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High Court of New Zealand Decisions |
Last Updated: 14 March 2016
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV-2015-409-000575 [2016] NZHC 362
BETWEEN
|
COLIN GRAEME CRAIG
Plaintiff and First Counterclaim Defendant
|
AND
|
JOHN CHARLES STRINGER Defendant and Counterclaim Plaintiff
|
AND
|
HELEN RUTH CRAIG
Second Counterclaim Defendant
|
Hearing:
|
2 March 2016
|
Appearances:
|
C G Craig in person
J C Stringer in person
(H R Craig excused)
|
Judgment:
|
4 March 2016
|
JUDGMENT OF ASSOCIATE JUDGE OSBORNE
as to strike out application
Introduction
[1] On its face, the application before the Court is a relatively ordinary application by a plaintiff to strike out the defendant’s statement of defence and, at the same time, to strike out the counterclaim. The application is opposed by the defendant. It is to be dealt with by the application of established principles, to which
I will come.1
[2] Beyond these matters, the ordinariness of the application ceases. The pleadings are complex. The pleading of the plaintiff, Mr Craig, runs some 311 paragraphs with many sub-paragraphs, occupying 80 pages. Thirty-one causes of
action, all in defamation, are pleaded.
1 Below at [7] and subsequent.
CRAIG v STRINGER [2016] NZHC 362 [4 March 2016]
[3] The defendant, Mr Stringer, in turn, initially filed a statement of
defence and counterclaim. It is a 78-page document
comprising partly a
statement of defence and partly a counterclaim which appears to contain 31
causes of action. Mr Craig and his
wife were named as counterclaim
defendants.
[4] After Mr Craig filed his strike out application, Mr Stringer filed
an amended statement of defence and counterclaim. It
is a 46-page document but
annexes a 28- page “Defence Schedule” containing 13 documents. The
amended statement of defence
in its pleading is a more succinct document than
the original statement of defence in that Mr Stringer has endeavoured to meet
the
requirement to admit or deny allegations in the statement of
claim.
[5] Beyond the pleadings themselves, there is a complexity to the
proceeding because its subject-matter has been played out
on the national stage
in the course of a General Election through a range of events (including press
conferences) and media (including
emails, blog posts and Facebook entries). As I
will come to, a defamation proceeding has also been issued by Mr Stringer
against
Mr Craig and others out of the Auckland Registry.
[6] Finally, this proceeding is now complicated by the fact
that already complicated matters of litigation are to
be conducted by
individuals who have no legal qualifications. Mr Stringer has indicated to Mr
Craig that he is likely to request
trial by jury.
Striking out a pleading
The principles
[7] High Court Rule 15.1 makes provision for orders striking out all or
part of a pleading. It provides:
15.1 Dismissing or staying all or part of proceeding
(1) The court may strike out all or part of a pleading if it—
(a) discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or
(b) is likely to cause prejudice or delay; or
(c) is frivolous or vexatious; or
(d) is otherwise an abuse of the process of the court.
[8] I will adopt the following as principles applicable to the
consideration of this application:2
(a) The Court is to assume that the facts pleaded are true (unless they are
entirely speculative and without foundation).
(b) The pleading must be clearly untenable in the sense that the Court can be
certain that it cannot succeed.
(c) The jurisdiction is to be exercised sparingly and only in clear
cases.
(d) The jurisdiction is not excluded by the need to decide
difficult questions of law, even if requiring extensive argument.
[9] The Court should be slow to rule on novel categories of duty of
care at the strike out stage.
[10] Reference may also be made to the judgment of Tipping J in
Marshall Futures Ltd (in liquidation) v Marshall, in which his Honour
drew upon the motor vehicle insurance world to make a distinction between a
pleading which is a total write-off
and one which is deficient but is capable of
repair.3
[11] In this case, Mr Craig’s notice of application is for an order
striking out the entirety of Mr Stringer’s pleading.
Mr Craig invoked r
15.1 as a whole, without specific reference to any sub-rule.
