Potter v Duffy

[2015] NZHC 2898

NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980.  FOR FURTHER INFORMATION, PLEASE SEE COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2014-470-131 [2015] NZHC 2898

BETWEEN

TERI ANNE POTTER

Plaintiff

AND

MARK FRANCIS DUFFY First Defendant

THE TRUSTEES OF THE DUFFY TRUST - being TERI ANNE POTTER, MARK FRANCIS DUFFY and LE PINE TRUSTEES LIMITED

Second Defendants

Hearing:	19 November 2015
Appearances:	E Eggleston for the Plaintiff First Defendant in person Second Defendants - appearances excused
Judgment:	19 November 2015

ORALJUDGMENT (NO 1) OF MUIR J (Admissibility of evidence)

Counsel:

E Eggleston, Barrister, Tauranga

Solicitors:

Holland Beckett Lawyers, Tauranga

Le Pine & Co (T Young/T Kirkham, Taupo for the Trustees

Copy to:

The First Defendant

POTTER v DUFFY [2015] NZHC 2898 [19 November 2015]

[1]      These proceedings have been set down for trial before me on 19 and 20

November 2015.

[2]      On 12 and 13 November 2015 Mr Duffy filed with the Court two documents styled “Memorandum seeking leave to file late”.  Both annexed material including; invoices which he wishes brought to account in the division of trust assets, correspondence from accountants relevant to the same division and, in the case of the memorandum dated 12 November, a report from Grow Plus Management Solutions purporting to quantify the value of Mr Duffy’s input into orchard management at $10,793 per year.  Based on that report Mr Duffy has then raised an invoice, similarly produced, in the amount of $142,737.43 for orchard management over the period since the parties separated which he describes as 11.5 years.

[3]      These proceedings have been closely case managed by Associate Judge Bell since their transfer to the High Court some time ago.  The record shows that six case management conferences have been held before him.   A consistent theme in the conference minutes is Mr Duffy’s non-adherence to timetables imposed by the Court, a  problem  no  doubt  exacerbated  by  the  fact  that  he  has  been  unrepresented throughout these proceedings.

[4]      As to directions relating to the evidence I note in particular:

(a)      The direction dated 23 June 2015 that evidence was to be by way of affidavit, with Ms Potter to file and serve her evidence by 28 July

2015 and Mr Duffy to do likewise by 22 September 2015 (both orders having been made in the context of a confirmed hearing date for 19 and 20 November 2015).

(b)The direction dated 21 September 2015 which followed Ms Potter’s extensive amendment of her claim, including abandonment of a number of causes of action and in terms of which Mr Duffy was to file and serve his evidence by 12 October 2015.

(c)      The minute of 20 October 2015 which, in the absence of a statement of defence from Mr Duffy, defined the issues he would be able to raise at the hearing and which addressed Mr Duffy’s default in filing his evidence.   In that respect Mr Duffy had sought a further extension based on what he stated was his recent heavy workload.  Associate Judge Bell addressed that application in [5] and [6] of his minute in terms:

[5]       I generally endorse the submission of Ms Potter that Mr  Duffy  has  had  adequate  time  in  which  to  prepare evidence in opposition.  To a certain extent if his other work commitments have got in the way of his dealing with this proceeding  that  is  a  problem  he  has  made  for  himself because he has chosen to deal with the matter himself rather than to engage a lawyer.

[6]       Notwithstanding that I give Mr Duffy a short period of time in which to file and serve his evidence – except the valuation evidence.   He is to file and serve any further affidavit evidence by 28 October 2015.   If he comes to Court with affidavit evidence after 28 October 2015 (except evidence  by  the  valuer  of  the  Pyes  Pa  property),  the Registrar is not to accept those affidavits for filing.   Mr Duffy should consider this extension of time as an indulgence.   It is given simply to ensure he is given an opportunity to present his evidence.

[5]      I surmise that it was on account of his Honour’s direction to the Registrar not to accept any further affidavit evidence after 28 October 2015 that Mr Duffy has purported to submit such evidence by way of memoranda.

[6]      I decline to accept the purported evidence.  My reasons may be briefly stated.

(a)      To state the obvious, it is not evidence.  There is no sworn statement from Mr Duffy.  Statements made in memoranda are not evidence in proceedings.

(b)The attempts to file it were made over two weeks after the final date for filing established by the Associate Judge (that date having itself been relaxed in one final indulgence to Mr Duffy).

(c)      The filing occurred within a week of trial and has, in my view, the capacity to seriously prejudice the plaintiff.

(d)The material annexed to the memorandum from accountants and consultants is inadmissible as hearsay.  There is no opportunity for the authors of those documents to be tested on their opinions.  In respect of  the  material  from  Ingham  Mora  Chartered  Accountants,  this records, without comment, various contentions on Mr Duffy’s part. Such  contentions  have  no  evidential  value and  their repetition  by Chartered Accountants in no way changes that outcome.

(e)      It is inevitable that, if any part of this material was admitted into evidence, fairness to Ms Potter would require the hearing to be adjourned to enable presentation of expert evidence in reply.

(f)       The parties have been separated for a period in excess of 10 years.

Their domestic arrangements, which involve them living within separate parts of the same house, in circumstances which clearly exact an ongoing emotional toll on both parties, call for prompt determination   of   the   claims   and   militate   against   any   such

adjournment.

Result

[7]      I decline to accept as evidence the memoranda and annexures of Mr Duffy dated 12 and 13 November 2015.

[8]      I make no order as to costs in respect of that issue.

Muir J