JINDAL v JARDEN SECURITIES LIMITED [2022] NZCA 329

JINDAL v JARDEN SECURITIES LIMITED [2022] NZCA 329 [22 July 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA584/2020[2022] NZCA 329BETWEEN GAUTAM JINDALAppellantAND JARDEN SECURITIES LIMITED(FORMERLY OM FINANCIAL LIMITED)First RespondentNZX LIMITEDSecond RespondentMINTERELLISONRUDDWATTSThird RespondentHearing: 13 June 2022Court: Cooper P, Mander and Fitzgerald JJCounsel: Appellant in PersonA J Lloyd, J J K Spring and J S Hofer for RespondentsJudgment: 22 July 2022 at 2:30 pmJUDGMENT OF THE COURTA The applications for leave to adduce further evidence on appealare declined.B The application to disqualify counsel from acting for the first andsecond respondents on the appeal is declined.C The appeal is dismissed.D The appellant must pay the respondents one set of costs for a standardappeal on a band A basis uplifted by 20 per cent and theusual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Mander J)[1] Mr Gautam Jindal brought civil proceedings alleging negligence and breach ofcontract against Jarden Securities Ltd (Jarden) in the District Court at Auckland.Mr Jindal sought damages for a number of foreign exchange trades in which Jardenacted as his broker and caused him financial loss.1 As part of those proceedings,Mr Jindal sought non-party discovery from NZX Ltd (NZX), a publicly ownedcompany that operates the New Zealand Stock Exchange and has regulatory functions,including in respect of Jarden.[2] The law firm MinterEllisonRuddWatts (MERW) acted for Jarden in theDistrict Court proceedings. NZX also instructed MERW for the purpose of thenon-party discovery application. Mr Jindal objected to MERW representing bothentities and applied to the District Court to disqualify it from acting for Jarden andNZX. Judge Harrison dismissed Mr Jindal's application and declined to disqualifyMERW.2 Mr Jindal failed to appeal that decision within the stipulated timeframe.However, some eight weeks late, he applied to the High Court to file an appeal out oftime. Powell J dismissed that application and Mr Jindal now appeals that decision.3[3] In support of his appeal against the High Court's refusal to grant his applicationfor an extension of time to appeal the District Court decision, Mr Jindal seeks leave toadduce further evidence.4 He also applies to disqualify MERW from acting for Jardenand NZX on the appeal. Both applications are opposed, as is the substantive appeal.BackgroundMr Jindal's application to the District Court[4] Mr Jindal's application to the District Court to disqualify MERW from actingfor both Jarden and NZX appears, at least initially, to have arisen out of a concern that1 Mr Jindal sued Jarden's predecessor, OM Financial Ltd. OM Financial Ltd and Jarden SecuritiesLtd amalgamated on 7 March 2021 to become Jarden Securities Ltd.2 Jindal v OM Financial Ltd [2020] NZDC 2162 [District Court judgment] at [12].3 Jindal v OM Financial Ltd [2020] NZHC 1993 [High Court judgment].4 Court of Appeal (Civil) Rules 2005, r 45.if MERW acts for NZX relevant documents harmful to Jarden's case may not bediscovered. Judge Harrison, in dismissing the application, noted there was noevidence to support such a serious allegation.5 The Judge referred to the ethicalobligations on solicitors with regard to the discovery of documents under the Lawyersand Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (the Rules)6and noted no concerns had arisen regarding how MERW had discharged its obligationsin respect of Jarden.7 The Judge could discern no conflict of interest between Jardenand NZX. The latter was not a party to the proceeding and therefore no conflict arosewhich could disqualify MERW from acting.8The High Court decision[5] The date for filing an appeal from the District Court's decision expired on11 March 2020. Mr Jindal did not file his notice of appeal until 4 May 2020. It wasnot served on the intended respondents until 12 May 2020. In support of hisapplication for an extension of time to appeal, Mr Jindal argued his proposed appealraised important issues of principle with regard to the relationship between theregulator (NZX) and a regulated party (Jarden), and that allowing the same counsel toact for both parties would be imprudent and potentially undermine the independenceof the regulator. Mr Jindal maintained such a relationship gave rise to an inherentconflict of interest or, at least, created "a more than negligible risk" of such a conflict.This was a reference to r 6.1 of the Rules, which prohibits lawyers acting for morethan one client in circumstances where they may be unable to fully discharge theirobligations to each one.