O'Keefe v Flaxmere (2008) Liquor Limited

[2021] NZHC 1982

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2019-441-043

[2021] NZHC 1982

BETWEEN

HENARE O’KEEFE

First Appellant

DESMA KEMP RATIMA
Second Appellant

AND

FLAXMERE (2008) LIQUOR LIMITED

Respondent

Teleconference:	2 August 2021
Counsel:	No appearance for Appellant/Respondent P Kaur for Respondent/Appellant
Judgment:	3 August 2021

JUDGMENT OF CHURCHMAN J

Introduction

[1]    On 5 June 2019, the Alcohol Regulatory and Licensing Authority issued a reserved decision on an application to renew an off-licence in respect of a premises situated at Shop 23, Flaxmere Shopping Centre, Swansea Road, Flaxmere. That decision renewed the liquor licence for a period expiring 25 September 2021 on its existing conditions.

[2]    The first and second appellants filed a notice of appeal in respect of that decision.

[3]    On 27 August 2019, Grice J issued a minute addressing two preliminary matters. One was an application by the appellants to adduce further evidence on

O’KEEFE & ANOR v FLAXMERE (2008) LIQUOR LIMITED [2021] NZHC 1982 [3 August 2021]

appeal and the other was an application for waiver of security of costs. A timetable order was made for the filing of submissions, a chronology, bundle of authorities and common bundle.1

[4]    On 31 October 2019, Doogue J issued a decision on the application by the first and second appellant.2

[5]    That decision expressed the view that it was highly regrettable that the proposed affidavits were not before the Court given the amount of time the appellants had had to produce them. The Judge indicated that she had considered whether or not to strike the application out on that basis. She also questioned how the proposed evidence would actually assist the Court. That judgment also warned the applicants that they risked incurring significant costs if the Court ultimately found the affidavits ought not to be adduced. The appellants were given until 22 November 2019 to file their proposed further evidence.

[6]    The judgment also contained the comment that as a result of the considerable delays incurred to date, if the affidavits were not filed by 22 November 2019, the application to adduce further evidence would be struck out and costs would follow.

[7]    No affidavits were filed. A judgment of Doogue J on 5 December 2019 records that counsel for the appellants sought leave to withdraw the application to adduce further evidence. The Court noted that such an application was redundant in light of the Court’s previous orders and directions, and it was dismissed.3

[8]    The Court struck out the application to adduce further evidence. Before fixing costs, the Court gave the appellants three working days to file a memorandum in reply to the memorandum dated 25 November 2019 filed by counsel for the respondent.

[9]    A memorandum was filed and Doogue J dealt with the matter of costs by way of decision on 12 December 2019. That decision recorded the Judge’s view that the submissions of counsel for the appellants were ill-conceived; that it was never

1      Minute of Grice J, CIV-2019-441-43, 27 August 2019.

2      O’Keefe & Ratima v Flaxmere (2008) Liquor Limited [2019] NZHC 2804.

3      O’Keefe & Ratima v Flaxmere (2008) Liquor Limited [2019] NZHC 3192.

reasonable for the appellants to come to Court making an application to adduce further evidence when that evidence was never obtained from the proposed deponents, and that the appellants’ standing was irrelevant to whether the application should have been made or not.4

[10]Actual costs in the sum of $8,194.15 were awarded in favour of the respondent.

[11]   The decision concluded that the costs should be paid before any consideration would be given to the application for waiver of security for costs for the substantive hearing and the setting down of the substantive appeal.

Developments

[12]   The costs have not been paid and the appellants have made no attempt to progress the appeal.

[13]   In June 2020, the Registrar contacted counsel seeking an update. The Registrar was unable to obtain any response from Ms Mason, counsel for the appellants.      Ms Kaur, counsel for the respondent, confirmed that costs have not been paid.

[14]   There was no further communication from Ms Mason after 14 January 2020. Accordingly, on 14 June 2021, this matter was scheduled for a case management conference (CMC). Both counsel were notified of this by email with follow-up telephone calls to Ms Mason, the appellants’ counsel.

[15]   By memorandum dated 28 July 2021, the respondent applied for an order in accordance with r 7.48 of the High Court Rules 2016 (HCR) that the appeal should be struck out as a result of the persistent failure to comply with the costs decision of Doogue J.

[16]No memorandum in reply was filed on behalf of the appellants.

4      O’Keefe & Ratima v Flaxmere (2008) Liquor Limited [2019] NZHC 3284.

[17]   Ms Mason did not appear for the teleconference. The operator confirmed that she had attempted to contact Ms Mason but the telephone number kept ringing unanswered. The Registrar also advised that she too had been unable to elicit any response from Ms Mason to telephone calls or to the emailed notification of the teleconference.

High Court Rules 7.48

[18]   HCR 7.48 addresses the situation where a party has failed to comply with an interlocutory order. The Court is given a wide discretion to deal with such matters. It can make such order as it thinks just. The examples of the type of order the Court might make referred to in HCR 7.48(2) include:

(a)striking out or staying proceedings in whole or in part; and

(b)fining, ordering to do community work, or committing to prison under s 16 of the Contempt of Court Act 2019 the party in default.

Analysis

[19]   The delay in complying with the costs decision of Doogue J has been egregious. The license that the appeal sought to challenge will, in fact, expire next month.

[20]   The delay in complying with the Court’s interlocutory decision is compounded by the conduct of counsel in failing to respond to attempts by the Registrar to contact her over a sustained period of time.

[21]   Counsel’s failure to file any memorandum ahead of the CMC and failure to attend that conference without providing any explanation is a display of significant discourtesy to the Court. In the absence of inadequate explanation, such conduct would also appear to be inconsistent with counsel’s obligations as an officer of the Court.

[22]   At 7.35am on 3 August 2021, Ms Mason sent an email to the Registrar claiming that she had put the teleconference in her diary for 3 August 2021 instead of 2 August and that was why she had not participated. This was the first communication the Registrar had received from Ms Mason in many months.   It did not explain why   Ms Mason had failed to respond to all the previous attempts to communicate with her or why she had not filed a memorandum.

Decision

[23]   This is a serious example of a failure to comply with an interlocutory order. It is appropriate for these proceedings to be struck out in their entirety, and I make that order.

[24]   Notwithstanding the strike-out of the proceedings, the outstanding costs judgment of Doogue J of $8,194.15 remains payable.

[25]   As the costs order appears to have resulted from an ill-conceived application by counsel, it may well be that the appellants have some remedy against counsel for the predicament that they find themselves in. However, the order was made against the appellants who remain personally liable for the outstanding costs until they are paid.

Churchman J

Solicitors:

Phoenix Law, Wellington for Appellants Harkness Henry, Hamilton for Respondent