NEVILLE JAMES GIBSON V MINTER ELLISON RUDD WATTS CA CA202/05

NEVILLE JAMES GIBSON V MINTER ELLISON RUDD WATTS CA CA202/05 20 June 2007IN THE COURT OF APPEAL OF NEW ZEALAND CA202/05 CA33/06 [2007] NZCA 249BETWEEN NEVILLE JAMES GIBSON Applicant AND MINTER ELLISON RUDD WATTS Respondent Hearing: 11 June 2007 Court: Robertson, Williams and Heath JJ Counsel: Applicant in person R Scott and V S Rajanayagam for Respondent Judgment: 20 June 2007 at 9 amJUDGMENT OF THE COURT A The applications for leave are refused. B The respondent is entitled to costs of $3,000 together with usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Robertson J)Introduction[1] There are numerous applications before this Court for leave in respect of various interlocutory matters and directions relative to the substantive appeals in long running litigation between these parties. [2] Mr Gibson sought to place eight matters before the Court. At the hearing before us, he accepted that this Court could not deal with alleged errors in the record of evidence given in the High Court, nor was this Court involved in the configuration of a "case book" for the substantive appeal in accordance with "the Court Procedural Rules" [sic]. [3] However, Mr Gibson sought leave: (a) for better and further discovery and adducing further evidence in connection therewith. This fundamentally related to the production of a DVD of backup tapes relating to the respondent; (b) to make the first application out of time because of a failure to comply with previous timetable orders in this Court; (c) to examine members or employees of the respondent in connection with the DVD and its contents; (d) to adduce fresh evidence in the appeal hearing in respect of legal aid documents he has recently obtained; (e) to adduce further evidence with regard to his financial records which were discovered for the High Court trial but not produced in evidence; and (f) to amend the grounds on appeal in both the substantive appeal and the costs appeal.Background[4] In 1991 the applicant was sued by Arthur Andersen (AA), an international accountancy firm, for unpaid fees. Mr Gibson counter-claimed. The cases were heard over 41 days between 2001 and 2002 and Mr Gibson obtained judgment for $1.6 million including interest and costs against AA. [5] In that proceeding he was represented by the respondent. Mr Gibson contended that Minter Ellison Rudd Watts (MERW) breached their fiduciary, tortious, contractual and ethical duties in the preparation and prosecution of his case. In particular he contended that MERW had an undisclosed conflict of interest because at times they were acting for both Mr Gibson and AA which contaminated Mr Gibson's professional relationship with MERW. Further, he asserted MERW failed to seek legal aid for him in a timely manner. [6] Mr Gibson refused to pay outstanding legal fees of $70,439 out of a total bill of $931,350. He was sued. He denied liability on the basis of set-off/counter-claim and sought damages of $6,183,000 for breaches of the obligations owed to him by MERW and general and aggravated damages of $250,000. [7] After a four week hearing in July, in a reserved judgment of 24 August 2005, Ronald Young J found against Mr Gibson and entered judgment for MERW. [8] In a subsequent costs judgment delivered on 21 November 2005, he ordered Mr Gibson to pay costs in the sum of $350,000 covering both the claim and the counter-claim together with disbursements of nearly $200,000. [9] The substantive appeal against both those judgments is to be heard by this Court in November 2007. [10] Mr Gibson represented himself before us, he said, because of his impecuniosity and an ongoing inability to obtain legal aid, although he acknowledged he had assistance from an experienced member of the legal profession in his paper work.[11] The Court file is replete with lengthy and repetitive documents, but in the course of the oral hearing we were able to narrow matters to a manageable compass which Mr Gibson accepted captured the substance of his concerns.The missing DVD[12] A matter of pivotal importance to Mr Gibson over many years has been the existence of minutes of various committees of MERW which Mr Gibson is adamant must contain references to him and his situation. He sees these as being relevant to MERW's inaction and/or dilatory action in the early stages of the AA litigation together with the conflict they were in by acting for both AA and Mr Gibson. [13] MERW contend, as they always have, that there is very little material of this type and what there is has been discovered. [14] Mr Gibson now wants orders for discovery of a DVD of MERW's back-up tapes which, he argues, will include copies of minutes of meetings of various committees of MERW. [15] Mr Gibson's present argument is rooted in a memorandum filed by his then counsel, Mr R D Wallis, on 24 May 2005 for a mentions hearing a few days later. It proposed that Mr Hoare (who was a former employee of MERW but by then engaged to assist Mr Gibson) full text index the MERW back-up tapes for the periods 1993, 1994 and 1995, and place the electronic data on two identical DVDs. One was to be lodged in Court and the other retained by MERW. [16] The Minute from the judicial conference, held on 26 May 2005, noted that the parties believed they would be able to resolve issues of electronic discovery without the assistance of the Court. If this was not the case, the issues were to be raised when the matter was next called. [17] A Minute of the next conference on 2 June 2005 noted that all issues relating to electronic data discovery had been resolved. No further order or directions of the Court were required according to the record.