Monnery v Parsons
[2024] NZHC 1123
•8 May 2024
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2018-485-482
[2024] NZHC 1123
BETWEEN PAUL MARK MONNERY
Plaintiff
PAUL MARK MONNERY and JULIE ANN MONNERY
Second Plaintiffs
AND
ANDREW GRAHAM PARSONS
First Defendant
JOHN MURRAY CREIGHTON
Second Defendant
BRUCE GORDON COPELAND
Third DefendantKURT BRUDENBECK
Fourth DefendantMURRAY CHARLES PARSONS
Fifth Defendant
PUSH DEVELOPMENTS LIMITED
Sixth Defendant
continued…
Hearing: 7 May 2024 Counsel:
C R Carruthers KC and R L Fletcher for Plaintiffs
P R W Chisnall and J D Haig for First and Sixth Defendants J P Nolen for Second Defendant
D J Chisholm KC and J D Ryan for Third, Seventh and Eighth DefendantsG Bogiatto for Fourth, Fifth and Ninth Defendants
Judgment:
8 May 2024
JUDGMENT OF RADICH J
MONNERY v PARSONS [2024] NZHC 1123 [8 May 2024]
… continued
SANDFIELD ASSOCIATES LIMITED
Seventh DefendantSANDFIELD VENTURES LIMITED
Eighth DefendantP K B INVESTMENTS LIMITED
Ninth Defendant
[1] The first and sixth defendants have applied to adjourn the trial of this proceeding which is set down to be heard over three weeks beginning on Monday, 1 July 2024.
[2] The application is supported by each of the other defendants. It is opposed by the plaintiff.
[3] At the end of the hearing of the application yesterday, I said that I would, by the finest of margins, grant the application. These are my reasons for that decision.
Background
[4] The proceeding has a long and troubled procedural history. It began in July 2018. By August 2020, and after a number of interlocutory steps, it was set down for a three-week trial to begin on 21 June 2021. However, in a minute of 2 March 2021, as a result of discovery issues raised by all parties, Associate Judge Johnston vacated the fixture. There was, as the Associate Judge put it, virtually no prospect of dealing with all discovery issues and getting the timetable on track such that to retain the fixture would almost inevitably operate unfairly insofar as one or more of the parties was concerned.1
[5]It is of concern, then, that, three years later, a similar position emerges.
1 Monnery v Parsons, Minute of Associate Judge Johnston of 21 March 2021, at [6].
[6] The intervening period has been filled with opposed interlocutory matters, including on discovery and interlocutories, further security for costs, the appointment of an expert and recall.
[7] In early December 2022 a second amended statement of claim was filed. Later that month, a joint memorandum was filed for the defendants in which, among other things, timetable directions were proposed`. In a memorandum for the plaintiffs filed several days later, the proposed timetable was accepted.
[8] In a minute of 19 December 2022, Associate Judge Johnston made directions in accordance with the proposed timetable. Accordingly, timetabling orders were in place which provided that the close of pleadings date was 120 working days before the commencement of trial, that the plaintiffs were to serve their evidence and a list of the documents on which they rely 90 working days before trial, that the defendants were to serve their evidence and a list of the documents on which they rely by 50 working days before the trial, that a common bundle was to be filed by 30 working days before the trial and that the plaintiffs were to file a synopsis of their opening submissions and their chronology 10 working days before the trial.
[9] The three-week fixture beginning on 1 July 2024 was confirmed on 23 December 2022.
[10] In a judgment of Associate Judge Skelton of 26 June 2023, the plaintiffs were directed to pay an additional $150,000 in security for costs. Twenty-five thousand dollars was to be paid on the case being set down for trial, $40,000 on the close of pleadings date, $40,000 on the date of service of the plaintiffs’ evidence and $45,000 three months prior to the beginning of the trial. It was ordered that, if the amounts remained unpaid after falling due for payment, the plaintiffs’ case would be stayed until such time as they were paid.