[6] In dismissing the application for an extension of time to appeal, Powell J wassatisfied that Mr Jindal was aware of the deadline for the filing of an appeal but hadmade an informed decision not to do so having taken legal advice prior to the filingdeadline.9 This was not a case of genuine error, nor one where Mr Jindal could point5 District Court judgment, above n 2, at [3]–[4].6 At [7] and [9], referencing Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care)Rules 2008, rr 8.13 and 13.9.7 At [8] and [10].8 At [11].9 High Court judgment, above n 3, at [14]–[15].to some other party bearing responsibility for the delay.10 In any event, the Judge wassatisfied Mr Jindal's appeal had no merit and he had failed to demonstrate there was amore than negligible risk of a conflict of interest requiring the disqualification ofMERW from acting for NZX on the non-party discovery application.11[7] It was further observed that NZX was not a party to the substantive proceedingsand had no interest in them.12 Powell J noted both Jarden and NZX had consented toMERW acting for them and there was no basis to believe that, should any conflictemerge, MERW would not bring that to its clients' attention or raise any difficulty withthe Court.13 Suggestions by Mr Jindal that there were COVID-19-related reasons forthe delay in filing the appeal were rejected. It was noted the deadline for filing theappeal against the District Court's decision fell well before the first nationwideCOVID-19 lockdown.14The appeal[8] Mr Jindal advanced his appeal on two main bases:(a) He maintained there were valid reasons for him missing the appealdeadline and for the delay in filing his notice of appeal that should haveresulted in him being granted an extension. He sought leave to adducefurther evidence in support of this ground.(b) The High Court had erred in concluding his appeal was without meritor, at least, was so weak as to justify declining his application to appealout of time. In support of this aspect of his appeal, Mr Jindal submittedthe District and High Courts failed to recognise the role of NZX andthe public interest in it maintaining its independence which would beundermined if both the regulator and regulated are represented by thesame lawyers.10 At [16].11 At [17].12 At [17].13 At [18].14 At [14].[9] A third ground raised by Mr Jindal was a claim the District Court lacked thenecessary jurisdiction to hear his application to disqualify MERW and that its decisionto dismiss it was a nullity. Mr Jindal maintained the correct course would have beenfor the District Court to have transferred the hearing of his application to theHigh Court in order to allow that Court to exercise its inherent jurisdiction.This submission is misconceived and can be dealt with in short order.District Court's inherent power[10] Mr Jindal drew on this Court's discussion in Black v Taylor15 of theHigh Court's inherent jurisdiction to regulate who may appear before it on a particularproceeding to protect public confidence in the administration of justice as suggestingthat only the High Court has the ability to regulate its processes in such a way.However, every court has inherent powers incidental or ancillary to its jurisdiction thatare necessary to enable it to function effectively as a court of judicature.16 An exampleof inherent judicial power is the control of solicitors appearing before the court.17[11] There is a distinction between an inherent jurisdiction (which has a substantivequality) and inherent powers (which are parasitic to and support a court's jurisdiction,be it inherent or statutory) which can give rise to confusion.18 This point was madeby the Supreme Court in Zaoui v Attorney-General:19[35] Some confusion may arise because the term "inherent jurisdiction" isapplied both to substantive and procedural powers. The ancillary inherentpowers of Courts to regulate their own procedure arise equally in relation totheir statutory and common law substantive jurisdictions. Courts which donot possess an inherent substantive jurisdiction (as is the case where theirsubstantive powers are entirely statutory) nevertheless have inherent orimplied procedural powers necessary to enable them to give effect to theirstatutory substantive jurisdiction.15 Black v Taylor [1993] 3 NZLR 403 (CA).16 District Court at Christchurch v McDonald [2021] NZCA 353, [2021] 3 NZLR 585 at [27],citing Siemer v Solicitor-General [2013] NZSC 68, [2013] 3 NZLR 441 at [113]–[114]per McGrath, William Young and Glazebrook JJ; and Philip A Joseph Joseph on Constitutionaland Administrative Law (5th ed, Thomson Reuters, Wellington 2021) at 901.17 At [27], citing Harley v McDonald [2001] UKPC 18, [2002] 1 NZLR 1 at [45]; and Black v Taylor,above n 15, at 408–409 per Richardson J.18 At [28].19 Zaoui v Attorney-General [2005] 1 NZLR 577 (SC) (footnote omitted).[12] In the case of the District Court, its inherent powers, by necessary implication,arise from its statutory jurisdiction20 and are most frequently used to regulate its ownprocedures and give effect to its substantive jurisdiction.21 Such powers include theCourt's ability to control those appearing before it as counsel and is one common toboth the District and High Courts regardless of the powers' jurisdictional source.