Torbay Holdings Limited v Napier
[2015] NZHC 1290
•9 June 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2012-404-7660 [2015] NZHC 1290
BETWEEN TORBAY HOLDINGS LIMITED
First Plaintiff
TORBAY REST HOME LIMITED Second Plaintiff
AND
DUNCAN JOHN NAPIER AND SARA ANN NAPIER
First Defendant
DUNCAN JOHN NAPIER, SARA ANN NAPIER AND CHRISTOPHER JOHN DAVIS AS TRUSTEES OF THE NAPIER FAMILY TRUST
Second Defendants
CIV-2013-404-1406
BETWEEN DUNCAN JOHN NAPIER, SARA ANN NAPIER AND CHRISTOPHER JOHN DAVIS AS TRUSTEES OF THE NAPIER FAMILY TRUST
Plaintiffs
ANDSANDSPIT BAY HOLDINGS LIMITED Defendant
Hearing: 9 June 2015 Counsel:
D P H Jones QC for Plaintiffs in CIV-2012-404-7660 and
Defendant in CIV-2013-404-1406D J Napier for Defendants in CIV-2012-404-7660 and Plaintiffs in CIV-2013-404-1406
Judgment:
9 June 2015
JUDGMENT OF FOGARTY J
TORBAY HOLDINGS LIMITED v DUNCAN JOHN NAPIER AND SARA ANN NAPIER [2015] NZHC 1290 [9 June 2015]
This judgment was delivered by me on 9 June 2015 at 2.30 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date: ………………………….
Solicitors: Sellar Bone & Partners (Luke Crawford), Auckland
[1] This judgment resolves three pre-trial issues recorded as “pending” in my
minute of 4 June 2015.
Application for recusal of myself as trial judge
[2] On 3 June 2015, Mr Jones QC was advised by the Registry that I had been assigned as the judge for the trial, to commence on 15 June. On the same day, Mr Jones informally objected to the assignment.
[3] The reason for his objection is I heard an application in September 2014 by the plaintiffs to strike out the defendants’ statement of defence for non-compliance with interlocutory orders. I dismissed that application. 1 The application was based on the defendants being in breach of a timetable to file a supplementary list of documents by 27 June and to sign authorities to their professional advisors authorising release of information to the plaintiffs.
[4] I dismissed that application because essentially, I found that the non- compliance was due to the breakup in the solicitor/client relationship between Mr Napier and his solicitor, Mr Tee, which took place over time and which was not known to Associate Judge Bell at the time he made the orders.
[5] In the course of that hearing, I requested Mr Tee, as an officer of the Court, to appear and explain whether or not he would be given leave to withdraw as solicitor on the record. I granted him leave as it became apparent there was a need for both himself and Mr Napier to give evidence as to compliance with the Court orders.
[6] I then heard evidence from Mr Tee and Mr Napier. I relied on a bundle of documents provided by Mr Tee to find there was no evidence of wilful non- compliance by Mr Napier, saying:
On the contrary, there is evidence of his endeavours to comply.
1 Torbay Holdings Ltd v Napier [2014] NZHC 2380 at [60]
[7] I found that a letter Mr Napier, as client, wrote to Mr Tee, as solicitor, was not a self-serving document for the reason that Mr Napier had no reason to expect it would ever see the light of day in Court.2
[8] I accepted evidence from Mr Napier that the relationship between him and Mr Tee was dysfunctional from sometime in May3 which led to my conclusion4 no wilful non-compliance with Court orders by the defendants.
[9] Mr Jones has explained today that he intends at the trial to cross-examine Mr Napier on the same issue of wilful non-compliance as part of a challenge to his credibility at the forthcoming trial.
[10] Mr Jones submits that therefore there is a significant risk of apparent bias if I continue as the trial judge, having heard contested evidence on the same subject and accepted the account of Mr Napier.
[11] Now that it has become clear that Mr Jones intends to revisit the evidence and my finding of credibility of Mr Napier, I am obliged to recuse myself and so do.
[12] The consequence of this recusal is that the trial date may have to be vacated. The Registry will inform the parties in that regard. A copy of this judgment should be sent immediately to Heath J, the Civil List Judge, and Ms Corrina MacDonald.