[11] The net position was set out in an email of 13 December 2023 from Mr Ryan for the third, seventh and eighth defendants to all other parties in the following terms:
With this trial commencing on 1 July 2024, and in light of the consent memorandum dated 10 August 2020, the directions of Johnston AJ dated
11 August 2020 and the judgment of Skelton AJ dated 26 June 2023, we write to confirm the pre-trial timetable as follows:
1.The close of pleadings date is 120 working days before the commencement of trial – being 15 December 2023. On this date, the plaintiffs must pay security of $40,000 to the Court (refer para [96](a)(ii) of Skelton AJ’s judgment);
2.The plaintiffs are to serve their briefs of evidence, including any expert briefs, and a list of documents on which they rely no later than
90 working days before the commencement of trial – being 19 February 2024. On this date, the plaintiffs must pay security of
$40,000 to the Court (refer para [96](a)(iii) of Skelton AJ’s judgment);
3.The plaintiffs must pay security of $45,000 to the Court on 1 April 2024 (refer para [96](a)(iv) of Skelton AJ’s judgment);
4.The defendants are to serve their briefs of evidence including any expert briefs, and a list of documents on which they rely no later than 50 working days before the commencement of trial – being 17 April 2024.
5.The plaintiffs must pay the hearing fee (estimated to be $46,400) by
26 April 2024.
6.The plaintiffs are to confer with the defendants in connection with the documents to form part of the common bundle of documents and are to file and serve the common bundle of documents no later than 30 working days before the commencement of trial – being 16 May 2024.
7.The plaintiffs are to file and serve a Synopsis of Opening Submissions and their chronology 10 working days before the commencement of trial – being 14 June 2024;
8.The defendants’ synopsis of opening and response to the plaintiffs’ chronology is to be served 2 working days before the commencement of trial – being 25 June 2024; and
9.Trial commences on 1 July 2024.
As ordered by Skelton AJ, the plaintiffs’ case will be stayed in the event of any failure to pay the security. Please provide confirmation of payment the next instalment on 15 December 2023.
We look forward to progressing this matter to trial with you. (emphasis in original)
[12] Counsel for the plaintiffs had, until this point in time, lost sight of the fact that the timetabling orders had been made. The Associate Judge’s minute of 19 December
2022 confirming the timetable directions was contained in an email. It was not diarised by counsel for the plaintiffs as a result.
[13] Accordingly, the $40,000 in security for costs that was due on 15 December 2023 was not paid. Counsel for the plaintiff acknowledged the misunderstanding as to timetabling and the non-payment in an email to the Court on 8 February 2024. It was acknowledged that, as a result, the proceeding was stayed.
[14] On 12 February, counsel for the plaintiff inquired as to whether counsel for the defendants would agree to an amended timetable. On that same day, counsel for the third, seventh and eighth defendants responded, asking for a proposal. An amended timetable was proposed by counsel for the plaintiff on 26 February 2024 along with a request to have until the end of March to complete the plaintiffs’ briefs of evidence.
[15] Counsel for the third, seventh and eighth defendants replied on 27 February 2024 rejecting the request on the basis, it was said, of the prejudice arising from the delay. Rights were reserved.
[16] Between 11 and 15 March, all defendants applied to strike out the plaintiffs’ claim for the failure to serve evidence or to make the outstanding security for costs payments.
[17] On 3 April 2024, after inquiring with the Court Registry, counsel for the first and sixth defendants were told that the outstanding security for costs payments had been made. The stay of proceedings was then lifted as a consequence.
[18] On 12 April 2024, the plaintiffs served nine briefs of evidence. A further brief of evidence was served by the plaintiffs on 17 April 2024 and an expert witness brief was served on 19 April 2024. The plaintiffs’ bundle nominations (in an 18-page table) were given on 23 April 2024.
[19] On 24 April 2024, the plaintiffs served affidavits in opposition to the defendants’ application to strike out the proceeding and in opposition to the first and
sixth defendants’ application for further discovery, which had been made on 14 December 2023.
