EA v Rennie Cox Lawyers [2023] NZHC 3370 (24 November 2023)

Last Updated: 11 January 2024

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-861 CIV-2023-404-870 [2023] NZHC 3370

BETWEEN	EA Appellant
AND	RENNIE COX LAWYERS Respondent

Hearing:	6 September 2023
Appearances:	RJ Hollyman KC for the Appellant (Defendant) SP Bryers for the Respondent and Cross-Appellant (Plaintiff)
Judgment:	24 November 2023

JUDGMENT OF BECROFT J

(Two civil appeals of interlocutory decisions)

This judgment was delivered by me on 24 November 2023 at 4pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors/Counsel:

Friedlander & Co Ltd, Auckland Rennie Cox Lawyers, Auckland

RJ Hollyman KC, Auckland S Bryers, Auckland

EA v RENNIE COX LAWYERS [2023] NZHC 3370 [24 November 2023]

This case is an exemplar of delay

• [1] There is a fictional never-ending probate case in Charles Dickens’ Bleak House, called Jarndyce v Jarndyce. It lives again. This time, in the guise of a still- unresolved claim for unpaid barrister’s fees of $95,738.51, filed promptly in the North Shore District Court on 29 March 2012.

• [2] This decision determines two appeals of interlocutory decisions. Both appeals continue the litigation’s trend of delay and obfuscation.

• [3] In 2009, Rennie Cox Lawyers (“Rennie Cox”) instructed a barrister to act for Ms EA in unrelated High Court proceedings. Ms EA paid the barrister’s fees as invoiced until June 2011. She disputed the fees thereafter and did not pay them. Rennie Cox subsequently filed a claim on the barrister’s behalf to recover them.

• [4] Ms EA has repeatedly attempted to have the proceedings struck out on technical and/or procedural grounds. There have been at least 15 judgments, including one from the Supreme Court, five from the Court of Appeal, eight from the High Court and many District Court decisions. On one occasion her concerns were understandable, as the plaintiff had acted inexcusably in obtaining a default judgement ex parte.¹

• [5] Despite all her efforts, the claim against her continues. The substantive merits remain far from being addressed.

• [6] The third-most recent Court of Appeal decision, in December 2021, noted that the objective of the District Court Rules 2009 was to secure the just, speedy and inexpensive determination of any proceeding.² The Court observed “that objective has failed spectacularly in this case”,³ and that “the proceeding has progressed nowhere towards being heard on its merits.”⁴ The Court of Appeal also emphasised, entirely optimistically it turns out, that “the proceeding should be heard and

¹ See EA v Rennie Cox Lawyers [2018] NZCA 33, [2018] 3 NZLR 202.

2. Rennie Cox Lawyers v EA [2021] NZCA 648 at [1], citing r 1.3.1 of the District Court Rules 2009. These rules were replaced by the District Court Rules 2014 as from 1 July 2014.

³ At [1].

⁴ At [2].

determined on its merits in the District Court without further delay.”⁵ Nearly two years on, the procedural skirmishes still continue.

• [7] These two appeals from the District Court raise yet more technical and entirely procedural arguments. They have nothing to do with the merits of the claim. It is admitted there is no prejudice to Ms EA. They appear to be yet another attempt to delay proceedings and to prevent a substantive hearing. The arguments raised would be none the worse for being technical if they were correct. But they are devoid of merit. These are my reasons for dismissing the appeals.

How did these appeals come about?

• [8] The unduly protracted and complicated procedural history of this case is not strictly relevant to the issues arising in these two appeals. And it is important not to lose sight of the reality that the substantive claim is relatively straightforward. But for those who might be interested, the history is well set out in an August 2020 Court of Appeal judgment,⁶ in the December 2021 Court of Appeal judgment⁷ and in the careful decision of Judge AA Sinclair.⁸

• [9] I relevantly take up the story with the release of the December 2021 Court of Appeal decision.⁹ That decision concluded this claim was still on foot. It had been “enlivened” in August 2015 (after delay including a complaint to the Law Society) when an extension of time to apply for judgment by default was granted. As it happened, judgment by default was entered soon after. But the Court of Appeal then set aside that default judgment in February 2018, holding amongst other things that it was inexcusable that the application was not made on notice.¹⁰

• [10] Back in the District Court, timetabling and other orders were then made to allow the progress of this case to a substantive hearing.¹¹ On appeal, the High Court concluded such orders could not have been made and that the case was effectively at

⁵ At [3].

⁶ Rennie Cox Lawyers v EA [2020] NZCA 348 at [2]–[13] and at the appended chronology.

⁷ Above n 2 at [4]–[13].

⁸ Rennie Cox Lawyers v EA [2022] NZDC 5499. See paragraphs [1]-[8].

⁹ Above n 2.

¹⁰ Above n 1.

¹¹ Rennie Cox Lawyers v EA [2018] NZDC 21916.

an end.¹² On further appeal, the Court of Appeal held that the High Court’s decision about the District Court’s lack of jurisdiction to make timetabling orders was wrong.¹³ The case was still on foot. Therefore, the Court of Appeal reinstated the timetabling orders made by the District Court but varied them as follows:

[32] The appeal is allowed. Subject to any variation directed by the District Court, we substitute the following directions for those made by Judge Harrison:

“(a) Rennie Cox is to file and serve a statement of claim within 15 working days of the date of this judgment.

