Parlane v Hayes and Another
| Jurisdiction | New Zealand |
| Judge | Miller J |
| Judgment Date | 30 July 2015 |
| Neutral Citation | [2015] NZCA 341 |
| Docket Number | CA356/2014 |
| Court | Court of Appeal |
| Date | 30 July 2015 |
[2015] NZCA 341
Miller, Lang and Wylie JJ
CA356/2014
IN THE COURT OF APPEAL OF NEW ZEALAND
Appeal against a High Court decision not to read 17 affidavits which had been filed late hearing was to be held on affidavits — counsel offered an explanation from the bar that he wished to have the appellant check the affidavits — Judge considered that the injustice to the appellant was considerably outweighed by the injustice to the respondents if the proceeding was adjourned because of the need to give them time to respond to the affidavits — in addition, counsel had subpoenaed two witnesses rather than using the procedure under so r9.75 High Court Rules (Person refusing to make affidavit), which the Judge considered should have been adopted — Judge considered this would contribute to the delay — the refusal to read the affidavits left the appellant without evidence and his counsel was given leave to withdraw — the hearing then proceeded as a formal proof, with a separate substantive judgment being delivered for the respondents — whether the refusal to read the affidavits was contrary to the interests of justice.
M B Dodds for Appellant
J G Ross for Respondent
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A The appeal is allowed. We declare that the Judge was wrong to refuse to read the affidavits of the defence witnesses whom counsel proposed to call at the hearing.
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B The application for leave to adduce fresh evidence is granted.
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C Costs in this Court will lie where they fall.
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D The costs award in the High Court is set aside, and costs are to be fixed there with regard to this judgment.
(Given by Miller J)
Douglas Parlane was a defendant in a civil proceeding. He agreed to a timetable for exchanging evidence but exchanged his late, notwithstanding that most of it had been prepared in affidavit form and sworn before the timetable was agreed. No attempt was made to extend time or excuse the delay.
The plaintiffs, Kelly and Andrew Hayes, objected to the affidavits being filed late and satisfied the trial Judge, Duffy J, that the delay would necessitate an adjournment. The Judge accordingly refused to read the affidavits. That decision left Mr Parlane without evidence and his counsel promptly sought and was given leave to withdraw. The hearing then proceeded as a formal proof, with a separate substantive judgment being delivered for the plaintiffs. 1
The judgment under appeal is the decision of Duffy J, delivered orally on 3 June 2014 2 with reasons provided later, 3 to refuse to read the affidavits. The substantive judgment, which was delivered on 3 October 2014, is not the subject of an appeal, but that appears to have been an oversight on the part of Mr Parlane's advisors. 4
On appeal, Mr Parlane sought to file an affidavit of his trial counsel, Mr Swan, to explain and excuse the delay in exchanging the defence affidavits. The respondents filed no evidence in response and appeared by their trial counsel, Mr Ross, who resisted admission of Mr Swan's affidavit. There was no cross-examination.
The proceeding concerns a claim to the estate of Marlene Keeys, who died of illness, aged 66, on 18 November 2012. Mr Parlane had been in a relationship with Ms Keeys during the later years of her life, and her will left him a legacy of $20,000, with the residue going to her daughter and executor, Kelly Hayes.
The respondents, whom we will call the executors, were granted probate of Ms Keeys' will. Mr Parlane gave notice of a claim against the estate under s 61 of the Property (Relationships) Act 1976, founding his entitlement on a qualifying de facto relationship of more than three years duration. This led the executors to commence, on 13 May 2013, a proceeding in the High Court at Whangarei in which they sought a declaration that the relationship was not a qualifying de facto relationship. They accept that Mr Parlane and Ms Keeys, who was a widow, began a relationship of sorts around December 2007 but say the two separated, initially for a few months in 2008 and finally in April 2009. Mr Parlane met the claim with a defence and counterclaim in which he alleged that he and Ms Keeys were in a de facto relationship from 2007 until her death.
A first case management conference was scheduled for 24 September 2013. It does not appear that a conference was held; rather, Associate Judge Bell adopted timetabling directions agreed by counsel. The executors were to file and serve their affidavits by 24 March 2014, Mr Parlane was to file and serve his by 21 April 2014, and any in reply were to be filed and served by 5 May 2014. A fixture was set for three days beginning 2 June 2014.
