Murren v Schaeffer [2018] NZHC 2442 (17 September 2018)

Last Updated: 21 September 2018

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV-2015-442-000028 [2018] NZHC 2442

BETWEEN	JAMES JOSEPH MURREN as trustee of the JAMES J MURREN SPENDTHRIFT TRUST First Plaintiff DANIEL LEE Second Plaintiff
AND	GLENN WILLIAM SCHAEFFER Defendant

Hearing:	17 September 2018 (via Telephone)
Counsel:	A J Horne and J J K Spring for Plaintiffs A R Shaw for Defendant
Judgment:	17 September 2018

JUDGMENT OF COLLINS J

Introduction

[1] Mr Schaeffer applies for an adjournment of the substantive fixture for this proceeding that is scheduled to commence in the High Court at Nelson on 30 October 2018. Ten days have been allocated.

[2] This proceeding was commenced in June 2015. There have been a number of preliminary applications by Mr Schaeffer, including:

(1) unsuccessfully protesting jurisdiction;¹

¹ Murren v Schaeffer [2015] NZHC 2759.

MURREN v SCHAEFFER [2018] NZHC 2442 [17 September 2018]

(2) pleading counterclaims and affirmative defences that were not available;²

(3) unsuccessfully seeking discovery against the wife of one of the plaintiffs;³

(4) unsuccessfully resisting a freezing order that was granted by the Court of Appeal;⁴ and

(5) unsuccessfully applying to stay/strike out proceeding;⁵

[3] The last application was determined by Churchman J in a judgment delivered on 4 September 2018. The focus of that application were comments alleged to have been made by Mr Lee, one of the plaintiffs, during a mediation hearing on 10 August 2017. Mr Schaeffer alleges Mr Lee said:

... he knew where I lived, knew where my family lived and knew where my dogs lived. He said if I did not give him back his money that he would bury me in the desert like in the old days, he would destroy my children’s lives and bankrupt my ex-wife and travel to Omaha to kill my three show dogs. He ended his threats with the words “give me my fucking money”.

[4] A little over a year later, Mr Schaeffer made his application to stay/strike out the proceeding on the basis that the threats attributed to Mr Lee rendered it impossible for Mr Schaeffer to properly prepare for the trial or were otherwise an abuse of the court’s procedures.

[5] Mr Schaeffer has now appealed the judgment of Churchman J. I am advised the appeal will be heard by the Court of Appeal on 27 September 2018. Hearing the appeal that day is likely to provide sufficient time for a judgment to be delivered by the Court of Appeal before the scheduled commencement of the trial.

[6] Nevertheless, Mr Shaw, counsel for Mr Schaeffer, pursues the application for an adjournment on the basis that Mr Schaeffer and possibly two witnesses, are too

² Murren v Schaeffer [2017] NZHC 163.

³ Murren v Schaeffer, above n 2.

⁴ Murren v Schaeffer [2018] NZCA 318.

⁵ Murren v Schaeffer [2018] NZHC 2320.

fearful to properly assist the preparation of the defence and because Mr Shaw will now have to focus attention on the appeal.

[7] While I am conscious of the pressures that counsel and parties face when preparing for a trial, none of the grounds advanced in support of the adjournment application gain traction.

[8] An adjournment may be granted under r 10.2 of the High Court Rules. Two considerations are relevant in this case:

(1) the “interests of justice”, which requires me to balance the interests of, and prejudice to, all parties; and

(2) whether the party seeking an adjournment has done everything reasonably practicable to avoid an adjournment.

Interests of justice

[9] It is in the overall interests of justice for this proceeding to be heard and determined. The proceeding is now more than three years old. The plaintiffs reside in the United States. They and witnesses have made arrangements to be present in Nelson for the hearing commencing on 30 October 2018. It would clearly cause significant inconvenience for the plaintiffs if the trial were to be adjourned, particularly as another hearing date is unlikely to be available until mid-2019 at the earliest.

[10] Furthermore, if Mr Schaeffer and some of his witnesses are feeling intimidated by Mr Lee, it is likely they will continue to feel intimidated at the time of any hearing of the trial, even one that is adjourned to next year.

Reasonably practicable steps to avoid an adjournment

[11] While it is unfortunate that Mr Schaeffer feels handicapped in preparing for a trial, it is striking he took no steps to respond to the threats allegedly made by Mr Lee
until he filed his strike-out/stay application on 29 August 2018. That delay is a decisive factor in my assessment of the merits of the adjournment application.

[12] Also relevant is that Mr Schaeffer can file his witness statements and “will say statements” for any other witnesses, who may be reluctant at this stage to give evidence. If necessary, steps can be taken to compel the attendance of those witnesses. It is to be noted, however, that Mr Lee’s alleged threats were not directed towards persons other than Mr Schaeffer.

[13] In these circumstances, the application for an adjournment fails. The plaintiffs are entitled to costs in relation to the adjournment application.

Changes to timetable

[14] The defendant’s briefs of evidence were to be filed by 14 September 2018. I will extend that deadline to 25 September 2018. The plaintiffs will have until 17 October 2018 to file any briefs in reply. The balance of the timetable I put in place on 30 August 2018 will remain in place.

D B Collins J

Solicitors:

MinterEllisonRuddWatts, Auckland for Plaintiffs C & F Legal Limited, Nelson for Defendant