(b) EA is to file and serve any statement of defence and counterclaim within 15 working days of being served with the statement of claim.

(c) Rennie Cox is to file and serve a reply to any affirmative defence and a statement of defence to any counterclaim within 10 working days of being served.

(d) EA is to file and serve a reply to any affirmative defence to the counterclaim within 10 working days of service.

(e) A fixture for the substantive hearing should be allocated as soon as reasonably practicable thereafter.”

• [11] It is important to explain why the Court of Appeal directed Rennie Cox to file and serve a statement of claim within 15 working days of the judgment. In fact, this step had been suggested by Rennie Cox itself because the original claim, filed under the 2009 District Court Rules, had been commenced by filing what was then called a “notice of claim”. This was a pre-printed form that a plaintiff had to populate by answering a series of questions. It was quite unlike a traditional statement of claim. Rennie Cox’s submission to the Court of Appeal was that a statement of claim providing further and better particulars in the conventional form would assist in progressing the case to its merits.

• [12] Just as directed, Rennie Cox filed, electronically, a statement of claim in the North Shore District Court on 20 December 2021 (four days before the filing date expired) and served it on all the parties. However, in doing so it used neither of the two Court email addresses published under the COVID-19 Red Notice. A different North Shore District Court email address was used, one apparently well-known to

¹² EA v Rennie Cox Lawyers [2019] NZHC 3191.

¹³ Above n 2 at [29].

Rennie Cox’s lawyers; its counsel Mr Bryers; and one often used to contact the North Shore District Court for civil matters. Nevertheless, it is not in dispute that the statement of claim was received by the Court and the parties on the day.

• [13] However, nearly a month later—on 17 January 2022—the defendant’s solicitor wrote to the North Shore District Court drawing attention to the use of the COVID “unpublished” and unapproved email address.

• [14] In a succinct minute on 27 January 2022, Judge Harrison concluded there had been no irregularity as to filing.¹⁴ If there was, which he explicitly did not accept, he “approve[d] the filing of the statement of claim pursuant to Rule 1.8(2)(b)”— presumably of the District Court Rules 2014 (which allows for an irregularity to be cured).¹⁵ The defendant’s barrister, Mr Hollyman KC, filed a recall application in respect of that minute. (It was argued in this Court whether that approach was even open to Mr Hollyman, as it was said the recall application was in fact a thinly disguised appeal. More of that later.)

• [15] Judge Harrison retired from judicial office before the recall application could be heard. It was subsequently heard before Judge Mathers on 18 May 2022. In her judgment of 26 May 2022, Judge Mathers recalled Judge Harrison’s decision to the extent necessary to correct the incorrect reference to the 2014 Rules—which Counsel advised should have been to the 2009 Rules (though the rules are essentially identical).¹⁶ She concluded the recall application must otherwise fail. But she also extended, by 10 working days, the time for the statement of claim to be filed using the correct email address and to pay any fee required by the Registrar.

• [16] Judge Mathers’ 26 May 2022 decision is appealed by Ms EA. I shall call that the first appeal.

14. Rennie Cox Lawyers v EA DC North Shore CIV-2012-044-491, 27 January 2022 [Minute of Judge Harrison].

¹⁵ At [9].

¹⁶ Rennie Cox Lawyers v EA [2022] NZDC 9676 [Decision of Judge Mathers].

• [17] Rennie Cox cross-appeals Judge Mathers’ decision on the basis she was incorrect to conclude that an extension of time for filing the statement of claim was necessary. Rennie Cox maintains that the statement of claim was correctly filed in the first place and that the matter should have stopped with Judge Harrison’s minute.

• [18] Despite disagreeing with Judge Mathers’ decision regarding re-filing, Mr Bryers complied. He filed a further copy of the statement of claim on 2 June 2022 (“second statement of claim”). It was identical to the statement of claim he filed on 21 December 2021.

• [19] On 22 June 2022, Ms EA filed an application to strike out the further statement of claim (if it had been accepted for filing) and to permanently stay the proceeding. She asserted the claim was clearly time-barred, frivolous, vexatious and an abuse of process.

• [20] That application came before Judge Sinclair at the North Shore District Court on 9 February 2023. The first appeal had not by then been heard. The District Court was faced with further technical arguments as to whether the North Shore registry had jurisdiction to accept the second statement of claim. Some of these repeated arguments advanced before Judge Mathers. Judge Sinclair concluded that the statement of claim was properly filed and served. She dismissed the defendant’s strike-out application.¹⁷ The Judge was clearly frustrated by the arguments. She emphasised that it was “now imperative that this matter gets on for hearing without further delay as was envisaged by the Court of Appeal in December 2021.”¹⁸

• [21] Ms EA appeals that decision also. I shall call this the second appeal.

• [22] I mean no disrespect to counsel, who presented their arguments over the course of a day with clarity and precision, when I say that in this further “procedural skirmish” no rock, stone, or pebble, or even the occasional of grain of sand, was left unturned. To reinforce that observation, I note that Mr Hollyman’s submissions stretched to 121

¹⁷ Rennie Cox Lawyers v EA [2022] NZDC 5499 [Decision of Judge Sinclair].