Pre-trial allocation of Court fees
[13] This trial has been allocated a four-week fixture starting next Monday,
15 June at 10.00 a.m. The Torbay companies, as plaintiffs, originally sought a two- week fixture for their claim in proceeding CIV-2012-404-7660. The defendants sought a longer period and a four-week fixture was allocated.
[14] The Torbay companies, as plaintiffs, must pay scheduling and hearing fees pursuant to reg 9 of the High Court Fees Regulations 2013. The full four-weeks’
fees have been invoiced to the plaintiffs.
2 At [63].
3 At [67].
4 At [78].
[15] A second set of proceedings, CIV-2013-404-1406, being a claim by the Napier Family Trust, as plaintiffs, against Sandspit Bay Holdings Limited has also been set down for hearing in the same trial. The estimated time for this hearing is one or two days. Mr Napier says it can be heard in a day. Mr Jones says up to two days.
[16] Mr Jones confirms that at the present time the plaintiffs’ case in proceedings CIV-2012-404-7660 will take seven to eight days. He qualified that assessment with the prudent observation that it is always difficult to estimate the time to be taken up by cross-examination. That estimate supports Mr Napier’s argument that the plaintiffs advised at a recent case management conference before another judge that they would not require the defendants’ witnesses until the start of week three of the fixture.
[17] Mr Jones has been unable to supply any authority supporting a pre-trial allocation of fees other than the power reserved in reg 9(5), “Unless the Court otherwise directs”. Regulations 9(5) of the High Court Fees Regulations 2013 provides:
(5) If 2 or more proceedings are to be heard together, scheduling fees (if any) and hearing fees must be paid in respect of each proceeding unless the court otherwise directs.
[18] Mr Jones acknowledges that the principal proceeding, CIV-2012-404-7660, involve a counterclaim and that reg 14 states that at the end of the hearing, the Court may give a direction as to what portion of the scheduling and hearing fee each party is liable to pay and make an order for those costs (effectively by reimbursement), to be paid by one party to the other. In his written submission, Mr Jones submits that the Sandspit proceedings should account for at least one week of hearing fees, payable by the Napier Family Trust.
[19] On the basis of the oral hearing today, my impression is that the estimated time for the total trial could easily be three weeks rather than four.
[20] Having perused the High Court Fees Regulations, I am satisfied reg 9(5) is confined to where two or more proceedings are heard together. Secondly, it does not
apply where there are counterclaims. Thirdly, that the discretion, unless the Court otherwise directs, is obviously to enable the Court to ensure that daily hearing fees do not exceed the total days of hearing by reason of the fact that two or more proceedings are heard together. Unless such an allocation is made, the Ministry of Justice could collect more hearing fees than are required for the days needed.
[21] On that interpretation of the Regulations, my discretion is limited. I order that the plaintiffs in the proceedings CIV-2013-404-1406 pay two days’ hearing fees. The balance of the hearing fees remain payable by the plaintiffs in proceedings CIV-
2012-404-7660. I have observed that the estimate of time for those proceeds of four weeks may now be too long, given the revised estimates of the number of witnesses being called by the defendant.
[22] In the course of oral argument, I observed that the policy whereby the plaintiffs bear the cost of the hearing pending judgment, accords with the coercive character of civil proceedings which obliged reluctant defendants to participate or face the alternative of summary judgment. In that regard, they are entitled to a presumption they are not liable and so not be liable in advance of judgment for any costs or hearing fees. It would be wrong to constrain the defence, occasioned by the plaintiffs’ commencement of the proceedings, to impose any cost of hearing fees on the defendants prior to any finding of liability. The regulations are consistent with those constitutional arrangements.
[23] Accordingly, the application for an apportionment of the hearing fees in proceedings CIV-2012-404-7660 are declined. It is a question for the Registry whether or not they should invoice the Napier Family Trust in proceeding CIV-2013-
404-1406. If they do, it is to be based on an estimate of time of hearing of two days.
[24] The Registry then needs to deduct two days of hearing from the total estimate of the trial when invoicing the plaintiffs in CIV-2012-404-7660.
[25] There is leave to apply for any further clarification of this order.