[13] We therefore reject Mr Jindal's submission that the District Court lackedinherent power to hear and determine his application to disqualify MERW from actingfor NZX on the non-party discovery application.Reasons for failing to file notice of appeal within time[14] Before the High Court, Mr Jindal sought to explain his failure to file his noticeof appeal within time by referring to correspondence between his lawyer, instructedfor the purposes of a possible appeal, and MERW. It was this correspondence that ledPowell J to conclude that Mr Jindal had been aware of the deadline for the filing of anappeal against Judge Harrison's decision and had decided at that time not to appeal.Relevantly, the letter advised:My client has considered appealing the refusal of the debarment application.He reserves his position to apply for extension of time to appeal if a conflictof interest arises in the course of the non-party discovery process. If it cannotbe resolved, because it continues to be unreasonably contested with your firmin the middle, he may apply for leave to appeal, or he may renew hisdebarment application to the District Court on fresh grounds. Presently, heprefers to resolve the underlying issue of non-party discovery in a focusedmanner. He reserves his right to produce a copy of this letter to the Court onany application for leave to appeal.[15] While Mr Jindal purported to reserve his position, as Powell J observed, therewas no suggestion he was seeking the consent of any of the intended respondents toan extension of the filing deadline.22 Mr Jindal complained that he did not receive areply from MERW until 9 April, at which point he was advised any application for anextension of time to appeal or revisit the District Court's decision regardingdisqualification would be opposed. MERW's letter rejected the proposition NZX'sopposition to the non-party discovery application in its contemporaneous form was20 McMenamin v Attorney-General [1985] 2 NZLR 274 (CA) at 276.21 Taylor v Attorney-General [1975] 2 NZLR 675 (CA) at 680.22 High Court judgment, above n 3, at [15].unreasonable and invited Mr Jindal to engage with MERW to resolve the non-partydiscovery issue by meeting NZX's reasonable costs.[16] In the absence of any request for an extension, Powell J concluded the factMERW did not respond until 9 April was irrelevant and that, in any event, despiteMr Jindal having been advised that any application to appeal out of time would beopposed, no such application was made until a further month had passed.23 It was onthe basis of those circumstances the High Court concluded Mr Jindal had made aninformed decision prior to the filing deadline not to file an appeal and that anyextension of time would, in the circumstances, defeat the purpose of the time limit.24Mr Jindal's application for leave to adduce further evidence[17] In support of his appeal, Mr Jindal seeks leave to adduce further evidence thathe says is material to the High Court's decision and demonstrates it was based onfactual errors. Mr Jindal maintains this evidence shows that he insisted an appeal bepursued and that a notice of appeal be filed by the deadline of 11 March 2020.[18] This Court may grant leave to admit further evidence on an appeal if it is fresh,credible and cogent.25 Evidence will not be regarded as fresh if it could, withreasonable diligence, have been produced at first instance.26 It is not disputed theevidence sought to be adduced by Mr Jindal is not fresh. However, Mr Jindalmaintains it is credible and cogent and that, because he was a layperson representinghimself before the High Court, this is one of those rare exceptions where the evidenceshould be admitted notwithstanding it is not fresh.27 The respondents oppose thisadditional evidence being accepted in the absence of any explanation as to why it wasnot tendered before the High Court, particularly given the centrality of the issue towhich the proposed evidence relates and the fact Mr Jindal chose to adduce only someof this evidence before that Court.23 At [15].24 At [16].25 Court of Appeal (Civil) Rules, r 45; and Paper Reclaim Ltd v Aotearoa International Ltd(Further Evidence) (No 1) [2006] NZSC 59, [2007] 2 NZLR 1 at [6], n 1, citing Rae vInternational Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190 (CA) at 192.26 Rae v International Insurance Brokers (Nelson Marlborough) Ltd, above n 25, at 192.27 Mr Jindal relied on the cases of Complaints Committee No 1 of the Auckland District Law Societyv P (2007) 18 PRNZ 760 (HC); and Slavich v R [2011] NZCA 457.[19] The evidence Mr Jindal seeks to introduce confirms he sought legal adviceregarding the prospects of appealing the District Court decision, met with a solicitorand instructed counsel. The plan at that time was to file a notice of appeal and engagewith MERW with the objective of having it step back from representing NZX.However, on 6 March, Mr Jindal's solicitor informed him that his counsel had revisedthe merits of an appeal and advised against it. A draft of the letter that was ultimatelysent to MERW and referred to by the High Court was attached for his comment.Mr Jindal replied to his lawyer later that evening. He was emphatic that an appealshould proceed and the deadline not to be missed. In that regard, he referred to thefive-day deadline proposed to be provided to MERW for a reply, which Mr Jindalinsisted needed to fall within the time limit for filing a notice of appeal.