Mason v Glover
[2012] NZHC 2815
•25 October 2012
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV-2011-409-001449 [2012] NZHC 2815
BETWEEN ADRIAN NICHOLAS MASON Plaintiff
ANDRUPERT GRANVILLE GLOVER Defendant
Hearing: 25 October 2012
(Heard at Christchurch)
Appearances: A N Mason (Plaintiff) in Person
C A McVeigh QC for Defendant
Judgment: 25 October 2012
JUDGMENT OF ASSOCIATE JUDGE OSBORNE [as to further particulars and strike out]
[1] I have for determination today two interlocutory applications of the defendant: one seeking further particulars and a more explicit pleading of the statement of claim; and the second seeking the striking out of two paragraphs in the statement of claim.
[2] By way of general background, this is a proceeding against the barrister who conducted the plaintiff ’s defence in a criminal trial in 2005. The plaintiff was convicted and served part of a period of imprisonment before his conviction was quashed on appeal. He brings this proceeding alleging a breach of the defendant’s duty of care.
The application for further and better particulars
[3] I deal with this application first. The defendant served the usual notice for further particulars which was not met in any way by the plaintiff or the barrister and
MASON V GLOVER HC CHCH CIV-2011-409-001449 [25 October 2012]
solicitor who then represented him. The defendant therefore then made this application. At the time submissions were filed, the defendant had slightly narrowed the request for particulars but they still extend to the number which I am about to deal with. I adopted a slightly unusual course at the start of the hearing, partly out of recognition of the fact that the plaintiff has come to be self-represented because he has been unable to obtain the services of counsel prepared to act for him on legal aid. He has previously had a grant of legal aid approved but the solicitor who temporarily acted eventually withdrew by leave.
[4] The course I adopted was to take Mr Mason through the particulars sought, almost all of which, on my preliminary view, should be provided. The major thrust of Mr McVeigh’s submission is that the particulars provided in the statement of claim do not meet the fundamental requirements of High Court Rule 5.26 in a number of ways such as in relation to time, place and details of particular events. As I took Mr Mason through the individual particulars, a point was reached where the position he was content to adopt was that, albeit with some lack of definition because of the difficulty of memory of specifics, Mr Mason could readily meet the particulars requested. His formal position is that he does not consent to the orders I am about to make but, equally, he does not oppose them. When the content of the orders I am now about to make is considered, it becomes readily apparent against the background of the statement of claim that these particulars were reasonably requested by the defendant and should have been supplied.
[5] I order that the plaintiff give further particulars as itemised hereunder: (a) Paragraph 13. Give full particulars of:
(i) When the plaintiff and the defendant met at the defendant’s
office.
(b) Paragraph 14. Particulars of “what I told Mr Glover”:
(i)The specific instructions given by the plaintiff to the defendant as to his defence to the charge.
(i) [No (i)].
(ii) The documentary evidence that the plaintiff was ‘to seek’ from
EFTPOS New Zealand.
(d) Paragraph 16. Give full particulars of :
(i)When the plaintiff telephoned EFTPOS New Zealand and spoke with one of its employees.
(ii) What the plaintiff said to that employee. (iii) What that employee said to the plaintiff. (iv) How the notes were made and retained.
(e) Paragraph 19. Give full particulars of:
(i)The date on which the plaintiff telephoned the defendant to inform him that the notes were being sent by facsimile.
(ii)What specifically the plaintiff told the defendant about the notes being sent.
(f) Paragraph 20. Give full particulars of:
(i)What specific instructions the plaintiff gave to the defendant about using the notes in his defence.
(g) Paragraph 21. Give full particulars of:
(i) Where the defendant and the plaintiff spoke about the trial and
the plaintiff’s defence on ‘at least two occasions’.
(ii) The dates when the plaintiff and the defendant spoke about the
trial and the plaintiff’s defence.
(iii) What was said by the plaintiff to the defendant about the trial
and the plaintiff’s defence on each of those two occasions.
