DARRYL MICHAEL ROCHESTER v PETER MIHU & ORS [2002] NZCA 315 (3 December 2002)

IN THE court of appeal of new zealand

ca61/02

	between	darryl michael rochester
		First Appellant

	AND	peter mihu
		Second Appellant

	AND	carl wheeler
		Third Appellant

	and	fujitsu general new zealand limited
		First Respondent

	AND	fujitsu general (aust.) limited
		Second Respondent

Hearing:	25 November 2002
Coram:	Blanchard J Tipping J McGrath J
Appearances:	J Ablett-Kerr QC and C A Reaich for the Appellant J Miles QC and P Verboeket for the Respondent
Judgment:	3 December 2002

judgment of the court delivered by mcgrath j

[1] This is an application for extension of time for filing a case on appeal and applying for a fixture under Rule 10(1)(b) of the Court of Appeal (Civil) Rules 1997.

[2] The background to the application is that the first respondent has brought a proceeding in the Employment Court against the three appellants.The first statement of claim alleged abuse of confidential information by the appellants, who are former employees of the first respondent, and now employed by one of its competitors.There are collateral proceedings in the High Court between the first respondent and the competitor company arising from the same dispute. The present application concerns an appeal to this Court against three judgments of the Employment Court dealing with interlocutory applications in the litigation. In the first of these judgments, delivered on 4 March 2002, Judge Shaw decided that an application by the first respondent for an extension of time to file and serve its briefs of evidence should be adjourned until the Court had decided applications by both parties for interrogatories.The Judge put the first respondent on notice that it would be required to file the briefs of evidence one week after delivery of judgment on those applications.

[3] In the second judgment delivered on 14 March 2002 Judge Shaw dealt with a number of applications by both parties most of which related to interrogatories.It is sufficient for the purposes of the present judgment to record that the Judge refused the appellants' application for orders that the first respondent answer questions concerning the state of mind of its officers, or on matters raised in affidavits filed on behalf of the first respondent in the High Court proceedings.Those affidavits were not before the Employment Court. At that time it was anticipated that the Employment Court would hear the proceeding on 8 April 2002.

[4] In the third judgment delivered on 21 March 2002 Judge Shaw granted an application by the first respondent to add a second plaintiff to the proceeding and to file a fresh amended statement of claim.The new pleading introduced a cause of action for breach of the employment contracts.The new party was an Australian associate of the first respondent which had entered into employment contracts with the appellants.

[5] These three judgments are the subject of the present appeal which the appellant brought on 28 March 2002 and which is the subject of the present application.No steps have been taken by the appellants in the appeal other than to make the application for extension of time which was filed on 18 September 2002.A cross-appeal was brought by the first respondent against the 14 March judgment.Its senior counsel in this Court, Mr Miles QC, told us that the cross-appeal had been abandoned.

[6] Judge Shaw delivered a fourth judgment on 27 June 2002 dismissing an application by the appellants to inspect certain documents for which legal professional privilege had been claimed by the first respondent.The appellants asserted that there had been a waiver of the legal privilege claimed in respect of the documents concerned. The Judge however concluded that the applicants had failed to establish there had been any such waiver in the circumstances.The appellants appealed against that judgment on 19 July 2002 (CA147/02).

[7] No affidavit was filed in support of the application to explain or justify the appellants' failure to pursue the appeal.In a memorandum the appellant's counsel, Mrs Ablett-Kerr QC, said that her clients' position was that the March appeal should be heard following determination of the July appeal as the argument of the first appeal might be considerably influenced by the outcome of the second.She said they would pursue the July appeal as a matter of urgency.

[8] At the hearing of the application for extension of time Mrs Abblett-Kerr told us that the case on appeal had been filed in the second appeal and a fixture obtained for 12 March 2003.She reiterated her contention that if the appellant were to gain access to documents for which legal privilege was claimed, and the appellants' suspicions as to their contents were confirmed, that would considerably alter the context of the argument of the present appeal.No action had been taken to prepare and file the case for that appeal because of the expense involved.