Principles
[20] Under r 10.2 of the High Court Rules 2016, the Court may, if it is in the interests of justice, postpone or adjourn a trial for any time and upon any terms it thinks just.
[21] In Huritu v Attorney-General, Isac J summarised the principles that are relevant to the exercise of the Court’s broad discretion under the rule in the following way:
(a)The interests of justice require consideration of not only the interests of the parties before the Court, but also of those awaiting a hearing who will suffer delay to their own cases should an adjournment be granted. This reflects the public interest in the efficient use of court resources.
(b)As between the parties, the decision to grant or decline an adjournment is essentially a balancing exercise. It involves a consideration of the prejudice that will accrue to the applicant as well as the harm to the respondent if an adjournment is granted or denied.
(c)A further relevant factor is whether the applicant has acted reasonably and done everything practical to avoid the need for an adjournment.
(d)The strength of the reasons in support of the application, and the prejudice said to follow from continuing with the trial, is a material factor.
(e)Also relevant is the right of the parties to a fair trial and the need for resolution of the proceedings, including the likely impact of further delay on the quality of the evidence and the difficulties of reorganising witnesses for a later trial date.
Consideration of the principles
The interests of the parties before the Court and of those awaiting a hearing
[22] As mentioned in my minute of 2 May 2024, unless circumstances change, the next available date for hearing of the proceeding, if adjourned, is 8 September 2025. An adjournment would mean the resulting gap in the Court’s schedule at the beginning
of July might not be filled efficiently. Sought-after hearing time in the last quarter of 2025 will be taken instead. This is not an efficient use of Court resources.
Balancing prejudice to the appellant against the harm to the respondent
[23] It is said for the defendants that the timetable was calibrated carefully, given the nature of this proceeding which seeks damages against nine different defendants totalling over $13.5 million in five causes of action, including conspiracy and the taking of confidential information. It is said that the defendants were to have from 19 February (following the service of the plaintiffs’ briefs) until 17 April to file their evidence and that, from there, there was to be 50 working days prior to trial.
[24] Instead, the time set aside during that February to April period has been lost. Senior counsel for the first and sixth defendants, and for the third, seventh and eighth defendants, have a series of fixtures between now and 1 July. Mr Chisholm KC, for example, has begun a six-week trial this week.
[25] Mr Carruthers KC makes the point that an amended timetable can be put in place to cover remaining steps that would enable the fixture to be kept. He makes the point that counsel for the defendants were aware of their other fixture arrangements when confirming this fixture and were aware of this fixture when confirming other hearing arrangements. He has, in addition, explained the nature of the evidence filed for the plaintiffs and the limited extent to which it introduces information not already known to the defendants. Evidence preparation could, it is said, have been underway by the defendants irrespective of timetable slippage.
[26] I do accept those points at a general level but the difficulty here is this: fixture arrangements were made by counsel for the defendants on the understanding that they would have between mid-February and mid-April to prepare evidence, and to prepare generally for this proceeding. That time has gone. Moreover, until the beginning of April, the proceeding was stayed through the security not having been paid. But the defendants were not inactive during that time: they applied to strike the proceeding out as a result of the defaults. From 26 February (when email exchanges about timetabling came to an end) until early April (when security was paid) there was, it was said, “radio silence” from the plaintiffs such that when in the first few weeks of
April, the defaults were remedied and the stay was lifted, the prejudice caused was irredeemable.
[27] While my initial inclination was to look for an abridged timetable to maintain the fixture, I accept ultimately that the prejudice is too great. It would require consecutive weekly deadlines during June for the defendants’ briefs of evidence, for a common bundle (said to run to thousands of documents), and for opening submissions and chronologies – alongside preparation of cross-examination for multiple witnesses. The mid-February to mid-April period was important and to concertina deadlines now, when senior counsel are otherwise committed, will cause real prejudice.
[28] I would not go so far as to say, as counsel for the first and sixth defendants have, that it makes things “impossible” for the defendants but I do on balance accept Mr Chisholm’s submission that to maintain the fixture in these circumstances would be unjust.