The executors served 18 affidavits from no fewer than 15 witnesses. Seven of the plaintiff's affidavits were exchanged by 24 March 2014, but some were delayed until 5 May although unsworn drafts had been provided earlier.
By now Mr Ross had become counsel for the executors. He and Mr Swan negotiated a variation to the timetable. On 6 May, just before a scheduled telephone conference with the Associate Judge, they filed a joint memorandum recording that having regard to the executors' delay the parties had agreed that Mr Parlane would file his affidavits by Friday 9 May. There was no provision for reply affidavits.Associate Judge Bell adopted the consent memorandum without holding a conference. It appears that counsel did not inform the Court that the executors had 15 witnesses but at some point they did obtain confirmation from the registry that the hearing was to begin on 3 June (it having turned out that the original date, 2 June, was the Queen's Birthday holiday) and a fourth hearing day was available.
Mr Parlane neither complied with the agreed timetable nor sought to change it. His counsel served 16 affidavits from 15 witnesses on 20 May. His own affidavit, which was obviously central to his case, was served on 26 May, a draft having been provided on 23 May. That draft, which brought the total of his deponents to 17, was provided 10 clear days before the hearing was to commence. It was apparent from the affidavits that on 6 May Mr Swan or his instructing solicitor already held 14 of them; they had been sworn in 2013. It also became apparent that Mr Swan had subpoenaed two further witnesses who had declined to make affidavits; he did not tell opposing counsel about this or invoke r 9.75 of the High Court Rules, under which a party may seek an order that a witness appear and be examined on oath before the hearing.
By letter of 21 May 2014 Mr Ross notified Mr Swan that he was taking instructions about the late filing of the affidavits. By letter of 26 May Mr Ross notified Mr Swan that “formal objection” was taken to late filing. Mr Swan did not move to extend time or seek a teleconference with the trial Judge.
The hearing duly began on 3 June. Notices had been given requiring all 35 deponents for cross-examination. Many of the affidavits were brief, but their number and disputed content must have made it near-impossible to complete the hearing in three or even four days.
In his opening synopsis, which had been served before the hearing, Mr Ross objected to the late filing of the defence affidavits, which he characterised as an ambush, and complained that the delay had embarrassed the executors. When the hearing began counsel asked the Judge to not read the affidavits; in the alternative, to adjourn the hearing so the executors could reply to the defence evidence.
As noted, Mr Swan had taken no steps to seek an extension of time. In his opening synopsis he simply rehearsed the procedural background and said that the fault was attributable to the executors' original delay, that he had been unduly optimistic when agreeing to exchange on just three days notice, and that neither party had sought an adjournment. In his affidavit filed on appeal he stated that he did not appreciate that the executors' objection might result in the affidavits not being read at all.
It appears from the judgment below that when confronted with Mr Ross's request that the affidavits not be read Mr Swan explained from the bar that there had been delays in getting Mr Parlane's affidavit prepared and sworn, largely because Mr Parlane does not use email and is not readily contactable by cellphone. 5 He confirmed that he had the other affidavits available when he agreed to the new timetable but said he thought it necessary to retain them so Mr Parlane could confirm their accuracy. There is nothing in the narrative to suggest that Mr Parlane actually did check them before they were filed; it seems none were altered, and it may be that counsel eventually decided he could not wait any longer. Counsel agree that Mr Swan also told the Judge that because not all of his deponents were available for cross-examination Mr Parlane would rely on eight affidavits only. It is implicit in this advice that Mr Swan had abandoned any idea of calling the two witnesses he had subpoenaed. He did not move for an adjournment.
It does not appear to be in dispute that not until the defence affidavits were served did the executors learn the factual basis for Mr Parlane's defence and counterclaim. On that basis Mr Ross sought an adjournment in the alternative. It appears that a new fixture would not be available until March 2015. Further, Mr Swan conceded that in order to meet an order for wasted costs of the adjournment Mr Parlane would have to sell his house.
Duffy J ruled orally that the affidavits would not be read, but indicated that Mr Parlane could still take part in the proceeding and his counsel was free to cross-examine witnesses and...
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