Siemer v Fardell as Executrix of the Estate of Fardell

[2007] NZCA 293

IN THE COURT OF APPEAL OF NEW ZEALAND

CA172/07
[2007] NZCA 293

BETWEENVINCENT AND JANE SIEMER

Applicants

ANDKATHLEEN MARY FARDELL AS EXECUTRIX OF THE ESTATE OF JOHN ROBERT FORTESCUE FARDELL

Respondent

ANDMICHAEL PETER STIASSNY AND FERRIER HODGSON

Respondents Non-Parties

Hearing:18 June 2007

Court:Glazebrook, Robertson and Wilson JJ

Counsel:Applicants in person

P J L Hunt for Respondents Non-Parties

Judgment:17 July 2007 at 11 am

JUDGMENT OF THE COURT

A        The application for special leave to appeal is declined.

BCosts of $1,500 plus usual disbursements are awarded to the respondents.

____________________________________________________________________

REASONS OF THE COURT

Introduction

[1]       This is an application for special leave to appeal against a decision of Williams J Siemer v Kathleen Fardell (as Executrix of the Estate of John Fardell HC AK CIV 2003-404-5782 12 December 2006.  Williams J was dealing with an application for the review of a decision of Associate Judge Lang (as he then was) of 14 March 2005. In that judgment, the Associate Judge ordered Mr and Mrs Siemer and Paragon Services Ltd (the plaintiffs in the litigation) to pay a proportion of the costs of discovery incurred by the respondents as third parties (hereinafter referred to as the respondents) to litigation described in Williams J’s judgment at [3].

[2]       On review, Williams J reduced the amount payable to a lower proportion of the respondents’ costs and adjusted some of the disbursements claims.  Leave to appeal against Williams J’s judgment was sought from the High Court.  In a judgment of 3 April 2007 (determined by agreement on the papers) John Hansen J refused leave.  As noted above, the applicants now seek special leave to appeal from this Court.

Contentions of the applicants

[3]       The application for special leave set out a number of proposed grounds of appeal, most of which were expressed very broadly using intemperate and inappropriate language and many of which had no relevance to a proposed appeal on the costs of third party discovery.  At the hearing of the application it was necessary to question Mr Siemer carefully to ascertain the exact basis of the proposed appeal.  It emerged that the appeal centred on an alleged overcharging for photocopying.  This overcharging suggests, in Mr Siemer’s submission, that all other costs of discovery were similarly exaggerated.  Mr Siemer alleges further that the respondents’ solicitors actively misled the Court in relation to the photocopying.

[4]       Mr Siemer says that the applicants requested and received only 111 photocopies of documents but were charged for some 1400 copies and at the high rate of 30 cents per copy.  The respondents’ explanation was that they had been obliged to photocopy all their files before depositing them in Court.  Mr Siemer submits that this was clearly untrue because the respondents, through counsel, requested the return of the files so that discovery on another matter could be completed.  In Mr Siemer’s submission, the request for the return of the files would not have been necessary had the photocopying occurred.  Discovery could have been completed off the photocopied files.

[5]       Mr Siemer would argue in the appeal, should leave be granted, that the conduct on the part of the respondents and their counsel means that the applicants should not have been ordered to pay any of the respondents’ costs of discovery at all.  Mr Siemer submits that this conclusion is reinforced by the fact that the respondent third parties are somewhat closer to the claim than many other third parties against which discovery is sought.  Mr Siemer’s position is that, but for the compromise agreement with the respondents, they would be parties to the litigation. See at [4] of Williams J’s judgment. 

Contentions of the respondents

[6]       The respondents oppose leave being granted.  They say that this is a straight- forward case of costs following non-party discovery.  It has already been the subject of two fully reasoned and lengthy decisions in the High Court.  In their submission, the appeal does not raise a question of law capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of an appeal to this Court.

