Regan v Gill
[2011] NZCA 607
•2 December 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA438/2011 [2011] NZCA 607 |
| BETWEEN ANTHONY JOSEPH REGAN |
| AND ANTHONY JOSEPH REGAN AND JENNIFER ANNE REGAN AS TRUSTEES OF THE PICCADILLY TRUST |
| AND ROBERT GILL |
| AND PREMIER EVENTS GROUP LIMITED |
| AND BA PARTNERS LIMITED (IN RECEIVERSHIP AND IN LIQUIDATION) |
| AND DIGITAL PARTNERS LIMITED (IN RECEIVERSHIP AND IN LIQUIDATION) |
| AND CPG YORK LIMITED |
| AND BRAND ADVANTAGE MEASUREMENT AND CONSULTING LIMITED |
| AND DIGITAL PARTNERS (NZ) LIMITED |
| Hearing: 13 October 2011 |
| Court: Chambers, Ronald Young and Andrews JJ |
| Counsel: J Eichelbaum for Appellants |
| Judgment: 2 December 2011 at 11.30 am |
JUDGMENT OF THE COURT
A The appeal is dismissed.
BThe appellants must pay to the first, second, fifth, sixth and seventh respondents one set of costs, based on a standard appeal and usual disbursements. The appellants’ liability is joint and several.
REASONS OF THE COURT
(Given by Chambers J)
Consolidation of proceedings
In 2010, Premier Events Group Limited (PEG) commenced a proceeding in the Auckland Registry of the High Court under CIV-2010-404-3178 (CIV2010). The first to seventh defendants of that proceeding are Malcolm Beattie, Anthony Regan, CTNZ Ltd, Parnell Partners Group Ltd, Sports Hospitality Management Ltd, Parnell Partners Group (NZ) Ltd and Cartan Global LLP. There are two other defendants, the eighth and ninth, Cartan Tours Inc (Cartan Tours) and Sportsmark Management Group Ltd (Sportsmark). They are both incorporated in the United States. They have filed protests to jurisdiction which, as we understand it, are still unresolved.
In 2011, Mr Regan and his family trust, the Piccadilly Trust, commenced a proceeding in the same registry under CIV-2011-404-474 (CIV2011). There are seven defendants in his proceeding. They are Robert Gill, PEG, BA Partners Ltd, Digital Partners Ltd, CPG York Ltd, Brand Advantage Measurement and Consulting Ltd and Digital Partners (NZ) Ltd.
At first blush, the parties in the two proceedings would appear dissimilar, but that is something of an illusion. The fact is that PEG’s relationship to the other defendants in CIV2011 is sufficiently close that the same solicitors and counsel act for all of them. Likewise, the first seven defendants in CIV2010 have sufficiently similar interests that the same solicitors and counsel act for them.
In February this year, Mr Regan applied to have the two proceedings consolidated under r 10.12 of the High Court Rules. Wylie J, who has been case managing the two proceedings in the High Court and is the allocated trial judge, declined that application on 24 June this year. He directed, however, that the proceedings should be heard one after the other, with CIV2010 being heard first.[1]
[1] Premier Events Group Ltd v Beattie HC Auckland CIV-2010-404-3178, 24 June 2011.
The Regan interests have appealed against that decision. Essentially their argument is that consolidation will lead to a considerable saving of time.
Issues on the appeal
The first issue at the time of hearing was whether there was a right of appeal against a r 10.12 decision. Mr Eichelbaum, for the Regan interests, argued that there was. Messrs Sandelin and Pascariu, for the PEG interests, submitted there was not. That issue was distinctly arguable under Court of Appeal authority at that time. There was conflicting authority on what could be appealed under s 66 of the Judicature Act 1908 and in particular on the meaning of the words “judgment, decree, or order” in that section. Since the hearing, however, the Supreme Court has pronounced on the meaning of s 66 in Siemer v Heron.[2] There is now no doubt on this question: the Regan interests do have a right of appeal from Wylie J’s decision.