A solicitor as a McKenzie friend
[26] Mr Napier has applied to have a McKenzie friend and nominated a solicitor to assist as the McKenzie friend. It would be desirable for Mr Napier to have a McKenzie friend. The issue is whether or not a solicitor can be a McKenzie friend. The issue has been identified by the Court of Appeal in the case of R v Hill where the Court said:5
[51] Nor is it necessary for us to determine whether a legally qualified person may be a McKenzie friend. Reference is made to a “professional man” giving assistance as a friend of a party in Collier v Hicks (1831) 2B & Ad 663; 109 ER 1290, a statement re-affirmed in McKenzie v McKenzie [1970] 3 All ER 1024.
[52] However, we are not aware of any authority for the proposition that a legal practitioner could be permitted to act as a McKenzie friend. There are obvious difficulties in that respect. For example, would legal professional privilege apply as between the accused and a lawyer acting as a McKenzie friend? What duties would a lawyer acting as a McKenzie friend owe to the Court as distinct from any duties that might be owed to the accused? What liability might the lawyer have to the accused; and what control would the Court have over a lawyer acting as a McKenzie friend rather than an advocate in the usual sense?
[27] There are two examples where lawyers have been allowed to act as
McKenzie friends:
Re Cellar House Ltd (in liq)6
[28] In this case Ellen France J said:
[244] When this hearing commenced, an issue was raised about Mr Donaldson's ability to appear as a McKenzie friend because he is a practising lawyer (see: R v Hill & Turton (2003) 19 CRNZ 746).
[245] In the end, no objection was taken by Mrs Andrews for the plaintiff. The defendant and [the McKenzie friend] were advised of the potential issues for them by a Minute of the Court and, again, no objection raised. In the circumstances, Mr Donaldson was permitted to remain as a McKenzie friend.
5 R v Hill [2004] 2 NZLR 145 (CA).
6 Re Cellar House Ltd HC Nelson CP13/00, 18 March 2004.
R v Crichton7
[29] In this case Hugh Williams J allowed a lawyer who had been suspended to
act as a defendant’s McKenzie friend. However, His Honour noted:
there is really little alternative but to permit Mr Neutze to help Mr Crichton on legal matters in the unusual — even unique — circumstances. It is also an indulgence without precedent value.
[30] The jury had already been empanelled and there was a significant history to the case which Mr Neutze was aware of.
The Law Commission’s view
[31] The Law Commission has recommended that lawyers with practicing certificates should not be permitted to act as McKenzie friends, stating:
[15.26] The Commission concurs with the view expressed by the Law Society that, as lawyers are subject to ethical obligations to their clients and have duties to the court, combining the two could blur the roles and lead to confusion. The Law Society suggested that, if practising lawyers wish to support a person who cannot afford legal representation, the better approach would be for the lawyer to represent the party by acting pro bono as a lawyer, rather than as a McKenzie friend. The Commission agrees.
[32] This recommendation does not appear to have been adopted in any statue yet.
Analysis
[33] The very concept of a McKenzie friend is of a lay assistant, a person who is not a lawyer, who is not an officer of the Court, who has the advantage of solicitor/client privilege. I agree with the summation of the Law Commission set out above.
[34] In the course of this litigation, I have become acquainted with the abilities of Mr Napier. He is an intelligent man, able to reason in stressful situations. He has very little knowledge of the procedure of the Court. Apparently his proposed brief
contains hearsay evidence. He did not understand the obligation to put in cross-
7 R v Chrichton HC Auckland CRI-2009-404-251, 19 July 2010.
examination the gist of evidence he intends to call when challenging that plaintiff’s
witness.
[35] I have explained that that obligation can be qualified, depending on how the exchange of witness briefs is arranged and whether or not a witness has filed a reply brief.
[36] I have explained to Mr Napier the duty of the trial judge is to conduct a just trial and so the inevitable vigilance of a trial judge where a lay litigant is defending himself, to ensure compliance with the procedural law. Such vigilance will assist a lay litigant, rather than cause difficulties. The trial judge will not only prevent the lay litigant from breaching the rules of evidence, but equally, prevent the other side from taking advantage of the lay litigant’s ignorance as to the law.
[37] I have also observed that the presence of Mr Jones as a member of the Inner Bar, conducting the case against a lay litigant, will reduce the risk of any inadvertent breaches of law in the course of the trial.
[38] For these reasons, the application for the support of a lawyer as a McKenzie friend is declined.
[39] Costs lie where they fall.
2