SIEMER AND ANOR V K M FARDELL AS EXECUTRIX OF THE ESTATE OF JOHN ROBERT FORTESCUE FARDELL HC AK CIV.2003-404-5782

SIEMER AND ANOR V K M FARDELL AS EXECUTRIX OF THE ESTATE OF JOHN ROBERT FORTESCUE FARDELL HC AK CIV.2003-404-5782 19 June 2006IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV.2003-404-5782BETWEEN VINCENT ROSS SIEMER AND JANE CHAPMAN SIEMER First Plaintiffs AND PARAGON SERVICES LTD (FORMERLY KNOWN AS PARAGON OIL SYSTEMS LTD) Second Plaintiff AND KATHLEEN MARY FARDELL AS EXECUTRIX OF THE ESTATE OF JOHN ROBERT FORTESCUE FARDELL Defendant AND MICHAEL PETER STIASSNY AND FERRIER HODGSON Non-Parties Hearing: 19 June 2006 Counsel: Mr Siemer in person for Plaintiffs P Hunt for Non-Parties Judgment: 19 June 2006[ORAL] JUDGMENT OF WILLIAMS J [Re: interlocutory applications to videotape proceedings][1] This judgment deals with a most unusual application. It is an application by the plaintiffs that they be permitted to record today's hearing on videotape in order to have an accurate record of the proceedings during the hearing, to be able to use that recording in order to assist in the instructing of counsel and solicitors when the plaintiffs are successful in locating counsel and solicitors who are able to act, and toutilise the recording to prepare and conduct any appeal from the orders made as a result of this hearing and, if permitted, to use the recording in the Court of Appeal. [2] The application is unusual for a number of reasons. Formally, there is one, possibly two, applications before the Court for determination today. The first of those is an application by the plaintiffs to refer directly to the Court of Appeal their application to review the decision of Master Lang, as he then was, of 14 March 2005 concerning costs payable to the non-parties, Ferrier Hodgson and Mr Stiassny, of discovery in this claim. [3] In the event that application proves to be unsuccessful, there is today's hearing set down to deal with the review application itself. [4] It is clear that either or both of the applications for determination today are interlocutory applications usually heard in chambers and thus not usually open to the public, still less to recording of the argument and any decision, whether generally or for the purposes for which the plaintiffs wish to use the proposed recording. [5] Secondly, it is unusual because both in and around this case there has been other litigation in some of which, currently at least, findings of contempt of Court have been made in respect of all plaintiffs. [6] It remains unusual in New Zealand for there to be widespread filming of Court cases. The In-Court Media Guidelines 2003, the form of which was settled following extensive negotiations, sets strict guidelines for the filming of Court cases but, to date at least, have not been widely utilised even in criminal cases and almost never utilised in civil matters. To date, also, filming which has taken place for media broadcasts has almost exclusively been of substantive hearings involving witnesses, verdicts and the like, and not of interlocutory applications such as the present. [7] That notwithstanding, Mr Siemer, though accepting the plaintiffs are not covered by the In-Court Media Guidelines, has offered to accept their restrictions as far as they apply to today's hearing. Review of the Guidelines suggests that becausethey were formulated for an entirely different purpose, few of the conditions apply to circumstances such as these. [8] In a memorandum dated 25 May 2006, Mr Siemer said "The plaintiffs further represent to turn over the videotape to the Court for sequestration at the end of the hearing with the proviso that this tape will be available for any appeals". In submissions today, however, Mr Siemer advised that the plaintiffs wish to broaden their use of any videotape that might be made for the purposes earlier recorded and possibly for more general use at the conclusion of the case and any appeals. [9] For the non-parties, Mr Hunt strongly opposed the application, though his clients had earlier indicated that they took no stance in relation to the matter. Mr Hunt's principal ground of opposition stemmed from the findings of contempt said to be made by Ellen France and Potter JJ as to defamation proceedings, the defence of truth initially raised in those proceedings, and the contempt judgment of Potter J itself. Mr Siemer, however, said that Potter J's judgment is under appeal and accordingly her findings must be regarded as currently subject to challenge. [10] Although it is not difficult to understand the concerns expressed by Associate Judges Lang and Doogue and in cases such as Sagapolu v Commonwealth Securities Ltd (2002) 16 PRNZ 191 as to the consequences of recording the types of application with which those judgments were concerned and the no doubt extensive reference to evidence, often untested at that stage, which would occur at such hearings, such is in marked contrast, as put to Mr Hunt during submissions, with the types of matters likely to be dealt with by counsel and the Court during the hearing of the interlocutory application or, should such turn out to be case, of two interlocutory applications to be dealt with at this fixture. They seem unlikely to deal to any great extent with much of the more dramatic material likely to be covered in substantive hearings or those dealing extensively with evidence. That fact alone should go some way towards meeting the non-party's concerns about a recording being made of this fixture.