Young v Ross - [2023] NZHC 212

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2022-441-059

[2023] NZHC 212

BETWEEN
PHILIP ROGER YOUNG

Appellant

AND

PHILIP NICHOLAS ROSS

Respondent

CIV-2022-441-060

BETWEEN

PROGRESSIVE ACCOUNTANTS LIMITED

Appellant

AND

PHILIP NICHOLAS ROSS

Respondent

Hearing: 8 February 2023

Appearances:

P R Young in person and, by leave, for Progressive Accountants Limited

P N Ross in person

Judgment:

17 February 2023

JUDGMENT OF CHURCHMAN J

[1]Mr Young appeals two decisions of Judge Kelly in the District Court at Napier.1

[2] Leave to appeal was required in relation to the earlier decision because it was out of time. Such leave was granted unopposed by Isac J in a minute of 17 October 2022.2

1 Ross v Young [2021] NZDC 22297; and Ross v Progressive Accountants Ltd [2022] NZDC 13340.
2 Young v Progressive Accountants Ltd HC Napier CIV-2022-441-059, 17 October 2022 (Minute of Isac J) at [5].

YOUNG v ROSS [2023] NZHC 212 [17 February 2023]

[3] In the same minute Isac J also granted Mr Young leave to represent the appellant in CIV-2022-441-060.3

[4] Although the two separate appeals have not been formally consolidated, they are inextricably intertwined and this joint judgment will address both of them.

History

[5] Mr Young and Mr Ross have had dealings going back more than 30 years. Mr Young bought defamation proceedings against Mr Ross in the High Court at Hamilton in February 1997. As he has done in this case, Mr Young, who is not a lawyer, represented himself in those proceedings. According to the amended statement of claim dated 18 February 2000, the defamation proceedings related to statements that Mr Ross had made about Mr Young in the nature of a “credit alert” to various parties. The events upon which the claims were based appeared to have occurred in 1995 and 1996.

[6] In addition to being communicated directly, it appears that some of the matters said to amount to defamation were posted on an internet site.

[7] The proceedings were terminated when a notice of discontinuance (prepared by Mr Young) dated 4 September 2000 was filed in the High Court.

[8] As the terms of that notice are significant to many of the arguments raised by Mr Young in relation to the appeals, I set them out in full:

TAKE NOTICE that both parties agree to discontinue these proceedings, and that the parties agree that:

1.Both parties bear their own costs.

2.That all publicity, including the Internet sites of the defendant, be stopped forthwith and forever.

3.That any publicity in relation to these proceedings is prohibited.

4.That no attempt will be made to relitigate any of the causes of action of these proceedings.

3 At [13].

[9] In accordance with the notice of discontinuance, Mr Ross removed the internet posts that had been referred to.

Subsequent events

[10] Several significant events occurred in Mr Young’s life subsequent to the conclusion of the defamation proceedings. A number of these events are…

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.

Continue reading Young v Ross

Details

AGLC: Young v Ross [2023] NZHC 212
Case: [2023] NZHC 212
Decision Date: 17 February 2023

CaseChat Overview and Summary

This appeal concerns two decisions of Judge Kelly in the District Court at Napier. In the first decision, the Judge struck out proceedings brought by Philip Roger Young, who was representing himself, against Philip Nicholas Ross. In the second, the Judge struck out proceedings brought by Progressive Accountants Limited, a company formed by Mr Young on 7 February 2001, against Mr Ross. Mr Young, who is not a lawyer, appealed both decisions. In this joint judgment, the High Court considered the four legal issues raised by Mr Young. The first was whether Mr Young’s bankruptcy affected his ability to sue on the terms of the contract evidenced by the notice of discontinuance. The Court found that Mr Young’s bankruptcy had vested all of his property, including choses in action, in the Official Assignee. The Court held that the contractual rights arising from the notice of discontinuance had vested in the Official Assignee and therefore Mr Young did not possess the right upon which he was seeking to rely. The second issue was whether the Court had jurisdiction in the proceedings to make the findings sought in respect of the Standards Committee and Legal Complaints Review Officer (LCRO) decisions. The Court held that the Court lacked jurisdiction to effectively reopen and reconsider the complaints already finally determined by the Standards Committee and LCRO. The third issue was whether Progressive Accountants Limited had rights, pursuant to the Contempt of Court Act 2019, to the relief sought. The Court held that the cause of action was wholly misconceived and the claims under the Contempt of Court Act were properly struck out. The fourth issue was whether Progressive Accountants Limited fell within any of the categories of non-party set out in s 12(1) of the Contract and Commercial Law Act 2017. The Court held that, as Progressive Accountants Limited was not designated by name, description, or reference to a class, it did not obtain any benefit and could not sue for breach. For the reasons set out above, both appeals were dismissed.

Orders