W V ATTORNEY-GENERAL HC WN CIV-2006-485-874 [2009] NZHC 277 (6 March 2009)

      INTERIM ORDER IN FORCE SUPPRESSING THE NAME OF THE
                  PLAINTIFF IN THIS JUDGMENT


IN THE HIGH COURT OF NEW
ZEALAND
WELLINGTON REGISTRY
                                                                    CIV-2006-485-874



            
  BETWEEN                    W
                                          Plaintiff

               AND                        THE
ATTORNEY-GENERAL
                                          Defendant


Hearing:       6 March 2009

Appearances: S M Cooper and AST
Benton for plaintiff
             H S Hancock for defendant

Judgment:      6 March 2009 at Oral


                     ORAL JUDGMENT
OF MACKENZIE J



[1]    This is an application for leave to appeal to the Court of Appeal against a
judgment delivered by me on
17 December 2008.              The judgment was on an
application to review a decision of the Associate Judge in which he had made
an
`unless' order fixing a time for filing the plaintiff's briefs of evidence in a
timetabling order which he had also fixed.


[2]
   In that judgment I expressed some observations as to the effect which
difficulties over the granting of legal aid may have as
a reason for failing to comply
with timetabling directions and I expressed some observations as to the obligations
of counsel in
those circumstances. The outcome of the judgment was that I varied
the order made by the Associate Judge to remove the `unless' order
attached to the
timetable, but otherwise left the timetable in place. I went on to say:




W V ATTORNEY-GENERAL HC WN CIV-2006-485-874
6 March 2009

       [16]    So that there can be no possibility of doubt on the point, I wish to
               make it quite clear
that, while counsel remains instructed, counsel is
               expected to take all appropriate steps to ensure that the timetable
is
               met. If counsel seeks to be excused from that obligation, a prompt
               application to the Court to that
effect must be made, with a full
               explanation of the reasons for that application. I also wish to make it
        
      quite clear that the setting aside of the `unless' order should not be
               taken as creating an expectation that
an extension of the timetable
               may be granted. Nor should it create an expectation that the striking
             
 out of the proceedings would not be a likely consequence of a failure
               to comply.

[3]    The plaintiff now seeks
leave, as is a requirement of s 26P of the Judicature
Act 1908, to appeal against the judgment in respect of three aspects:


  
    a)      The extent of the lawyer's duty to the Court to meet timetabling
               orders.


       b)      The extent of
the lawyer's duty to the Court regarding disclosure of
               the plaintiff's funding difficulties; and


       c)     
The appropriateness, in the circumstances, of the timetabling order
               made for the plaintiff's briefs of evidence.


[4]    My judgment relates to an interlocutory matter of pre-trial case management.
The principles to be applied in relation to
appeals against decisions of this nature are
those which are set out in the Court of Appeal's judgment in Association of
Dispensing
Opticians of New Zealand v Opticians Board  [2000] 1 NZLR 158:

       [34]    Clearly s 66 could not be intended to confer jurisdiction to appeal
               every decision made by the High
Court in relation to the proceeding
               and before delivery of the substantive judgment. As noted in
               Winstone
at para [19] there are numerous rulings which are simply
               procedural or administrative, not affecting rights or liabilities
as such
               and where the rights immediately in issue will remain for substantive
               determination. Such rulings
may be made in the pretrial case
               management process or at trial. Next, rulings on matters of evidence
           
   and the scope of the hearing arise broadly in two ways: as a pretrial
               determination of the shape of the hearing
and as decisions in the
               course of the hearing. Decisions in that second situation in the
               course of
the hearing could not sensibly for policy and practical
               reasons have been intended to be subject to instant appeal
before the
               completion of the hearing. Equally, interlocutory applications which,
               as pretrial determinations
as to pleadings, discovery, evidence and
               the like, may substantially affect the shape of the hearing, are

     
         separate from the trial process and fit squarely and comfortably
               within s 66.

