RHH Limited v Anderson

[2018] NZHC 2177

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-2066 [2018] NZHC 2177

BETWEEN

RHH LIMITED

First Plaintiff

JOSEF CHRISTOPHER ROBERTS Second Plaintiff

AND

SANDRINE ANDERSON First Defendant

HELICE PROPERTIES LIMITED Second Defendant

Hearing:	23 August 2018
Appearances:	K Davenport QC with P Devereux for the Plaintiffs L Taylor QC with TJG Allan for the Defendants
Judgment:	23 August 2018

JUDGMENT (No.4) OF ASSOCIATE JUDGE R M BELL

This judgment was delivered by me on 23 August 2018 at 3:00pm

pursuant to Rule 11.5 of the High Court Rules.

…………………………………

Deputy Registrar

Solicitors:

Corporate Counsel Limited (Paul Devereux), Parnell, Auckland, for the Plaintiffs

Grove Darlow & Partners (TJG Allan), Auckland, for the Defendants

Haigh Lyon (Ben Molloy), Auckland, for Ms Miriam Roberts

Copy for:

Kate Davenport QC, Auckland, for the Plaintiffs

Les Taylor QC, Wellington, for the Defendants

Robert Hollyman, Barrister, Auckland, for Ms Miriam Roberts, non-party

RHH LIMITED v ANDERSON (No.4) [2018] NZHC 2177 [23 August 2018]

[1]      The plaintiffs apply under s 56(3) of the Senior Courts Act 2016 for leave to appeal to the Court of Appeal from my decision of 9 August 2018 refusing them leave under r 7.7 of the High Court Rules 2016 to apply for interrogatories after the close of pleadings date.  They filed their application on 17 August.  I directed this telephone conference to hear the application.  The defendants’ counsel gave oral submissions in opposition.

[2]      On 2 August 2018, the plaintiffs filed an application for the defendants to answer interrogatories.  That was after the close of pleadings date, 23 July 2018. Leave was required under r 7.7.  I declined leave.  The plaintiffs propose that the Court of Appeal should not only review my leave decision but should also consider the application for interrogatories.  They do not require the defendants to answer all their interrogatories in their application but have cut them down to those which the plaintiffs consider to be crucial to the core issues. If leave to appeal is granted, they hope that the appeal may be heard before a Divisional Court sitting in Auckland next week.

[3]      The plaintiffs began this proceeding after the Senior Courts Act 2016 came into force. The transitional provisions under Schedule 5 cl 11 of the Senior Courts Act, which saved rights of review of decisions of associate judges under former s 26P(1) of the Judicature Act 1908, do not apply to this proceeding.  Section 27 of the Senior Courts Act gives a right of appeal from any order or decision of an associate judge, but that is subject to the requirement under s 56(3) for leave to appeal from a decision made on an interlocutory application.     Under s 4, “interlocutory application”:

(a)means any application to the High Court in any civil proceedings or criminal proceedings, or intended civil proceedings or intended criminal proceedings, for—

(i)       an order or a direction relating to a matter of procedure; or

(ii)in the case of civil proceedings, for some relief ancillary to that claimed in a pleading; and

(b)includes an application to review an order made, or a direction given, on any application to which paragraph (a) applies

My decision to decline leave under r 7.7 was clearly made on an interlocutory application.

[4]      The purpose of appeal is to allow errors at first instance to be corrected. In requiring leave for appeal from decisions on interlocutory applications, Parliament considered that some decisions should stand, even if they were erroneous.  The interest in finality of decision should prevail over correction of error.  Whereas leave to appeal is not required for decisions striking out or dismissing a proceeding or granting summary judgment (s 56(4)), procedural decisions are subject to the leave requirement.  That is a pointer that Parliament did not intend the Court of Appeal to supervise closely ordinary procedural decisions in this court. That court is not required to micro-manage proceedings in this court. Usually there must be something of significance for a procedural decision to require the attention of the Court of Appeal.

[5]      Under former s 71A of the repealed District Courts Act 1947, leave was required for an appeal from interlocutory decisions.   There is guidance from decisions under that section.  In Sandle v Stewart,1 Somers J said:

The other feature concerns leave.  The purpose of this is to limit the cases which may go on appeal in the interests of finality of litigation and the work load of the High Court while preserving the integrity of the law and the interests of justice.   That is shown by the principles upon which leave is given—where an issue of principle is concerned, where really greater sums are involved, where on the face of it an appeal is likely to succeed.