¹⁸ At [33].

paragraphs, citing 49 cases. His bundle of references comprised 363 pages. Mr Bryers’ submissions were set out in 55 paragraphs with a significant bundle of references.

• [23] I deal with the issues that arise, in chronological order. In so doing, it will become obvious why these appeals must fail.

First appeal

• [24] The essence of the first appeal is based on the defendant’s contention that the statement of claim was not properly “filed” on 21 December 2021 because the wrong email address was used. Thus, the defendant believes that when the 15-day period prescribed by the Court of Appeal expired on 24 December 2021, the proceedings automatically ended. Further, the plaintiff could not renew the claim because it was out of time under the Limitation Act 2010.

• [25] In that light, Mr Hollyman submits that Judge Mathers erred in relying on rr 1.10 and 1.18 of the 2009 Rules to further extend the time for filing. In doing so, Mr Hollyman submits the Judge purported to bring proceedings back to life that were time-barred by the Limitation Act, an avenue not open to her in law.

• [26] On the other hand, the foundation of Rennie Cox’s cross-appeal is that they properly “filed” the statement of claim on 21 December 2021. On that basis, the proceedings did not automatically end on 24 December. And if a statement of claim had already been properly filed, Judge Mathers erred in considering it necessary to extend time for filing as she did.

• [27] The issues in this appeal therefore are:

(a) First, did Rennie Cox properly “file and serve” the statement of claim on 21 December 2021? If so, the first appeal must fail and the cross- appeal must be allowed. If not, the cross-appeal must fail; but the defendant’s contention remains open, and I must address the second issue.

(b) Second, if the statement of claim was not properly filed on time, was the proceeding “dead” and, if so, was Judge Mathers able to extend the

time for filing the statement of claim? If the time could be extended, the first appeal must fail. If not, the defendant’s contention remains open and I must address the third and final issue.

(c) Third, and in any case, did the application to recall Judge Harrison’s minute provide a basis for Judge Mathers to make any orders at all— save for correcting the agreed error as to the incorrect rule? If not, that is another reason why the first appeal must be dismissed.

First issue: did Rennie Cox properly “file and serve” the statement of claim on 21 December 2021?

• [28] It is common ground that the 15 days prescribed by the Court of Appeal expired at day’s end on 24 December 2021.

• [29] It is also common ground that Mr Bryers “filed” a statement of claim at the North Shore District Court by email using the email address [e-mail].

• [30] Mr Hollyman accepts that both he and his instructing solicitor, Mr Friedlander, received the email and the statement of claim. On 17 January 2022, Mr Friedlander wrote to the North Shore District Court as follows:

Dear Sir/Madam

1. We act for the defendant EA.
2. We understand that counsel for the plaintiff, Mr Bryers, sent an email attaching two documents to the unpublished email address, cmt- [e-mail], on 20 December 2021.
3. The document included:

One intituled “statement of claim” that the plaintiff purported to file and serve pursuant to an extension granted by the Court of Appeal on 3 December 2021.

4. For the extension (and consequential directions) required the plaintiff to file and serve a statement of claim (under R2.7 of the District Court Rules 2009) by 24 December 2021 and superseded the Court’s earlier directions to respond to the plaintiff’s initial notice of claim.
5. As far as we are aware, the electronic copy of the statement attached to Mr Bryer’s email could not be accepted for filing because it did not meet the Court’s requirements. In particular:

(a) the copy was not submitted through file and pay or emailed to the published address, [e-mail];

(b) no filing fee was paid and there was no waiver application or postponement (Mr Bryers offered to pay if required was no exception);

(c) the statement itself was defective and, even so, no original was lodged;

(d) no notice of proceeding was lodged.

6. As we were not served with a copy of any statement of claim and notice of proceeding as filed before 24 December 2021, it follows that our client is not required to respond.
7. We respectfully reserve our client’s rights to make submissions on that if considered necessary.

Yours faithfully Paul Friedlander

• [31] Part of that letter, at [6], is a little disingenuous to say the least. It seems to me to be perilously close to misleading the Court. Mr Hollyman explained that the comment is explicable in the context of the statement of claim not having been “properly filed”. Therefore, no legal statement of claim existed. Perhaps that is an available interpretation. Readers will draw their own conclusions. I make no decision on that point as none is required to determine these appeals.

• [32] Mr Hollyman’s argument was that, indeed, the wrong email address had been used by Mr Bryers. In his detailed submissions he noted that the 2009 Rules simply provided for filing in person or by post, not by email. Further, that the filing had to be with the North Shore District Court as opposed to any division of it such as the Family Court. He maintains documents are not “filed” unless until received and accepted.

• [33] Mr Hollyman notes no changes were made to the 2009 Rules during the pandemic and none were necessary. The District Court continued to facilitate filing by hand and post in the ordinary course. However, the so-called “Red Protocol” allowed for filing of documents to an email address published by the Registrar.¹⁹

¹⁹ Announced by the Chief Justice on 3 December 2021 (see Courts of New Zealand “Court Operations under the COVID-19 Protection Framework: Transitional arrangements” courtsofnz.govt.nz), when the Society also notified its members (see email from New Zealand Law Society to members regarding message from the Chief Justice (3 December 2021)).

