LONDON v SMALLBONE [2018] NZCA 131

LONDON v SMALLBONE [2018] NZCA 131 [2 May 2018]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA362/2017[2018] NZCA 131BETWEEN GEORGE PAUL LONDONFirst AppellantIAN NEVILLE WISHARTSecond AppellantHOWLING AT THE MOON PUBLISHINGLIMITEDThird AppellantPAULETTE MERLE LONDONFourth AppellantAND LINDSAY JAMES TREVORSMALLBONERespondentHearing:Furthersubmissions:12 April 201816, 19 and 27 April 2018Court: Gilbert, Dobson and Toogood JJCounsel: C J Tennet for First and Fourth AppellantsSecond Appellant in Person and as director of Third AppellantA J Romanos for RespondentJudgment: 2 May 2018 at 9.30 amJUDGMENT OF THE COURTA The appeal is dismissed.B The second and third appellants are jointly and severally liable to paythe respondent 50 per cent of costs for a standard appeal on a band A basisand usual disbursements.C If the first and fourth appellants had not been legally aided, we certify thatwe would have ordered them to pay the same amount of costs as orderedagainst the second and third appellants.REASONS OF THE COURT(Given by Gilbert J)Introduction[1] The principal issue in this appeal turns on the correct interpretation andapplication of s 50(1) of the Defamation Act 1992 (the Act), which reads:50 Striking out for want of prosecution(1) In any proceedings for defamation, unless the court in its discretionorders otherwise, the court shall, on the application of the defendant,order the proceedings to be struck out for want of prosecution if—(a) no date has been fixed for the trial of the proceedings; and(b) no other step has been taken in the proceedings within theperiod of 12 months immediately preceding the date of thedefendant's application.[2] Is a plaintiff who succeeded with his or her claim in defamation at trialvulnerable to having their proceedings struck out for want of prosecution under s 50because a retrial was subsequently ordered but no date for the retrial has been set andno other steps have been taken for over 12 months? Does it matter that the close ofpleadings date for the proceeding in terms of the High Court Rules passed well beforethe first trial and the plaintiff was accordingly not entitled to take any further stepswithout leave? If s 50 does apply in these circumstances, how should the discretionbe exercised?The proceedings[3] In March 2012, the respondent, Lindsay Smallbone, sued the appellants indefamation following publication in November 2011 of a book jointly authored by thefirst and second appellants, George London and Ian Wishart, and published byMr Wishart's company, Howling at the Moon Publishing Ltd, the third appellant.The statements complained of were made by Mr Smallbone's first wife,Paulette London, the fourth appellant, who is now married to Mr London.The statements are of a highly personal nature and are relayed in considerable detailin the book. They cover the period dating back to 1967 when Mr Smallbone wasmarried to Mrs London.[4] Mr Smallbone diligently prosecuted his proceedings to trial. Following atwo-week trial in the High Court at Wellington commencing on 29 July 2013,Mr Smallbone obtained a verdict from the jury finding that he had been defamed bythe appellants and awarding him $220,000 general damages and $50,000 foraggravated damages. Upon receipt of the jury's verdict, the trial Judge, Williams J,entered judgment but he later recalled the judgment of his own motion, before it wassealed. The appellants then applied to set aside the jury's verdict on the grounds thatit was unsafe in the light of new evidence which they sought leave to adduce.The Judge was satisfied that this evidence was fresh, credible and cogent and wouldhave changed the complexion of the trial.1 The Judge accordingly set the verdict asideand ordered a new trial.2 That order was made on 21 May 2014.[5] Mr Smallbone's appeal against these orders was dismissed by this Court in ajudgment delivered on 26 August 2015.3 Mr Smallbone sought leave to appeal tothe Supreme Court but the application was declined in a judgment delivered on17 December 2015.4 Appeal rights having been exhausted, the order for retrial madeby Williams J on 21 May 2014 needed to be implemented. In the normal course, thiswould have involved liaison between the High Court registry and counsel to determinewhether any further directions were required in view of the new evidencethe appellants wished to adduce and for a date to be allocated for the retrial. This didnot happen. Due to an administrative error, the High Court file was archived and theregistry staff did not do anything to implement the order for a retrial. Nor did any ofthe parties apply for a new date or take any other step.1 Smallbone v London [2014] NZHC 832.2 Smallbone v London HC Wellington CIV-2012-485-482, 21 May 2014 (Minute and Final Order).3 Smallbone v London [2015] NZCA 391, (2015) PRNZ 768.4 Smallbone v London [2015] NZSC 192.Strike-out applications[6] On 13 January 2017, just over 12 months after the Supreme Court's judgmentwas delivered, the second and third appellants filed an application to strike outthe proceedings for want of prosecution in reliance of s 50 of the Act and rr 15.1 and15.2 of the High Court Rules. Rule 15.1 permits the Court