Newton v Dunn
[2017] NZHC 1713
•24 July 2017
IN THE HIGH COURT OF NEW ZEALAND
BLENHEIM REGISTRY
CIV-2012-406-000272
[2017] NZHC 1713
BETWEEN LORETTA ANNE NEWTON
Plaintiff
AND
SUSAN MAREE DUNN
First Defendant
FAYE COLLEEN LEOV and BERNARD LESLIE LEOV
Second Defendants
Hearing: 21 July 2017 Counsel:
R J B Fowler QC for Plaintiff
No appearance for First Defendant
C J Griggs and C M Kenworthy for Second DefendantsJudgment:
24 July 2017
JUDGMENT OF COLLINS J
[1] This judgment briefly explains why, on Friday 21 July 2017, I declined the second defendants’ application to adjourn the trial of this matter. The trial was scheduled to commence on Monday 24 July 2017. Two weeks have been allocated in the Blenheim High Court. I have deferred the start of the trial until Tuesday 25 July 2017.
[2] In 2012, the plaintiff commenced her proceeding in which she alleges she was defamed. The first defendant has settled with the plaintiff.
[3] Mr Griggs, senior counsel for the second defendants, has only recently been instructed following the appointment of the second defendants’ previous counsel to the High Court bench.
NEWTON v DUNN [2017] NZHC 1713 [24 July 2017]
[4]Two grounds were advanced in support of the application for an adjournment.
New evidence
[5] It was said the second defendants had been seriously disadvantaged by the plaintiff filing five briefs of evidence in response to the second defendants’ evidence concerning the “truth” defence. Mr Griggs also submitted that the plaintiff’s affidavit has expanded considerably to accommodate her evidence in response.
[6] While I have considerable sympathy for Mr Griggs’ position, I am not persuaded that the additional evidence from the plaintiff justifies an adjournment of this trial that has been extant for close to five years. There are three reasons for this aspect of my judgment:
(1)First, Mr Griggs acknowledged, that the briefs of evidence from the five additional witnesses in reply are comparatively brief.
(2)Second, the plaintiff’s evidence concerning the “truth” defence advanced by the second defendants is the focus of the second part of the trial which, is scheduled to commence in the week of 31 July 2017. Thus, Mr Griggs has more than a week to prepare for this part of the trial.
(3)Third, my concerns about the pressure Mr Griggs has been placed under are addressed by deferring the commencement of the trial until Tuesday 25 July 2017, thereby providing Mr Griggs with more preparation time.
Separate question
[7] Mr Griggs submits that the case is amenable to having a question determined separately from the trial pursuant to r 10.15 of the High Court Rules. He submits the question is whether the second defendants can be vicariously liable or liable as an accessory for the actions of the first defendant. Mr Griggs submits the evidence and
argument relating to that proposed question could be heard in the week of 31 July 2017.
[8] It is possible that, if an application of this nature had been made at an earlier stage, then it may have been favourably received by the Court.
[9] The application has, however, been made just two working days before the commencement of a two week trial and in circumstances where the plaintiff has invested considerable time and expense in preparing for a lengthy trial.
[10] Mr Griggs says the second defendants cannot be liable for the allegedly defamatory statements of the first defendant. I will hear the evidence and submissions relevant to that question during the course of the trial. If Mr Griggs is correct in his analysis, then his clients will obtain judgment. While Mr Griggs and his clients will have been inconvenienced, that inconvenience has to be balanced against the considerable inconvenience and costs associated with adjourning this trial. In my assessment, the overall interests of justice require this trial to commence on 25 July 2017.
[11]Costs in relation to the application for an adjournment are reserved.
D B Collins J
Solicitors:
Radich Law, Blenheim for Plaintiff
Mahoney Burrowes & Horner, Wellington for Second Defendants
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