• [34] Working back through the relevant COVID Notices and Practice Notes, it seems that the two published addresses for the North Shore District Court were:

[e-mail] [e-mail]

• [35] Those addresses are preceded by a general comment that:

For the District Court that is a hearing Court the address for filing will be the address of the receiving Court.

CMM email addresses should be used when filing a case management memorandum (CMM) by email.

TCM email addresses should be used when filing a trial call-over memorandum (TCM) by email.

• [36] I can only observe that establishing what is the correct “COVID-published” email addresses appears complicated. It took some time for me to understand what seems to have been required. Moreover, the notes set out in the previous paragraph appear to suggest that other email addresses could be used in different contexts—such as if the email concerned a criminal trial call-over.

• [37] At any rate, Mr Hollyman maintains that the statement of claim cannot be regarded as having been “filed” because the wrong email address was used. By extension, the statement of claim could not be regarded as having been “served”— which explains, he says, his instructing solicitors’ comments to the Registry in their 17 January letter.

• [38] Mr Hollyman relied strongly on Airtech NZ Ltd v Southern Insulation Ltd.²⁰ There, counsel for Airtech incorrectly emailed an application to set aside two statutory demands to the Christchurch High Court Registry on 23 July 2020, the last possible day for filing. The application should have been filed in the Invercargill High Court Registry. On 24 July the Christchurch Registry specifically rejected the documents, providing reasons including that the documents were filed in the incorrect registry. Although on the next day Airtech filed the application in the Invercargill Registry, it

²⁰ Airtech NZ Ltd v Southern Insulation Ltd [2020] NZHC 2957.

was ruled to have been filed outside the statutory timeframe. The application was deemed a nullity.

• [39] This case is easily distinguishable. First, the application to set aside the statutory demand in Airtech was, in effect, the first and originating document to be filed. Here, in contrast, the statement of claim simply provided further and more detailed particulars of a well-known and well-understood claim that had been legally and properly in existence for about 11 years. This was not a situation of the first filing being required in the correct court as a pre-condition to creating a jurisdictional basis for the claim.

• [40] Second, in Airtech, there was a geographical difference between the Christchurch and Invercargill High Court Registries. In this case, the allegedly “wrong” email address was within the same Court.

• [41] Third, in Airtech there was explicit notice of rejection of the document. That was certainly not the case here.

• [42] Fourth, Rennie Cox’s use of the “wrong” email neither prejudiced nor disadvantaged anyone. All parties received the statement of claim in good time. Airtech hardly presents a compelling rationale for Mr Hollyman’s submission.

• [43] For the sake of argument, I accept that the two “published” addresses relied upon by Mr Hollyman as being the correct addresses applied to this case. However, the use of another email does not automatically lead to the conclusion that the statement of claim has not been filed. I point to the following:

(a) The email was to the correct District Court.

(b) Mr Hollyman maintains the email address that used by Mr Bryers was one actually ascribed to the North Shore Family Court. This may well be the case. According to a then-in-force information package, that address is said to be the address to which general Family Court enquiries may be emailed. That is not the same as saying it is the official Family Court address, and one only for family court enquiries.

It appears to be an enquiries email address or a general North Shore email address.

(c) The “CMT” in the email address used is known by most who work with or in the court system to be the “case management team” address. Mr Bryers understood it was a perfectly appropriate address to use in the circumstances, and one he had used before. I did not think it was fair for him to provide evidence from the Bar as to why this was so (and I did not allow it), but clearly it was his assumption. Given the obvious meaning of CMT in a court context it can hardly be said his assumption was unreasonable—particularly as the case was already in existence and required “case management”.

(d) Tellingly, the address was used in all subsequent emails to Mr Bryers, Mr Hollyman and the North Shore District Court. That is not disputed. This points clearly to that email address being in common use and one that could and did reach the Court.

(e) The statement of claim was not rejected at the time. Indeed, the defendant did not argue it had been filed using an inappropriate email address until Mr Friedlander’s 17 January 2022 letter. The Registry has itself always considered the email address perfectly appropriate.

(f) Finally, the exigencies of COVID-19—with the rather different and sometimes complex measures then in place—cannot be ignored and militate against an overly technical approach being taken.

Judge Harrison’s 27 January 2022 minute on the issue

• [44] Having had Mr Friedlander’s 17 January letter referred to him, Judge Harrison issued his 27 January 2022 minute. It relevantly records:

[8] The defendant complains that the copy was not submitted to the correct email address. The Registrar advises that the address to which it was sent, [e-mail] is the correct email address for filing civil proceedings. The address [e-mail], is for filing proceedings in the criminal Court.

• [45] Judge Harrison concluded there was no irregularity in the document being forwarded to the civil email address. He confirmed that no filing fee was necessary as it had been paid when the original claim was commenced. Neither was a notice of proceeding required as this had not been directed by the Court of Appeal. The Judge concluded that Rennie Cox had fully complied with the Court of Appeal’s directions and that Ms EA must comply with the directions regarding filing of a statement of defence and any counterclaim.

• [46] The Judge also recorded that, following preparation of his minute, he had received a formal memorandum on behalf of the defendant but that it raised no additional matters requiring determination. I understand from Mr Hollyman that it was his memorandum, which amongst other things made clear his argument that it would be inappropriate for the Court to extend the time for filing because the proceedings should be considered “at an end” and “incapable of resurrection by any extension of time”.

