Masonry Dessign Solutions Ltd v Appleby Holdings Ltd

[2017] NZHC 2950

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-1651

[2017] NZHC 2950

BETWEEN

MASONRY DESIGN SOLUTIONS LTD

Plaintiff

AND

APPLEBY HOLDINGS LTD

First Defendant

JOHN FITZHERBERT KENDRICK
Second Defendant

GRAEME JOHN MURPHY
Third Defendant

(Continued over)

Hearing:	28 November 2017
Counsel:	M Heard and L Clews for Messrs Kendrick and Murphy J D Turner for Mr Wilson
Judgment:	30 November 2017

JUDGMENT OF BREWER J

This judgment was delivered by me on 30 November 2017 at 11:30 am pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:

MASONRY DESIGN SOLUTIONS LTD v APPLEBY HOLDINGS LTD [2017] NZHC 2950 [30 November 2017]

Lee Salmon Long (Auckland) for Messrs Kendrick and Murphy McVeagh Fleming (Albany) for Mr Wilson

AND

CIV-2016-404-3286

BETWEEN                JOHN FITZHERBERT KENDRICK

First Plaintiff

GRAEME JOHN MURPHY

Second Plaintiff

A N D  MARK INNES WILSON

Defendant

Introduction

[1]    There are two proceedings before the Court related by common parties and by common issues of fact.1 One has claims in contract (“the contract case”) and the other has claims in defamation (“the defamation case”).  The  individuals  involved  are  Mr Wilson (principal of, and key witness for, the plaintiff in the contract case, and the defendant in the defamation case) and Messrs Kendrick and Murphy (defendants in the contract case and plaintiffs in the defamation case). Messrs Kendrick and Murphy want the two cases to be tried at the same time. Mr Wilson opposes that course. He wants the cases to be tried back-to-back (the contract case and then, immediately after, the defamation case).

[2]This Judgment decides which option will be utilised.

The law

[3]Rule 10.12 of the High Court Rules provides:

The court may order that 2 or more proceedings be consolidated on terms it thinks just, or may order them to be tried at the same time or one immediately after another, or may order any of them to be stayed until after the determination of any other of them, if the court is satisfied—

(a)that some common question of law or fact arises in both or all of them; or

(b)that the rights to relief claimed therein are in respect of or arise out of—

(i)the same event; or

(ii)the same transaction; or

(iii)the same event and the same transaction; or

(iv)the same series of events; or

(v)the same series of transactions; or

(vi)the same series of events and the same series of transactions; or

(c)that for some other reason it is desirable to make an order under this rule.

1      There are companies as parties in both cases. For brevity, I will refer only to the individuals who control the companies and/or are actual parties.

[4]    The point is that r 10.12 orders can save the parties time and money, make the determination of the issues between them more consistent, and more efficiently use judicial resources.

Discussion

[5]    Here, the parties are agreed that the hearing of the cases should be combined. There are common questions of fact and issues of credibility common to both. The issue is how they should be combined.

[6]If the cases are tried at the same time, then the procedure would be this:

(a)The evidence for the plaintiff in the contract case and the defendant in the defamation case would be given first.

(b)The defendants in the contract case and the plaintiffs in the defamation case would cross-examine.

(c)The defendants in the contract case and the plaintiffs in the defamation case would call their evidence.

(d)The plaintiff in the contract case and the defendant in the defamation case would cross-examine.

(e)The parties would then make their submissions and the Trial Judge would deliver one judgment or two judgments as expedient.

[7]    If the cases are tried back-to-back, then all the evidence in the contract case would be called and cross-examined, followed immediately by the evidence in the defamation case. The parties would then present their submissions and the Trial Judge would deliver one judgment or two judgments as expedient.

[8]    Mr Heard for Messrs Kendrick and Murphy, and Mr Turner for Mr Wilson have given me careful written submissions and highlighted the essential points in

contention in their oral submissions. I will not go through each point. This is an area of broad discretion,2 and I think the main points are these:

(a)If the cases are tried at the same time, then all witnesses can give their evidence once. If the cases are instead heard back-to-back, then witnesses common to both cases would have to be recalled for the defamation case. This would affect particularly the key witnesses, being Messrs Kendrick and Murphy, and Mr Wilson.

(b)If the cases are tried at the same time, Mr Wilson will lose the tactical advantage he has as defendant in the defamation case of having the evidence of the plaintiffs in that case called first.

[9]    The contract dispute involves the participation of Messrs Kendrick and Murphy, and Mr Wilson in a property development. The defamation dispute is related (in significant degree) to that participation. There is a continuum of events. The Trial Judge will have to make credibility findings in relation to all three individuals, and I suspect that the overall pool of evidence will be relevant in parts to the Judge’s findings.

[10]   It would be more efficient, and less dislocating for the individuals, if all issues can be dealt with in one session of evidence. I do not agree with Mr Turner’s submission that because not all factual issues are in common, and because the legal issues are so disparate, that witnesses and/or the Judge could be confused if the trials are not separate. In multiparty litigation it is commonplace for causes of action to be relevant to some witnesses or parties and not to others. Equally, it is not unusual for some witnesses to give evidence relevant to multiple causes of action while others are confined to only one. Confusion is avoided by the intelligent conduct of counsel and the oversight of the Judge. Indeed, having a witness’s involvement in all relevant events examined in one evidential session can assist the witness and the Court. Particularly where credibility is important.

2      Regan v Gill [2011] NZCA 607 at [10].

[11]   I have  considered  Mr Turner’s  submission  that  it  would  be  unfair  for Mr Wilson to lose the tactical advantage as defendant in the defamation case of responding to the plaintiffs’ case. It is a serious argument in favour of sequential hearing of the evidence in the two cases. However, I accept Mr Heard’s submission that in reality there would be little or no prejudice to Mr Wilson.

[12]   The defamation alleged is a written defamation. It is pleaded, as are the defamatory meanings ascribed to it. The plaintiffs’ briefs of evidence will be served first and will be limited in scope. In reality, it will be Mr Wilson’s task to give and call evidence to make out his affirmative defences of honest opinion and truth. He loses little or nothing tactically by having to do that before the plaintiffs give evidence and he will have had the plaintiffs’ briefs of evidence before providing his own.

Decision

[13]   I grant the application for the two cases to be tried at the same time. I do so on the basis that there will be sequential service of briefs in each case. Details can be dealt with in the trial management process.

[14]   I direct the cases be called together for mention in the civil list at 10:00 am on 14 December 2017, to consider timetabling and other directions which might be necessary as a result of this Judgment.

Costs

[15]   Given the nature of the application and the basis of the opposition, I am inclined to let costs lie where they fall. This will crystallise as the position at 2:15 pm on 19 December 2017 unless I receive a memorandum or memoranda to the contrary.

Brewer J