Sainsbury Logan & Williams v Bell [2012] NZHC 2997 (12 November 2012)

Last Updated: 21 December 2012

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2009-091-197 [2012] NZHC 2997

BETWEEN SAINSBURY LOGAN & WILLIAMS Plaintiff

AND ROBERT ARTHUR BELL Defendant

Hearing: 12 November 2012

Counsel: B.R.D. Cuff - Counsel for Plaintiff

E.M.S. Cox and R.M. Vokes - Counsel for Defendant

Judgment: 12 November 2012

_{ORAL DECISION OF ASSOCIATE JUDGE D.I. GENDALL}

Solicitors: DLA Phillips Fox, Lawyers, PO Box 2791, Wellington 6140

Gibson Sheat, Lawyers, PO Box 2966, Wellington

SAINSBURY LOGAN & WILLIAMS V RA BELL HC WN CIV-2009-091-197 [12 November 2012]

[1] Some time ago an application by the plaintiff seeking discovery orders and a related Unless Order against the defendant were set down for hearing today 12

November 2012 at 10.00 am.

[2] At the commencement of the hearing of this application before me today, Mr Cox who appeared for the first time as counsel for the defendant Mr Bell, as a preliminary matter made an oral application to adjourn this hearing for a period of some 4 weeks.

[3] In explanation, Mr Cox said that he had received instructions to appear for

Mr Bell in this matter only on Wednesday last 7 November 2012.

[4] Mr Cox indicated that Mr Bell had previously instructed other counsel to act on his behalf in this matter but it was only on Tuesday last 6 November 2012 that counsel advised they would not be able to act for Mr Bell on the hearing of this matter today, 12 November 2012.

[5] Accordingly, Mr Cox confirmed that he took over this matter only on Wednesday last 7 November 2012 and, as a result of his other Court commitments at that time, he was unable to give any real consideration to this matter until last weekend.

[6] As a result, Mr Bell now seeks an adjournment of this matter for at least a period of 3 or 4 weeks. During this time Mr Cox as an officer of this Court says that he will arrange for Mr Bell to complete a further affidavit of documents under his guidance which will be in all respects compliant with all Mr Bell’s obligations under the High Court Rules.

[7] On this, Mr Cox notes that he has only this morning 12 November 2012 seen the earlier affidavit of documents of Mr Bell of which the plaintiff complains.

[8] Mr Cox is suggesting essentially here that a pragmatic way forward in this matter, to resolve discovery issues which have been outstanding for some considerable time, would allow Mr Bell under the guidance of Mr Cox to complete,

file and serve this further discovery affidavit to address all the concerns which the plaintiff has raised.

[9] Mr Cuff appeared before me as counsel for the plaintiff today. He opposed any adjournment of the discovery and Unless Order application which is before the Court.

[10] Mr Cuff confirmed that the plaintiff’s position is clearly that there must be a range of documents in existence that have not been discovered by Mr Bell. He listed several categories to bear out this submission.

[11] Mr Cuff did state, however, that the plaintiff simply wants Mr Bell to provide a complete and compliant affidavit of documents relating to the full 14 counter claims which Mr Bell makes. To his credit, Mr Cuff did acknowledge that the plaintiff was grateful that Mr Bell was now seeking some legal advice in these matters. He noted, however, that there have been at least two or three attempts by the plaintiff in the past to have Mr Bell complete discovery in a compliant manner, all of which he maintains have been unsuccessful.

[12] It was on this basis that Mr Cuff suggested that the Court should in fact make discovery orders and if thought proper an Unless Order now so that any further failure in compliance by Mr Bell could be properly met.

[13] Addressing that last aspect at this point, I am not prepared to take the relatively draconian step of making an Unless Order now. To do so would prevent Mr Cox from making submissions to me on the necessity for such an Unless Order, given that on his own contention he has only received instructions in this matter in the last few working days.

[14] Notwithstanding this, there can be no doubt whatever that the request for an adjournment of this matter today will provide a significant indulgence to Mr Bell. This matter has a long history. It was on 8 June 2012 that His Honour Justice Clifford made certain orders for discovery at a hearing at which Mr Bell was in attendance. It is those orders effectively as I understand it of which the plaintiff now

complains, principally on the basis that it is alleged they have not been complied with.

[15] It is also significant in my view that this proceeding is only in this Court because of a counter claim which has been filed by the defendant Mr Bell. This counter claim seeks approximately $800,000.00 from the plaintiffs on the basis of what I understand is alleged negligence on their part when they represented Mr Bell.

[16] Where does that leave us today?

[17] With some reluctance I come to the conclusion that the proper course at this point of the proceeding is for adjournment sought by Mr Cox on behalf of Mr Bell to be granted today. This is for the pragmatic reason that it will give time for a proper and compliant affidavit of documents to be completed for Mr Bell with the guidance of Mr Cox which may well answer the concerns of the plaintiffs.

[18] I therefore make the following directions now:

(a) The plaintiffs, Sainsbury Logan & Williams, through their counsel within the next 5 working days are to write to Mr Cox to set out what they understand are the ranges and types of documents which have not been discovered to date by Mr Bell which need to be the subject of his further discovery affidavit. This letter of necessity may well not cover all relevant documents which should be discovered by Mr Bell here. This is noted at this point.

(b) Mr Bell is then to file and serve a fully compliant and detailed affidavit of documents in accordance with and addressing all the documents which are required in terms of the High Court Rules with respect to this proceeding and all his counter claims against the plaintiff.

(c) This matter is then to be the subject of a further fixture in this Court commencing at 2.15 pm on 30 January 2013. The purpose of that

hearing is to consider the plaintiff’s discovery and Unless Order application in the light of the further and full affidavit of documents which by that point will have been filed and served on behalf of Mr Bell.

(d) In the meantime leave is reserved for any party to approach the Court further on 48 hours notice if additional directions may be required.

[19] As to costs, as I have noted above, the granting of this adjournment today is a clear indulgence to Mr Bell. Today’s hearing of the plaintiff’s application before the Court was scheduled on 24 September 2012. The plaintiff in my view is entitled to an order for costs against Mr Bell with respect to what is effectively the aborted hearing of their application today.

[20] Costs are therefore awarded to the plaintiff Sainsbury Logan & Williams against the defendant Mr Bell with respect to this hearing today on a category 2B basis together with disbursements as fixed by the Registrar. The category 2B costs with respect to today’s hearing are to be calculated on the basis of one quarter of a day.

‘Associate Judge D.I. Gendall’