• [47] For the sake of completeness, Judge Harrison noted that if there was an irregularity, which he specifically did not accept, he approved the filing of the statement of claim pursuant to r 1.8(2)(b)—which reference can only be taken as a reference to the 2014 Rules. But its equivalent under the 2009 Rules, r 1.10, is virtually identical and there is no problem with the incorrect reference.

• [48] In the ordinary course of events, I would have thought that should have ended matters. Judge Harrison’s minute paved the way for the remaining documentation to be filed and a hearing on the merits of the case to proceed.

• [49] But this is not an ordinary case. Mr Hollyman did not accept the ruling. He considered he had not been properly “heard.” To the contrary, however, his position— made crystal clear in his memorandum—was known to the Judge. As the Judge understandably considered that the proceedings had been correctly filed, the argument regarding any extension reviving the claim outside the limitation period, needed no further consideration. Mr Hollyman had been “heard”, but disagreed with.

Conclusion on first issue

• [50] For all those reasons, I conclude there is no irregularity in the email address used by Mr Bryers. The email address used does not constitute “a fatal defect” in the filing of the statement of claim. Even if it did, there could scarcely be a clearer and more compelling case for the use of r 1.10 of the 2009 Rules to cure this irregularity.

• [51] Strictly speaking, this disposes of the first appeal. For completeness, I go on to consider the remaining issues.

Second issue: was it open to Judge Mathers to extend the time for filing the statement of claim?

• [52] This part of the decision proceeds on the basis that the statement of claim was not filed within the 15 working days prescribed by the Court of Appeal—because of use of the wrong email address.

• [53] Judge Harrison himself said that if it were necessary, he would use the equivalent rule in the 2014 Rules to do so. Judge Mather, irrespective of whether it was actually required, used the appropriate 2009 rule without any difficulty.

• [54] The basis of Mr Hollyman’s argument in this respect is that, as the statement of claim was not “correctly” filed, the proceeding came to an end when the timetabling order expired. His ingenious argument was that the Court of Appeal had reinstated the timetabling orders made by Judge Harrison much earlier in 2015—and they were themselves part of an order setting aside the default judgment. Therefore, if they were breached, there must be a breach of the 2009 Rules and, therefore, as night follows day, the proceedings have come to an end.

• [55] The essential argument is that, in these circumstances, resorting to r 1.18 of the 2009 District Court Rules cannot bring the proceedings back to life when they are out of time under the Limitation Act 2010. Rule 1.18 must be read subject to the Limitation Act provisions. The rule cannot be invoked when to do so would deprive the defence of a limitation defences. Again, this is a very technical argument.
• [56] The first thing to say is that the Court of Appeal simply referred to their directions as being “timetable directions”.²¹

• [57] Second, the reinstatement of the timetabling directions was expressly made “subject to any variation directed by the District Court”.²² Presumably this would mean before the order expires; but I see no reason why it could not extend to a situation as here, after the time for a direction had expired.

• [58] Third, Mr Bryers was of the view that, in the ordinary way, the Court of Appeal’s direction would be interpreted as timetabling orders subject to variation, which variation often takes place before and after their expiry. He argued it would be an extraordinarily narrow and unreasonable interpretation of the Court of Appeal’s order to conclude that any breach of the timetabling by the plaintiff, no matter how minor, would bring the proceedings to an end. In his view, this was also inconsistent with the thrust of the previous Court of Appeal decisions. I agree.

• [59] In these circumstances, given the exigencies of COVID-19, given that a genuine North Shore District Court email address was used, and given the defendant’s counsel received the statement of claim, I do not regard any breach by the plaintiff of its timetabling obligations as being fatal to the proceeding and automatically extinguishing them. Especially when the breach is one of the most technical breaches imaginable.

• [60] If I am wrong in that conclusion, and the proceedings were at an end, there is force in Mr Hollyman’s argument that r 1.18 must be read as being inapplicable if it would circumvent the Limitation Act and defeat otherwise strict statutory limitation periods. In this respect, Mr Hollyman relied on Russell v Attorney-General²³ and Red Stag Timber Ltd v Juken New Zealand Ltd.²⁴ Both are factually different cases and can be clearly distinguished.

²¹ See [34] of the decision.

²² See [32] of the decision.

²³ Russell v Attorney-General [1995] 1 NZLR 749 (HC).

²⁴ Red Stag Timber Ltd v Juken New Zealand Ltd [2023] NZHC 1979.

• [61] However, I accept the general proposition that r 1.18 of the District Court Rules 2009 should not be used to circumvent a limitation argument. As to that general principle, Smellie J in Russell observed:²⁵

I do not consider that I have jurisdiction to enlarge the time for service in this case because that would effectively revive the causes of action in respect of which time commenced to run ...

• [62] Smellie J also referred²⁶ to the Johnsonville Licensing Trust decision of Wilde CJ, where finding no 2 as recorded in the headnote reads:²⁷

The Court will not exercise its general procedural power to extend time where the effect would be to revive a right which has expired ...

