Palmer v District Court at Henderson HC Auckland CIV-2004-404-778

[2005] NZHC 1699

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2004-404-778

BETWEEN

GRAHAM ASHLEY ROBERT PALMER

First Plaintiff

AND

MARESSA ELIZABETH TANE

Second Plaintiff

AND

JAMES HEMI PAYNE

Third Plaintiff

AND

THE DISTRICT COURT AT HENDERSON

First Defendant

AND

HENDERSON RENTAL CARS LTD

Second Defendant

AND

THE ATTORNEY-GENERAL

Third Defendant

AND

THE SUPERINTENDENT OF AUCKLAND PRISON

Fourth Defendant

Hearing:

4 February 2005

Appearances: G A R Palmer in person

No appearance for First Defendant A J Wedekind for Second Defendant

B Keith for Third and Fourth Defendants N M Rice for Telecom as non-party

Judgment:      8 February 2005

RULING OF BARAGWANATH J

Solicitors:

Morgan Coakle, Fax: [phone], PO Box 114, Auckland for Second Defendant

Crown Law Office, Fax: [phone], PO Box 2858, Wellington for Third and Fourth Defendants Lee Salmon Long, Fax: [phone], PO Box 2026, Shortland Street, Auckland

Copy to:

Mr G Palmer, Auckland Prison, West 4, P O Box 50124, Albany, Auckland

PALMER And Ors V THE DISTRICT COURT AT HENDERSON And Ors HC AK CIV-2004-404-778 [8
February 2005]

[1]    Mr Palmer and co-plaintiffs sued unsuccessfully in the District Court at Henderson claiming against Henderson Rentals Ltd for alleged conversion of chattels said to have been inside a container on the back of a truck hired from Henderson Rentals Ltd.

[2]    Mr Palmer and his co-plaintiffs have issued proceedings in this Court seeking judicial review of the District Court’s judgment on a variety of grounds including the existence of impediments to the proper conduct of his case. At its heart is a dispute over whether, as Henderson Rentals asserted at the trial, the container was removed by Owens Containers Services Ltd.

[3]    In support of the application for review Mr Palmer has filed the affidavit of Andrew van der Salm who, although having no personal knowledge of the events, deposed that no truck was despatched to collect and return a container to the Westfield depot between 9.30 am and 9.50 am on 15 February 1999. In argument  the window has been narrowed to the time between 8.16 am when there was a telephone call by Henderson Rentals to Owens and at 9.30 am when the truck was hired out to another company.

[4]    On Mr Palmer’s theory of the case there was no Owens involvement over this period whatever and the assertion by Henderson Rentals to that effect was made to cover the position of its personnel who were responsible for the conversion during that period.

[5]    Henderson Rentals’ position is that the learned District Court Judge was correct in his conclusion that the container had been taken by Owens.

[6]    The present application for non-party discovery concerns whether Mr Palmer should be permitted to put Telecom to the cost and expense of searching records of incoming telephone calls during the period between the conclusion of the first telephone  call  and  9.30 am. He initially argued  that  there  must  for Henderson Rentals account to be correct have been a call from another Owens entity to Henderson Rentals during this period.

[7]    Mr Palmer is essentially seeking to prove a negative by demonstrating that there were no incoming calls and so there was no opportunity for a further arrangement to be made.

[8]    Mr Wedekind submits that there is nothing in this point because an Owens person at Mr van der Salm’s depot could well have told Henderson Rentals that he would get hold of one of his branches and have arranged at that time for the branch to send an appropriate vehicle to Henderson Rentals.

[9]    It is also logically possible that any incoming call was made from an Owens’ driver using a mobile phone; or that such a call was “stepped down” to a subordinate Henderson Rentals number. In either event Telecom cannot guarantee that the call will be picked up on a search.

[10]   In the course of argument Mr Palmer acknowledged these points but he maintained his application as having the potential for getting nearer the truth.

[11]   In principle a tight rein must be  kept on non-party discovery.  Although we do not have the figures for the more limited search now proposed the cost of searching is high. Whether it is covered by the $700 figure available by way of legal aid and so falls on the taxpayer or whether there would be an additional cost that would fall on the shareholders of Telecom I am not satisfied that the order is necessary for the purposes of doing  justice.  If  calls  were  made  it  is  in  Henderson Rentals’ interest to establish that proposition. In the absence of enquiry the evidence on the topic is consistent with Mr Palmer’s position. An application for review is no place for a fishing enquiry of non-parties. Mr Palmer’s claim in essence is that he was deprived of the opportunity of a fair hearing in the District Court. It is very doubtful whether the lack of the opportunity to embark upon the proposed enquiry would loom large in the proposed argument based on grounds of inability properly to prepare for the hearing.

[12]   For these reasons I am not satisfied that the proposed order is justified and it is accordingly declined.

[13]I will receive memoranda as to costs which are reserved.

W D Baragwanath J