[7]       With regard to the photocopying charges, Mr Hunt, for the respondents, submits that it is patently wrong that there is evidence of deliberate overcharging for the photocopying.  Mr Hunt pointed out that an external provider had done part of the photocopying and an invoice for $249.92 from that provider had been attached to a letter to Mr Siemer of 11 October 2004.  He says that the inference, which Mr Siemer seeks to draw from the request for the original files, is not available and that the High Court had not been misled.  Mr Hunt explained that the files had been copied to use as working files.  This had been explained both in the letter to Mr Siemer of 11 October 2004 referred to above and in an earlier letter of 8 October 2004.  Those letters and the invoice from the external provider were before the High Court.  From the bar, Mr Hunt said that notes had been made on the working copies and further documents added.  They were thus not suitable for providing discovery on the other matter.  Mr Hunt says that, while other and varied allegations of fraud have been made by Mr Siemer at various times, this is the first time Mr Siemer has suggested that the files had not been photocopied.

[8]       Turning to the allegations of overcharging with regard to other costs of discovery, Mr Hunt notes that all relevant invoices and time sheets had been provided to Associate Judge Lang.  These had been carefully reviewed both by the Associate Judge and by Williams J and dealt with in some detail in both judgments.  In his submission, on the principles set out at [6], there is no justification for yet another review.

Should special leave be granted?

[9]       Mr Siemer is asking this Court to deal with a matter that he does not appear to have raised before Williams J in the form he now advances it.  Indeed, that the photocopying issue was to be a ground of appeal if special leave was granted was not apparent to us from the application for special leave or from Mr Siemer’s written submissions filed in support of that application.  It also appears from John Hansen J’s leave judgment that he did not discern from the papers before him that this was to be an issue.

[10]     Williams J discussed the question of the photocopying at [105] ‑ [106] of his judgment.  At that stage, the complaint appears to have been that the applicants were charged for photocopies that they did not request, rather than that the photocopying did not occur at all (see at [105] of Williams J’s judgment).  The Judge dealt with the matter as follows:

[106]    It would appear that a fairly large proportion of the photocopying occurred because, once the discoverable records were ordered to be deposited with the Court, the non-parties and their solicitors photocopied the whole of that material in order to have a duplicated file for reference purposes.  That does not seem unreasonable – but, if they wished to charge the plaintiffs for so doing, they should have made it plain that in order to deposit the files they would be photocopying them and claiming that cost under R 303.  Not having done so, the Court's view is that they should not now be permitted to recover that cost from the plaintiffs, however reasonable it was for them to undertake the photocopying exercise.

[11]     The Judge thus accepted that it was reasonable for the respondents to have copied the files but said that they should, before depositing the files with the Court, have alerted the applicants that they were doing so and that they wanted to pass the costs on to the applicants.  As they did not, the disbursement was disallowed.  This means that the applicants have not had to pay any of the disputed photocopying charge.  This in itself militates against leave being granted. 

[12]     There also appears to be no reason why the allegation now made by Mr Siemer that no photocopying of the files occurred was not made in the High Court.  We understood Mr Siemer to be arguing that the overcharging should have been evident to Williams J.  We did not understand Mr Siemer to be relying on any new information that had come to light after the High Court hearing.  It would not be appropriate for this Court on a second appeal to deal with an allegation that is made for the first time in the course of applying for special leave to appeal to this Court. 

[13]     In an adversarial system it is for the parties to place the matters they want dealt with squarely before the Court.  Mr Siemer cannot complain that Williams J and John Hansen J failed to deal with a matter that they were never asked to address.  Indeed, it would not have been proper for those Judges to have addressed it when the respondents had had no opportunity to put evidence forward or to make submissions on that issue.

[14]     Further, it is clear that the respondents strongly challenge the suggestion that the files were not photocopied and that they misled the Court in that regard.  It is true, as pointed out by Mr Siemer, that the explanation given by Mr Hunt as to why the original files were needed, despite the photocopying, was not in evidence before us. However, this has to be assessed in light of the fact that this was only a leave application and that the allegation surfaced for the first time at the hearing of the application, at least in a form understood by Mr Hunt.  What Mr Hunt’s submissions do show is that any appeal, if allowed to proceed, would require evidence and no doubt cross-examination.  This Court, on a second appeal, is not a suitable forum for such an exercise.

