Johnson v Johnson

[2021] NZHC 2339

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2018-485-000144

[2021] NZHC 2339

BETWEEN

BRYAN EWART JOHNSON, DAVID HOUGHTON WALE AND

CHRISTOPHER DAN WILLIAM AS TRUSTEES OF THE ABEL TRUST
Plaintiffs

AND

CRAIG BRYAN JOHNSON AND MARIA BERNADETTE JOHNSON

First Defendants

AND

LITTLE SCHOOL LIMITED

Second Defendant

AND

JOHNSON PRESCHOOL LIMITED

Third Defendant

Hearing:

Memoranda Received From:

(Determined on the papers)

1.     Counsel for C B Johnson – 26 August 2021

2.     Counsel for M B Johnson – 31 August 2021

3.     Counsel for C B Johnson – 6 September 2021

4.     Counsel for C B Johnson – 8 September 2021

5.     Counsel for M B Johnson – 10 September 2021

Judgment:

14 September 2021

JUDGMENT OF GENDALL J

(Determined on the papers)

[1]                 This judgment (originally dated and to be released on 8 September 2021) is to be read with the Addendum commencing from [28] below which is to form part of the judgment.

JOHNSON v JOHNSON [2021] NZHC 2339 [14 September 2021]

[2]                 On 8 July 2021, Ms M B Johnson (Maria) filed an application for leave to appeal to the Court of Appeal a judgment I issued in this proceeding dated 10 June 2021. She also sought an order to adduce new evidence.

[3]                 On 22 July 2021, counsel for Mr C B Johnson (Craig) filed a notice of opposition to Maria’s application.

[4]                 Counsel for the respective parties have now filed memoranda of submissions with respect to this application as follows:

(a)Memorandum from counsel for Craig opposing the application dated 26 August 2021;

(b)Memorandum from counsel for Maria in support of the application dated 31 August 2021;

(c)Memorandum  by  way   of  reply  from   counsel  for  Craig   dated    6 September 2021.

[5]                 Counsel confirm that the parties have agreed the application for leave is to be determined on the papers. I now do so.

[6]                 At para [1](c) of her application Maria has applied to this Court for a grant of leave to adduce evidence in an affidavit from her dated 8 July 2021. I deal with this aspect first.

[7]                 Maria’s 8 July 2021 affidavit, according to Craig’s counsel, appears to be almost the same affidavit with annexures (which in all total 170 pages) Mr Wigley, her counsel, attempted to file and serve on the day of the hearing of the matter which is the subject of my judgment, 10 May 2021. I refused to admit the affidavit at that late stage and it was not read.

[8]                 Craig’s position is that this affidavit is neither fresh, cogent or reliable and also that it is plainly an abuse of process that the affidavit has reappeared at this stage.

[9]                 The matter before me is principally an application for leave to appeal to the Court of Appeal my 10 June 2021 judgment. As such, I am satisfied it is not appropriate for leave to be granted here to Maria to adduce this “new” evidence given that an earlier ruling was made that it would not be admitted for the 10 May 2021 hearing. Its relevance to the leave application, as I understand it, is also questionable.

[10]Leave to adduce the evidence in this affidavit from Maria is refused.

[11]              Turning now to the application for leave to appeal, it is made in reliance on   s 56 Senior Courts Act 2016 and r 20.22 of the High Court Rules.

[12]              McGechan on Procedure1 at para SC56.07 in referring to s 56(3) of the Senior Courts Act and the considerations to be taken into account when addressing an application for leave states:

SC56.07        Section 56(3) – considerations applying to leave

In Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [9]–[14] the Court characterised the leave requirement as a “filtering mechanism” and recognised the following considerations as relevant on an application for leave:

(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;

(e)the ultimate question is whether the interests of justice are served by granting leave.

These considerations were cited with approval in Greendrake v District Court of New Zealand [2020] NZCA 122 at [6].

