Yarrow v Finnigan

[2017] NZHC 1755

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CIV-2011-443-330 [2017] NZHC 1755

BETWEEN

PAUL STEVEN YARROW

Plaintiff

AND

MICHAEL CHANEL FINNIGAN Defendant

Hearing:	23 November 2016
Counsel:	P S Yarrow in person (with McKenzie Friend, Ms D Matsuda) L J Taylor QC and J B Orpin for the Defendant
Judgment:	27 July 2017

JUDGMENT OF WILLIAMS J

Introduction

[1]      This  is  a  proceeding  by  the  plaintiff  against  an  adviser,  co-director  and business associate arising out of the collapse of the Yarrow group of companies in

2011.   The proceeding has been on foot since June 2011.   The relief sought is damages in the order of $90 million and other remedies.

[2]      The application before me is an application by the defendant to strike-out the proceeding either as an abuse of process or for want of prosecution.

Background

[3]      Although the plaintiff had the assistance of counsel until April 2016, he is now self-represented due, I infer, to a lack of resources. The matter was set down for an estimated five week trial commencing on 10 October 2016, but the plaintiff’s failure to file evidence in accordance with timetabling directions meant the trial had to  be  abandoned.    This  failure  was  part  of  a  consistent  series  of  breaches  of

timetabling and other directions reflecting the fact that, while the plaintiff harbours a

YARROW v FINNIGAN [2017] NZHC 1755 [27 July 2017]

burning sense of injustice with respect to the alleged actions of the defendant, he has lacked the skill and application necessary to translate that into timely despatch of his case.

[4]      In a minute on 12 August 2016, Woodhouse J recorded the history of the file from the making of timetabling orders in February last year as follows:

(a)       16 February 2016:  timetable requiring plaintiff’s briefs by 27 June, defendants briefs by 25 July, plaintiff’s reply briefs by 15 August and a common bundle of documents to be prepared, filed and served by the plaintiff by 5 September.  The plaintiff’s briefs have not been served to date and, in consequence, the defendant has not been required, or able, to serve briefs.

(b)       14 April 2016:   an order was made declaring that Mr Yarrow’s former solicitor, Mr Dukeson, had ceased to be the solicitor on the record for Mr Yarrow.   The Associate Judge’s minute records that there was an affidavit from Mr Yarrow supporting Mr Dukeson’s application and recording that Mr Yarrow intended to represent himself.

(c)       29 April 2016:  Heath J issued a minute directing the registrar to set the proceeding down for a face to face case management conference on the first available date after 13 May 29016.  The first steps taken in that regard are as recorded above, following the memorandum for the defendant of 15 July 2016.

(d)      3  August  2016:    advice  to  the  parties  of  the  conference  on

11 August.

(e)       8 August 2016:   Mr Yarrow filed a brief memorandum requesting adjournment of the conference because he was in the process of instructing  counsel  and  had…