       [35]    The real difficulty
is to resolve in a principled way how to determine
               what decisions or rulings are sensibly intended to come within
the
               description of judgment, decree or order for the purposes of s 66 and
               so where and how to draw
the line.

       [36]    We are inclined to the view that the broad classification of
               "decision" suggested in Winstone
reflecting as it does similar
               considerations of the scheme and object of the relevant provisions
               and
underlying policy and sound practice may be a helpful starting
               point. In that regard rulings made either in the course
of the hearing
               of the proceeding (using that term in a broad sense, including for
               example an adjournment
application), or as part of the trial conduct
               or management process would not ordinarily be susceptible to
      
        interlocutory appeal. On the other hand rulings which have some
               substantive effect on rights and liabilities
in issue would be.
               Obviously the boundary lines will not be cut and dried and, as seen
               in Winstone,
particular cases may fall into an exceptional category
               but that classification may be helpful at least as a matter
of general
               approach.

[5]    That notes that rulings made in the pre-trial case management process or at
trial are
not ordinarily susceptible to interlocutory appeal. The Court of Appeal also
dealt with this issue in the more recent decision in
Attorney General v W  [2007]
NZCA 361, where the Court said at paragraph [11]:

       Whether or not the Court has jurisdiction to hear interlocutory appeals
       against
trial rulings, there are compelling practical reasons why such appeals
       should be heard only in exceptional circumstances.

[6]    While that comment is in its terms limited to trial rulings I note that in the
Opticians case trial rulings and pre-trial
case management determinations were
treated in a similar fashion and I accordingly consider that the test of exceptional
circumstances
is one which is to be applied to the present case.


[7]    Counsel for the plaintiff submits that the exceptional circumstances
are that
the observations made as to the duties of counsel, and as to the extent of the lawyer's
duty to the Court regarding disclosure
of funding difficulties, are matters of
sufficient general importance to justify leave to appeal on the ordinary grounds
which are
well established and are set out in the Court of Appeal's judgment in
Waller v Hider  [1998] 1 NZLR 412. I am of the clear view that the circumstances
here are not so exceptional as to justify an interlocutory appeal.

[8]      The observations
which were made in the judgment have, as a matter of
outcome, produced the result that the timetable has been confirmed and an `unless'
order removed. That is very clearly a matter of pre-trial case management. While
the comments may have wider implications for other
cases, that will be a matter to
be addressed if the remarks are relied upon in some other case. I am concerned with
their effect
in this case. The effect in this case is that the timetabling order has been
confirmed and the possibility of an extension by reason
of the matters on which the
plaintiff relies, has been explicitly left open in paragraph [16].           Those factors
persuade me
that it would be inappropriate to divert the focus of this litigation from a
proper addressing of what is to be done, given the present
situation of the plaintiff
concerning legal aid, to ensure that the interests of justice (which include both the
interests of the
plaintiff and interests of the defendant) are secured.


[9]      A further factor which points against the grant of leave in this
case is that this
is a decision on review of an Associate Judge so that the appeal would in effect be a
second appeal and a second
appeal on a timetabling order must be regarded as
requiring truly exceptional circumstances to justify it.


[10]     For these reasons
the application for leave to appeal is refused.


[11]     Mr Hancock seeks costs. The plaintiff is not presently legally aided so
that
the considerations which arise in the case of a legally aided plaintiff do not arise.
Ms Cooper submits that costs should not
be awarded and that if legal aid is reinstated
that would be, in effect, backdated and affect the position. I consider that I must
approach the issue on the basis of the presence status of the plaintiff; that he is not
legally aided and I consider in those circumstances
costs should follow the event.
There will be an award of costs on a 2B basis for the application and this hearing.




         
                                                          "A D MacKenzie J"

Solicitors:      S M Cooper, Wellington for plaintiff
                 Crown Law Office, Wellington for defendant