Martin v Martin - [2024] NZHC 1399

IN THE HIGH COURT OF NEW ZEALAND MASTERTON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKAORIORI ROHE

CIV-2023-435-010

[2024] NZHC 1399

UNDER the Trusts Act 2019 and the Inherent Jurisdiction of the High Court

IN THE MATTER OF

the Dyerville Trust

BETWEEN

JULIA MARIE MARTIN

Applicant

AND

ALISTAIR HENRY MARTIN

Respondent

On the papers:

Counsel:

S W H Fletcher and L Hansen for Applicant R C Laurenson and C D Batt for Respondent

Judgment:

30 May 2024

JUDGMENT OF GRAU J

[Recall of judgment]

[1] Counsel for Mr Martin takes issue with my costs judgment in this matter where I stated:1

Finally, I note that Alistair’s counsel inappropriately and unfairly discussed the substance of settlement discussions between the parties in submissions on the issue of costs, which further supports an order for increased costs. Alistair may wish to consider what this means for the payment of his own costs.

[2] Counsel for Mr Martin seeks amendment or removal of this paragraph, either by recalling the judgment or by the exercise of the Court’s inherent jurisdiction. The submission is that discussion of mediation/settlement in Mr Martin’s memorandum

1 Martin v Martin [Costs] [2024] NZHC 658 at [24].

MARTIN v MARTIN [2024] NZHC 1399 [30 May 2024]

was relevant to the consideration of costs when the Court had actively facilitated that process,2 and Mr Martin was not seeking costs himself, but rather sought that no costs be awarded or they be paused pending final determination. It is not a breach of privilege to discuss the fact of settlement discussions, and the contents of the discussions were not actually disclosed. It is in the interests of justice for the Court to know that it was Ms Martin who withdrew from the discussions, given settlement had been encouraged by Ellis J, and so was within the purview of the Court.

[3] Counsel for Ms Martin does not agree. She says there has been a clear breach of privilege, therefore there can be no change to the costs decision of the Court.

Discussion

[4] There are two ways to “edit” a judgment that has been published. The first is to recall the decision under r 11.9 of the High Court Rules 2016 (the HCR). The second is to correct an accidental slip or omission under the “slip rule” in r 11.10. I agree with the submission by Ms Martin’s counsel that the slip rule would not seem appropriate given there was no accidental or clerical error. The only option then is to recall the decision. For the reasons set out below, however, I do not agree recall is available in these circumstances.

[5] Under s 57(1) of the Evidence Act 2006, a party to mediation has privilege in respect of any communications with any other party to the dispute if the communication was intended to be confidential and was made in connection with an attempt to settle or mediate the dispute between the parties. Where privilege attaches, a party then has the right in a…

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 Martin v Martin

Details

AGLC: Martin v Martin [2024] NZHC 1399
Case: [2024] NZHC 1399
Decision Date: 30 May 2024

CaseChat Overview and Summary

In Martin v Martin, the court addressed a request from the respondent, Alistair Henry Martin, to recall a costs judgment or to exercise its inherent jurisdiction to amend or remove a specific paragraph from the judgment. The paragraph in question pertained to settlement discussions between the parties and was deemed by the court to be a breach of privilege. The respondent argued that the court had facilitated the settlement process and that discussing the fact of settlement was not a breach of privilege. Conversely, the applicant, Julia Marie Martin, maintained that the contents of the settlement discussions were privileged and should not have been discussed.

The court was required to determine whether the respondent's request for amendment of the judgment was valid under the High Court Rules or the inherent jurisdiction of the court. The respondent contended that the discussion of the settlement process was relevant to the costs decision and did not breach privilege. The applicant argued that the contents of the settlement discussions were privileged and their disclosure constituted a breach that could not be rectified by the court.

The court held that while the facts of settlement discussions could be disclosed, the contents of those discussions remained privileged. The court found that the respondent's reliance on Consolidated Alloys (NZ) Ltd v Edging Systems (NZ) Ltd did not apply as it did not address the disclosure of substantive content. The court also noted that the purpose of privilege is to ensure parties can negotiate without fear of admissions being used against them in trial. Allowing disclosure of who withdrew from mediation and when could undermine the confidentiality and effectiveness of the mediation process. The court concluded that the judgment could not be recalled as the respondent's request was not based on a material error or a failure to address a significant issue. Instead, it was a matter of disagreement with the court's opinion, which is appropriate for appeal rather than recall.

The court ultimately refused the respondent's application to recall or amend the judgment, affirming the original costs decision.

Orders