to strike out a pleading invarious circumstances including for abuse of process. Rule 15.2 enables the Court todismiss a proceeding if the plaintiff fails to prosecute the proceeding to trial andjudgment. On 8 February 2017, the first and fourth appellants filed their ownapplication to strike out the proceedings on similar grounds.High Court judgment[7] In the High Court, all parties proceeded on the basis that the prerequisites tothe making of an order under s 50 of the Act were satisfied — no date had been fixedfor the trial and no other steps had been taken in the proceedings within the period of12 months immediately preceding the date of the applications. The Judge made thesame assumption. The issue was whether the discretion in s 50 not to strike outthe proceedings should be exercised. The appellants argued that they had beenprejudiced by the delay; some witnesses had since died and memories of the relevantevents which occurred in the 1960s and 70s had faded further since the last trial.In short, the appellants argued that it was no longer possible to have a fair trial.They also contended that Mr Smallbone had delayed seeking a retrial partly becausehe was attempting to dissuade the new witness from giving evidence. This allegationwas strongly contested by Mr Smallbone. He explained his inaction by saying thatthe proceeding had been very expensive for him to pursue and it had taken him a yearto arrange the further funding required for the retrial.[8] Williams J dismissed the appellants' applications in a judgment delivered on7 June 2017.5 The Judge summarised his reasons for doing so in the followingparagraphs of his judgment:[35] Taking all of these matters into account, I am satisfied by a fine butclear margin that it is appropriate in this case to make an exception to the rule5 Smallbone v London [2017] NZHC 1223 [High Court judgment].in s 50. Despite the lapse of time, fading memory, the loss of peripheralwitnesses and the Londons' health issues, it is significant that the plaintiffprosecuted his claim with diligence to favourable verdicts and that they wereonly set aside when new evidence was later unearthed by the defence.[36] The plaintiff then moved to test that decision on appeal with the samediligence. Given the issues raised about this Court's jurisdiction to set juryverdicts aside and direct a retrial, those appeals were far from hopeless.They raised novel issues of law that were well arguable. And while lack ofmoney after the Supreme Court decision is, seen alone, no excuse at all,I prefer to see this explanation against the considerable resources the plaintiffmust already have expended on the proceeding and the fact that his silencewas barely 12 months long.[37] As the McKay Committee said, s 50 is directed at plaintiffs who areunwilling or unable to prosecute their defamation claims. Plaintiffs may suefor strategic reasons (to gag publication) making a verdict beside the point, orthey may simply not be committed to bringing the litigation to trial due to alack of resources, competence or underlying merit. Section 50 is designed toweed those claims out by placing the onus on plaintiffs to prove that theirclaim is not of that character.[38] In the end, and despite his post-appeal inaction, I do not consider thatMr Smallbone is either unwilling or unable to see this litigation to a conclusionwithin a reasonable timeframe. The overall history of this litigation does notbear that suggestion out.Grounds of appeal[9] The second and third appellants advance seven grounds in their notice ofappeal. They contend that the Judge erred by:(a) misinterpreting s 50 and failing to apply it correctly;(b) failing to give appropriate weight to all factors relevant to the exerciseof his discretion;(c) failing to take into account "aggravating" factors;(d) incorrectly assessing the "time breach" as marginal;(e) failing to distinguish an authority relied on as a precedent;(f) failing to consider the application under r 15.1; and(g) failing to take proper account of the dangers of memory-fade.[10] The first and fourth appellants filed their appeal the day after the notice ofappeal was filed by the second and third appellants. They advanced three grounds ofappeal, all of which overlap with those included in the second and third appellants'notice of appeal. They contend the Judge erred by:(a) misinterpreting s 50;(b) misapplying s 50; and(c) failing to consider rr 15.1 and 15.2.[11] At the commencement of the hearing of the appeal, the Court raised withcounsel whether s 50 was engaged in the circumstances of this case. Despite the earlierconcession, Mr Romanos for Mr Smallbone considered on reflection that it was not.The appellants sought an opportunity to give further consideration to this issue and atimetable was set for the filing and service of submissions addressing it. We have nowreceived and considered these submissions.[12] We consider that the grounds of appeal can most conveniently be dealt with byaddressing the following issues:(a) Was s 50 of the Act engaged in the circumstances of this case?(b) If so, did the Judge err in the exercise of his discretion?