Johnson v Johnson - [2021] NZHC 2872

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2018-485-144

[2021] NZHC 2872

BETWEEN
BRYAN EWART JOHNSON, DAVID HOUGHTON WALE and CHRISTOPHER

DAN WILLIAMS as trustees of the ABEL TRUST

Plaintiffs

AND

CRAIG BRYAN JOHNSON and MARIA BERNADETTE JOHNSON

First Defendants

LITTLE SCHOOL LIMITED
Second Defendant

JOHNSON PRESCHOOL LIMITED

Third Defendant

CIV-2020-485-417

BETWEEN

MARIA BERNADETTE JOHNSON
Plaintiff

AND

CRAIG BRYAN JOHNSON

First Defendant

CRAIG BRYAN JOHNSON, MARIA BERNADETTE JOHNSON and GRANT

MAITLAND RICHARDSON as trustees of the C B and M B JOHNSON FAMILY
TRUST

Second Defendants

CIV-2020-485-421

BETWEEN

CRAIG BRYAN JOHNSON
Plaintiff

AND

LIFE LEARNING AOTEAROA LIMITED

JOHNSON v JOHNSON [2021] NZHC 2872 [27 October 2021]

First Defendant

MARIA BERNADETTE JOHNSON
Second Defendant

LITTLE SCHOOL LIMITED
Third Defendant

JOHNSON PRESCHOOL LIMITED
Fourth Defendant

CIV-2021-485-118

BETWEEN

MARIA BERNADETTE JOHNSON
Applicant

AND

CRAIG BRYAN JOHNSON

Respondent

On the Papers

Counsel:

G M Illingworth QC, C J R Baird and P Magee for Maria Johnson in all proceedings

R J Fowler QC for the Plaintiffs in CIV-2018-485-144

C M Stevens, T Mijatov and H Stanford for Craig Johnson in CIV-2018-485- 144, CIV-2020-485-417 and CIV-2020-485-421

M L Greenhough and L Pratley for Craig Johnson in CIV-2018- 485-118

O Jaques, Counsel Assisting in CIV-2018-485-144 and CIV-2020-485-421

Judgment:

27 October 2021

JUDGMENT OF GWYN J

(Application for leave to appeal order as to mode of trial)

Background

[1] On 20 October 2021 I issued a minute in relation to the mode of trial.1 On 26 October 2021, Ms Johnson filed an application for leave to appeal that decision.

1 Johnson v Johnson HC Wellington CIV-2018-485-144, 21 October 2021.

[2] Mr Illingworth QC and Mr Baird, counsel for Ms Johnson, had sought a direction from the Court that they be authorised to travel from Auckland to Wellington, for the purpose of the trial. Authorisation was necessary because of alert level travel restrictions.2

[3] I considered the application in light of the Guidance issued by the Chief Justice to assist Judges in considering whether to grant permission for participants in a hearing to travel into a different alert level region to enable an in-person appearance. The Chief Justice’s information for participants, in similar terms, is publicly available.3

[4] The Guidance notes the heightened and widespread concern within the community about the potential for contact with those who have travelled from a higher alert level and the need to very carefully manage the risk of conducting such a hearing. The Guidance emphasises that the presiding judge in any such hearing must take a precautionary approach. For that reason, the presumption is that if a hearing can take place with appearances using remote technology and that is practicable, that option should be taken.

[5] In applying the Guidance to the circumstances of this case, I concluded that it was possible and practicable to have counsel – Mr Illingworth and Mr Baird – appear using remote technology. In reaching that view I acknowledged some practical difficulties involved for counsel in doing…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Johnson v Johnson

Details

AGLC: Johnson v Johnson [2021] NZHC 2872
Case: [2021] NZHC 2872
Decision Date: 27 October 2021

CaseChat Overview and Summary

The case of Johnson v Johnson involved several parties and related proceedings concerning family trusts and businesses. The primary dispute involved Bryan Ewart Johnson, David Houghton Wale, and Christopher Dan Williams as trustees of the Abel Trust, who were plaintiffs in the case against Craig Bryan Johnson and Maria Bernadette Johnson as the first and second defendants, with Little School Limited and Johnson Preschool Limited as the third and fourth defendants. Additionally, Maria Bernadette Johnson brought separate proceedings against Craig Bryan Johnson, and Craig Bryan Johnson brought proceedings against Life Learning Aotearoa Limited. The case was heard in the High Court of New Zealand, Wellington Registry.

The legal issues the court had to decide centred on the mode of trial under COVID-19 restrictions, specifically whether the plaintiffs' counsel should be allowed to travel from Auckland to Wellington for the trial, given the alert level travel restrictions. The court had to consider the Chief Justice's Guidance on conducting hearings across alert level boundaries, balancing public health concerns with the need to proceed with the trial. The court also had to determine whether there was an arguable error of law or fact in the earlier decision denying the travel authorisation, and whether granting leave to appeal would serve the interests of justice.

The court, in its reasoning, found that remote participation via video-link was both possible and practicable, given the nature of the evidence and the availability of electronic documents. The court emphasised that the presiding judge must take a precautionary approach, and that the presumption was to conduct hearings remotely if practicable. The court noted that all evidence would be given by affidavit and that the primary parties could attend in person. It concluded that the concerns about cross-examination and witness demeanour were overstated, as credibility could still be assessed through other means. The court found that the application for leave to appeal did not meet the high threshold required, as there was no arguable error of law or fact, and granting leave would not serve the interests of justice. The court accordingly declined the application for leave to appeal.

In summary, the court maintained its earlier decision that the plaintiffs' counsel could not travel from Auckland to Wellington for the trial. The application for leave to appeal this decision was declined, as the plaintiffs had not demonstrated an arguable error or sufficient grounds to warrant further delay.

Orders