[12] In Mr Craig’s synopsis of submissions, the application for an immediate order striking out the statement of defence was not pursued. It was replaced with an
application that the Court order the statement of defence to be struck
out unless an
2 See Attorney-General v Prince and Gardner [1998] 1 NZLR 262 (CA).
3 Marshall Futures Ltd (in liquidation) v Marshall [1992] 1 NZLR 316 (HC) at 324.
amended defence is filed within a prescribed period. Mr Craig still pursued
an order that the counterclaim be struck out as an abuse
of process (pursuant to
r 15.1(1)(d)).
The requirements of pleading
[13] Requirements of pleading exist both in terms of the High Court Rules
and as
a matter of the Court’s inherent jurisdiction to regulate its own
processes.
[14] The requirements in relation to pleading a claim and a defence have a
commonality of purpose although some particular requirements
necessarily vary
according to whether the Court is considering a claim or a defence.
Pleading a claim
[15] I adopt the observations of the Court of Appeal in Commissioner
of Inland
Revenue v Chesterfields Preschools Ltd where the Court
observed:4
[84] The procedural requirements for statements of claim are spelled out
in the HCR. For present purposes r 5.17 (distinct matter
to be stated
separately), r 5.26 (statement of claim to show nature of claim) and r 5.27
(statement of claim to specify relief sought)
describe the key principles. In
summary they are:
• The pleading must be accurate, clear and intelligible.
• Sufficient particulars must be given to enable the defendant to be
fairly informed of the case to be met.5
• While adequate particulars are required, the statement of claim
must not stray into setting out the evidence relied upon.
• Separate causes of action must be separately stated.
• The pleading should set out all the elements of the cause of action
...
• The relief sought must be clearly pleaded in respect of each cause
of action and, where there is more than one plaintiff
and multiple defendants,
the relief sought by each plaintiff against each defendant must be clearly
stated.
[85] This Court in Hopper Group Ltd v Parker put it as
follows:6
4 Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2
NZLR 679 at [84] – [85].
5 Rule 5.26(b) specifically requires particulars of “time”, “place” and “plaintiff ’s cause of action”.
6 Hopper Group Ltd v Parker (1987) 1 PRNZ 363 (CA) at 366.
One essential part of pleadings is to state precisely the basic facts on
which the plaintiff relies so as to clearly define the issues
which the
defendant has to meet. If that is not done, it is difficult for a defendant to
prepare for trial and questions such as
payment into Court or offers of
settlement can hardly be considered. Furthermore, if the case goes to trial
without precise pleadings,
much time can be wasted and a defendant might be
taken by surprise when the real issue not previously stated clearly
suddenly
emerges.
Pleading a defence
[16] The requirements for pleading a claim, as set out in the Court of
Appeal’s
first four bullet points in Chesterfields, apply also to statements of
defence. Rule
5.48 identifies additional requirements which apply specifically to a
statement of defence:
5.48 Requirements of statement of defence
(1) The statement of defence must either admit or deny the allegations
of fact in the statement of claim, but a defendant does
not have to plead to an
allegation that does not affect that defendant.
(2) A denial of an allegation of fact in the statement of claim must
not be evasive. Points must be answered in substance.
If for example, it is
alleged that the defendant received a sum of money, it is not sufficient to deny
receipt of the particular
amount. Rather, the defendant must deny receipt of
that sum or any part of it, or set out how much was received. When a
matter is alleged with circumstances it is not sufficient to deny it as
alleged with those circumstances. In all cases a
fair and substantial answer
must be given.
(3) An allegation not denied is treated as being admitted. (4) An affirmative defence must be pleaded.
...
[17] The final sub-rule applicable to statements of defence (r 5.48(5)) parallels the r 5.26(b) requirement for adequate particulars.
Pleadings in relation to defamation
[18] The authors of McGechan on Procedure have correctly
observed:7
Pleading requirements in defamation have not had their own specific rules
since 1993 [with the coming into force of the Defamation
Act 1992].
Nevertheless, there are fact-specific requirements for the
technical ingredients of this cause of action.
...In Moodie v Ellis8 the Court observed that the need to
“fairly inform” the other parties of the case being advanced is
particularly important
in defamation cases because the specifics of publication,
and the words used, are a significant factor in the defences that may be
available and will determine what the defendants need to plead and prove for
their defences.