(iv)What was said by the defendant about the trial and the plaintiff’s defence on each of those two occasions. Particularise by reference to the particulars in your answer to paragraph [20].
(h) Paragraph 23. Give full particulars of:
(i)The plaintiff’s instructions in relation to the document sent to the defendant by EFTPOS New Zealand which the plaintiff alleges the defendant failed to clarify.
(i) Paragraph 29. Give full particulars of:
(i)What the defendant said to the plaintiff by way of advice not to give or call evidence.
(ii) Where this advice was given.
(iii) The date, or dates, when this was said. (j) Paragraph 31. Give full particulars of:
(i)The date and the time when the plaintiff asked the defendant why he did not produce evidence of the transaction.
(ii)Where the plaintiff and the defendant were when this question was asked by the plaintiff.
(i) The ‘serious disruption’ to the plaintiff’s relationship with his
son, including (but not exclusively):
1. the nature of the plaintiff’s relationship with his son prior to 2 September 2005;
2. the contact the plaintiff had with his son during the time he was in prison;
3. the nature of the plaintiff’s relationship with his son after
March 2006 down to the present;
4. The precise manner in which the son’s relationship with
the plaintiff has been affected.
[6] The only particular sought by the defendant which I am not directing be provided was a particular in relation to paragraph 15 of the statement of claim which sought the specific terms of an arrangement whereby the plaintiff was to contact EFTPOS New Zealand. Mr McVeigh was content to withdraw that request. Apart from that all the remaining requested particulars are covered by the above order.
The application to strike out paragraphs 37 and 38
[7] As I have said, this is a claim for breach of duty of care by the defendant. The relevant conduct of the defendant is in relation to the conduct of a trial which concluded with a jury verdict of “guilty” on 12 August 2005 and the plaintiff ’s sentencing on 2 September 2005. Materially, the plaintiff was then sentenced to imprisonment and alleges that the period of imprisonment caused serious disruption to his relationship with his son. All those events are identified by the plaintiff in his pleading of the common causes of action up to paragraph 36. The paragraphs which the defendant challenges are paragraphs 37 and 38 which read:
37.At the retrial on 25 January 2006, a witness from EFT-POS New Zealand gave evidence of the interactions between EFT-POS New Zealand and the Plaintiff.
38. On the basis of evidence from EFT-POS New Zealand the District
Court discharged the Plaintiff under section 347 of the Crimes Act
1961.
[8] The defendant applied to strike those paragraphs out on the basis that they are irrelevant and that they are:
(a) likely to cause prejudice or delay; and/or
(b) vexatious; and/or
(c) otherwise an abuse of the Court.
[9] The defendant necessarily relied on r 15.1 High Court Rules and adopted, through the paragraphs I have cited, most of the jurisdictional bases for a strike out application.
[10] It is clear that paragraphs 37 and 38 do not meet the requirements of pleading. As Mr McVeigh submitted, the events which the plaintiff must prove to succeed in his cause of action are materially pleaded up to paragraph 36. Paragraphs
37 and 38 cover subsequent events.
[11] On fundamental pleading principles the only apparent reason for the plaintiff, through his counsel at the time, to plead paragraphs 37 and 38 was to give some indication of evidence which the plaintiff would rely on at trial. The pleading of evidence not material to the causes of action is not part of the purpose of pleading. I therefore accept that the pleadings at paragraphs 37 and 38 must be struck out for that reason alone.
[12] After I had indicated this conclusion to Mr Mason and to Mr McVeigh in the course of submissions, Mr McVeigh nevertheless urged the Court to a finding specifically that the pleading was irrelevant. He submitted that because that ground was relied on in the application, the Court should accept some form of duty to make
a ruling upon it. I do not accept that as a proposition for two reasons. First and fundamentally, paragraphs 37 and 38 should be struck out because they do not form proper pleadings as they relate to matters of evidence. Secondly, the defendant himself, as applicant, not only asserted irrelevance but relied on the second, third, and fourth limbs of the High Court Rules including abuse of process as the reason that the application should be granted. I accept that the application should be granted because the pleading of evidence as against material allegations involves an abuse of Court process.