[20] The following day, Mr Jindal's solicitor expressed dismay at Mr Jindal'sresponse given his counsel's careful consideration that his appeal was very unlikely tosucceed and that the better course was to focus on narrowing the discovery applicationand progressing the substantive proceeding. Arrangements were made to meet withMr Jindal on 9 March at 12.30 pm. Mr Jindal has offered no evidence of the discussionthat took place at this meeting but, at 1.52 pm that day, the letter recording Mr Jindal'sposition, in the terms set out at [14], was sent to MERW. Over the course of thefollowing weeks, Mr Jindal made periodic inquiries of his solicitor regarding whetherMERW had responded to the proposal set out in the letter to resolve the outstandingissues.Analysis[21] The evidence Mr Jindal seeks to introduce includes a claim that his solicitordid not provide him with a copy of the 9 March letter before it was sent to MERW onthat date and that he did not see or approve that letter. Mr Jindal does not mention inhis affidavits the meeting he had with his lawyers shortly before the letter was sentthat could only have been for the purpose of discussing its content and confirming hisinstructions regarding whether an appeal was to be progressed. Nor does Mr Jindalexplain the messages he sent over the following two weeks to his lawyer askingwhether there had been a reply by MERW to the 9 March letter. There is no mentionof a failure to file an appeal on 11 March despite his enquiries on 13, 16 and 18 Marchasking whether MERW had responded to the proposal. On Mr Jindal's version ofevents, such enquiries would have been redundant as the deadline for Mr Jindal's offerto engage to resolve the issue of conflicted duties and obligations regarding non-partydiscovery would have passed.[22] There are other difficulties with Mr Jindal's proposed evidence. The allegationthat his counsel did not follow his instructions was never raised before the High Court.To the contrary, Mr Jindal affirmed in that Court he had sought legal advice regardingthe District Court decision and relied upon the content of the 9 March letter sent byhis solicitor that he annexed to his affidavit filed in support of his application for anextension of time. Before that Court he complained about the length of the delaybefore receiving a reply from MERW to his proposal seeking an "out of courtresolution to the issues". Mr Jindal's argument in the High Court was that it was clearfrom this correspondence that he intended to file an appeal. However, there was nosuggestion he was labouring under any misapprehension that an appeal had alreadybeen filed, that his counsel, contrary to his instructions, had failed to do so, that he didnot know the content of the 9 March letter sent to MERW or that it had been sentwithout his approval. Mr Jindal had been aware of the 9 March letter and its contentas far back as 6 March when he viewed and commented on a draft that was sent to himby his lawyers.[23] Mr Jindal's evidence in the High Court was that he thought "it was best to waitfor the respondent party's response to the email sent 09 March 2020, before I shouldproceed with the filing of the appeal". This is entirely contrary to his present evidence.Mr Jindal's evidence before this Court was that he was unaware the 9 March letter hadbeen sent in the form it was until much later, when he made an enquiry of his solicitorafter they had not heard back from MERW. Given the importance of the 9 March letterto Mr Jindal's application to appeal out of time, which he himself introduced and reliedupon in support of his argument before the High Court, we consider it extraordinarythat he now alleges the 9 March letter had been sent by his former lawyers in breachof their ethical obligations and contrary to his instructions. No reason has beenprovided as to why such a serious allegation was not raised before the High Court andan entirely contrary argument based on that letter presented before it.