[2] Siemer v Heron [2011] NZSC 133.
That leaves only one issue for us to determine: should we change the way in which the Judge exercised his discretion?
Should we change the way in which the Judge exercised his discretion?
Rule 10.12 reads as follows:
The court may order that 2 or more proceedings be consolidated on terms it thinks just, or may order them to be tried at the same time or one immediately after another, or may order any of them to be stayed until after the determination of any other of them, if the court is satisfied —
(a)that some common question of law or fact arises in both or all of them; or
(b)that the rights to relief claimed therein are in respect of or arise out of —
(i) the same event; or
(ii) the same transaction; or
(iii) the same event and the same transaction; or
(iv) the same series of events; or
(v) the same series of transactions; or
(vi)the same series of events and the same series of transactions; or
(c) that for some reason it is desirable to make an order under this rule.
There is no dispute in this case that the protasis is fulfilled. It is important to note, however, that even where the rule is in play, the Court has a number of options. It can:
(a)consolidate the two proceedings – and then, on such terms as it thinks just; or
(b)order them to be tried at the same time, but without consolidating them; or
(c)order them to be tried one immediately after the other; or
(d)order one of them to be stayed until after the determination of the other; or
(e)do none of the above: it is a discretion.
It is difficult to conceive of a wider procedural discretion. As Rodney Hansen J observed in Medlab Hamilton Ltd v Waikato District Health Board,[3] “the discretion to make orders under r 382 [now r 10.12] is a wide one, to be exercised broadly in the interests of justice”. We agree. Appeals from the exercises of discretion are never easy.[4]
[3] Medlab Hamilton Ltd v Waikato District Health Board (2007) 18 PRNZ 517 (HC) at [8].
[4] May v May [1982] 1 NZFLR 165 (CA) at 170.
Mr Eichelbaum, for the Regan interests, submitted that, if the proceedings were consolidated, they would take less time than if they were heard one after the other. This was because, on the Judge’s consecutive approach, evidence would have to be repeated in the second proceeding. He submitted Wylie J had, even though accepting the matter came within r 10.12 because there were “some common questions of fact arising in both sets of proceedings”,[5] overemphasised the difference in “the legal issues” arising in the two proceedings.[6]
[5] At [85].
[6] At [86].
We find it hard to evaluate whether Mr Eichelbaum’s prediction of a time-saving from consolidation is right – and, if it is, whether the extent of the time-saving he prophesises is accurate. Mr Sandelin disputed its accuracy. Even if Mr Eichelbaum is right, however, we are quite satisfied this is not a case where we should overturn the Judge’s decision. We give four reasons.
First, counsel may yet be able to agree that some evidence from CIV2010 relevant to CIV2011 could become evidence in CIV2011 by agreement and without the need for repetition. That would reduce the asserted disparity in overall time between a consolidated hearing and consecutive hearings.
Secondly, the length of the hearing or hearings is just one factor in the equation. The Judge was entitled to weigh other factors, such as different legal issues, in deciding how best to run the trials of these proceedings. Some factors may point towards one procedural solution, others to another solution. It is for the first instance Judge to weigh those factors. Wylie J was in an excellent position to do that as he has been case-managing the proceedings and is very familiar with them.
Thirdly, while s 66, on the Supreme Court’s interpretation, permits an appeal in cases of this kind, this Court would always be very slow to overturn a decision which does not affect the parties’ substantive rights at all. The High Court decision was entirely procedural – almost administrative.
Finally, even had we been minded to impose consolidation, any such decision would have had to be up for review if the High Court dismisses Cartan Tours’ and Sportsmark’s protests to jurisdiction. Each of them has its own lawyers. They have no interest in CIV2011. Their joinder would make consolidation seem much less sensible.
We dismiss the appeal.
Solicitors:
Franklin Law, Pukekohe for Appellants
Minter Ellison Rudd Watts, Auckland for First, Second, Fifth, Sixth and Seventh Respondents
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