[9] Mr Miles QC for the first respondent opposed the application for extension of time in the present appeal emphasising there was no evidence before the Court explaining the appellants' failure to progress the appeal or indicating that the appeal had any merit.A fifth amended statement of claim had been filed in response to a request of the first respondent for further particulars concerning the fourth.Events had moved on in the litigation and no prejudice would be suffered if the appellants' first appeal could not proceed.

[10] The application for extension of time to apply for a fixture and file the case on appeal is to be decided under Rule 10 of the Court of Appeal (Civil) Rules 1997 which relevantly provides as follows:

10.Appeal abandoned if not pursued - (1) An appeal is to be treated as having been abandoned if the appellant does not, within 6 months after the appeal is brought, either -

(a) Apply for a fixture and file the case on appeal;or

(b) Apply for an extension of time for applying for a fixture and filing the case on appeal.

(2)On an application under subclause (1)(b), the Court may extend, by such period as it thinks fit, the time for applying for a fixture and filing the case on appeal, and may from time to time further extend that period while the proceeding is pending.

(3)This rule applies only to appeals brought on or after the date of commencement of these rules.

[11] In outlining its practice in relation to this Rule the Court said in Airwork (NZ) Ltd v Vertical Flight Management Ltd [1999] 1 NZLR 29, 30:

The new rule implements the philosophy that once a matter has been the subject of a determination in the High Court any party wishing to challenge that determination by an appeal to this Court must do so expeditiously or forfeit the right to pursue the appeal.It is thus required of appellants that they should have the case on appeal prepared and lodged within six months of the filing of the appeal and an application for a fixture made to the Registrar of this Court within the same period.

Recognising, however, that sometimes there may be good reason to give an appellant a longer period to prepare for the hearing of the appeal, the Court is empowered to extend the period on one or more occasions provided that the appellant continues to be willing to pursue the appeal speedily and demonstrates that willingness by applying to the Court within the time allowed for an extension.

and later:

where an application has been made under R10(2) within the six-month period and the Court is satisfied that there is sound reason for allowing further time and that the appeal is not devoid of merit, the Court will grant the indulgence of an extension of time as a matter of normal practice.

[12] It is by no means apparent on the material before us that the appeal in question has any merit.Our impression is that those advising the appellants appear to have assumed they could decide to take no steps in relation to the first appeal and, instead, bring on the second appeal for hearing, thereby securing an advantage in arguing the first appeal if the second appeal were successful. They have acted unilaterally in that no attempt was made to secure the Court's approval until the six months for filing the case had almost expired.Their approach is contrary to the policy of expedition in bringing appeals on for hearing reflected in the Rule and referred to in Airwork. The importance of the policy is enhanced in the case of interlocutory appeals as delays in their determination have a direct impact on when the trial of the proceedings concerned can take place.

[13] In these circumstances, we have considered adjourning the application to enable it to be properly supported by affidavit evidence but, bearing in mind that the appellant has already obtained a date of hearing for the second appeal, we are prepared to extend the time for filing of the case and applying for a fixture for the first appeal on a basis that the appellant must be ready to argue both appeals on 12 March 2003.Written submissions must be filed on both appeals in the normal way in advance of the hearing. The appeal in CA147/02 will be listed for argument first and argument of the appeal in CA61/02 will then follow if the Court considers that practicable at that point. To this end an extension of time until 19 December 2002 is granted for filing and serving the case on appeal and applying for the fixture foreshadowed above. If that date is not met the appeal will be treated as having been abandoned.

[14] As the appellants are receiving an indulgence the first respondent is entitled to costs in the sum of $3500 together with all reasonable disbursements, to be agreed by counsel or, failing agreement, determined by the Registrar.

Solicitors

Bell Gully Buddle Weir, Wellington, for Appellants

Peter Verboeket and Company, Wellington, for Respondents