Johnson v Johnson
[2021] NZHC 2872
•27 October 2021
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 DefendantJOHNSON PRESCHOOL LIMITED
Third Defendant
CIV-2020-485-417 BETWEEN
MARIA BERNADETTE JOHNSON
PlaintiffAND
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
TRUSTSecond Defendants
CIV-2020-485-421 BETWEEN
CRAIG BRYAN JOHNSON
PlaintiffAND
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
ApplicantAND
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 so. My decision was primarily informed by the following factors:
(a)All evidence is to be given by way of affidavits, filed in advance.
(b)There are a large number of documents for trial, but Associate Judge Johnston directed in a minute dated 8 October 2020 that the trial bundle be in electronic form, searchable and hyperlinked. Counsel for Mr Johnson have assumed responsibility for preparing the bundle.
2 COVID-19 Public Health Response (Alert Level Requirements) Order (No 12) 2021, cls 17(1) and 18(1) and sch 5.
3 “Cross-alert level boundary travel” (15 October 2021) Courts of New Zealand
< participation would be by way of VMR from a courtroom hard- wired for that purpose.
(d)The two principal parties/witnesses, Mr and Ms Johnson, can both attend the trial in person.
(e)Two of Ms Johnson’s four-person legal team (Mr Magee and Ms Wademan) can attend the trial in person and be with Ms Johnson in court.
(f)Mr Johnson’s legal team are all in Wellington and can attend in person.
(g)The other parties and their counsel are also Wellington-based and can attend in person.
[6] In light of my conclusion that remote participation in this way was possible and practicable, I did not go on to a detailed consideration of the public interest factors set out in the Chief Justice’s Guidance. However, I did briefly canvass those matters in my decision, and I indicated that a balancing of the relevant public health considerations against the disadvantages of adjourning the hearing would have pointed against authorising counsel to travel across alert level borders.
Application for leave to appeal
[7] Ms Johnson now seeks leave to appeal that order as to mode of trial on 18 detailed grounds set out in her application and supported by her affidavit and a memorandum of counsel dated 27 October 2021. The application is made in reliance on s 56(3) of the Senior Courts Act 2016.
[8] Counsel for Mr Johnson have filed a memorandum which responds to the application. That memorandum seeks to rebut a number of the matters set out in the application, but Mr Johnson’s primary emphasis is on the importance of preserving the fixture.
[9] The requirement for leave to appeal serves as a “filtering mechanism” to ensure that “unmeritorious appeals of interlocutory orders, or appeals of interlocutory orders of no great significance to either the parties or more generally, do not unnecessarily delay proceedings.”4 The Court of Appeal has confirmed the following considerations are relevant on an application for leave to appeal:5
(a)a high threshold exists;
(b)the applicant must identify an arguable error of law or fact;
(c)the alleged error should be of general or public importance warranting determination or otherwise of sufficient importance to the applicant to outweigh the lack of general or precedential value;
(d)the circumstances must warrant incurring further delay; and
(e)the ultimate question is whether the interests of justice are served by granting leave.
[10] Having carefully considered the application and affidavit in support, and my earlier decision, I am not satisfied that Ms Johnson has identified an arguable error of law or fact. The grounds advanced in the application as to complexity, difficulty, extent of the documentation in issue, and communications between counsel and client at trial were addressed in my decision.
[11] My decision reflects the reality of the way in which court hearings have been and will continue to be conducted under COVID-19 restrictions. See, for example, BCH Investments Ltd v Nguy, where the entire hearing proceeded by way of VMR with witnesses being examined and cross-examined by VMR.6
[12] The application for leave to appeal stresses that there will be significant issues of credibility arising in the trial. I took account of the significance of cross-examination in my decision, noting that while having to cross-examine witnesses will put some additional pressure on Ms Johnson’s counsel and possibly put her at a slight disadvantage, that was not a determinative factor in a civil trial. Further, as Stevens J noted in Deutsche Finance New Zealand Ltd v Commissioner of Inland
4 Greendrake v District Court of New Zealand [2020] NZCA 122 at [6]; citing Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [13].