In Western Joinery Ltd v Commissioner of Inland Revenue [2017] NZHC 3297 (at [9]) for guidance the Court referred to decisions on leave to appeal from interlocutory decisions of the District Court under the former s 71A of the District Courts Act 1947. In particular, in Sandle v Stewart [1982] 1 NZLR 708 (CA) at 715 the Court observed:

1      McGechan on Procedure Thomson Reuters, (loose leaf ed).

“The purpose of [such leave] is to limit the cases which may go on appeal in the interests of finality of litigation and the workload of the High Court, while preserving the integrity of the law and the interests of justice.”

[13]              At the outset, I note that for some time this proceeding and the essential argument between Maria and Craig over their relationship property dispute has been set down for trial in this Court on 8 November 2021. Preserving that trial date has been seen on a number of occasions as crucial and indeed Associate Judge Lester in this Court on 12 July 2021 in a minute he issued emphasised that:

[36] My priority is to ensure the November hearing dates are maintained. Compliance with timetables is going to be critical from now on. The closer we get to the hearing, the less tolerance there can be for slippage in the timetable.

[14]              This Court has commented before on a number of delays and breaches of timetable orders on the part of Maria in the past and, despite Maria’s contentions to the contrary, counsel for Craig has commented quite properly in my view, that a grant of leave to appeal here is likely to affect detrimentally that 8 November 2021 trial date. Matters addressed in my 10 June 2021 judgment are largely peripheral to the main relationship property issues under consideration at that trial, and all the circumstances here, in my view, do not warrant incurring what is likely to be further delay.

[15]              But, in any event and leaving aside that issue of delay, for this application to succeed this Court must be satisfied that granting leave to appeal is in the interests of justice.

[16]              Turning first to the high threshold that must exist to justify leave to appeal, that is not met here because, as I see it, no significant arguable error has occurred in my 10 June 2021 judgment. Maria’s application which was the result of that judgment sought various declarations and orders. These included that privilege had been breached by Craig’s reference to an alleged threat in an affidavit and his invitation that Maria waive privilege, complaints about the production of the email in its entirety following a written and express waiver and consent to that by Maria and associated orders, including that counsel might be sanctioned.

[17]              In that judgment it is clear that what was expressed was only the Court’s “preliminary view” on some of the matters sought to be appealed. This fact in itself must support the view that the present application for leave is inappropriate.

[18]              In all other respects, it is difficult to see here that there is any arguable error in the judgment because:

(a)Maria’s application before the Court (alleging breach of privilege and other matters by Craig and his legal advisors) I found was “largely otiose” because all parties accepted Maria had already waived any privilege she had.

(b)In addition, at [32] of that judgment I observed that there:

…would have been nothing to be gained from a Court declaration relating to the privilege matter as requested by Ms Johnson…Such a declaration as I see it would at most have been a pyrrhic victory. There is no value in the Court providing such a declaration.

(c)At [27] and [29] of that judgment I noted the “better view” of the substance of Maria’s application was that without prejudice protection did not attach to the impugned 22 November 2019 email sent on her behalf because it did not compromise her position or risk prejudice to her, it contained by way of a unilateral statement “an explicit threat to cause what can only be seen as significant harm unless monies were paid to Ms Johnson” and “in context the bald unilateral proposition in the email might be seen as one of ‘pay or else’”. Maria’s 22 November 2019 email made that plain.

[19]              In my view, the reality of Maria’s application which resulted in my 10 June 2021 judgment being otiose and the fact the declaration sought would serve no useful purpose, must weigh against leave to appeal being granted.

[20]              I conclude also that Maria’s present application presents no arguable errors for appeal. Her disagreement seems to be with the outcome of her earlier application and nothing before me establishes arguable error here. The lengthy submissions advanced

at the earlier hearing on her behalf were carefully considered and her claim that some of these were not addressed is simply wrong.

[21]              Maria also appears to take issue with a conclusion I reached in my judgment that the “principal issue driving matters between these parties is relationship property”. This discloses no error of any kind given that at least four other High Court Judges have remarked in the past that the litigation here between Maria and Craig is essentially a relationship property dispute.2

[22]              Lastly, my 10 June 2021 judgment was at pains to emphasise that the views expressed were only preliminary and the circumstances under consideration did not warrant the matter being finally determined by the High Court ahead of trial. I noted by way of example in the judgment the following:

(a)At para [18]:

If these matters remain of some relevance in the parties’ November 2021 substantive hearing which is fast approaching, then they can be determined for all purposes at the commencement of that eight day fixture;

(b)At para [27]:

[…the matters] are factual matters for the Trial Judge (if thought to be relevant) after proper testing and consideration of all the evidence;

(c)At para [39]:

It is for the Judge there (at trial) to make of these matters what she or he will, assuming in any event that they may be seen as relevant to issues before the Court;

And;

(d)At para [41]:

…if the Court at that time thinks these issues might be relevant and need addressing, they will be matters to be determined then.