[11] This is, as mentioned, an unusual application. By comparison with the greater run of interlocutory applications, any permission given for videotaping the present hearing should not be regarded as a precedent. [12] But the case itself is unusual. Broadly put, the plaintiffs assert that Mr Fardell, the defendant in these proceedings prior to his death, acted improperly or negligently in the advice he gave them concerning the position of Paragon Oil at the time when Mr Fardell was acting for them and the company. As far as is relevant to the current application, there is an assertion that there was a conflict of interest in Mr Fardell's recommendation to the plaintiffs that Paragon be placed in receivership and Mr Stiassny appointed receiver because of what is said to be a close personal and professional relationship between Messrs Fardell and Stiassny. [13] This case has been characterised by difficulties over discovery and conduct of the case itself and with Mr Fardell's recent death. It is to be noted that a stay application on behalf of the defendant is set down for determination in a week's time. [14] It would be fair to say that the plaintiffs' approach to the present proceeding has been sceptical of the efforts of Messrs Fardell and Stiassny in relation to discovery and indeed to other matters, and that doubtless forms part of the basis for their wish to record today's hearing on videotape. [15] Because of the unusual, even unique circumstances, it has been decided to permit the recording of today's hearing on videotape in order that an accurate record can be kept of all that passes between counsel and the Bench during the hearing. That decision is reached notwithstanding the findings against the plaintiffs of contempt by Potter J and two other decisions where videotaping has been refused by Associate Judge Lang and Associate Judge Doogue (Siemer and Paragon Services Ltd v Fardell HC AK Civ.2003-404-5782 14 June 2005 Lang AJ, and Paragon Services Ltd and Siemer v Ferrier Hodgson & Co Ltd HC AK Civ 2006-404-593 16 June 1006 Doogue AJ).[16] Any order for permitting videotaping, however, is based solely on the unusual circumstances of this case and the Siemers' wish to ensure accuracy as to what they see as access to justice and fair trial. [17] The order, however, must be subject to a number of conditions. [18] The first condition is that without leave of the Court the videotape is not to be copied and any undertaking given to the Court must also certify that it cannot be used or accessed for any purpose other than for playing as a videotape. [19] Secondly, the tape can only be used as a means of briefing counsel for the plaintiffs in relation to this case and to prepare and conduct any appeals in that regard. As a sidelight, Mr Siemer was advised during submissions that it was entirely a matter for the Court of Appeal whether it would agree to a playing of the videotape as part of any appeal hearing, and this judgment is not intended to influence the Court of Appeal's decision in that regard. [20] Thirdly, any use of the videotape after final determination of the substantive hearing of this case, including appeals, is only to be permitted with leave of any Judge or Associate Judge of this Court, either generally or specifically. To make that clear, having regard to the fact that, currently at least, the plaintiffs have findings of contempt against them, a condition of permitting the videotaping will be that there is to be no use or display or broadcast of the same in whole or in part in or on any media other than their video machine for any purposes other than those previously outlined without specific leave of this Court. [21] Under R 236 the Court on the making of an interlocutory order may make such terms and conditions as it thinks just including that parties give an undertaking to the Court to comply. On completion of the hearing, the orders just made will be typed and subject to the plaintiffs giving an undertaking to the Court to comply with the conditions outlined in this judgment. The tape is to be surrendered to the Court and is to be held pending the filing of such signed undertakings. They are each to personally and on behalf of Paragon sign the file copy of this judgment saying they accept the recording and use of the videotape is on the conditions set out herein.[22] Finally, the orders are also to be subject to a condition that if the defendant or the non-parties wish to have a copy of the videotape, such is to be provided to them on request but on their payment of any costs of copying. [23] Those orders are designed to try and meet the plaintiffs' concerns as to access to justice and fair trial but nonetheless impose restrictions on the use of the videotape to meet the non-party's concerns as to possible improper use of the tape in whole or in part. ..WILLIAMS JSigned by: (V R Siemer) Signed by: (J C Siemer) Date: Solicitors:Heaney & Co (Helen Rice) P O Box 105-391 Auckland ( Email: hmr@heaneyco.com)McElroys (P Hunt), P O Box 835, Auckland (Email: peter.hunt@mcelroys.co.nz)Copy for:A A Lusk QC, P O Box 1379 Auckland (Email: aalusk@xtra.co.nz )Mr and Mrs V R Siemer, 27 Clansman Terrace, Gulf Harbour, Auckland – Fax: 09 428 2521( Email: vsiemer@hotmail.com )Tanusha Iyengar, High Court Auckland (Email: Tanusha.Iyengar@justice.govt.nz)