[19] In APN New Zealand Ltd v Simunovich Fisheries Ltd, Tipping
and Wilson JJ, delivering the judgment of the Supreme Court, emphasised the
importance of particulars of a defence both where
a defence of truth is pleaded
and where a defence of honest opinion is pleaded.9 Sections 38
– 40 of the Defamation Act 1992 require such defences to be particularised
and pleaded separately. (Under s 39
of the Act the plaintiff, in turn, has an
obligation to serve a notice and particulars if intending to allege that an
opinion was
not genuinely held by the defendant: hence the importance of a clear
and distinct pleading of honest opinion by the defendant).
[20] A defence of qualified privilege under ss 16 – 19 of the Act
must be distinctly pleaded with proper particulars of
the context which created
the privilege.
[21] A defendant who intends to adduce evidence of bad reputation in the aspect to which the pleadings relate must include in the statement of defence a statement of such intention with particulars of the “specific instances of misconduct” to be
invoked in
support.10
7 A C Beck and others McGechan on Procedure (online looseleaf ed, Thomson Reuters) at [HR
5.26.08(3)].
8 Moodie v Ellis HC Wellington CIV-2007-485-2212, 19 March 2009.
9 APN New Zealand Ltd v Simunovich Fisheries Ltd [2009] NZSC 93, [2010] 1 NZLR 315 at [17]
– [18].
10 Defamation Act 1992, s 42.
[22] One aspect of the importance of a defendant’s proper pleading
of defences is that the plaintiff is obliged in reply
to some defences, such as
honest opinion11 and qualified privilege,12 to give
notice and particulars of certain responses.
Pleadings likely to cause prejudice or delay (r
15.1(1)(b))
[23] In Chesterfields, the Court of Appeal observed that if a
statement of claim is drafted in compliance with the stated requirements of
pleading, then
both the Court and other parties will have a clear understanding
of what is being alleged and against whom.13 The Court
continued:14
...verbose, ill-drafted pleadings may defeat the purpose of a statement of
claim to such an extent that it is an abuse of process.
This principle is
intended, as Odgers suggests, to “prevent the improper use of [the
court’s] machinery”.15 Pleading should not be permitted
to be a means of oppressive conduct against opposing parties.
[24] Turning to the strike out jurisdiction under r 15.1(1)(b), the Court
observed, “Pleadings which can cause delay include
those that are prolix;
are scandalous and irrelevant; plead purely evidential matters; or are
unintelligible”.16
Frivolous or vexatious pleadings (r 15.1(1)(c))
[25] Turning to the strike out jurisdiction under r 15.1(1)(c), the Court
continued, “a “frivolous” pleading
is one which trifles
with the court’s processes, while a vexatious one contains an element
of impropriety”.17
Abuse of process (r 15.1(1)(d))
[26] Finally, turning to the strike out jurisdiction under r 15.1(1)(d),
which arises
where a pleading “is otherwise an abuse of the process of the
Court”, the Court of
Appeal observed that the sub-rule:18
11 Defamation Act 1992, s 39.
12 Defamation Act 1992, s 41.
13 Commissioner of Inland Revenue v Chesterfields Preschools Ltd, above n 4, at [87].
14 At [87].
16 At [89].
17 At [89].
18 At [89].
...extends beyond the other grounds and captures all other instances
of misuse of the court’s processes, such as a
proceedings that has been
brought with an improper motive or are an attempt to obtain a collateral
benefit. An important qualification
to the grounds of strike out listed in r
15.1(1) is that the jurisdiction to dismiss the proceeding is only used
sparingly. The powers
of the court must be used properly and for bona fide
purposes. If the defect in the pleadings can be cured, then the court would
normally order an amendment of the statement of claim.
Mr Stringer’s pleadings
The original statement of defence
[27] Mr Craig’s strike out application related to Mr
Stringer’s original statement of defence, briefly described at
[5]
above.
[28] The original statement of defence (and counterclaim) was a poorly
conceived and constructed document which breached most,
if not all, the
requirements of pleading which I have earlier identified. But for Mr
Stringer’s subsequent
endeavour, through his amended statement of
defence, to identify his grounds of defence, I would have had no hesitation in
striking
out the original document.
[29] In speaking to his submissions, Mr Stringer explained that as a
lay-man he had intended to set out through the statement
of defence and
counterclaim a “synopsis” which contained an exposure of the issues
which would come out if Mr Craig’s
defamation proceedings were pursued to
trial. Mr Stringer explained that his focus through the original document was
on having both
parties focus on resolution rather than pursuit of pleading
points.