[13] Mr McVeigh also urged me to the view that his client is entitled to the early ruling by the Court in the interests of the certainty of the case he has to meet and the costs that he will incur through unnecessary delay to have a ruling on relevance. The purpose, of course, of such a ruling would be to obtain a res judicata or issue estoppel precluding the plaintiff at trial from seeking to adduce this evidence and to say that it is relevant. Mr McVeigh has asked that I record my reasons for not accepting his invitation and I do so.
[14] I am a Judge dealing with an interlocutory application relating to a pleading. Rule 1.2 requires me to administer the Rules so as to secure the just, speedy, and inexpensive determination of this interlocutory application. The course which I adopted this morning to deal with the particulars, and the submissions which I am summarising concerning the giving of reasons as to the strike out, took something in the order of 50 minutes following which I took a little time for consideration and have then proceeded with this judgment.
[15] The course I have adopted meets the requirements of r 1.2. I am fortified in that view by the particular circumstances of the plaintiff, who at this point is without legal representation, and is not in a position to meet or to make what may be reasonably sophisticated arguments as to relevance of evidence for trial. Mr Mason’s lack of representation has not come about through his own failure. He has clearly been diligent to obtain legal advice, having had it at a start, but through the vicissitudes of the current legal service regime not being able to secure at this point one of the few counsel available in Canterbury to represent him on a legally aided basis. It may be that he will be again represented at the time of a pre-trial conference
when all issues of relevance of evidence contained in his briefs of evidence can be dealt with by the very Judge who will deal with the trial. I view this as a matter of going to the justice of whether I should accept Mr McVeigh’s invitation to rule on relevance now.
[16] I also add this. Mr McVeigh referred me to judgments of this Court from the early 1990s. I do not, in the context of this oral judgment, recall clearly when precisely case management principles which are now in place were firmly in place, but it was at a point in the 1990s. The system of exchanging written briefs was then young. We have now moved to a point where we have the plaintiff ’s briefs come in, usually 15 days after setting down, and a pre-trial conference with the trial judge 10 days after that. That, to me, carries obvious benefits in terms of the requirements of the objective under r 1.2 of just, speedy, and inexpensive determination. It also carries the benefit that the trial judge who will be dealing with all matters of relevance which arise close to or in the course of the trial, will also deal with any earlier admissibility issues that arise. I have indicated to Mr McVeigh in the course of submissions that if for any particular reason the defendant felt disadvantaged in terms of unnecessary costs of preparation, the Court would direct an earlier pre-trial conference with the trial judge so that arrangements could be made if the Judge was satisfied the time that the time should be taken at this stage for an early determination of relevance. The defendant’s expectation that the Court should cut this issue of relevance and admissibility out for determination at this point is not realistic when the Court can deal with all relevance issues through the trial judge in a single hearing. Be that as it may, if the defendant wishes to apply for a specific pre- trial hearing on relevance and admissibility I would make that direction.
Costs
[17] I have explained to Mr Mason that the defendant has been successful in this application and that costs would normally flow. The case is appropriately a 2B case. Mr McVeigh responsibly drew to my attention the fact that Mr Mason may still be covered by a grant of legal aid, albeit unable to obtain representation. That being the case, I determine the matter of costs in the way I set out in the order which follows.
Orders
[18] There are therefore in addition to the orders at [5] above the following orders: (a) The plaintiff’s pleadings at paragraphs 37 and 38 of his statement of
claim are hereby struck out.
(b)The plaintiff by 1 November 2012 is to file and serve an amended statement of claim which provides all the particulars above directed and deals with the deletion of paragraphs 37 and 38.