[15]     In any event, we do not consider that there is a proper basis for Mr Siemer’s allegation.  As noted above at [4], Mr Siemer contends that the fact that the respondents wanted the original files back provides incontrovertible evidence that those files had not been photocopied before their deposit with the High Court and that the Court had been misled in that regard.  This is not an inference we are prepared to draw.  It is not one that Williams J drew or, it appears, was asked to draw.  The same applies to John Hansen J.

[16]     There is, in our view, nothing untoward in the respondents wanting to have the original files in order to fulfil discovery obligations on the other matter.  The discovery obligations largely relate to the original files. Indeed, a conscientious solicitor would not be content to rely on the photocopied files.  There is, for example, a risk of documents having been missed in the photocopying exercise.  The letters of 8 and 11 October 2004 refer to the need for a working file and the invoice from the third party provider of photocopying services shows that some photocopying was done around the time that the files were deposited with the Court.  It is inherently unlikely that the respondents and their solicitors would risk their professional reputations and perhaps even their livelihood for such a small sum.

[17]     As to the allegation that the other costs of discovery were also exaggerated, the time sheets and invoices have been examined in detail twice by very experienced judges.  There is nothing that would justify yet another examination by this Court.  We accept the respondents’ submissions set out at [8] in this regard.

[18]     Finally, we are not persuaded that a deliberate overcharging of disbursements (even if it were accompanied by a misleading of the Court) would necessarily have the effect of excluding altogether a claim for the reasonable costs of third party discovery, thus providing a plaintiff effectively with a windfall.  There are other more suitable mechanisms for dealing with such misconduct, including, for example, disciplinary proceedings against any counsel involved in misleading the Court.  For the avoidance of doubt, we are not to be taken as in any way suggesting that there was a deliberate overcharging in this case or that counsel for the respondents misled the High Court.

Result

[19]     For all of the above reasons, the application for special leave to appeal is declined.

[20]     Costs of $1,500 plus usual disbursements are awarded to the respondents.

Postscript

[21]     After the hearing Mr Siemer sent a letter to the Registry alleging that Mr Hunt had wrongly been allowed to place new evidence before the Court.  The letter also made allegations about the conduct of the hearing by the presiding Judge.  We do not understand this letter to have been served on the respondents and no leave was sought from the Court to file further material after the hearing. 

[22]     The Court issued a minute asking the respondents for any comments on Mr Siemer’s letter and in particular the allegation regarding new evidence.  Mr Siemer was given leave to file a memorandum in reply.  Mr Siemer was also told that it was not appropriate to file material making allegations about a member of the Court while a matter was reserved for consideration.

[23]     Mr Hunt filed a memorandum dated 21 June 2007 attaching the relevant material, including the letters of 8 and 11 October 2004, the invoice for photocopying and the associated timesheets.  Mr Hunt explained that these had been before the High Court but had not been included in the material before us because these now advocated grounds of appeal had not been apparent.

[24] In Mr Siemer’s memorandum in reply, he objected to this material being provided to us. There is, however, no proper basis for such an objection, given that the material was before the High Court. Mr Siemer’s memorandum also repeated and expanded on allegations relating to the conduct of the hearing. This was outside the scope of any reply to Mr Hunt’s memorandum and directly contravened the warning given to Mr Siemer in the Court’s minute - see at [22] above. This material should not have been filed and has not been taken into account.

[25]     Further material should be filed only in exceptional circumstances.  Where leave has not been reserved at the hearing, an application for leave to do so is required.  No further material should be filed unless and until that application is granted.  Allegations of fraud should never be made without a proper foundation, fully particularised.  Intemperate language is never helpful and must be avoided.  Any material that does not comply with all these requirements will not, in future, be accepted for filing.

Solicitors:
McElroys, Auckland for Respondents