(c) Should the proceedings have been struck out under either r 15.1 orr 15.2 of the High Court Rules?Was s 50 of the Act engaged in the circumstances of this case?[13] Section 50 of the Act was enacted in accordance with the recommendation ofthe Committee on Defamation chaired by I L McKay in their December 1977 report.6The purpose of the provision was partly to address the problem of "gagging writs"which the Committee described as those commonly claiming high damages but reallyonly intended to stifle publication of further matter on the same subject.7The Committee noted the difficulty in striking out civil proceedings for want ofprosecution under the existing procedural rules and recommended the enactment of aprovision requiring a plaintiff to show why proceedings should be permitted tocontinue if no step has been taken by either party for one year:8We consider that where no step in the action has been taken by either party for1 year, the defendant should ordinarily be entitled to have the actiondismissed. Judges are generally reluctant to dismiss actions because of delayand we can see some advantage in fixing a period after which a plaintiff mustshow some adequate reason to justify an exception being made. A plaintiffwho is really concerned at an injury to his reputation will not be dilatory.[14] The 12-month period adopted in s 50 of the Act commences on the date thelast step was taken in the proceedings by any party. This expression is not defined inthe Act but it was plainly intended to mirror the familiar terminology used in the thencurrent High Court Rules which came into force on 1 January 1986. This in turnreplicated terminology in the Code of Civil Procedure that was in force at the timethe Committee reported.[15] In Mountain Rock Productions Ltd v Wellington Newspapers Ltd, one of thefew reported decisions on s 50, McGechan J considered that a step for the purposes ofthe section would be one taken in accordance with the Court's procedural rules:9There is no particular mystery in the concept of "step" "in a proceeding" givencontexts. The section and rule envisage some genuine and authorisedprocedural act within the limits of the rules and recognised practice ofthe Court. Usually that will involve the filing of a document in the registry:but even that is not essential. As R 432(2) implicitly recognises, a "step" maybe wider than the filing of pleadings or the making of interlocutory6 I L McKay and Others Recommendations on the Law of Defamation (Report of the Committee onDefamation, December 1977).7 At [412].8 At [479].9 Mountain Rock Productions Ltd v Wellington Newspapers Ltd [1997] 3 NZLR 31 (HC) at 36–37.applications. I have no doubt an oral interlocutory application under R 245would constitute a "step". While the act concerned more usually will bewithin the registry or courtroom, actions outside Court premises governed bythe rules of Court — e.g. the tender and return of praecipes under RR 429 and430 — would qualify. The act must, however, be one within and governed bythe rules or recognised practice of the Court. Actions outside that area, albeitconnected with the litigation, are not "steps" for this purpose. Merecorrespondence, or negotiations, or briefing of witnesses are not included.(Rule 432 hardly was intended to prevent preparation for trial after settingdown.)[16] We agree with this analysis. It is reinforced by r 5 of the formerHigh Court Rules in force at the time the Defamation Act was enacted. This ruleprovided that a failure to comply with the requirements of the rules would not nullify"any step taken in the proceeding" but the Court was empowered to set aside any suchstep in which the failure occurred. This confirms that a step taken in the proceedingmust be one taken in accordance with the Court's procedural rules and in respect ofwhich the Court can make orders and exercise oversight.[17] Rule 426A of the former High Court Rules, which took effect from1 January 1993 one month prior to the commencement of the Defamation Act, wascast in similar terms to s 50. It provided that where a proceeding has not been setdown for trial and at least 12 months have elapsed since the last step was taken in thatproceeding, no further steps shall be taken in the proceeding without the leave ofthe Court. Similarly, leave of the Court was required under r 432 to take any step in aproceeding after it had been set down for trial. These rules further confirm that a stepin a proceeding is one taken in accordance with the procedural rules of the Court andsubject to the Court's jurisdiction to make directions and other orders. The Court'spermission to take the step would not otherwise be needed.[18] Rule 432 has been replaced by r 7.7 of the current High Court Rules.The concept of setting down has been replaced by a close of pleadings date which isnow fixed under r 7.6(4), generally at the same time a trial date is allocated. The datefor trial will therefore often be set before all procedural steps have been completedand the close of pleadings date reached. If no close of pleadings date is fixed bya judge, r 7.6(4A) makes the default close of pleadings date the later of 60 workingdays before the trial date or the date on which the trial date is allocated.