[24] The balance of Mr Jindal's explanation for the near eight-week delay in filinghis notice of appeal were difficulties relating to COVID-19 and with obtaining theassistance of replacement counsel. Mr Jindal cites his belief at the time that"court matters" had been "postponed" due to the lockdown that occurred on 25 March2020 and relies upon a communication from the District Court regarding theadjournment of a hearing. However, Mr Jindal does not satisfactorily explain how thatbears on his understanding of requirements regarding the filing of documents and themeeting of court deadlines.Decision[25] We do not consider the additional material Mr Jindal seeks to introduce on hisappeal is either cogent or credible. It does provide greater detail about thecircumstances of the 9 March correspondence to MERW, but it makes no materialdifference to the conclusion reached by the High Court that he had deliberately chosennot to appeal. We accept Mr Jindal was initially intent on filing an appeal and wasreluctant to accept the advice of his legal counsel. There is evidence Mr Jindal madeenquiries about obtaining other legal representation around this time but, havingregard to the content of the 9 March letter and the meeting he attended with his counselimmediately prior to that correspondence being sent to MERW, we do not considerthose circumstances admit of any conclusion but that Mr Jindal was cognisant of itscontent and agreed to adopt the course he had been counselled to follow. That did notinclude pursuing an appeal at that time. We do not consider Mr Jindal's claims to thecontrary are credible.[26] The proposed evidence does not therefore advance Mr Jindal's position.Instead it leads to the same conclusion reached by the High Court — that he was awareof the deadline for filing an appeal and decided not to meet it. It follows that theproposed evidence is not cogent. To the extent it was put forward for the purposes ofestablishing the stance taken in the 9 March letter was contrary to Mr Jindal'sinstructions, we do not consider his evidence to be credible. We decline to admit theevidence.[27] For completeness, we note Mr Jindal waived privilege in respect of thecorrespondence that he sought to rely on as further evidence and had no objection tous having access to unredacted copies of that material.[28] This ground of Mr Jindal's present appeal was reliant upon our acceptance heshould be permitted to adduce further evidence and that such evidence wouldmaterially bear on the High Court's findings regarding the circumstances of Mr Jindalnot filing an appeal prior to the deadline. It follows from the reasons we have providedfor declining Mr Jindal leave to adduce this further evidence that we do not considerhe has demonstrated the High Court erred in its conclusion that he made a deliberatedecision not to appeal the District Court's decision before the lapse of the deadline forany such appeal.The respondents' application for leave to adduce further evidence[29] The respondents sought leave to adduce further evidence in response toMr Jindal's proposed evidence. Much of this material concerns ancillary issuesrelating to NZX's position regarding non-party discovery, Mr Jindal's application forleave to adduce further evidence, and demands that he pay outstanding costs.Given our refusal to grant Mr Jindal leave to adduce further evidence, we do notconsider it is necessary to receive this information. The respondents' application toadduce further evidence is declined.Assessment of merits of proposed appeal in the High Court[30] Mr Jindal's second ground of appeal challenged the High Court's conclusionthat his proposed appeal from the District Court's refusal to disqualify MERW fromacting for NZX was without merit.[31] Mr Jindal submitted that it was only if the merits of his proposed appeal wereobviously "very weak" and "clearly hopeless" that the Court could legitimately reacha view about its merits when considering whether to grant an extension of time.28We accept that, while the merits of a proposed appeal may in principle be relevant to28 Citing Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [39].the exercise of the discretion to extend time, any decision to refuse an extension basedsubstantially on that ground should only be made where the lack of merit is readilyapparent. Mr Jindal claims his proposed appeal does have merit and he was critical ofthe High Court only viewing the issue through the lens of a potential professionalconflict of interest under the Rules. He submitted that both the District andHigh Courts failed to address the issue in accordance with their inherent jurisdictionto control who appears before them, as discussed by this Court in Black v Taylor.29[32] Mr Jindal submitted the question of a conflict of interest arising from MERWacting for both Jarden and NZX extends beyond whether NZX is a party to theproceeding, but turns on its responsibilities as a regulator and the appropriateness of itbeing represented by the same solicitors who act in respect of the same matter for anentity over which it has regulatory responsibilities. Mr Jindal argued the publicinterest in the administration of justice requires the maintenance of an unqualifiedperception of fairness in the eyes of the general public.30 He submitted where theregulator and a regulated party are represented by the same lawyer in the sameproceeding that standard is not being maintained. Mr Jindal submitted NZX must beseen to act independently of those it regulates and there is a potential clash of interests.