Teinangaro v Fastway Couriers (NZ) Limited HC Napier CIV 2009-441-751
[2010] NZHC 1194
•7 July 2010
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
CIV-2009-441-751
BETWEEN JAMES DOUGLAS TEINANGARO AND SHARON HAZEL TEINANGARO Plaintiffs
ANDFASTWAY COURIERS (NZ) LIMITED First Defendant
ANDAUCKLAND CITY COURIERS LIMITED
Second Defendant
Hearing: 2 July 2010
Appearances: Mr and Mrs Teinangaro in person
Mr J M von Dadelszen and Ms Blunden for Defendants
Judgment: 7 July 2010 at at 3.30
JUDGMENT OF ASSOCIATE JUDGE DOOGUE
This judgment was delivered by me on
07.07.10 at 3.30 pm, pursuant to
Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Counsel:
J & S Teinangaro, Unit 17/706 Manukau Road, Royal Oak, Auckland – by email:
Mr J M von Dadelszen, Bannister & von Dadelzsen, Hastings – by email: [email protected]
TEINANGARO V FASTWAY COURIERS (NZ) LIMITED AND ANOR HC NAP CIV-2009-441-751 7 July
2010
[1] There are three applications before the Court. The plaintiffs have applied to add various defendants to the proceeding. The defendants have applied for orders striking out the proceeding and in the alternative, for orders for security for costs.
[2] Mr and Mrs Teinangaro represent themselves and they appeared before me on 2 July 2010 to make submissions on the applications before the Court. I have no doubt about the sincerity of their belief that they have a fair claim to bring against the defendants. But I gained the impression that they have struggled to try and set their claims out in a viable statement of claim.
[3] The plaintiffs have been advised in the past to obtain legal assistance. Understandably, though, given the fact that neither of them is in paid employment, that has proved to be very difficult. An application for legal aid was made but was unsuccessful. Mrs Teinangaro advised me that there has recently been a change to their financial circumstances which will enable them to now get legal advice. Given that circumstance, I would be reluctant to take steps to strike out their proceeding in its entirety at this point. On the other hand, I consider that there was validity in Mr von Dadelzsen’s submission that fairness requires that not just the interests of the plaintiffs are considered but also those of the defendants. It can result in injustice if defendants are put to the expense of contesting meritless proceedings; in such circumstances proceedings can genuinely be the cause of oppression to the defendants.
[4] The approach I intend to take is to examine the pleadings to see whether the plaintiffs’ claim falls within the provisions of rule 15.1. If it does, then I will consider whether an order to stay or to strike out ought to be made: r 15.1(4). The rule takes the following form:
15.1 Dismissing or staying all or part of proceeding
(1) The court may strike out all or part of a pleading if it—
(a)discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or
(b) is likely to cause prejudice or delay; or
(c) is frivolous or vexatious; or
(d) is otherwise an abuse of the process of the court.
(2) If the court strikes out a statement of claim or a counterclaim under subclause (1), it may by the same or a subsequent order dismiss the proceeding or the counterclaim.
(3)Instead of striking out all or part of a pleading under subclause (1), the court may stay all or part of the proceeding on such conditions as are considered just.
(4) This rule does not affect the court's inherent jurisdiction.
[5] The plaintiffs’ amended statement of claim is self-evidently an unsatisfactory pleading. It contains large tracts of irrelevant material. It sets out events which could not give rise to any claim for relief on the part of the plaintiffs. For example the plaintiffs say that while they were engaged in their duties as contracted couriers to the first defendant that they witnessed verbal abuse and threatening behaviour to another employee by the second defendant’s operations manager. They also said that they observed “threatening behaviour” of a security guard who was carrying out work for the second defendant but who was employed by a security firm. It is not indicated what if any legal duty was breached by the first and second defendant because of these matters. At the end of the statement of claim there is lumped together several legal categories under which the plaintiffs apparently assert they would be entitled to relief. For example the following bald statements, without any linking to the previous allegations contained in the statement of claim appear:
First cause of action – Contractual Remedies Act 1979 – Misrepresentation
Second cause of action – Contractual Remedies Act 1979 – Cancellation of a contract.
Third cause of action - Contractual Remedies Act 1979 – Statements during negotiations of a contract.
[6] However the statement of claim itself is not divided up into first, second and third etc causes of action. It is therefore impossible to tell which factual allegations link to the suggested causes of action which are listed on mass at the end of the statement of claim. Further, taking the factual allegations that I have mentioned about the plaintiffs witnessing various actions, it is not explained how these could
give rise to any of the categories of legal remedy which are stated at the end of the statement of claim.
[7] Mr Teinangaro told me that the essential complaint that he and his wife had was that the contract which they entered into with the first defendant did not incorporate certain obligations which the national association of courier contractors’ representative body suggests should be included in individual courier driver contracts. But even if that result could be achieved, and even if it would assist the plaintiffs, it is certainly not going to be accomplished by these proceedings.
[8] There is no need to analyse the statement of claim further in any detail. In my view it offends under several limbs of rule 15.1. The statement of claim does not disclose any reasonably arguable cause of action. It is likely to cause prejudice or delay. That is because it is going to be impossible for the defendants, as Mr von Dadelzsen submitted, to plead to the statement of claim. It is also vexatious.
[9] However because Mr and Mrs Teinangaro have said that they now wish to take advantage of their improved financial situation to obtain legal aid, I consider that the appropriate order to make rather than an order striking out is one staying the proceeding. It is preferable to take that step rather than to direct paying security for costs (an order for which there is considerable justification on the material before the Court). I consider that it would be preferable for the plaintiffs to use such resources as they have to get legal advice on whether they have a viable cause of action against the defendants and, if they have, to have a statement of claim prepared which complies with the rules. While I am prepared to give the Teinangaro’s a breathing space to achieve this objective, I want to make it clear that matters cannot be allowed to drift on indefinitely. What I envisage is that if Mr and Mrs Teinangaro wish the Court to lift the order staying the proceedings they must file a memorandum setting out the reason why the stay of proceedings should be revisited. For example, if, having instructed a lawyer to advise them, a further draft statement of claim is produced which Mr and Mrs Teinangaro wish the Court to consider, then the Court would no doubt accede to a request to do so and to hear submissions from both sides on whether the stay should be lifted. However, any such application to remove the stay must be filed and served within six months of the date of this order. If it is not,
then the defendants are entitled to give notice requiring the application for strike out order, security for costs etc to be brought on for hearing.
[10] If a memorandum is filed indicating that the plaintiffs’ wish to reactivate the proceeding, in the first instance the Registrar is to allocate a telephone conference before an Associate Judge.
[11] The formal orders that I make, then, are as follows:
a) There will be an order staying the plaintiffs’ proceeding until further order of the Court;
b)The stay is generally to be on the terms that I have set out in paragraph 9 hereof;
c) The defendants’ application for security for costs is adjourned until further order of the Court, as is the plaintiffs’ application to join
additional defendants.
J.P. Doogue
Associate Judge
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