[19] The record does not disclose the date fixed as the close of pleadings date in thepresent proceeding. However, it must have been a date well in advance of thecommencement of the trial on 29 July 2013. Despite the order for retrial, no party wasentitled to take any step in the proceeding after that date without the leave of the Court.The order for retrial was in effect an order to retry the proceedings on the basis of theexisting pleadings. Such an order does not permit parties to amend their pleaded casein the light of what occurred at the trial and no party was entitled to modify theirpleadings or take any other step without first obtaining leave of the Court. That hasbeen the position since the close of pleadings date, which must have been some timeprior to July 2013.[20] It is evident from this review that s 50 is directed at defamation proceedings,particularly gagging writs, which are issued but then left to drift for over 12 monthswithout any procedural step being taken to advance the proceedings to trial.The inactivity that will expose a plaintiff to having their proceedings struck out is inthe pre-trial phase before the close of pleadings date (formerly the setting down date)when all procedural steps must be taken to ready the proceeding for trial. After thatdate has passed, no further steps can be taken without leave. Parliament cannot haveintended that the proceedings could thereafter be struck out for want of prosecutionmerely because no party took an impermissible step.[21] Interpreting the section in context and in the light of its purpose, we considerthat the words "no date has been set for the trial" in s 50(1)(a) mean what they say anddo not refer to a case where a date has been fixed for the trial, a trial has occurred, buta retrial has been ordered. We do not accept Mr Wishart's submission that the previoustrial was "nullified" and the date set for that trial can therefore be ignored. Reading thesection as a whole, the "step" that would need to be taken to avoid the operation ofs 50(1)(b) is a procedural step within the rules to advance the proceeding to the stagewhere the matter is ready for trial so that a trial date can be allocated. This means thefirst trial, not a retrial, because no steps are required or even permitted without leaveafter that time. It is irrelevant that a party might wish to seek leave to take furthersteps after a retrial has been ordered.[22] Applying this interpretation, s 50 has no application in the present case.All necessary steps have been taken to prepare the proceedings for trial and a date wasfixed for the trial. It cannot be said that this was a gagging writ or that Mr Smallbonehas failed to prosecute his claim. The trial has taken place and he succeeded. No stepsare required to be taken to progress the proceedings to a retrial; the order for a retrialsimply needs to be implemented by allocating a date and making any further directionsthat may be needed to deal with the new evidence. A telephone call or an email tothe Court registry seeking the allocation of a date for the retrial is not a step.The failure to make such contact does not trigger the operation of s 50. In our view,this is not the type of situation Parliament had in mind when enacting s 50.[23] For these reasons, we conclude that s 50 is not engaged in the circumstancesof this case and there was accordingly no jurisdiction to strike out the proceedings forwant of prosecution under that section. Defendants to claims in defamation that havebeen to trial and are facing a retrial must fall back on the general provisions fordismissal under rr 15.1 and 15.2 of the High Court Rules. The general expectationthat defamation proceedings will be pursued promptly to final determination is likelyto be relevant on such applications, but not by invocation of s 50.Did the Judge err in the exercise of his discretion?[24] Even if there had been jurisdiction to strike out the proceeding under s 50, wewould not have been prepared to interfere with the Judge's exercise of discretion.Because of our conclusion on the jurisdictional issue, we summarise only brieflythe appellants' submissions on the exercise of the discretion and our reasons forrejecting them.[25] Mr Wishart submits that Mr Smallbone was required to show that there was agood reason for his "breach" of the 12-month statutory limit, sufficient to justify"the exceptional indulgence" of being allowed to resume the proceedings despite thatbreach. This argument is founded on a misconception of s 50. There is no breach ofany obligation — only the passage of time rendering the provision operative.The Court's discretion under s 50 is not fettered. It is to be exercised in accordancewith the overall interests of justice in the circumstances of the particular case andhaving regard to the statutory presumption that absent good reason to the contraryproceedings for which no trial date has yet been allocated will be struck out where nosteps are taken by any party for 12 months. While a plaintiff will usually need to showsome adequate reason for the delay, this will not necessarily always be required.One can readily envisage a case where, despite there being no adequate explanationfor the delay, the interests of justice are nevertheless best served by allowingthe proceedings to continue, for example where the plaintiff's claim is strong, thedelay has caused no prejudice and the proceeding can be brought on for trial promptly.All relevant factors must be weighed. There is no threshold requirement in the sectionthat a plaintiff must provide a satisfactory explanation for the delay. That may usuallybe expected but ultimately the issue is whether there is some good reason whythe proceedings should be allowed to continue despite the statutory presumption thatthey should be struck out.