KNAUF INSULATION LIMITED v ECO INSULATION LIMITED CA597/2013 [2013] NZCA 427 [11 September 2013]

KNAUF INSULATION LIMITED v ECO INSULATION LIMITED CA597/2013 [2013] NZCA 427 [11 September 2013]IN THE COURT OF APPEAL OF NEW ZEALANDCA597/2013[2013] NZCA 427BETWEEN KNAUF INSULATION LIMITEDFirst AppellantAND ECO INSULATION LIMITEDSecond AppellantAND BUILDFORNEXTGEN LIMITEDThird AppellantAND TASMAN INSULATION NEWZEALAND LIMITEDRespondentCourt: O'Regan P, Ellen France and White JJCounsel: C L Elliott QC, G Hazel and B Cain for AppellantJ G Miles QC and K W McLeod for RespondentJudgmentOn the Papers:11 September 2013 at 9.15 amJUDGMENT OF THE COURTA We decline to hear the appeal against the interlocutory judgments of the High Court relating to market survey evidence and adjournment in advance of the completion of the High Court trial and the High Court determination of the case.B Costs are reserved.____________________________________________________________________REASONS OF THE COURT(Given by White J)[1] By notice dated 6 September 2013 the appellants have appealed against two interlocutory judgments of Brown J in the High Court:(a) a judgment dealing with their objections as defendants to theplaintiff's intended market survey evidence;1 and(b) a judgment refusing their application for a further adjournment of the trial.2[2] In broad terms the appeal is brought on grounds of alleged errors by the High Court Judge in respect of conclusions, assumptions and findings made in relation to the impact of the late disclosure of the survey evidence and the giving of insufficient weight to the prejudice caused to the appellants by the decisions not to exclude the evidence and not to grant the adjournment they sought.[3] Mr Elliott QC in a memorandum also dated 6 September 2013 seeks an urgent half-day fixture to determine the appeal. Mr Elliott submits that the appellants are in an untenable position because:(a) important market survey evidence was not released until late and this meant that the appellants' experts had difficulty in properly analysing the information and preparing their response evidence in a timely way; and(b) by adjourning the three week trial for one week another problem has been created because he (Mr Elliott) will not be available in the third week as a result of another trial commitment.Mr Elliott advises that the appellants have come to the conclusion that their position1 Tasman Insulation New Zealand Ltd v Knauf Insulation Ltd [2013] NZHC 2167.2 Tasman Insulation New Zealand Ltd v Knauf Insulation Ltd [2013] NZHC 2239.has been seriously compromised and that it is not in their interests or the interests of justice that the trial proceeds under these circumstances.[4] Mr Elliott submits that the matter is covered by s 66 of the Judicature Act 1908 and that by virtue of the decision of the Supreme Court in Siemer v Heron3 it is necessary for this Court to hear the appeal in advance of the trial on the basis that the appellants risk being prejudiced if this Court does not do so. He also submits that onthe basis of this Court's decision in Reid v Attorney-General4 this is not a situation where the issues on appeal will be overtaken by the substantive hearing.[5] Mr Miles QC for the respondent filed a memorandum in response yesterday opposing the appellants' request for an urgent hearing of the appeal by this Court. Mr Miles' memorandum contains a comprehensive summary of the relevant background to the matters the subject of the High Court interlocutory judgments. Mr Miles points out in particular that:(a) information relating to the market survey evidence was provided to the appellants in early June 2013 and their experts have in fact been able to file briefs of evidence in response in time for the trial; and(b) the appeal to this Court is the appellants' third attempt to adjourn the trial in the last three weeks. Mr Miles points out that, in the absence of any application for a stay of the trial, it began on Monday this week. Mr Miles suggests that it may be possible for Mr Elliott to make other arrangements in respect of the third week of the trial and that his instructing solicitor and at least one of his junior counsel would be available for the whole trial.[6] We agree with Mr Elliott that s 66 of the Judicature Act and the decision of the Supreme Court in Siemer v Heron require this Court to receive all interlocutory appeals, but, as the Supreme Court also recognised,5 this Court may in its discretion decline to hear such appeals in advance of trial if it considers that they may be3 Siemer v Heron [2011] NZSC 133, [2012] NZLR 309 at [32].4 Reid v Attorney-General [2012] NZCA 174.5 Siemer v Heron, at [32].overtaken by the trial or that the appellant is unlikely to be prejudiced by such a postponement. It is also to be borne in mind that it has long been the case that upon a substantive appeal interlocutory rulings can be reviewed if they remain material.[7] Having considered the two High Court interlocutory judgments and the matters raised by counsel in their memoranda and having noted that, in the absence of a stay being sought or obtained, the trial in fact commenced on Monday this week, we are satisfied for the following reasons that we should decline to hear the appeal against the two judgments in advance of the trial.[8] First, we are not satisfied that any real prejudice has been or will be caused to the appellants by reason of the interlocutory judgments, especially when:(a) the appellants' experts have in fact had time to review and respond to the market survey evidence;6 and(b) it is open to senior counsel for the appellants to make appropriate arrangements for his clients to be adequately represented in the third week of the trial.7[9] Second, as in Reid v Attorney-General, this is a situation where the issues on appeal will be overtaken by the substantive hearing which has already commenced.[10] Third, both interlocutory judgments relate to matters of case management which are appropriately resolved by the trial court and nothing raised before us suggests the Judge has adopted the wrong approach.8 Appellate courts should be, and traditionally have been, reluctant to interfere with an interlocutory decision unless it is such as to effectively resolve the case or has such a substantial impact on the trial that it would be unfair to require the appellant to wait until after the trial to pursue it. That is not the case here.6 Tasman Insulation New Zealand Ltd v Knauf Insulation Ltd, above n 1, at [23].7 Tasman Insulation New Zealand Ltd v Knauf Insulation Ltd, above n 2, at [17], and Tasman Insulation New Zealand Ltd v Knauf Insulation Ltd HC Auckland CIV-2011-404-8141, 5 September 2013 (Minute No 4) at [3].8 Compare Ashmore v Corporation of Lloyd's [1992] 1 WLR 446 (HL) at 448 per Lord Roskill and at 453–454 per Lord Templeman.Result[11] We decline to hear the appeal against the interlocutory judgments of the High Court relating to market survey evidence and adjournment in advance of the completion of the High Court trial and the High Court determination of the case.[12] As we have not heard from the parties on the issue of costs, they are reserved.Solicitors:James & Wells, Auckland for AppellantsA J Park, Auckland for Respondent