[30] Through the exchanges which occurred in Court, Mr Stringer will now appreciate that pleadings have the purpose identified in the various authorities referred to in this judgment. They may become a background against which the parties subsequently agree a resolution. But the basis of their drafting is to be on the succinct defining of issues and not as a tool to achieve a negotiated outcome. An agenda of the latter kind, as Mr Stringer apparently had in mind, is likely to cause the diversion into extensive pleading of evidence which so marked Mr Stringer’s original statement of defence.
Mr Stringer’s amended statement of defence (and
counterclaim)
[31] As I have already described it, the amended statement of defence
which Mr Stringer filed is a more succinct document than
the original. In it
Mr Stringer endeavoured particularly to meet the requirement to admit or deny
allegations in the statement
of claim.
[32] As a response to Mr Stringer’s amended pleading, Mr Craig
responsibly presented his written submissions upon an amended
basis. While
observing that the amended pleading retained serious deficiencies, Mr Craig
submitted that the Court might appropriately
give Mr Stringer a further period
in which to file a compliant pleading. Mr Craig submitted that the Court should
impose an unless
order in that regard.
[33] In both his written synopsis and his oral submissions, Mr Craig took
the Court through the numerous instances of defective
pleading within the
amended statement of defence. I will presently record examples of those as it
is important that Mr Stringer,
as a self-represented litigant, understands
clearly the particular matters which a further amended pleading needs to
address. For
his part, Mr Stringer, in his submissions, accepted that there
were identified matters which he needed to deal with by amendment.
The focus
turned instead to a reasonable period for amendment to which I will
return.
[34] Mr Stringer also advised the Court that, for the purpose of
re-pleading his statement of defence, he intends to retain a
lawyer whom he has
already approached for assistance. The period I will allow for an amended
pleading was that which emerged from
discussion between Mr Stringer and
myself.
The amended statement of claim – continuing defects
Attachment of a Schedule of documents
[35] Mr Stringer attached, as part of his amended statement of claim, what was entitled “Defence Schedule 1-13”. It comprises a number of documents, some of which are referred to in the pleading.
[36] Such “a schedule” (more correctly described as a bundle
of documents) ought not to be included with pleading
as it is more appropriately
a discovery exercise. If the content of any of the documents is material to the
pleading, it is that
content which ought to be referred to.
Footnotes and hyper-links
[37] Mr Stringer adopted in the amended pleading a practice of including
footnote and hyper-link references. In some cases the
footnotes and hyper-links
would appear to take the reader to the source of particular words attributed to
a particular person. Such
references are matters of evidence and ought not to be
included in the pleading.
[38] Other footnotes relate to matters of evidence which Mr Stringer had
seen fit to plead. They ought not to have been included.
At least one footnote
purports to be a definition of a word said to have been used by someone. It is
again a matter for evidence
or submission and not for inclusion in a
pleading.
Denials of defamation
[39] At various points of his pleading, Mr Stringer denies that
the particular meanings of statements alleged in
the statement of claim
were defamatory as pleaded. In some places, Mr Stringer’s amended
pleading contains a bare denial.
In other places Mr Stringer includes
unparticularised allegations as to truth, honest opinion, qualified privilege or
otherwise.
[40] If, in any instance of such bare denials, Mr Stringer
intends to assert something beyond the proposition that
the meanings involved
are not of themselves defamatory, then Mr Stringer’s precise point
of intended defence needs
to be pleaded.
[41] Several times in his pleading Mr Stringer has included a bundle of
affirmative defences such as in this instance:
The Defendant denies these claims [paragraphs 4, 5] pleading that his statements are true, and/or honest opinion, and/or qualified privilege, and therefore not defamatory ...
The pleading is defective for failing to set out the defences distinctly and
in each case, to plead the required particulars or other
supporting
detail.
Pleading of bad reputation
[42] Mr Stringer’s pleading contains allegations that appear
intended to constitute notice of evidence of bad reputation
for the purposes of
s 42 of the Defamation Act. An example is introduced by the words, “The
media at this time reported voters
generally as having the reasonable opinion C
Craig was ...” The pleading goes on to identify various adjectives and
nouns.