[26] Mr Smallbone explained his delay as being due to a temporary lack of funding.The Judge did not accept that this was an adequate excuse on its own but was preparedto consider this explanation in its wider context.10 The Judge recognised thatMr Smallbone would have incurred considerable costs pursuing his claim to trial andsubsequently contesting in the High Court, the Court of Appeal and the Supreme Courtthe appellants' applications to introduce new evidence and set aside the jury verdict.11We are not persuaded that the Judge erred in taking this into account in exercising hisdiscretion.[27] Mr Wishart's next point is that the Judge miscalculated the 12-month period.The Judge considered that time commenced to run from the day the Supreme Court'sjudgment was delivered, 17 December 2015. Mr Wishart contends that the last stepin the proceeding was taken in October 2015 when the appellants filed their notice ofopposition to Mr Smallbone's application for leave to appeal to the Supreme Court.The Judge also took into account the holiday period during which the Court registryoffice was closed. We accept that the 12-month period in s 50 includes holidays.However, that does not mean that the Judge was not entitled to take into account thatno steps could be expected by any party while the Supreme Court's judgment was10 High Court judgment, above n 5, at [25].11 At [27] and [36].awaited and the fact that it was delivered immediately prior to the Christmas holidayperiod. Although this did not affect the 12-month period in the section, we are farfrom persuaded that the Judge was wrong to take these matters into account inexercising his discretion.[28] Mr Wishart next submits that the Judge failed to take into account thatMr Smallbone's impecuniosity and consequent temporary lack of ability to fundthe retrial constituted an abuse of the process of the Court. Mr Wishart referred tothis Court's decision in Bank of New Zealand v Savril Contracts Ltd confirming thatthe Court has a duty rather than a discretion to prevent abuse of its processes.12[29] The circumstances which could give rise to an abuse of process are notconfined to fixed categories. We accept that were a plaintiff to commence or continuelitigation without any genuine intention of pursuing the proceedings to vindicate hisor her legal rights (through lack of capacity or otherwise) this could well amount to anabuse of the process of the Court.13 However, we reject Mr Wishart's submission thata temporary lack of funding by a plaintiff to pursue his or her claim can of itselfconstitute an abuse of process of the Court. Mr Smallbone has demonstrated a genuinedesire to clear his name and vindicate his legal rights by pursuing his proceedings totrial. Mr Wishart attempts to meet this response by arguing that Mr Smallbone wasonly diligent when he thought he might win. He claims that this is no longer the casein view of the fresh evidence. We are not able to draw such an adverse inferenceagainst Mr Smallbone based on the limited material before us.[30] Mr Wishart advances an alternative claim of abuse of process. He contendsthat Mr Smallbone has attempted to pervert the course of justice by pressuring theproposed new witness not to give evidence for the defence. This is a very seriousallegation and it is strenuously denied by Mr Smallbone. The Judge was not able toresolve the issue in the context of the appellants' strike-out applications and withouthearing the witnesses give their evidence and be cross-examined. Nor are we. We arenot persuaded that the Judge erred in putting this issue to one side for present purposes.12 Bank of New Zealand v Savril Contracts Ltd [2005] 2 NZLR 475 (CA) at [103].13 Grovit v Doctor 1 WLR 640 (HL) at 647–648.[31] Mr Wishart's next point is that the Judge failed to take into account what hedescribes as "aggravating factors". The first of these is said to be that Mr Smallbonehad been warned to get his retrial underway urgently but he had done nothing.The foundation for this submission is a minute issued by this Court on4 November 2014 in the context of the appeal. The minute recorded under a heading"Substantive appeal":The parties agree that one day is needed for the hearing of this appeal.The appeal should be heard by the Permanent Court. Given this is adefamation case, with the prospect of a new trial, the matter requires a fixturefairly urgently.[32] Contrary to Mr Wishart's submission, this minute was not a warning bythis Court to Mr Smallbone to "get his retrial underway urgently". Rather, it was adirection to arrange the earliest available fixture for the hearing of the appeal whichwould determine whether there would be a retrial.