Sharma v Foster-Bohm

[2023] NZHC 552

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV-2021-442-53

[2023] NZHC 552

UNDER

the District Courts Act 2016

IN THE MATTER OF

an appeal pursuant to section 124 of the District Courts At 2016

BETWEEN

ANJELA SHARMA

Appellant

AND

GAIL FOSTER-BOHM AND ANDREW CORBIN

Respondents

Hearing:	9 March 2023
Counsel:	L A Andersen KC for the Appellant J Moss for the Respondents
Judgment:	17 March 2023

JUDGMENT OF PALMER J

Counsel/Solicitors

L A Andersen KC, Dunedin

J Moss, Barrister, Christchurch Patient & Williams, Christchurch

SHARMA v FOSTER-BOHM [2023] NZHC 552 [17 March 2023]

The judgment

[1]                 On 3 November 2022, I issued judgment in this appeal (the Judgment) holding, in summary:1

[1]    In 2015 and 2016, Ms Gail Foster-Bohm and Mr Andrew Corbin, the respondents, brought a personal grievance against IHC New Zealand Inc (IHC). Ms Foster-Bohm and Mr Corbin subsequently sued their lawyer, the appellant Ms Anjela Sharma, for negligence in representing them. She sued them for non-payment of legal fees. The District Court found in favour of Ms Foster-Bohm and Mr Corbin. Ms Sharma appeals on six grounds.

[2]   First, the District Court did not err in holding that the employment claim was statute-barred. Second, the Court was entitled to consider the evidence of Mr Stephen Zindel. Third, the Court was correct not to admit a letter by former Chief Judge Colgan as evidence but to allow it to be used in cross- examination. Fourth, I agree that Ms Sharma was negligent in failing to lodge the personal grievance in time, in failing to advise Ms Foster-Bohm and Mr Corbin to seek independent advice and in failing to apply for an extension once she realised the situation. Fifth, I find no fault in the Judge’s approach to assessing damages. Finally, I do not consider the Court erred in declining to order Mr Corbin and Ms Foster-Bohm to pay for negligently-rendered work. I dismiss the appeal.

Should I grant leave to appeal?

[2]                 Ms Sharma now seeks leave for a second appeal, to the Court of Appeal. If leave is granted, she applies for a stay of  execution of the  High Court  judgment. Mr Andersen KC, on her behalf, submits there are four key issues central to the application for leave. The respondents oppose leave being granted.

[3]                 There is no dispute that it is not easy to get  leave for a second appeal  under  s 60 of the Senior Courts Act 2016.2 Leave requires there to be a question of law or fact capable of bona fide and serious argument involving interests that are sufficiently important to outweigh the cost and delay of an appeal.3 The primary function of a second appeal is to clarify the law and determine whether it has been properly construed and applied.4

1      Sharma v Foster-Bohm and Corbin [2022] NZHC 2871 (footnotes omitted).

2      Butch Pet Foods Ltd v Mac Motors Ltd [2018] NZCA 276 at [4].

3      Waller v Hider [1998] 1 NZLR 412 (CA) at 413.

4      At 413.

[4]Regarding each of the four issues raised by Ms Sharma in turn:

(a)First, Mr Andersen submits the question of whether the claim was statute-barred is important to Ms Sharma and capable of serious argument. But the Judgment held that the argument was not pleaded in the District Court and was inconsistent with what was pleaded.5 Mr Andersen’s submissions to the contrary depend on a tenuous interpretation of the facts and pleadings. And, as explained in the Judgment, his submissions on the merits do not get around the key factual finding that the date of termination was clearly agreed between the respondents and their employer.6 That is what set the date of the statute-bar. It was consistent with Ms Sharma’s submissions to the Employment Relations Authority, which reached the same conclusion as this Court.7

(b)Second, in relation to Mr Zindel’s testimony as an expert witness:

(i)Mr Andersen submits that the Judgment misunderstood the submission regarding Mr Zindel’s testimony, which was that he was not sufficiently impartial to act as an expert witness because he acted for the respondents in previous proceedings directly related to the relief sought. But that is the substance of how  Mr Andersen’s submission is described in the Judgment.8

(ii)Mr Andersen submits the Judgment wrongly held there was no evidence to support Mr Zindel not being involved with respondents’ decision to sue Ms Sharma. But that sentence in the Judgment is in a paragraph characterising Mr Moss’ submissions, not a finding by the Court.9

5      Sharma v Foster-Bohm and Corbin, above n 1, at [16].

6 At [18].

7 At [19].

8 At [20].

9 At [21].

(iii)Mr Andersen submits two documents before the District Court, showing Mr Zindel was actively involved in the decision to sue Ms Sharma, were inadvertently omitted from the High Court bundle of documents on appeal. But there has been no suggestion of an application to adduce the further evidence. There is nothing to indicate Mr Zindel had a financial interest in the claim against Ms Sharma. And the omitted documents seem likely not to make any difference because: they were before the District Court; Mr Zindel’s evidence was challenged directly in that Court, including by cross-examination; the purpose of the evidence went only to quantum; and the Court of Appeal accords leeway to a trial judge to admit non-compliant evidence.10 There is no dispute about the legal principles.

(c)Third, Mr Andersen submits that the Judgment goes further than previous cases in finding a reasonably competent practitioner would take a conservative approach and err on the side of caution.11 But, again, he takes a sentence in a paragraph characterising Mr Moss’ submissions to be the Court’s finding.12 The Court’s findings did not go so far.13

(d)Fourth, Mr Andersen submits the Judgment changes the onus of proof regarding loss by holding that the onus was on Ms Sharma to offer evidence of damages claimable on the basis of unjustified disadvantage alone. But the Judgment did not do so. It held that the problem for Ms Sharma on appeal is that she had offered no such evidence and there was no fault in the District Court Judge’s approach based on the evidence before her.14

10     At [23]–[24]. See also Prattley Enterprises Ltd v Vero Insurance New Zealand Ltd [2016] NZCA 67, [2016] 2 NZLR 750, [2016] 2 NZLR 750 at [100].

11     Bannerman Brydone Folster & Co v Murray [1972] NZLR 411 (CA).

12     Sharma v Foster-Bohm and Corbin, above n 1, at [29].

13     At [30]–[31].

14 At [34].

(e)Fifth, Mr Andersen submits Ms Sharma is entitled to payment of her fees and the Judgment did not explain departure from a Court of Appeal judgment that has dealt with this issue. But there is no importance in this issue, which falls away if the other issues do not succeed. And, if the respondents received no value from her services, Ms Sharma was not entitled to insist on payment of fees (she had not invoiced) for that work.

[5]                 This case turns largely on its facts and the arguments raised were considered in the first appeal, which upheld the findings of the District Court. Ms Foster-Bohm and Mr Corbin have been waiting 17 months for the fruits of their litigation against their former lawyer, including their costs. The factual context is not a suitable vehicle for the questions of law to be usefully explored. I do not consider the issues are sufficiently important to outweigh the cost and delay of a second appeal to the Court of Appeal. I do not consider the proposed appeal meets the required threshold. I dismiss the application.

[6]                 Accordingly, there is no basis for a stay, as Mr Andersen acknowledged, and that application is dismissed too. I award costs to the respondents on a 2B basis for the application for leave to appeal. I do not consider the threshold for increasing the costs is met and do not do so.

Palmer J