2 Associate Judge Johnson in [2020] NZHC 1563 at [2], Gwyn J at [2020] NZHC 2093 at [48], Cull J in a minute dated 19 July 2021 at [2] and Associate Judge Lester at [2021] NZHC 2220 at [2].

[23]              Finally, I am satisfied here there are no matters of general, public or private importance to warrant granting leave to appeal despite Maria’s claim otherwise.

[24]              And in any event, even if it might be established there may be some degree of prejudice flowing to Maria in all the circumstances here, in my judgment this would soon be overtaken by the determination at the November 2021 hearing of all four High Court proceedings between Mr and Mrs Johnson following their trial.

[25]              Overall, the interests of justice in this case are best served by the prompt and final resolution of Maria and Craig’s relationship property proceedings and the other matters at issue between them at the trial in November.

[26]              For all these reasons, leave to appeal to the Court of Appeal my judgment of 10 June 2021 is declined.

[27]              As to costs, Craig has been successful in opposing this leave application and I see no reason why costs should not follow the event in the usual way. Costs are therefore awarded to Craig with respect to this leave application on a category 2B basis together with disbursements, if any, as approved by the Registrar.

……………………………………

Gendall J

Solicitors:

Lane Neave, Wellington

DLA Piper New Zealand, Wellington Wigley and Company, Wellington

Copies to:

A S Butler, Barrister, Wellington

R Fowler QC, Barrister, Wellington O Jaques, Barrister, Wellington

A R Galbraith QC, Barrister, Auckland

ADDENDUM

[28]              My above judgment was due to be released around the middle of the day on  8 September 2021. Late that morning, Mr Wigley, counsel for Maria, sent an urgent communication to the Court indicating that the affidavit he had filed earlier for Maria

dated 8 July 2021 was in error, it being the wrong affidavit. Accordingly, he attached an unsigned “Second Affidavit of Maria Johnson in Support of Application for Leave to Appeal”. It amounted to some half a page and included two exhibited email letters from Mr Wigley.

[29]              Given this very late development, on 8 September 2021 and immediately prior to what was to be the original time for release of my judgment in this matter (a judgment which had already been forwarded to the Wellington High Court for release), I sent a communication to the Registrar to hold off issuing the judgment consequent upon the provision of this new material from Maria. In addition, at that time I directed that counsel for Craig was to have two working days if they wished to respond by further memorandum to the message from Mr Wigley and Mr Wigley was then to have a further two working days to reply.

[30]              Further memoranda from counsel for Craig dated 8 September 2021 and from counsel for Maria dated 10 September 2021 have been filed and provided to me.

[31]              I have considered these memoranda and also in a general way the new or replacement second affidavit of Maria in support of her present applications for leave to appeal and to adduce that further evidence. Leave to adduce that further affidavit evidence is refused. Its relevance is questionable and, as I see the position, it adds nothing of significance to all the matters which were already before me here.

[32]              None of the additional matters raised or the material in Maria’s replacement second affidavit, in my judgment, make any difference to my earlier judgment which was to be released on 8 September 2021 and the reasoning contained therein. No change or amendment is required. I now issue that judgment together with this addendum today, 14 September 2021.

[33]              For completeness, I simply repeat that Maria, in all the circumstances here, has been unable to meet the high threshold that exists to grant leave to appeal my 10 June 2021 judgment. That application for leave to appeal is declined. I confirm too, as I note above, that, in reaching this decision, leave to adduce what is said to be the new

evidence from Maria contained in her second affidavit dated 31 August 2021 has been is refused.

[34]              Lastly, I confirm my award of costs to Craig in terms of para [27] of my within judgment.

...................................................

Gendall J