[33] Insofar as any theoretical conflict could be identified, Mr Jindal submittedregulatory compliance issues may arise out of the non-party discovery process aboutwhich NZX must be seen to act independently. Mr Jindal's concern was with theperception of the regulated party's lawyer also acting for the regulator rather than withthe prospect of such issues arising from the District Court litigation. He submitted themerits of this argument are sufficiently strong to support his application for anextension of time to appeal or, at least, are not so hopeless as to justify his applicationbeing rejected by the High Court. Mr Jindal also claims there is an element ofpublic importance in the issue raised by his proposed appeal.29 Black v Taylor, above n 15.30 Citing Deliu v Auckland Standards Committee (Counsel: Debarment) [2014] NZHC 2530,[2014] NZAR 1473 at [22].Analysis[34] We do not consider the High Court erred in its assessment of the merits ofMr Jindal's proposed appeal. It needs to be re-emphasised that NZX is not a party tothe substantive proceeding and has only become involved in the litigation as a resultof an application made by Mr Jindal for non-party discovery. It has no role in thenarrative of events upon which Mr Jindal's claim against Jarden is based. Its onlyrelevance to the proceeding is as the repository of information which Mr Jindal seeks.Insofar as there has been resistance to his application, this appears to have primarilybeen because of the breadth of his request for discovery that potentially involvestens of thousands of documents and Mr Jindal's apparent reluctance to pay thereasonable costs that attach to carrying out what is likely to be an onerous andexpensive exercise, at least on the basis of what Mr Jindal was initially intent onpursuing. As found by the Judge in the District Court, there is no basis to suggestMERW would not comply with its professional obligations under the Rules in relationto the discovery process.31 Nor is there any viable basis to impeach the High Court'sview that NZX and Jarden instructed MERW on an informed basis.[35] As will be apparent from our earlier discussion of Black v Taylor, a court hasthe inherent power to restrain lawyers from appearing in proceedings before it wherethe integrity of the judicial process would be impaired by counsel's adversarialrepresentation of one party against the other.32 That inherent power extends toprotecting public confidence in the administration of justice by preventing lawyersfrom acting where a conflict of interest may prevent justice being seen to be done.33[36] The identification and application of the relevant principles will depend uponthe circumstances of the particular case, but the overall assessment will turn on howthe conduct in question — here, MERW acting for NZX on the non-party disclosurediscovery application — would appear to those reasonable members of the communityknowing the background to NZX's involvement.34 In making that assessment,31 District Court judgment, above n 2, at [7]–[10], citing Lawyers and Conveyancers Act (Lawyers:Conduct and Client Care) Rules, rr 8.13 and 13.9.32 Black v Taylor, above n 15, at 412 per Richardson J.33 At 408 per Richardson J.34 At 408 per Richardson J.the ethical responsibilities of practitioners, as set out in the profession's own rules,will often provide appropriate guidance.35 The court will also have to take due regardof the public interest in a person not being deprived of their counsel of choice withoutgood cause.36 Considerations of delay, inconvenience and expense arising from achange in representation may also be important in determining, in particular cases,whether the interests of justice truly demand disqualification.37[37] Black v Taylor concerned a perceived conflict arising from a practitioner actingagainst a former client and much of the discussion in that case is premised on thepotential difficulties arising from that lawyer acting against a party in respect of whomthey had previously been engaged and knew well. This is not the situation that arisesin the present case. We accept the court's power to intervene extends more widelythan the ethical responsibilities set out in the Rules and includes situations where aperceived conflict may prevent justice from being seen to be done. However, like theDistrict and High Courts, we do not consider this case remotely approaches thethreshold requiring the Court to exercise its inherent powers.[38] As already noted, NZX is not a party to the substantive proceeding and its onlyinvolvement is by dint of it being the holder of information sought by Mr Jindal thathe considers to be relevant to his claim against Jarden. NZX has no interest in theunderlying proceeding and has indicated a willingness to provide any documentswhich are reasonably sought. NZX has chosen to instruct MERW because it is a firmwith which it has an existing relationship. MERW's lawyers are bound to comply withtheir ethical obligations in dealing with the non-party discovery application.