Paine v Carter Holt Harvey Limited
[2019] NZHC 2477
•1 October 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2018-404-001143
[2019] NZHC 2477
UNDER the Consumer Guarantees Act 1993, Fair Trading Act 1986 and High Court Rule 4.24 BETWEEN
DAVID ERIC PAINE and LYNDA CAROLINE BOWERS
First Plaintiffs
KEVIN BRYAN START and FLORENCE ELIZABETH START
Second Plaintiffs
.../Third and Fourth Plaintiffs cont over page
AND
CARTER HOLT HARVEY LIMITED
Defendant
AND
AUCKLAND COUNCIL & ORS
First to Twenty-Ninth Third Parties
Hearing: On the papers Judgment:
1 October 2019
JUDGMENT OF DOWNS J
This judgment was delivered by me on Tuesday, 1 October 2019 at 11 am pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors/Counsel:
Adina Thorn Ltd, Auckland. LeeSalmonLong, Auckland. Heaney & Partners, Auckland. AS Ross QC, Auckland.
JG Miles QC, Auckland.
PAINE v CARTER HOLT HARVEY LIMITED [2019] NZHC 2477 [1 October 2019]
DONALD BRAMWELL JACKSON and HEATHER MAY PROCTOR JACKSON, and DONALD
BRAMWELL JACKSON, HEATHER MAY PROCTOR JACKSON and HOLLAND BECKETT TRUSTEE
No.11 LIMITED as trustees of the Jackson Family Trust 2011Third Plaintiffs
STEPHEN MATHEW DEVCICH, JESSIE DIANA DEVCICH and JOHNNY CHARLES AUGUST as
trustees of the Devcich Family Trust Fourth Plaintiffs
[1] In July this year, I dismissed applications by Carter Holt Harvey Ltd1 to stay or dismiss the plaintiffs’ claim.2 Carter Holt argued the claim had been brought without the Court’s permission under r 4.24(a) of the High Court Rules 2016; the plaintiffs’ solicitor made misleading statements when promoting the claim; and funding arrangements were objectionable. I found the plaintiffs’ solicitor misled potential claimants in one media interview, but otherwise rejected Carter Holt’s arguments. Knowledge of that judgment is assumed.
[2]Carter Holt seeks permission to appeal. The plaintiffs contest permission.
[3] The requirement for permission in this context acts as a “filtering mechanism” of unmeritorious appeals that would otherwise cause unnecessary delay.3 The Court of Appeal has said permission should be granted when:4
… the significance or implications of an arguable error of fact or law, either for the particular case or for the applicant or as a matter of precedent, warrants the further delay which the appeal process would involve.
[4]I decline permission for three, closely related reasons.
[5] First, contrary to Carter Holt’s submission, the proposed appeal is not “credible”. Its case in relation to r 4.24(a) is inconsistent with the plain language of the rule. And, unsupported by authority. Its case in relation to the conduct of the plaintiffs’ solicitor seeks to impugn factual findings, and exhorts a remedy “hopelessly disproportionate” to any wrong, even assuming the conduct amounted to an abuse of process.5 Its case in relation to funding arrangements confronts the proposition these are unremarkable.
[6] The recent decision of the Court of Appeal in Ross v Southern Response Earthquake Services Ltd does not alter the mix.6 Ross is about r 4.24(b), not r 4.24(a). The plaintiffs’ claim is governed by the latter, not the former. The Court of Appeal’s
1 Carter Holt.
2 Paine v Carter Holt Harvey Ltd [2019] NZHC 1614.
3 Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [13].
4 Ngai Te Hapu Inc v Bay of Plenty Regional Council [2018] NZCA 291 at [17].
5 See Paine v Carter Holt Harvey Ltd, above n 2, at [92].
6 Ross v Southern Response Earthquake Services Ltd [2019] NZCA 431.
observation at [28] that r 4.24(a) requires the consent of all plaintiffs when the claim is filed was just that. Moreover, Ross emphasises the signal importance of access to justice.
[7] Second, Carter Holt has made no obvious effort to filter its proposed arguments. It seeks to pursue every point before me. Draft grounds of appeal identify no fewer than five pages of reversible error.
[8] Third, the plaintiffs are correct Carter Holt has made no visible attempt to marshal interlocutory issues, so these could be addressed efficiently. I accept too the plaintiffs’ allied submission Carter Holt “seems determined to pursue every possible right of appeal, irrespective of merits”.
[9] Carter Holt first sought particulars of the plaintiffs’ claim. I ordered some particulars but dismissed the balance of Carter Holt’s application, which I concluded lacked merit. Carter Holt then brought these applications—a year after the plaintiffs filed their claim. It also sought permission to appeal my particulars decision. I dismissed these applications and declined permission for an appeal in relation to particulars. Carter Holt has since sought special permission of the Court of Appeal to pursue its particulars appeal. Carter Holt’s proposed appeal in relation to r 4.24, the conduct of the plaintiffs’ solicitor and funding arrangements, would constitute a second, sequential interlocutory appeal. All this has one effect—delay.
[10] I consider the plaintiffs entitled to costs. If the parties disagree, they may file memoranda of not more than five pages; Carter Holt by 15 October 2019; and the plaintiffs by 22 October 2019.
……………………………..
Downs J
0
3
1