[43] Section 42 of the Act requires that a defendant give notice of an
intention to establish the plaintiff is a person whose
reputation is generally
bad in the aspect to which the proceedings relate, with the evidence to relate
to “specific instances
of misconduct by the plaintiff”.
[44] The example of the pleading to which I have referred does not
identify the aspect of character for which the plaintiff is
said to have a bad
reputation nor does it particularise the specific instances of alleged
misconduct which are said to establish
the generally bad reputation.
Material in the nature of evidence and submissions
[45] There are repeated examples in the amended pleading of extensive
passages of evidential material and submission. Having
heard Mr
Stringer’s explanation of the intention behind his original pleading,
it is evident that even the amended
pleading carried some of Mr
Stringer’s aspiration to lay on the table details of the case he would be
presenting. It is Mr
Stringer’s responsibility to eliminate the purely
evidential material and the submissions from his pleading.
Frivolous and vexatious material
[46] There are repeated examples of frivolous or vexatious material in the amended pleading. An example of the former is a quotation attributed to a long-dead American. Examples of the latter are numerous references to what other people are alleged to have said about the plaintiff.
[47] The inclusion of such passages in a pleading which is meant to
assist the definition of the issues before the Court is a
practice which
“trifles” with the Court’s processes, to adopt the expression
used by the Court of Appeal in Commissioner of Inland Revenue v Chesterfields
Preschools Ltd.19 It is Mr Stringer’s responsibility to
eliminate such trifles.
[48] Another way of describing such passages in Mr Stringer’s
pleadings is that they are gratuitously offensive, in that,
as pleadings, they
are both uncalled for and calculated to offend.
Pleadings likely to cause prejudice or delay
[49] I adopt the examples of pleadings likely to cause prejudice
or delay as identified by the authors of McGechan on Procedure.20
The examples include pleadings which are unnecessarily prolix, scandalous
and irrelevant, unintelligible, or incorporating purely
evidentiary
material.
[50] Mr Stringer’s pleading contains repeated instances of these
examples. Such pleadings are likely to cause delay,
as they already
have, in the ordinary case management of a proceeding. They are also
prejudicial and, if allowed to stand,
would become particularly prejudicial in
the event there is a jury trial and they form the basis of the pleadings at that
time.
Division into paragraphs
[51] Rule 5.14 of the High Court Rules contains requirements in relation
to the use of paragraphs:
5.14 Division into paragraphs
(1) Every document presented for filing must be divided into paragraphs which
must be numbered consecutively, starting with the number
1.
(2) Each paragraph must so far as possible be confined to a single
topic.
19 Commissioner of Inland Revenue v Chesterfields Preschools Ltd, above n 4, at [89].
20 A C Beck and others McGechan on Procedure (online looseleaf ed, Thomson Reuters) at [HR
15.1.03(2)].
[52] While Mr Stringer, in his amended defence, made an endeavour to
respond by paragraph number to Mr Craig’s statement
of claim, he has
failed to meet the requirements of r 5.14. In particular, he has still failed
to number consecutively (starting
with number 1) his paragraphs and has failed
to confine all his paragraphs, so far as possible, to single topics. Observance
of
these requirements is particularly important in a defamation proceeding if a
defendant pleads affirmative defences to which the plaintiff
will need to file a
Reply.
Reframing of meanings advanced by the plaintiff
[53] Mr Craig has appropriately pleaded the meanings which he alleges are conveyed by identified statements of Mr Stringer. Instead of simply pleading in response to those meanings, Mr Stringer has reframed some of the meanings and has responded to the reframed formulation. The Court of Appeal, in Television New
Zealand Ltd v Haines21 held, applying its earlier
decision in Broadcasting
Corporation of New Zealand v Crush,22 that a defendant may
not set up meanings different from those pleaded by a defendant and then seek to
prove the truth of those alternative
meanings. The Court in Crush
ordered the defendant to file and serve an amended statement of defence
which omitted, as part of any defence of truth,
different meanings from
those advanced by the plaintiffs.
[54] Mr Stringer must similarly omit from his pleading any alternative
meanings.
Mr Stringer’s counterclaim
[55] Mr Craig also applied for an order striking out the counterclaim.