• [63] However, I do not regard that general principle as being inviolable and absolute. In extreme, and probably very limited, circumstances, r 1.18 could be used even if it had the effect of “reviving” proceedings. If it were necessary to do so, I would conclude that this is such a rare case. After all, the original proceedings were properly commenced in a timely fashion. For at least 11 years Ms EA has known of them—and the simple issue involved. And she has been involved in ongoing and significant procedural litigation to prevent the claim being heard. In these circumstances, when there has been absolutely no prejudice to Ms EA, it would be artificial in the extreme not to apply r 1.18 even if the proceedings could otherwise be said to be at an end.

• [64] Putting this conclusion another way, Mr Hollyman conceded many times that his argument as to the inappropriate use of r 1.18 could only “fly” if this Court was persuaded that it would otherwise defeat the legitimate reliance by Ms EA on an available limitation defence. I am far from so persuaded. Not to invoke r 1.18 in these circumstances would be an affront to the interests of justice, particularly the interests of having the merits of this long-running case being finally resolved.

• [65] Strictly speaking, this also disposes of the first appeal. For completeness, I go on to consider the third and final issue.

²⁵ Russell v Attorney-General, above n 23, at 760.

²⁶ At 760.

27. Johnsonville Licensing Trust v Johnsonville Gospel Hall Trust Board [1972] NZLR 655 (SC) at 656.

Third issue: was the application to recall Judge Harrison’s minute appropriate?

• [66] In the face of Judge Harrison’s minute, Mr Hollyman filed an application for recall that resulted in Judge Mathers’ reserved judgment on 26 May 2022.

• [67] A few words need to be said about the recall application. Mr Hollyman candidly conceded he could have reviewed Judge Harrison’s minute or could have appealed it—as was Mr Bryers’ point. He also admitted his purpose in the recall application was to argue more explicitly that the use of the “wrong” email address was fatal; that the use of r 1.8(2)(b) or its equivalent in the District Court Rules 2009 (r 1.10.2(a)(iv)) was inappropriate; and that a further extension of time would defeat the fatal consequences of the limitation provisions for this proceeding, bringing an otherwise “dead” claim back to life.

• [68] On any analysis, under the guise of a “recall application” Mr Hollyman was effectively attempting to appeal Judge Harrison's decision.

• [69] As Mr Bryers explained, whatever else a recall application should be used for it does not extend to a de facto appeal. Mr Bryers pointed to Nottingham v The Real Estate Agents Authority.²⁸ In that case, the Court of Appeal considered the grounds upon which a judgment may be recalled, which are limited to situations where:²⁹

(a) since the hearing there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance and high authority;

(b) counsel has failed to direct the Court’s attention to a legislative provision or authoritative decision of plain relevance; or

(c) for some other very special reason justice requires that the judgment or order be recalled.

²⁸ Nottingham v The Real Estate Agents Authority [2017] NZCA 145.

²⁹ At [7], citing the leading statement on that point by Wild C in Horowhenua County v Nash (No 2)

[1968] NZLR 632 (SC) at 633.

• [70] In respect of category (c), the Court commented:³⁰

[9] The third category is not defined with particularity in any judgments. However, it is quite clear that the discretion to recall must be exercised with circumspection, and it must not in any way be seen as a substitute for appeal. In particular there are some things that it can be said the power to recall does not extend to. It does not extend to challenge of any substantive findings of fact and law in the judgment. It does not extend to a party recasting arguments previously given, and re-presenting them in a new form. It does not extend to putting forward further arguments that could have been raised at the earlier hearing but were not. It does not extend to asking the Court to reverse interlocutory decisions such as adjournment decisions on the grounds they were wrongly decided.

• [71] Despite Mr Hollyman’s enthusiastic submissions to the contrary, in my view, his recall application sought to go too far and was plainly misconceived. It is directly contrary to some of the stated examples in Nottingham listed in the paragraph above. Neither can Mr Hollyman say he had not been “heard”. On that point, Judge Harrison made clear that he had read the memorandum and had considered Mr Hollyman’s concerns on the papers.

• [72] Given Mr Hollyman’s concessions about his intentions for the recall application, it was an inappropriate vehicle for his concerns. Recall was only necessary to correct Judge Harrison’s incorrect reference to the wrong rule. With great respect, that is where Judge Mathers should have stopped. Judge Harrison had made all the remaining necessary rulings and they should have remained in place. I suspect that Judge Mathers, in the pressure of the District Court civil list, was drawn into what was effectively an appeal of Judge Harrison’s decision without realising it.

• [73] The ruling as to the extension of time was beyond the scope of this recall application. And in any event, as I have previously ruled, it was not required. Judge Harrison had already addressed and ruled on the point. Ms EA’s appeal against Judge Mathers’ decision was against the substance of the extension of time order. So, even if I had found for the defendant on the first two issues, in fact the appeal must fail— not because the order was flawed and contrary to the rules—but because it just should not have been made in the first place.

³⁰ Footnote omitted.

• [74] For the above reasons, on my analysis of any of the three issues raised on the first appeal, that appeal cannot succeed. And because I found that Rennie Cox had filed the statement of claim on time, and that no extension of time was thus required, its cross-appeal is successful.

Second appeal

• [75] A reminder: the defendant’s second appeal is against Judge Sinclair’s refusal to strike out the statement of claim and to permanently stay the proceedings. I say from the outset that in my view Judge Sinclair’s decision is impeccable and without flaw.

