noted, NZX is not a party to the substantive proceeding and its only involvement is by dint of it being the holder of information sought by Mr Jindal that he considers to be relevant to his claim against Jarden. NZX has no interest in the underlying proceeding and has indicated a willingness to provide any documents which are reasonably sought. NZX has chosen to instruct MERW because it is a firm with which it has an existing relationship. MERW’s lawyers are bound to comply with their ethical obligations in dealing with the non-party discovery application.
Mr Jindal has been unable to identify any act or omission on MERW’s part that gives rise to concerns that it will not comply with those professional responsibilities in discharging its obligations. He has also been unable to identify how the non-party discovery application could engage NZX’s regulatory responsibilities. Any suggestion that further developments in the litigation may result in it becoming more heavily involved in the proceedings is entirely speculative.
Decision
Based on the nature of NZX’s limited involvement in the proceeding, with its only role being that of the relevant recordkeeper, we do not consider its engagement of MERW for the purposes of the non-party disclosure application is capable of giving rise to any valid concerns that would undermine public confidence in the administration of justice when measured against the perceptions of an objective, reasonable member of the community with knowledge of the background to this matter and MERW’s ethical responsibilities. That being the case, we do not consider Powell J erred in his assessment that Mr Jindal’s proposed appeal has no merit. We conclude the Judge was legitimately permitted to take this factor into account when refusing to grant an extension of time.
Conclusion
The ultimate question when determining applications for an extension of time is what the interests of justice require after having regard to various factors, including the length of the delay, the reasons for it, the conduct of the parties (particularly the applicant) and any resulting prejudice.[38] Having regard to these considerations, we agree with Powell J’s conclusion that Mr Jindal made an informed decision prior to the filing deadline not to file an appeal from the District Court’s decision refusing to disqualify MERW. Given the appeal’s clear lack of merit, the unsatisfactory explanations proffered by Mr Jindal in an endeavour to explain his failure to file his appeal within time, and the subsequent delay in doing so, we do not consider the High Court erred in dismissing this application to extend time to bring an appeal.
Application to disqualify MERW from acting on the appeal to this Court
[38]Almond v Read, above n 28, at [38].
It follows from our findings regarding the merits of Mr Jindal’s proposed appeal to the High Court that his application that MERW not be permitted to represent both Jarden and NZX on this appeal must fail. Mr Jindal seeks to distinguish the position of those two entities on the application for non-party discovery where NZX, by definition, is not a party, with its status as a party to the present appeal, and where all the respondents, including MERW itself, are represented by that firm. Mr Jindal submitted MERW cannot be seen as independent when acting for all three parties on the appeal and is in breach of its professional obligations by doing so.
The application duplicates the argument regarding the appropriateness of MERW acting for both NZX and Jarden without altering either the substance or the merits of that argument. Insofar as it seeks to take advantage of the naming of NZX and MERW as intended parties to the application made before the High Court and as respondents on the appeal to this Court, the interlocutory application is simply a procedural device that is without merit and is dismissed as such.
Costs
The respondents seek increased costs on the basis that Mr Jindal’s appeal is without merit and has been litigated in a way that has caused them to incur excessive costs. They seek a 50 per cent uplift on standard appeal costs.
We agree that Mr Jindal’s appeal was without merit and that he has put the respondents to the expense of having to reply to a flawed argument. Moreover, Mr Jindal sought to adduce evidence in support of a case that was not only not advanced before the High Court but was inconsistent with the position he took before that Court. Mr Jindal did not explain why a demonstrably different reason for his failure to appeal within time was put forward to this Court than was advanced before the High Court.
Mr Jindal’s appeal to this Court could not succeed. Much of his argument was misconceived, as was his application to disqualify counsel from acting on the appeal. Considerable expense was unnecessarily incurred by the respondents in having to respond to further evidence sought to be admitted by Mr Jindal and to meet arguments that were only raised on this appeal for the first time. In the circumstances, we consider these unsatisfactory aspects of Mr Jindal’s appeal should be met by a 20 per cent increase in costs payable to the respondents.
Result
The applications for leave to adduce further evidence on appeal are declined.
The application to disqualify counsel from acting for Jarden and NZX on the appeal is declined.
The appeal is dismissed.
Mr Jindal must pay the respondents one set of costs for a standard appeal on a band A basis uplifted by 20 per cent and the usual disbursements.
Solicitors:
MinterEllisonRuddWatts, Auckland for Respondents
6
0