West v West

[2018] NZHC 2723

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-002992 [2018] NZHC 2723

BETWEEN  ALLAN JACK WEST

Applicant

AND  GEOFFREY ALLAN WEST

First Respondent

DAVID JOHN CAMERON WEST
Second Respondent

THE PARTNERS OF LANGLEY TWIGG LAW

Third Respondent

Hearing:                   18 October 2018

Appearances:           A J West (Self-represented Applicant) in Person

D M Kerr for the First and Second Respondents C L Bryant for the Third Respondent

J F Armstrong for C J Davis

Judgment:                19 October 2018

JUDGMENT OF EDWARDS J

This judgment was delivered by Justice Edwards on 19 October 2018 at 4.30 pm, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Counsel:     D M Kerr, Napier

Solicitors:    Hesketh Henry, Auckland

Armstrong Murray, Auckland

Copy To:     A J West, Auckland

WEST v WEST [2018] NZHC 2723 [19 October 2018]

[1]                 Mr Allan West has made several applications for particular discovery against the defendants and non-parties.

[2]                 The defendants and the non-parties contend that this Court is functus officio and the applications should accordingly be struck out. In addition, the first and second defendants seek an order that Mr West be prohibited from filing any further applications in the High Court.

Current status

[3]                 On 13 December 2017, following a defended trial, Downs J gave a final judgment dismissing all of Mr West’s causes of action.1 The defendants did not seek costs, and the judgment has now been sealed.

[4]                 Mr West made an application for leave to appeal the judgment out of time. That application was allowed by the Court of Appeal on 26 June 2018. Subsequently, Mr West has sought an extension of time for filing his case on appeal. That application is due to be heard in the Court of Appeal on 19 November 2018.

[5]                 Mr West has also applied to stay Downs J’s judgment. That application is set down for a telephone hearing at 9.00 am on 25 October 2018 in the High Court at Auckland.

[6]The plaintiff has filed three applications for particular discovery:

(a)An application against Mr Davis, a partner in the law  firm, Armstrong Murray. Mr Davis previously acted for the first defendant and a letter that he wrote dated 6 December 2015 was produced in evidence at the trial. Mr West seeks discovery of emails referred to in that letter.

1      West v West [2017] NZHC 3110.

(b)Two applications directed to Mr Kerr, counsel for the first and second defendants. Mr West seeks orders requiring Mr Kerr to substantiate evidence given by the first and second defendants at trial, and to disclose whether the first defendant has a connection with Asher and/or Venning JJ.

[7]                 Mr West has also attempted to file two other applications for particular discovery. Neither of those  applications  has  been  accepted  for  filing  by  the  High Court.

Should the applications be dismissed?

[8]                 In the telephone hearing held on 18 October 2018, Mr West confirmed that the purpose of the applications for particular discovery was to put the other parties to proof regarding the accusations made in the course of the hearing before Downs J.

[9]                 Mr West submitted that much of the testimony in that trial comprised of accusations, vilification and scurrilous allegations, which were not substantiated by any evidence. He further submitted that his barrister at the time did not seek any proof, and he really only learned what had been going on once the trial had ended.

[10]              Once a Court has made an order, and an appeal has been lodged, the Court becomes functus officio, and is unable to take any further action in relation to that order.2 That is the position in this case. The delivery of Downs J’s judgment in this case, and the filing of an appeal, means this Court is functus officio in relation to the proceeding giving rise to the judgment.

[11]              In addition, the applications for discovery are misconceived. Mr West’s complaint appears to be aimed at the adequacy of the evidence called at trial on behalf

2      Russell v Klinac HC Whangarei AP 18/01, 11 December 2001; Grey District Council v Banks

[2015] NZHC 615.

of the defendants.   The appeal provides the appropriate avenue to address those concerns.

[12]              In the circumstances, this Court is unable to entertain the applications for particular discovery and they must be dismissed.

Should costs be awarded?

[13]              The defendants, and Mr Davis seek an award of costs. I consider such an award to be appropriate. The defendants, and Mr Davis, have been put to time and cost in responding to the applications. It is appropriate that they be compensated.

[14]              Costs are awarded against Mr West, and  in  favour of the  defendants  and  Mr Davis of Armstrong Murray, on a schedule 2B basis in relation to the dismissed discovery applications.

Should an order be made prohibiting further applications being filed in this Court?

[15]              Mr Kerr sought an order that no further applications by Mr West be accepted for filing. He points to the time and cost involved in responding to these applications which have no prospect of success given the High Court is functus officio.

[16]              I do not consider it appropriate to make the order sought at this stage in the proceeding. Mr West’s application for a stay is due to be heard in this Court shortly. An order prohibiting further applications from being filed may cause confusion as to what is permitted to be filed in relation to that application, and what is prohibited. An award of costs provides some compensation for the time and cost incurred in defending these applications. It also provides a disincentive to Mr West to file applications that may expose him to additional adverse costs awards in the future.

[17]              Accordingly, I decline to make an order prohibiting Mr West from filing further applications in this Court.

Result

[18]              Mr West’s applications for particular discovery are dismissed. Mr West shall pay the defendants, and Mr Davis of Armstrong Murray, costs on a schedule 2B basis.

Edwards J