(c) The defendant is to file and serve his amended statement of defence by 14 November 2012;
(d) The setting down date is further postponed to 16 November 2012.
(e) I certify that, but for the legal aid position, I would have ordered that the plaintiff pay costs of these applications in today’s hearing on a 2B basis together with disbursements to be fixed by the Registrar. In the event that it is subsequently established that the plaintiff was not in receipt of a legal aid grant at the time of these applications or at the time of this hearing, leave is reserved to Mr McVeigh to file a memorandum no longer than three pages setting out the detail of when the legal aid grant was not in existence and setting out the costs order that is sought. Mr Mason is to reply to such memorandum within five working days – his memorandum also limited to three pages. I direct that Mr Mason cooperate with Mr McVeigh in relation to ensuring that the Legal Services Board promptly provides information to Mr McVeigh as to the relevant dates of the grant or withdrawal of legal aid.
Addendum to judgment
[19] Since giving my oral judgment, in which I referred at [16] to the different context of the cases cited by Mr McVeigh in relation to rulings on relevance, I am now able to address the point in specific rather than general terms.
[20] Mr McVeigh referred to the 1991 decision in Pearce v Accident Compensation Corporation[1] and the 1993 decision in Davis v Russell McVeagh McKenzie Bartleet & Co.[2] Mr McVeigh identified observations in those cases such as (per Penlington J in Pearce)[3]:
[1] Pearce v Accident Compensation Corporation (1991) 5 PRNZ 298.
[2] Davis v Russell McVeagh McKenzie Bartleet & Co [1994] 2 NZLR 175.
[3] Pearce v Accident Compensation Corporation (1991) 5 PRNZ 298 at 303.
A defendant’s preparation for trial and the length of trial should not be unnecessarily extended because of the anticipation of claims which are not in fact being made by the plaintiff.
[21] Such observations arose because the Judge found that the pleadings might mislead the defendant as to the causes of action being pursued. But to the extent that Mr McVeigh relied on these authorities for a broader proposition that the Court should be vigilant, in the context of a strike out application, to rule finally on issues of the relevance of evidence, the cases are to be seen in their pre-1994 setting.
[22] Case management in this Court took a different turn in 1994. As Andrew
Beck has put it:[4]
[4] A Beck, Principles of Civil Procedure, Brookers 2012 at 1.1, p 4.
A radically different approach to case management was piloted in the Auckland and Napier High Courts from 1994, and has subsequently been incorporated into the High Court Rules.
[23] Written briefs of evidence are now exchanged before trial.[5] A pre-trial conference is usually to occur, if possible with the trial judge, 10 working days after plaintiff’s briefs are provided.[6] There is accordingly a pre-trial opportunity for the defendant, in relation to any and all challenges to admissibility (whether on grounds
[5] Rr 9.2 and 9.3.
[6] Rr 7.3(6).
of irrelevance or otherwise), to obtain evidence rulings by the Judge who will
conduct the trial. That will most often be the appropriate pre-trial context in which to resolve challenges to the admission of evidence.
[24] A strike out application, on the other hand, will usually be a less appropriate context in which to make rulings on the relevance and admissibility of evidence. If a pleading contains evidence (rather than facts material to the cause of action) that is the primary ground in itself for striking such passages out of the pleading. With the interlocutory focus on the requirements of pleading for the Court to then embark on further analysis of whether the pleaded evidence is relevant or irrelevant is unnecessary and will usually be inappropriate. The normally appropriate means of obtaining rulings on whether proposed evidence is relevant (or should be excluded for irrelevance) is by an application to exclude the evidence when it is actually produced by striking out parts of affidavit evidence or briefs of evidence, as was
done for instance in Donovan v Graham.[7]
[7] Donovan v Graham (1991) 4 PRNZ 311
Associate Judge Osborne
Solicitors
A Mason, Christchurch
Lane Neave, PO Box 13149, Christchurch
Counsel: C A McVeigh QC, PO Box 3750, Christchurch 8140
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