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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.
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]…
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.
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Details
AGLC
SM v LFDB [2014] NZCA 326
Case
[2014] NZCA 326
Decision Date
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.