[18] The trial began on 6 July 2005. [19] On 15 July 2005 Mr Wallis made an application to further search the document backup disks. Leave was granted. [20] There were ongoing issues with regard to this request. [21] The question of whether or not there are minutes of meetings of various committees of MERW mentioning Mr Gibson has been thoroughly dealt with. [22] The suggestion of 24 May never became a Court Order so it is not an effective factor in this issue. [23] Clearly the matter of the disclosure was still controversial during trial. As a result, there was the unusual step of an affidavit as to documents being filed after the hearing was over. An affidavit of documents was sworn and filed by Ross Pickmere, a partner in MERW. He deposed to the fact that there were 43 specific documents which had been revealed by an electronic search. He separately disclosed the existence of the "Bundle of documents revealed by electronic search not requested by the defendant". [24] That affidavit of documents clearly referred to the considerable steps taken by MERW to satisfy the discovery process, such steps included allowing a supervised search of their back-up files. There was no follow up from the affidavit and despite Mr Gibson's earnest pleas, we are unable to conclude that there is any life left in this issue which requires further action. The issues of discovery were thoroughly dealt with at the trial. [25] The territory is covered again in the affidavit of B E McIsaac dated 1 September 2006. No serious or sustainable foundation exists for addressing this issue again. It is pure speculation that there is further material somewhere to which Mr Gibson has been denied access. [26] Leave to pursue further discovery in that regard is refused.[27] The question of the time by which this application was to be made in March 2007 therefore becomes redundant as we are not persuaded that there is any matter which requires further attention. [28] Closely associated with this application was the application to examine at the appeal hearing unspecified members and/or employees of MERW in connection with the DVD. We are not satisfied that in any event this would have been a permissible or productive course of action, but inasmuch as we are of the clear view that this matter has been fully dealt with, the issue is no longer of any relevance. Leave in that regard is refused.Legal aid[29] The second generic topic relates to adducing fresh evidence in the appeal with regard to legal aid documents which Mr Gibson has only recently obtained. [30] We accept that such documents were not known to Mr Gibson at the time of the hearing, but these (which are matters like expert examiners' views on the case) have no probative value. What various individuals may have thought about his case is a matter of opinion and their views are not relevant to issues which this Court will have to determine. [31] Although these documents may be new, in the sense that they were not previously known of, they have no cogency. That application is also refused.Mr Gibson's financial records[32] As best we understand this point, Mr Gibson complains that he discovered all his financial records. Some were used by various expert witnesses in the High Court trial, but all the base documents were not produced in the hearing. Particularly Mr Gibson refers to cash flow statements. The mere inclusion of them in a casebook is not going to advance matters. It is inevitable that their significance (if any) isgoing to have to be explained either by further evidence or by what amounts to evidence from the Bar in unsubstantiated submissions. [33] They were Mr Gibson's own documents and he could have produced them if he had wanted to. Leave will not be granted to enable a party to recouch their case and alter their strategy. If this application is allowed, it would result in an expansion of matters, but without benefit or purpose. The desperate need in this case is for focus and discipline in respect of the matters about which Mr Gibson still complains. [34] On the applicable tests no reading of the circumstances which developed in the Court below could provide justification for leave to be given in this regard.Leave to amend the grounds of appeal[35] The final matter is the application for leave to amend the grounds of appeal. [36] The existing grounds are worded in such a way that the core matters which are truly in contention are before the Court. The problem with this case is that there is an over-abundance of words and little clear focus or structure. [37] At this late stage Mr Gibson does not persuade us that there are new issues which the interests of justice require should be added to the appeal. [38] Part of the proposed amendment on the substantive appeal relates to the issue of obstruction in accessing the electronically stored documents and the inferences to be drawn therefrom. Because of the decisions we have made above, these issues are now redundant and in any event they lack evidential foundation. [39] As far as the proposed amendment to the costs appeal is concerned, it is not easy to ascertain from the repetitive and non-informative proposed motion on appeal what new or different matters Mr Gibson wants to raise. The electronic discovery issue appears again to be at the heart of his concern and that has been precluded by our earlier decision. Issues about the appellant's means and the Legal ServicesAgency's decisions are not relevant to the determination to be made on the proper award of costs in favour of MERW after they were successful in the High Court. [40] Mr Gibson has already amended his grounds of appeal (twice in the substantive case and once in the costs appeal). [41] Nothing is advanced now to justify why there should be a further recasting. There is no identification of anything which is relevant, which is not encompassed within the existing grounds before the Court. [42] Leave to amend is accordingly refused in this regard also. [43] A post-hearing submission from Mr Gibson has been read in reaching our decision.Result[44] Each of the applications before the Court is dismissed. The respondent is entitled to costs of $3,000 together with usual disbursements.Solicitors: McElroys, Auckland, for Respondent