SHARMA v FOSTER-BOHM [2023] NZHC 552

SHARMA v FOSTER-BOHM [2023] NZHC 552 [17 March 2023]IN THE HIGH COURT OF NEW ZEALANDNELSON REGISTRYI TE KŌTI MATUA O AOTEAROAWHAKATŪ ROHECIV-2021-442-53[2023] NZHC 552UNDER the District Courts Act 2016IN THE MATTER OF an appeal pursuant to section 124 of theDistrict Courts At 2016BETWEEN ANJELA SHARMAAppellantAND GAIL FOSTER-BOHM AND ANDREWCORBINRespondentsHearing: 9 March 2023Counsel: L A Andersen KC for the AppellantJ Moss for the RespondentsJudgment: 17 March 2023JUDGMENT OF PALMER JCounsel/SolicitorsL A Andersen KC, DunedinJ Moss, Barrister, ChristchurchPatient & Williams, ChristchurchThe judgment[1] On 3 November 2022, I issued judgment in this appeal (the Judgment) holding,in summary:1[1] In 2015 and 2016, Ms Gail Foster-Bohm and Mr Andrew Corbin, therespondents, brought a personal grievance against IHC New Zealand Inc(IHC). Ms Foster-Bohm and Mr Corbin subsequently sued their lawyer, theappellant Ms Anjela Sharma, for negligence in representing them. She suedthem for non-payment of legal fees. The District Court found in favour of MsFoster-Bohm and Mr Corbin. Ms Sharma appeals on six grounds.[2] First, the District Court did not err in holding that the employment claimwas statute-barred. Second, the Court was entitled to consider the evidenceof Mr Stephen Zindel. Third, the Court was correct not to admit a letter byformer Chief Judge Colgan as evidence but to allow it to be used in cross-examination. Fourth, I agree that Ms Sharma was negligent in failing to lodgethe personal grievance in time, in failing to advise Ms Foster-Bohm and MrCorbin to seek independent advice and in failing to apply for an extensiononce she realised the situation. Fifth, I find no fault in the Judge's approachto assessing damages. Finally, I do not consider the Court erred in decliningto order Mr Corbin and Ms Foster-Bohm to pay for negligently-renderedwork. I dismiss the appeal.Should I grant leave to appeal?[2] Ms Sharma now seeks leave for a second appeal, to the Court of Appeal. Ifleave is granted, she applies for a stay of execution of the High Court judgment.Mr Andersen KC, on her behalf, submits there are four key issues central to theapplication for leave. The respondents oppose leave being granted.[3] There is no dispute that it is not easy to get leave for a second appeal unders 60 of the Senior Courts Act 2016.2 Leave requires there to be a question of law orfact capable of bona fide and serious argument involving interests that are sufficientlyimportant to outweigh the cost and delay of an appeal.3 The primary function of asecond appeal is to clarify the law and determine whether it has been properlyconstrued and applied.41 Sharma v Foster-Bohm and Corbin [2022] NZHC 2871 (footnotes omitted).2 Butch Pet Foods Ltd v Mac Motors Ltd [2018] NZCA 276 at [4].3 Waller v Hider [1998] 1 NZLR 412 (CA) at 413.4 At 413.[4] Regarding each of the four issues raised by Ms Sharma in turn:(a) First, Mr Andersen submits the question of whether the claim wasstatute-barred is important to Ms Sharma and capable of seriousargument. But the Judgment held that the argument was not pleaded inthe District Court and was inconsistent with what was pleaded.5 MrAndersen's submissions to the contrary depend on a tenuousinterpretation of the facts and pleadings. And, as explained in theJudgment, his submissions on the merits do not get around the keyfactual finding that the date of termination was clearly agreed betweenthe respondents and their employer.6 That is what set the date of thestatute-bar. It was consistent with Ms Sharma's submissions to theEmployment Relations Authority, which reached the same conclusionas this Court.7(b) Second, in relation to Mr Zindel's testimony as an expert witness:(i) Mr Andersen submits that the Judgment misunderstood thesubmission regarding Mr Zindel's testimony, which was that hewas not sufficiently impartial to act as an expert witness becausehe acted for the respondents in previous proceedings directlyrelated to the relief sought. But that is the substance of howMr Andersen's submission is described in the Judgment.8(ii) Mr Andersen submits the Judgment wrongly held there was noevidence to support Mr Zindel not being involved withrespondents' decision to sue Ms Sharma. But that sentence inthe Judgment is in a paragraph characterising Mr Moss'submissions, not a finding by the Court.95 Sharma v Foster-Bohm and Corbin, above n 1, at [16].6 At [18].7 At [19].8 At [20].9 At [21].(iii) Mr Andersen submits two documents before the District Court,showing Mr Zindel was actively involved in the decision to sueMs Sharma, were inadvertently omitted from the High Courtbundle of documents on appeal. But there has been nosuggestion of an application to adduce the further evidence.There is nothing to indicate Mr Zindel had a financial interestin the claim against Ms Sharma. And the omitted documentsseem likely not to make any difference because: they werebefore the District Court; Mr Zindel's evidence was challengeddirectly in that Court, including by cross-examination; thepurpose of the evidence went only to quantum; and the Court ofAppeal accords leeway to a trial judge to admit non-compliantevidence.10 There is no dispute about the legal principles.(c) Third, Mr Andersen submits that the Judgment goes further thanprevious cases in finding a reasonably competent practitioner wouldtake a conservative approach and err on the side of caution.11 But,again, he takes a sentence in a paragraph characterising Mr Moss'submissions to be the Court's finding.12 The Court's findings did notgo so far.13(d) Fourth, Mr Andersen submits the Judgment changes the onus of proofregarding loss by holding that the onus was on Ms Sharma to offerevidence of damages claimable on the basis of unjustified disadvantagealone. But the Judgment did not do so. It held that the problem for MsSharma on appeal is that she had offered no such evidence and therewas no fault in the District Court Judge's approach based on theevidence before her.1410 At [23]–[24]. See also Prattley Enterprises Ltd v Vero Insurance New Zealand Ltd [2016] NZCA67, [2016] 2 NZLR 750, [2016] 2 NZLR 750 at [100].11 Bannerman Brydone Folster & Co v Murray [1972] NZLR 411 (CA).12 Sharma v Foster-Bohm and Corbin, above n 1, at [29].13 At [30]–[31].14 At [34].(e) Fifth, Mr Andersen submits Ms Sharma is entitled to payment of herfees and the Judgment did not explain departure from a Court of Appealjudgment that has dealt with this issue. But there is no importance inthis issue, which falls away if the other issues do not succeed. And, ifthe respondents received no value from her services, Ms Sharma wasnot entitled to insist on payment of fees (she had not invoiced) for thatwork.[5] This case turns largely on its facts and the arguments raised were consideredin the first appeal, which upheld the findings of the District Court. Ms Foster-Bohmand Mr Corbin have been waiting 17 months for the fruits of their litigation againsttheir former lawyer, including their costs. The factual context is not a suitable vehiclefor the questions of law to be usefully explored. I do not consider the issues aresufficiently important to outweigh the cost and delay of a second appeal to the Courtof Appeal. I do not consider the proposed appeal meets the required threshold. Idismiss the application.[6] Accordingly, there is no basis for a stay, as Mr Andersen acknowledged, andthat application is dismissed too. I award costs to the respondents on a 2B basis forthe application for leave to appeal. I do not consider the threshold for increasing thecosts is met and do not do so.Palmer J