Schaeffer v Murren - [2018] NZCA 420

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA551/2018
[2018] NZCA 420

BETWEEN	GLENN WILLIAM SCHAEFFER Appellant
AND	JAMES JOSEPH MURREN AS TRUSTEE OF THE JAMES J MURREN SPENDTHRIFT TRUST AND DANIEL LEE Respondents

Hearing:	27 September 2018
Court:	Kós P, Miller and Clifford JJ
Counsel:	A S Butler and A R Shaw for Appellant A J Horne and A E Simkiss for Respondents
Judgment:	27 September 2018 at 3 pm
Reasons:	10 October 2018

JUDGMENT OF THE COURT

AThe appeal is dismissed.
B The appellant must pay the respondents costs for a standard appeal on a band A basis and usual disbursements.

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REASONS OF THE COURT

(Given by Kós P)

Trial of Messrs Murren and Lee’s several claims against Mr Schaeffer is to take place in the High Court at Nelson, beginning 29 October 2018. The claims were filed in June 2015 and an unsuccessful mediation occurred in August 2017. Mr Schaeffer says that in the course of that mediation Mr Lee made threats that unless he was paid he would kill Mr Schaeffer and do violence or other harm to members of Mr Schaeffer’s family and his three show dogs.
In August 2018 Mr Schaeffer applied for orders striking out or staying permanently the proceedings. He asserts the alleged threats have impinged on his ability to call witnesses in defence of the proceedings. He says such threats require judicial denunciation to deter civil litigants from acting this way and thereby prejudicing the ability of a defendant to present a defence because of fears of violence.
On 4 September 2018 Churchman J dismissed that application.[1] This appeal is from that judgment. Separately Mr Schaeffer applied for an adjournment of trial on the basis that he and “possibly two witnesses” are too fearful to properly assist the preparation of the defence, and because focus was now required to be given to the present appeal rather than trial. On 17 September 2018 Collins J dismissed that application.[2] Formally, there is no appeal from that decision.
[1]Murren v Schaeffer [2018] NZHC 2320 [Churchman J’s judgment].
[2]Murren v Schaeffer [2018] NZHC 2442.
But the present appeal is in effect a further attempt to obtain adjournment. Mr Schaeffer does not say this Court should strike out or stay the proceedings on the material before us. Rather he says that the course identified by Churchman J should be pursued to its logical end.[3] That process was to assume the threats had been made and then determine whether the threats were such that the proceeding should be stayed or struck out. Only if such remedy was thought appropriate would the Court set down a separate fixture for the examination and cross‑examination of witnesses to make the relevant findings of fact. Mr Schaeffer says there is sufficient prima facie evidence of threats and their adverse effect on the trial process for the High Court to enquire further and make formal findings of fact after such cross-examination of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Schaeffer v Murren

Details

AGLC: Schaeffer v Murren [2018] NZCA 420
Case: [2018] NZCA 420
Decision Date: 27 September 2018 at 3 pm

CaseChat Overview and Summary

Glenn William Schaeffer sought to appeal against a decision of the High Court to dismiss his application to permanently stay or strike out the claims of James Joseph Murren and Daniel Lee. The respondents to the appeal were the trustees of the James J Murren Spendthrift Trust and Daniel Lee. The Court of Appeal held that the trial of the claims would proceed as scheduled. The Court held that the appellant had failed to demonstrate that the alleged threats made during mediation were such that they would prevent a fair trial of the claims. The Court held that the appellant had delayed unreasonably in bringing the application and that the claims of Murren should not be suppressed because he had not been involved in the alleged threats. The appellant was ordered to pay the respondents' costs of the appeal.

The legal issue before the Court of Appeal was whether the alleged threats made by Daniel Lee to Glenn Schaeffer during mediation were such that they would prevent a fair trial of the claims made by James Joseph Murren and Daniel Lee against Glenn Schaeffer. The Court of Appeal held that the appellant had failed to demonstrate that the alleged threats were such that they would prevent a fair trial. The Court held that the appellant had delayed unreasonably in bringing the application and that the claims of Murren should not be suppressed because he had not been involved in the alleged threats. The Court held that the appellant had failed to take reasonable steps to mitigate the effects of the alleged threats and that the trial should proceed as scheduled. The Court of Appeal dismissed the appeal and ordered the appellant to pay the respondents' costs of the appeal.

Orders