He relied on the same pleading issues as applied in relation
to the statement of
defence. He relied also on the additional ground that the counterclaim
duplicates a claim issued by Mr Stringer
in the Auckland Registry of this Court.
Mr Craig asserted abuse of process in terms of r 15.1(1)(d) of the
Rules.
[56] Mr Stringer’s notice of opposition extended to the strike
out application
relating to the counterclaim. Both parties filed submissions
concerning the
21 Television New Zealand Ltd v Haines [2006] 2 NZLR 433 (CA) at [52] – [67].
22 Broadcasting Corporation of New Zealand v Crush [1988] 2 NZLR 234 (CA).
counterclaim. Following the presentation of Mr Craig’s oral
submissions, Mr Stringer saw fit to indicate to the Court
that he wished to
withdraw the counterclaim. I treated Mr Stringer’s indication as an oral
discontinuance. I therefore record
that Mr Stringer’s counterclaim was
discontinued on 2 March 2016.
[57] Accordingly, when Mr Stringer files his amended statement of
defence, he is not to include any matter of counterclaim.
Costs
[58] I heard from the parties as to costs at the conclusion of their
submissions.
[59] It is appropriate that costs and disbursements follow the event
pursuant to r
14.2(a) of the Rules.
[60] As Mr Craig was legally represented only to the point of the filing
of his application, the costs to be awarded should appropriately
relate to that
item.23 In relation to subsequent steps, there are no exceptional
circumstances to justify departure from the established rule that
a
lay-litigant is not entitled to recover costs.24
[61] Disbursements should be awarded in relation to the usual items. The disbursements recoverable by Mr Craig are to include filing fees in relation to the interlocutory application, any disbursements paid by Mr Craig in relation to the preparation of bundles for the hearing, and Mr Craig’s reasonable costs of travel and accommodation for the hearing. The latter items are recoverable as the term “disbursement” is defined by r 14.12 to mean an expense paid or incurred for the purposes of a proceeding which would ordinarily be charged or separately from legal professional services in a solicitor’s bill of costs. While the incurring of such disbursements by a litigant in person is an unusual event, it falls within the definition
of disbursement and may be recovered when appropriately
incurred.
23 Transit New Zealand v Cook HC Greymouth CP 6/93, 30 June 1994.
24 Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2010] NZCA 400, (2010) 24
NZTC 24, 500 at [162].
The unless order – time to be allowed for amendment
[62] Mr Craig submitted that any opportunity granted to Mr Stringer to amend his pleadings should be, because of their repeated deficiencies, the subject of an unless order. He referred me to the judgment of Associate Judge Sargisson in Karam v Parker.25 In that proceeding, the statement of defence to a defamation claim suffered many of the same defects as Mr Stringer’s pleadings in this case. Her Honour imposed an unless order which allowed the defendants a month to amend their
defence so as to rectify its deficiencies.
[63] In this case, the plaintiff ’s progress of his claim has been
held up first by the deficiencies of the original statement
of defence and
subsequently by the continuing deficiencies of the amended pleading. The
amended pleading was filed at a time when
the defendant was on notice (through
the grounds set out in the strike out application) of the nature and extent of
deficiencies.
The effect of the earlier part of this judgment is to recognise
the correctness of the plaintiff’s complaints concerning the
pleadings.
Certain aspects of the defects in Mr Stringer’s pleadings exhibit a
willingness to misuse the pleading process.
[64] In my judgment in Victoria Cottages Ltd v FMR Group Ltd I
identified principles applicable to the imposition of an unless order.26
I listed these matters, which I adopt:27
(a) The objective of the rules is to secure the just, speedy
and inexpensive determination of a proceeding: rr 1.2
and 7.2(2) High Court
Rules.
(b) The significant consequences (striking out, stay or the like) of a
failure to comply with an unless order are so significant
that they influence
when an unless order should properly be made: Anderson v Mainland Beverages
Limited (2005) 17 PRNZ 757 at [45] (CA); Zhao v Wallace [2009] DCR 55
(HC) Stevens J at [28].
