Joseph v Anderson [2012] NZHC 1453 (25 June 2012)

Last Updated: 29 June 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-6744 [2012] NZHC 1453

BETWEEN JOHN JACOB ABRAHIM JOSEPH ALSO KNOWN AS SALAM MANSOUR ABDELABBAS AL BAWI

Applicant

AND JOCK ANDERSON First Respondent

AND LIBERTY HOLDINGS LIMITED Second Respondent

Hearing: 25 June 2012

Appearances: C S Henry for Applicant

P W G Ahern for First and Second Respondents

Judgment: 25 June 2012

_{JUDGMENT OF PETERS J}

This judgment was delivered by Justice Peters on 25 June 2012 at 3:30 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ...................................

Solicitors: Witten-Hannah Howard, Takapuna: [e-mail]

Morrison Kent, Auckland: [e-mail]

_{Counsel: C S Henry, Auckland: [e-mail]}

JOSEPH V ANDERSON HC AK CIV-2011-404-6744 [25 June 2012]

[1] The Respondents have filed two applications, one for an order striking out this proceeding and the other (in the alternative) for an order that the Applicant give security for costs.

[2] The Applicant commenced this proceeding by Originating Application dated

21 October 2011. The proceeding arose out of events that occurred in August 2010. The Applicant filed an amended Originating Application dated 20 December 2011.

[3] The proceeding was to have a half day fixture in February 2012. That fixture was vacated for reasons to do with discovery, or the lack of it. On vacating that fixture, the Court allocated a half day fixture for 8 June 2012. At the time that fixture was allocated, the Court ordered that any deponent who had sworn an affidavit, and the Applicant had sworn two, was to be available at trial for cross- examination.

[4] In early May 2012 it became apparent that the Applicant was unlikely to be in New Zealand for the fixture and, indeed, unlikely to be able to enter New Zealand for many years. The Applicant’s absence gave rise to an obvious difficulty in his complying with the order referred to in the previous paragraph.

[5] The Respondents drew the Court’s attention to these matters and that, in turn, led to the matter coming before the Duty Judge on 21 May 2012. At that time the Respondents said they were proposing to make applications for orders to strike out and/or for security for costs, and Counsel for the Applicant advised that the Applicant had just given instructions to apply for an order that the Applicant be cross-examined by a video link to Germany. The Duty Judge gave certain directions and vacated the June fixture.

[6] The 8 June 2012 fixture might well have been retained had the Applicant made a timely application to be cross-examined by video link, but he did not do so, and indeed he still has not made such an application.

[7] Since 21 May 2012 the Respondents have filed the applications referred to above. The Applicant has not filed a notice of opposition to either application. Nor, as I have said, has the Applicant sought an order that he be cross-examined by video link.

[8] At the hearing this morning, counsel for the Applicant advised that he had no further instructions.

[9] I have considered whether the Applicant should be allowed a further period to ready himself for hearing, and whether I might frame an order to strike out conditional on the Applicant failing to take a step in the proceeding within, say, a month of today’s date. Another alternative, referred to by counsel for the Respondents, would be to determine the application for security, possibly allocate another fixture, and then strike out the proceeding if the Applicant had not given security, or otherwise was not in a position to proceed with the fixture. However, each of these options has its disadvantages. I note also that counsel for the Respondents acknowledged that, even if the proceedings are struck out, the Applicant might issue fresh proceedings, subject to any limitation period and to compliance with any order as to costs. Counsel said the Respondents did not intend to “push” the matter of costs if the proceedings were struck out.

[10] Given the above, I make orders striking out the amended Originating Application dated 20 December 2011 and dismissing the proceeding. I do so on the ground of delay and because the proceedings constitute an abuse of process if the Applicant does not intend to prosecute them to a conclusion.

[11] Costs on the application and on the proceeding are to lie where they fall.

..................................................................

M Peters J