SM v LFDB

Case [2014] NZCA 326


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NOTE: THE ORDER MADE BY THE HIGH COURT ON 28 MAY 2012

PROHIBITING PUBLICATION OF THE PARTIES’ NAMES AND ANY PARTICULARS THAT WOULD IDENTIFY THE APPELLANT

(INCLUDING HER NAME, OCCUPATION, EMPLOYMENT HISTORY AND HEALTH) REMAINS IN FORCE PENDING FURTHER ORDER OF THE HIGH COURT.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA864/2013 [2014] NZCA 326

BETWEEN

SM

Appellant

AND

LFDB Respondent

Hearing: 1 May 2014 (further submissions filed 26 May 2014)

Court:

Stevens, Wild and Miller JJ

Counsel:

A E Hinton QC and A R Nicholls for Appellant
S R Jefferson QC and E M Eggleston for Respondent

Judgment:

14 July 2014 at 3.00 pm

JUDGMENT OF THE COURT

A     The appeal is allowed.

BThe order made in the High Court extending the time for payment of the second costs order until 17 October 2013, discharging the second unless order and cancelling the respondent’s debarment is quashed.

CThe order debarring the respondent from taking any further part in the proceeding is reinstated.

DAny outstanding issue of costs in the High Court is to be determined in that Court.

SM V LFDB CA864/2013 [2014] NZCA 326 [14 July 2014]

E     The respondent must pay the appellant’s costs for a standard appeal on a

band B basis and usual disbursements. We certify for second counsel.

REASONS OF THE COURT

(Given by Stevens J)

Introduction

[1]      A  party  to  a  proceeding  flouts  an  “unless”  order.    Belatedly  the  party complies with the order, and applies to be relieved of the sanction imposed upon breach.  What principles should guide a Judge dealing with such an application?  It seems there is no guidance from this Court.

[2]      Here, Ellis J was faced with exactly that situation.   The question on this appeal is whether she correctly applied the principles in allowing the respondent’s application.  The Judge did that by retrospectively extending time for the respondent to comply with an unless order requiring him to satisfy a costs order by a fixed date, failing which he would be debarred from taking further part in the proceeding, discharging the order and cancelling the debarment.1

[3]      Counsel appearing before us were in general agreement as to the principles Ellis J should have applied.  That was not the position before Ellis J.  Further, Ellis J did not have full information as to the practical consequences of the respondent being debarred from further participation in the proceeding.  We have had the benefit of full submissions about that.   As a consequence of those two matters, counsel invited us to consider afresh whether the respondent should have remained debarred,

or whether he should have been permitted again to participate in the proceeding.

1      SM v LFDB [2013] NZHC 3105. Normally a decision such as this would not be anonymised.

However, in this case, a suppression order made in the High Court for reasons specific to the appellant remains extant. The High Court order was not challenged in this Court.

Background

[4]…

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SM v LFDB [2014] NZCA 326
Case
[2014] NZCA 326
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CaseChat Overview and Summary

The Court of Appeal was called upon to determine whether the High Court judge was correct in discharging an "unless order" made against the respondent for failing to pay costs, and cancelling the respondent's debarment from further participation in the proceeding. The appeal was allowed, the order discharging the unless order was quashed, and the debarment was reinstated. The Court of Appeal found that the respondent deliberately flouted the unless order, knowing full well the consequences. The Court of Appeal considered that the High Court judge failed to give sufficient weight to the respondent's flouting of the unless order. The Court of Appeal also considered that the High Court judge was wrong to consider that belated payment of the costs had effectively purged the respondent's contempt. The Court of Appeal found that the High Court judge's assessment of the ramifications of the respondent remaining debarred was incorrect. The Court of Appeal found that the prejudice to the administration of justice generally, and to the appellant specifically, resulting from the respondent's flouting of the unless order, outweighed any prejudice to the respondent from the debarment. The Court of Appeal quashed the order of the High Court extending time for payment of the second costs order, discharging the second unless order, and cancelling the order debarring the respondent. The second unless order, debarring the respondent from taking any further part in the proceeding, was accordingly reinstated. Any outstanding issue of costs in the High Court was to be determined by that Court. The respondent was ordered to pay the appellant's costs for a standard appeal on a band B basis with usual disbursements.

Orders

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Background

Background to the litigation

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Evidence

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Decision

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Ratio Decidendi

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