• [76] Judge Sinclair correctly noted that the application before her appeared to be a collateral attack on the decisions of both Judge Harrison and Judge Mathers and was a further attempt re-litigate matters already considered and determined.

• [77] Mr Hollyman rehearsed all the arguments before Judge Sinclair that had been raised first with Judge Harrison and then Judge Mathers. All these arguments were raised before this Court also. The only new argument in this Court was a fresh cause of action claim (discussed below) and even that seems to have been alluded to by Judge Sinclair,³¹ but not addressed in any detail.

• [78] The second appeal involves two contentions by Mr Hollyman. One is minor. One is major. First, Mr Hollyman submits that the second statement of claim was not properly “filed”, so should be struck out. Secondly, Mr Hollyman submits that the original statement of claim should never have been accepted for filing because it introduced a new cause of action.

• [79] Given my clear view that the “second” statement of claim was unnecessary, it follows that half of this second appeal cannot even get off the ground. The first statement of claim was quite sufficient. End of story. However, out of respect to Mr Hollyman, I address his arguments. Also, the last of his arguments I address is applicable to both statements of claim and requires an answer.

³¹ Above n 17 at [23].

• [80] The questions for the second appeal are therefore:

(a) First, was the method of filing the second statement of claim “defective” in the sense it should not have been accepted? If so, the second appeal is successful. If not, I must consider the second question in the alternative.

(b) Second, should the original statement of claim have been rejected on the basis it introduced a new cause of action? If so, the second appeal is successful. If not, the second appeal must fail.

First issue: was the procedure used for filing the second statement of claim “defective”?

• [81] On 2 June 2022, Rennie Cox “re-filed” and “re-served” its statement of claim as directed by Judge Mathers using the “file and pay system”. Alleged deficiencies in this procedure and the document were part of the argument before Judge Sinclair and are partly the basis of the appeal against her decision.

• [82] I begin by recording Mr Bryers’ emphatic submission that he only filed the second statement of claim out of an abundance of caution. Although he disagreed with Judge Mathers’ decision, he complied with her directions to progress matters and bring the proceeding to a hearing. It was exactly the same statement of claim as filed and served on 20 December 2021.

• [83] It seems that the “file and pay system” would not accept the statement of claim unless a sum of money was paid with it. Mr Bryers advised this Court that on a purely pragmatic basis, he chose to pay a fee just to get the second statement of claim filed, even though Judge Harrison had made clear no fee was payable. Mr Bryers said he chose the lowest fee possible, which was $75. This happened to be the fee required to file an amended statement of claim. The payment ensured that the statement of claim could at least be processed for electronic filing.

• [84] This is the more minor of Mr Hollyman’s concerns. In his view, the filing of the statement of claim accompanied by the $75 filing fee appropriate for an amended statement of claim, was an attempt to circumvent payment of the proper fee of

$200.00. He submits the statement of claim should have been rejected. In his view, when the Court of Appeal directed the plaintiff to “file” a statement of claim that meant lodging it in the proper court together with the filing fee.

• [85] Further, if I understand Mr Hollyman correctly, he suggested that because of the payment of $75.00, there must be confusion as to whether the document filed could be regarded as a statement of claim at all. He said this, conceding that the document filed was in all other respects a statement of claim and complied with the rules for a statement of claim. I note that the document was described on the “waistband” as a statement of claim, and that Mr Bryers described it as a statement of claim when it was served.

• [86] In brief, Judge Sinclair rejected the argument relating to the filing fee of $75 being paid for an amended statement of claim. She accepted it was paid simply as a matter of expedience to ensure the statement of claim was accepted for filing. She noted there was no requirement to pay a filing fee at all. She was satisfied that the procedure was in accordance with the COVID-19 protection framework protocol in place in May and June 2022, which allowed for the filing of documents via the “file and pay” system, and that what was done was appropriate in the circumstances.

• [87] Judge Sinclair also noted, as I have already held, that the further filing of the statement of claim was arguably unnecessary as Judge Mathers’ judgment “specifically stated the recall of Judge Harrison’s minute was limited to correcting the reference to the 2009 Rules”. Judge Sinclair also accepted that Mr Bryers simply filed the statement of claim a second time to avoid any further dispute in that regard.

• [88] Judge Sinclair also rejected an argument that, by filing the statement of claim as directed by the Court of Appeal, the defendant was effectively required to use the procedure under r 2.7 of the 2009 Rules—which was the only avenue for commencing a proceeding by way of statement of claim (rather than a ‘notice of claim’) under those Rules. It was effectively submitted that the Court of Appeal, in its direction for the filing of the statement of claim, was by implication directing the adoption of this alternative r 2.7 procedure, which amongst other things required payment of the correct filing fee of $200 for the statement of claim.
• [89] In Judge Sinclair’s view, and mine, the Court of Appeal implied no such thing. The Court’s decision was plain on its facts. The Court was solely focussed on giving directions to ensure that the claim advanced to the trial as soon as reasonably practicable. The Court did not imply that r 2.7 applied, much less that the correct filing fee must be paid. The Court of Appeal was simply setting out a convenient and efficient timetable to allow the merits of the case to be heard.