[29] I accept that there is corresponding prejudice to the plaintiffs in having to wait a further year now to have the case heard. However, the swing of the pendulum in the balancing exercise that is required does favour the defendants.
[30] There is a further consideration under this head. Counsel for the defendants are concerned about aspects of the evidence that has been served for the plaintiffs. It raises, it is said, admissibility issues and the need for further discovery. I have scheduled time next Tuesday, 14 May to deal with the defendants’ outstanding discovery application and I indicated in my minute of 2 May 2024 that time could be made available during that hearing to deal also with new discovery and admissibility issues. However, counsel for the defendants make the fair point that there is little scope for the documents that would need to be filed in support of, and in opposition to, applications of that sort within the next few working days without causing prejudice here also. And those applications will need to be determined well in advance of a hearing.
Reasonableness of the applicants’ actions
[31] I accept that the defendants have acted reasonably in endeavouring to avoid the need for an adjournment. They reiterated the timetable in mid-December, they engaged in discussions earlier in the year about timetable adjustments (although they did not accept the plaintiffs’ proposals), they followed up with the Court over the payment of security and, when they saw their positions as being intolerable, they brought a strike-out application in advance of this application to adjourn. Ultimately, as I see it, it is not a matter of determining whether the actions of any party were unreasonable. Rather, at this juncture, it is a matter of taking stock of where matters stand and of what can be done in a practical sense. Ultimately, for the reasons I have given, practical steps cannot cure the injustice that would otherwise be caused.
The strength of the reasons for the application
[32] For the reasons already given, on balance I see the reasons in support of the application as outweighing the reasons given in opposition to it.
[33] I acknowledge, and have some sympathy for, the points made by Mr Carruthers, to the effect that (existing timetable aside) the default close of pleadings date under the High Court Rules is 60 working days from the start of the fixture which, here, would be 4 April 2024. However, for the reasons I have given, the prejudice was by then apparent.
The right to a fair trial and the need for resolution of proceedings
[34] The resolution of these proceedings is long overdue. However, on balance I have found the prejudice to the defendants to be such as to taint the process that is needed to take the case to trial fairly.
Practical considerations
[35] As mentioned in my minute of 2 May, an option was available to begin the trial on 8 September, rather than 1 September. When the option was explored with counsel during the hearing, practical issues were such that it did not advance matters one way or the other.
[36] Despite current indications that a fixture will not available until September 2025, the Registry will actively look for earlier dates in the event that the Court’s schedule changes in ways that might accommodate that.
Interlocutory hearing on 14 May
[37] Counsel for the defendants have indicated that the strike-out applications they had made will not be pursued given that the briefs of evidence have now been served and the security for costs payments have been made.
[38] Accordingly, at this stage, the only outstanding interlocutory matter is the first and sixth defendant’s application for particular discovery of 14 December 2023. I will hear that application at 10 am on 14 May, by VMR. Any submissions in support should be filed by midday on Friday, 10 May and any submissions in opposition should be filed by midday on Monday, 13 May.
[39] As indicated during yesterday’s hearing, if any other interlocutory issues can usefully be dealt with during the 14 May fixture, then counsel should liaise over a timetable in the few working days that remain and the Court will hear them accordingly.
Result
[40] The application of the first and sixth defendants to adjourn the 1 July 2024 fixture is granted. Counsel should liaise with the Registry over alternative dates. In the meantime, the fixture on 14 May to deal with outstanding interlocutory issues is confirmed and the fixture before Associate Judge Skelton on 29 May 2024 is, as a result, vacated.
Radich J
Solicitors:
Woods Fletcher Associates, Wellington for Plaintiffs
Macalister Mazengarb, Wellington for First and Sixth Defendants K3 Legal, Auckland for Second Defendant
Claymore Partners, Auckland for Third, Seventh and Eighth Defendants George Bogiatto, Auckland for Fourth, Fifth and Ninth Defendants
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