[39] Mr Jindal has been unable to identify any act or omission on MERW's part thatgives rise to concerns that it will not comply with those professional responsibilitiesin discharging its obligations. He has also been unable to identify how the non-partydiscovery application could engage NZX's regulatory responsibilities.Any suggestion that further developments in the litigation may result in it becomingmore heavily involved in the proceedings is entirely speculative.35 At 409 per Richardson J.36 At 409 per Richardson J.37 At 412 per Richardson J.Decision[40] Based on the nature of NZX's limited involvement in the proceeding, with itsonly role being that of the relevant recordkeeper, we do not consider its engagementof MERW for the purposes of the non-party disclosure application is capable of givingrise to any valid concerns that would undermine public confidence in theadministration of justice when measured against the perceptions of an objective,reasonable member of the community with knowledge of the background to this matterand MERW's ethical responsibilities. That being the case, we do not consider Powell Jerred in his assessment that Mr Jindal's proposed appeal has no merit. We concludethe Judge was legitimately permitted to take this factor into account when refusing togrant an extension of time.Conclusion[41] The ultimate question when determining applications for an extension of timeis what the interests of justice require after having regard to various factors, includingthe length of the delay, the reasons for it, the conduct of the parties (particularly theapplicant) and any resulting prejudice.38 Having regard to these considerations,we agree with Powell J's conclusion that Mr Jindal made an informed decision priorto the filing deadline not to file an appeal from the District Court's decision refusingto disqualify MERW. Given the appeal's clear lack of merit, the unsatisfactoryexplanations proffered by Mr Jindal in an endeavour to explain his failure to file hisappeal within time, and the subsequent delay in doing so, we do not consider theHigh Court erred in dismissing this application to extend time to bring an appeal.Application to disqualify MERW from acting on the appeal to this Court[42] It follows from our findings regarding the merits of Mr Jindal's proposedappeal to the High Court that his application that MERW not be permitted to representboth Jarden and NZX on this appeal must fail. Mr Jindal seeks to distinguish theposition of those two entities on the application for non-party discovery where NZX,by definition, is not a party, with its status as a party to the present appeal, and whereall the respondents, including MERW itself, are represented by that firm. Mr Jindal38 Almond v Read, above n 28, at [38].submitted MERW cannot be seen as independent when acting for all three parties onthe appeal and is in breach of its professional obligations by doing so.[43] The application duplicates the argument regarding the appropriateness ofMERW acting for both NZX and Jarden without altering either the substance or themerits of that argument. Insofar as it seeks to take advantage of the naming of NZXand MERW as intended parties to the application made before the High Court and asrespondents on the appeal to this Court, the interlocutory application is simply aprocedural device that is without merit and is dismissed as such.Costs[44] The respondents seek increased costs on the basis that Mr Jindal's appeal iswithout merit and has been litigated in a way that has caused them to incur excessivecosts. They seek a 50 per cent uplift on standard appeal costs.[45] We agree that Mr Jindal's appeal was without merit and that he has put therespondents to the expense of having to reply to a flawed argument. Moreover,Mr Jindal sought to adduce evidence in support of a case that was not only notadvanced before the High Court but was inconsistent with the position he took beforethat Court. Mr Jindal did not explain why a demonstrably different reason for hisfailure to appeal within time was put forward to this Court than was advanced beforethe High Court.[46] Mr Jindal's appeal to this Court could not succeed. Much of his argument wasmisconceived, as was his application to disqualify counsel from acting on the appeal.Considerable expense was unnecessarily incurred by the respondents in having torespond to further evidence sought to be admitted by Mr Jindal and to meet argumentsthat were only raised on this appeal for the first time. In the circumstances,we consider these unsatisfactory aspects of Mr Jindal's appeal should be met by a20 per cent increase in costs payable to the respondents.Result[47] The applications for leave to adduce further evidence on appeal are declined.[48] The application to disqualify counsel from acting for Jarden and NZX on theappeal is declined.[49] The appeal is dismissed.[50] Mr Jindal must pay the respondents one set of costs for a standard appeal on aband A basis uplifted by 20 per cent and the usual disbursements.Solicitors:MinterEllisonRuddWatts, Auckland for Respondents