• [90] I too proceed on the basis that no filing fee was required. The case had been properly commenced years ago. The Court of Appeal made no mention of a filing fee. Only the most imaginative of lawyers would have expected a filing fee was required. And the Registrar of the North Shore District Court, as well as Judge Harrison, said a fee was unnecessary.

• [91] It would be extraordinary for this Court to conclude that there is somehow a fatal breach of the timetabling directions, or that there is confusion about the status of the document —which is for all intents and purposes is a statement of claim—or that it has been magically transformed into an amended statement of claim. If previous arguments have been technical, I have to say this argument is microscopically technical. I reject it. As did Judge Sinclair.

Second issue: does the statement of claim introduce a fresh cause of action?

• [92] As I have previously explained, at the most recent Court of Appeal hearing, Mr Bryers had sought the 15-working-day period in which to file a statement of claim. This was because Rennie Cox considered the case would benefit from proper pleadings—to define the issues in dispute more precisely. The original claim had utilised the standard form 2009 Rules ‘notice of claim’ procedure, which it is agreed provided sufficient though somewhat sparse detail.

• [93] Mr Hollyman’s point, as I understand it, is that while the notice of claim referred to a failure to pay an invoice relating to barrister’s fees arising out of EA’s contract with Rennie Cox, the statement of claim effectively introduced a fresh cause of action by recasting the claim as a breach by Ms EA of her terms of engagement with the barrister.
• [94] Mr Hollyman accepted that the statement of claim was, in essence, the same as the original notice of claim, and that it was based on the same facts. Nevertheless, he said it must be regarded as a qualitatively different legal cause of action.

• [95] Mr Hollyman argued that while both are contractual claims, the original notice of claim alleged a contract with Rennie Cox for failure to pay the barristers invoice, but the other (the statement of claim) is a cause of action for breach of the terms of engagement with Ms EA’s barrister which included her obligation for direct payment to the barrister of his invoices.

• [96] I understand the differences; and I can see that the statement of claim more accurately, but differently, sets out the nature of the contractual arrangements. But it is only a slight difference. It is still a claim for unpaid barrister’s fees allegedly owed by Ms EA. And her dispute—about what I understand is the quantum of fees during the period for which Ms EA did not pay the barristers invoices—is still the same. I do not regard the differences as fundamental, nor as constituting an entirely new cause of action. To conclude otherwise would be to dance on a head of a pin. And in any case, the Court of Appeal’s most recent decision sets out exactly the basis of Ms EA’s alleged contractual liability³² as is set out in the statement of claim. So, the statement of claim should be considered as no more than “clarification”—which is just what Mr Bryers informed the Court of Appeal that it would be.

• [97] Mr Hollyman frankly conceded that this was not a strong argument. He agreed there was not “one iota of prejudice” to the defendant and that in absolutely no respect could it be said that Ms EA is misled by any so-called new cause of action. During argument, Mr Hollyman also accepted that the thrust of all his submissions until this one was that the statement of claim was never correctly filed, was out of time and was a nullity. Mr Hollyman agreed that if he was correct in this argument, then the new cause of action argument could not arise—because there was not a “live” statement of claim to which the new cause of action could be added. He responsibly accepted that the “new cause of action” argument was something of a fallback if all else failed. All

³² Above n 2 at [4]–[5].

else has failed. But the argument cannot succeed, and I reject it. Frankly, it has an air of unreality about it.

Conclusion

• [98] At the end of her decision, Judge Sinclair insightfully, and bluntly, made the following comments:

[33] Mr Hollyman KC explained the present application by stating that this litigation is “hard fought”. There is a fine line between a hard fought claim and wasting court time and resources on fruitless applications. In my view, this claim has well and truly crossed that line and it is now imperative that his matter gets on for hearing without further delay as was envisaged by the Court of Appeal in December 2021.

• [99] Judge Sinclair also directed that the matter was to be set down for a case management conference at the earliest available date, so that orders and directions could be made for trial. Instead, the “line” referred to by Judge Sinclair has again been comprehensively crossed. Vast resources and court time have been wasted on yet more fruitless arguments in this appeal.

• [100] In my view, Rennie Cox is plainly entitled to costs. Ms EA comes perilously close to an award of indemnity costs against her. I cannot say that she acted in bad faith. However, none of the technical arguments (and in many cases microscopically technical arguments) advanced on her behalf had any merit and frankly they were doomed. No doubt Mr Hollyman was acting on instructions, and he devoted all his energy and conscientious best to discharging those instructions. I have spent considerable time addressing those arguments out of respect to him and more importantly to Ms EA, who may not agree with my conclusions, but I hope can understand them. I hope, probably forlornly if the past is anything to go by, that Ms EA will co-operate in having this matter set down.

• [101] If counsel cannot agree as to costs, each is to file short memoranda, by which I mean no more than two pages exclusive of schedules. If Mr Bryers for Rennie Cox seeks increased costs, this should be set out and justified. There is 10 days from the date of this judgment to do so. Mr Hollyman has 10 working days to respond.

Result

• [102] The “first appeal” by Ms EA, against Judge Mathers’ decision is dismissed.

• [103] The plaintiff’s cross-appeal against that decision is successful.

• [104] The “second appeal” by Ms EA, against Judge Sinclair’s decision is dismissed.

Becroft J