[6]      In Cummings v Vallant, District Court Judge Hubble said:2

The Court must consider whether the interests of justice require the granting of leave in all of the circumstances of the case, including:

a)        the history of the matter;

b)        the conduct of the parties;

1      Sandle v Stewart [1982] 1 NZLR 708 at 715.

2      Cummings v Vallant [1997] DCR 401.

c)        the nature of litigation;

d)the needs of the applicants and the effect that granting of leave would have on other persons;

e)        any prejudice that may have been incurred;

f)        subsequent events and merits.

[7]      The application for leave to appeal needs to be considered against what has been happening and what is still to occur. The close of pleadings date was 23 July

2018.  On 30 July 2018, I heard an application for non-party discovery.  The non- party was required to file and serve an affidavit of documents by 13 August 2018. On 9 August 2018, I heard the plaintiffs’ application for further discovery by the defendants.  I required the defendants to file and serve a further updating affidavit by 22 August 2018.   The defendants have filed a memorandum asking for an extension of time.

[8]      The plaintiffs are to serve their statements of evidence and list of documents and a draft chronology by 30 August 2018.   The defendants are to serve their evidence, a list of further documents for the bundle and their response to the chronology by 27 September 2018.   The plaintiffs are to file and serve the common bundle and a chronology by 3 October 2018.  The plaintiffs are to file their opening on 8 October 2018.  The hearing will begin on 15 October 2018.

[9]      Both sides accept that the fixture needs to be maintained. Both are working to prepare for the substantive hearing to begin on 15 October 2018. There is a very tight time-frame if any appeal is to be heard in the Court of Appeal.

[10]     For the plaintiffs’ proposal to work, certain matters need to fall their way. They will need to persuade the Court of Appeal to hear their appeal next week. That may not be straightforward because defence counsel have other commitments.   Mr Taylor QC was briefed because his instructing solicitor has other work on and is not available. Mr Taylor is in a four week hearing in Napier. They will need to persuade the court to hear not only the appeal on the leave question but also the merits of the interrogatories application.  If the court finds that my refusal of leave under r 7.7 was wrong, the court could well deal with the

interrogatories, given the greater delay in referring the matter back to this court for decision.  I shall be on leave from 27 August to 14 September and will not be available until later. In dealing with the interrogatories, the court will not have the advantage of a first instance decision.   Time will be required for careful consideration of the interrogatories.  An immediate decision is unlikely.  If the court decides that the defendants should answer interrogatories, it will fix time for them to give answers.  Assuming everything else goes well for the plaintiffs, they might receive verified answers towards the end of September or early October. That is about the time when the defendants are required to serve their statements of evidence.

[11]     The appeal will be first against the exercise of a discretion on a procedural matter – whether to hear an interlocutory application after the close of pleadings date.  The Court of Appeal will not consider the merits of the application under r 7.7 afresh, but will only disturb the first instance decision if there was an error of law or principle, irrelevant matters were considered, relevant matters were not or the decision was plainly wrong.  Appellate interference with procedural and case management decisions is uncommon.  That can be seen in decisions on reviews under former r 2.3 of the High Court Rules  of associate judges’ procedural decisions.3   The plaintiffs will have an uphill task on appeal.

[12]     The appeal does not involve any important questions of law.  The purpose of r 7.7 is well understood.  There is no need for clarification of current practice. Any appeal will turn on the circumstances of this case.

[13]     For  this  proceeding,  the  plaintiffs’  object  in obtaining  sworn  answers  to interrogatories is not so important.  The defendants know the matters the plaintiffs require them to answer.  No doubt they will anticipate that when they prepare their evidence.  They should anticipate cross-examination on those points.  The plaintiffs will get answers to their interrogatories when statements of evidence are served or during the hearing.   The injustice which the plaintiffs allege is that they have not

3      For example, Minister of Education v H Construction North Island Ltd [2017] NZHC 3228. For a case of a successful review, see Haines v Herd [2016] NZHC 1928 where the choice of forum was significant.

received sworn answers to their interrogatories now, but will obtain that information only later in signed statements of evidence and sworn testimony at the hearing. That difference is not so serious that it warrants allowing an appeal, even if I was wrong in not allowing the interrogatories application after the close of pleadings date.

[14]     I am not satisfied that the plaintiffs’ wish to have the Court of Appeal review my decision under r 7.7 for alleged error outweighs the interest in finality of decision on a procedural matter, encroaching on the Court of Appeal’s time and resources for a relatively minor procedural point, diverting defence counsel from other commitments and disrupting both sides’ preparation for the substantive hearing. Accordingly I dismiss the application for leave under s 56(3) of the Senior Courts Act.

[15]     I extend the time for the defendants to file and serve their supplementary affidavit of documents to 5.00 pm today.

…………………………….

Associate Judge R M Bell