HOPKINS AND HOPKINS V NEW LIFE UPHOLSTERY LIMITED HC WHA CIV-2010-488-106

HOPKINS AND HOPKINS V NEW LIFE UPHOLSTERY LIMITED HC WHA CIV-2010-488-106 7 December 2010IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYCIV-2010-488-106BETWEEN ALAN BRETT HOPKINS ANDSUZANNE HOPKINSAppellantsAND NEW LIFE UPHOLSTERY LIMITEDRespondentHearing: 7 December 2010Appearances: S Hopkins in personW McNeil as Appellants' McKenzie friendG Ellis for the RespondentJudgment: 7 December 2010 17:00:00JUDGMENT OF WOODHOUSE J (Adjournment on conditions)This judgment was delivered by me on 7 December 2010 at 5:00 p.m. pursuant to r 11.5 of the High Court Rules 1985.Registrar/Deputy RegistrarParties: Mr A B Hopkins and Mrs S Hopkins Mr W McNeil New Life Upholstery Limited, C/o Mr G Ellis, Ruakaka[1] This proceeding is an appeal in form but an application for judicial reviewin substance. It arises out of a decision of the Disputes Tribunal dated 2 September2009 awarding a sum of $4,127.25 to the respondent on the respondent's claimagainst Mr and Mrs Hopkins. This was followed by an appeal to the District Court.The application for judicial review relates to the District Court judgment of 29January 2010.[2] The proceeding was set down for hearing tomorrow, 8 December 2010.This Court had earlier approved an application by Mr and Mrs Hopkins for MrWayne McNeil to act as their McKenzie friend: see the minute of Gendall J dated 16March 2010. Yesterday the Court received an e-mail from Mr McNeil seeking anadjournment on the grounds that he had that day received advice that his aunt haddied, the funeral is to take place in Rotorua on 8 December 2010 and Mr and MrsHopkins had been "totally reliant" on Mr McNeil to "prepare and present their case".[3] I arranged an urgent telephone conference. I also directed that Mr McNeil'se-mail be sent to Mr Ellis, the principal of the respondent. Mr Ellis made himselfavailable for the conference at very short notice and without having seen MrMcNeil's letter because he had not been able to get to his e-mails.[4] I was reluctant to grant an adjournment. This is not related to Mr McNeil'scircumstances, in respect of which the Court naturally has sympathy. The reluctanceto grant an adjournment arises from the fact that Mr McNeil's role is that of aMcKenzie friend. Without seeking to put too fine a point on it, it does seem to methat Mr McNeil's role has evolved substantially beyond the usual role of a McKenziefriend. There seems to be no reason why Mr and Mrs Hopkins, who remain litigantsin person, should not present their own case and, if need be, obtain the assistance ofanother person as McKenzie friend. These considerations, of course, have nobearing on the Court's natural sympathy for Mr McNeil's circumstances relating tohis aunt.[5] Mr McNeil advised that if he is not present it will cause particular difficultybecause Mr and Mrs Hopkins have simply left matters with him. This in itself issomewhat problematic because it assumed that the Court would permit Mr McNeilto effectively act as an advocate. There can be no assurance of that. In fact, this isrecognized in the application of Mr and Mrs Hopkins for Mr McNeil to act as aMcKenzie friend. Nevertheless, if this is the reality there could be unfairness to Mrand Mrs Hopkins if they are required at such late notice to try to present their case themselves without any assistance from another person familiar with the issues.[6] Mr Ellis opposed an adjournment; and at least in part for reasons that I havealready noted, relating to Mr McNeil's role. Mr Ellis was also understandablyconcerned about the delays that have already occurred, and further delay which isbound to occur with an adjournment, and difficulty in getting a further early fixture.[7] As I indicated to Mr McNeil and Mr Ellis in the course of the discussions(and I note that Mrs Hopkins was also on line) I was in the end minded to grant anadjournment but on condition that the amount of the existing judgment and accruedinterest is paid into this Court to be held pending the final decision and paid out inaccordance with it, and on the further condition that if payment is not made theproceeding will be dismissed. Mr McNeil, on behalf of the appellants, accepted theimposition of those conditions.[8] Accordingly, I made, and now formally record, the following orders:a) The proceeding is adjourned for a fixture to be allocated on the firstavailable date. The matter should be set down for a half day, butsubmissions should be confined to no more than an hour on each side.In that regard I note that Mr McNeil estimated that no more than 40minutes would be required for the presentation of the applicants' case.And Mr Ellis did not anticipate that the response would be any longer.b) The adjournment is granted on condition that the applicants pay intoCourt on or before 15 December 2010 the sum of $4,566.07 being thejudgment sum together with interest calculated at the prescribed rateof 8.4% per annum from 2 September 2009 to 8 December 2010.That sum is to be held by the Court pending determination of theapplication and is to be paid out in accordance with the decision ofthe Court.c) If the payment has not been made by 15 December 2010 the application (formerly the appeal) of Mr and Mrs Hopkins shall be deemed to have been dismissed.[9] Mr Ellis noted that he had lost time and, in consequence, income in attending the telephone conference and in anticipation of the hearing tomorrow. Irecord the point, but it is not a matter in respect of which the Court at this stage inthis proceeding can grant any particular remedy to Mr Ellis' company.________________________________ Peter Woodhouse J