[33] Mr Wishart next submits that the Judge wrongly confined his attention to thedelay since the last step was taken and failed to take into account the total length oftime that had elapsed since the relevant events were alleged to have occurred, up to50 years ago. He refers to authority indicating that cases relating to events thatoccurred 10 or 20 years ago may not be capable of being justly tried.[34] If Mr Wishart was right that no claim could justly be heard merely because thepublished statements related to events that occurred 10 or 20 years ago, it would meanthat defamatory statements about historical events could be made with relativeimpunity and the plaintiff would be left with no effective recourse. However, weaccept the appellants' broad proposition that the Court must always endeavour toensure that proceedings are pursued expeditiously, particularly defamationproceedings. In the context of a strike-out application for alleged want of prosecution,the Court will need to consider whether it remains possible to conduct a fair trialdespite the time that has passed.[35] Williams J carefully assessed the matters advanced by the appellants in supportof their submission that a fair trial is no longer possible and concluded that this wasnot the case.14 As the trial Judge, his views carry considerable weight on this issue.Having presided over the trial, he is better placed than we are to determine whetherthe claim can be tried fairly despite the historical nature of the allegations in issue.We are not persuaded that the Judge's assessment on this issue was wrong. We rejectMr Wishart's submission that another trial would be a "roulette game" given the ageof the protagonists and the events they will be recalling occurred up to 50 years ago.We note that Mrs London purported to be able to recall these events in considerabledetail for the purposes of the book that was not published until many years later, inNovember 2011.[36] Finally, Mr Wishart submits that the Judge failed to distinguishMountain Rock. There is nothing in this submission. Each case turns on its own facts.The Judge's conclusion that the proceedings should not be struck out is readilyreconcilable with the same outcome in Mountain Rock, albeit for different reasons.[37] Mr Tennet, for the first and fourth appellants, supports Mr Wishart'ssubmissions. These have already been addressed. We need only refer to Mr Tennet'ssubmissions to the extent that they raise additional matters. Mr Tennet submits thatthe Judge erred by finding that s 50 applies only to gagging writs. We are satisfiedthat the Judge made no such error.15 Mr Tennet also argues that the Judge erred in lawby determining that an exception could be made to the normal rule in s 50 by a"fine but clear margin" whereas something more compelling is required. We are notpersuaded that a focus on this phraseology leads anywhere. After taking into accountall relevant considerations, the Judge was plainly satisfied that the overall interests ofjustice were best served by declining to strike out the proceedings despite the statutorypresumption. Self-evidently, having been so satisfied by a clear margin, it would havebeen wrong for him to have nevertheless struck out the proceedings.14 High Court judgment, above n 5, at [16]–[17] and [29]–[32].15 At [37] the Judge made clear that the provision applies generally, not just to proceedings issued togag further publication.Should the proceedings have been struck out under either r 15.1 or r 15.2 ofthe High Court Rules?[38] The appellants complain that the Judge did not address their strike-outapplications with reference to rr 15.1 and 15.2 of the High Court Rules. This was nodoubt because the arguments were subsumed in those presented in reliance on s 50.This is clear from the applications which recite the same grounds to justify the exerciseof discretion under each of these provisions. If the appellants' arguments failed forthe purposes of s 50, those same arguments could not justify an order striking out theproceedings under rr 15.1 or 15.2.[39] We have already addressed the abuse of process allegations founding theapplication under r 15.1 and we need say nothing further about those allegations.The test for striking out a proceeding for want of prosecution in reliance on r 15.2 ismore onerous in the present case than the s 50 pathway because of the more exacting12-month statutory presumption in the latter provision. Having failed under s 50, therewas no prospect that the strike-out applications could nevertheless succeedunder r 15.2. We are satisfied that the applications were appropriately dismissedregardless of which jurisdictional basis was relied on.Result[40] The appeal is dismissed.[41] The second and third appellants are jointly and severally liable to paythe respondent 50 per cent of costs for a standard appeal on a band A basis and usualdisbursements.[42] If the first and fourth appellants had not been legally aided, we certify that wewould have ordered them to pay the same amount of costs as ordered againstthe second and third appellants.Solicitors:Debbie Goodlet, Whanganui for First and Fourth AppellantsLangford Law, Wellington for Respondent