5 At [6].
6 BCH Investments Ltd v Nguy [2021] NZHC 2730 at [40].
Revenue, “a number of authorities consider that determinations of credibility … are perfectly possible when evidence is given via the videolink”.7 In this case, the evidence is to be given by affidavit, filed in advance. What I have directed is that counsel for Ms Johnson will cross-examine the other parties’ witnesses via video link. Similarly, counsel for Mr Johnson will need to cross-examine Ms Johnson’s Auckland-based witness Mr Lawrence by video-link.
[13] Justice Stevens in Deutsche Finance went on to quote an article from the Australian Justice David Ipp:8
… I suggest that judges should focus on probabilities and inconsistencies, rather than demeanour. Close attention should be paid to contemporaneous documents. Where oral testimony is in conflict with contemporaneous documents, it may be unreasonable to believe what the witness says. The probabilities and consistency of the witness's version should be measured against the incontrovertible and agreed facts, as soon as the remainder of the witness's evidence (including that given on other occasions). Regard should then be had to the other facts found. Other facts relating to credit may be relevant. But the probabilities, together with external and internal consistency, should always be the touchstone of factual findings. Finally, attention must be given to the demeanour of the witness. I would consign demeanour to the bottom of the list.
[14] I respectfully agree that the question of witness demeanour can be overstated, and do not consider counsel’s concerns justify their travel across the alert level boundary.
[15] I find the concerns raised in the application for leave (including that the order is manifestly unreasonable, oppressive, unfair, would cause undue prejudice and a grave injustice to Ms Johnson, and intrudes on Ms Johnson’s basic human rights) are overstated. As I recorded in my minute, the Court will make whatever reasonable accommodation is necessary, including extra breaks, to ensure that Ms Johnson and her counsel are not disadvantaged by two of her counsel appearing remotely.
[16] There is one additional factor to address. The application and Ms Johnson’s affidavit in support both record: “Counsel for all the other parties consented to both
7 Deutsche Finance New Zealand Ltd v Commissioner of Inland Revenue (2007) 18 PRNZ 710 (HC) at [37].
8 At [38]; citing David Ipp “Problems with Fact-Finding” (2006) 80 ALJ 667 at 672, citing R Eggleston Evidence, Proof and Probability (Weidenfeld & Nicolson, London, 1983) at 192-193.
Messrs Illingworth QC and Baird appearing in person at the trial; it was only the Judge who did not.” The comment misapprehends the role of the presiding judge in applying the Chief Justice’s Guidance. While the views of the parties on the issue of cross-border travel will be of some relevance, it is ultimately the task of the presiding judge to consider the circumstances of the particular case, having regard to the Guidance and applying a precautionary approach. It is not a question of the judge “consenting” to the arrangements proposed by the parties.
[17] I note, however, that if, at trial, the concerns expressed by Mr Illingworth in his application are borne out, counsel may renew an application for adjournment of the proceeding.
[18] Finally, I note that the application I ruled on was an application for leave for Mr Illingworth and Mr Baird to travel across alert level borders from Auckland to attend at the trial in Wellington. I declined to grant leave for that travel. Although leave to appeal my decision is sought, and counsel for Mr Johnson have advised they would support the appearance of Mr Illingworth in person (noting that Mr Baird is not fully vaccinated), Mr Illingworth does not seek to reverse that decision. He acknowledges in the application that:
… the consequences of Alert Level 3 in Auckland currently with increasing community cases of the COVID 19 Delta variant mean that there is an unacceptable risk that travelling counsel and witnesses from Auckland may enable transmission to Wellington.
[19] The application is in effect a further application for adjournment of the trial. Ms Johnson has previously sought an adjournment of the fixture. That application was declined by Associate Judge Lester, after careful consideration of the long-running dispute between the parties.9 I also note Gendall J has previously described it as “crucial” that the trial date be preserved.10
[20] It follows that I find the high threshold for granting leave to appeal has not been met: Ms Johnson has not identified an arguable error; the circumstances do not
9 Johnson v Johnson [2021] NZHC 2540.
10 Johnson v Johnson [2021] NZHC 2339 at [13].
warrant incurring further delay; and the interests of justice are not served by granting leave.
Result
[21]The application for leave to appeal is declined.
Gwyn J
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