(c) An unless order may be justified
• where default is intentional or contumelious:
Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229 (CA) per
Diplock LJ at p259; Zhao v Wallace [2009] DCR 55 (HC)
25 Karam v Parker HC Auckland CIV-2010-404-3038, 29 July 2011.
26 Victoria Cottages Ltd v FMR Group Ltd HC Blenheim CIV-2009-406-38, 2, 8 September 2009.
27 At [9].
Stevens J at [29] – or contumacious: Lees Trading Co. (NZ) Limited v
Loveday HC Christchurch CP70/96 36.98 William Young J; Commonwealth
Reserves I, LC v Chodar HC Auckland CP 73-SW/00, 18.7.09 Glazebrook J
at [25]. Disobedience of an unless order will of itself generally be regarded as
contumelious
conduct: Re Jokoi Tea Holdings Limited (Note) [1972] 1 WLR
1196 at pp 1202 – 1203 per Sir Nicolas Browne-Wilkinson VC; Zhao v
Wallace at [32]. In that event the conduct amounts to an abuse of process of
the Court rendering the merits of the defaulting party’s
proceeding
irrelevant; or
• where there is substantial prejudice to the innocent party
through inexcusable non-compliance: Allen v Sir Alfred McAlpine & Sons
Ltd at p 259: Zhao v Wallace at [29] – [33]. Prejudice will be
substantial if the inexcusable delay gives rise to a substantial risk that a
fair trial of
the issues in the litigation will not be possible at the earliest
date the proceeding will come to trial if allowed to continue.
(d) Where non-compliance with a timetable has been inexcusable but not intentional and the consequences of an unless order are to be weighed, any sense of injustice to the defaulting party is of secondary consideration to injustice to the innocent party or to the public interest in the administration of justice: the Hytec case at 1674
– 1675.
(e) While considerations applicable to decisions to strike out a
pleading may inform the decision to make an unless order,
the Court should not
equate the two decisions – the first is draconian in that the pleading
(with its claim or defence) comes
to an end, whereas the second involves the
provision of additional time to the defaulting party to remedy its breach. While
in a
procedural context it may be appropriate to refer to an unless order as a
“last resort” (per Ward LJ in Hytec at 1674 – 1675) it
is equally correct to refer to it as a “first step” in relation to
the act of striking out (per
Glazebrook J in the Commonwealth Reserves
case at [25].
(f) Once the decision is made to impose an unless order, the
obligations imposed by the order must be unmistakably clear: Anderson v
Mainland Beverages Limited at [45]. (For an example of a clear unless order
see the Commonwealth Reserves case at [43]).
(g) Ultimately a Judge exercises a judicial discretion, to be
exercised on the facts and circumstances of each case on its
merits and
according to justice.
[65] In relation to a defamation claim such as this, the first of the listed matters – the objective of the High Court Rules to secure the just, speedy, and inexpensive determination of the proceeding – is reinforced through s 35(1) Defamation Act, in that Parliament has referred to the role of a Judge in “ensuring the just, expeditious, and economical disposal of any proceedings for defamation”.
[66] I am satisfied in this case that it is just that an unless order be made
in
relation to Mr Stringer’s pleading.
Orders
[67] I order:
(a) there is an unless order as follows:
Unless the defendant within 30 working days from date of judgment files and
serves an amended statement of defence which rectifies
the deficiencies
contained in the current (amended) statement of defence so as to comply with the
statutory and regulatory provisions
and other requirements referred to in this
judgment, then an order striking out the defence of the defendant is
made;
(b) the defendant is to pay to the plaintiff in any event the costs of
the strike out application in the sum of $1,338;
(c) the defendant is to pay to the plaintiff in any event the
plaintiff’s reasonable disbursements incurred in relation
to the
interlocutory filing fee, the preparation of bundles for the interlocutory
hearing, and the plaintiff’s reasonable
travel and accommodation costs
incurred for the hearing, to be fixed by the Registrar;
(d) costs as between the defendant and Helen Ruth Craig, upon the
discontinuance of the counterclaim, are reserved;
(e) I adjourn the plaintiff’s strike out application with
leave to the plaintiff to have the same brought on
five working days notice
should any further issue of defective pleading of defence arise.
Associate Judge Osborne
Copy to: C G Craig, Auckland
J C Stringer, Christchurch
H R Craig, Auckland
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URL: http://www.nzlii.org/nz/cases/NZHC/2016/362.html