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The civil justice system – someone stole my idea

This is a story of how the civil justice system works to resolve disputes between individuals or organisations. Twenty-year-old media student Mei Hsu needs help because she thinks she's been treated unfairly. She thinks media tycoon Max Million stole her idea. She takes him to the High Court and sues him for damages.

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The idea

At a basketball game, Mei Hsu sees Sam Dunk, a famous basketball player, signing autographs for some fans. He is listening to his MP3 player and seems more interested in the music than talking to his fans. The fans also seem interested in what music Sam is listening to.

Mei Hsu is a twenty-year-old media student. She doesn't know whether she wants to go into broadcasting or advertising. But she does know she wants to work where she can use her creativity and energy to tell people about cool events. She is young, energetic, enthusiastic, and full of ideas.

Seeing Sam gives Mei an idea. What if you combined radio music shows with sports personalities? What if you got sports celebrities to host programmes of their favourite music? Mei gets so excited she rushes home to write down her idea about "Sports DJs":

Sports DJs

  • famous sportspeople to DJ radio shows
  • radio shows would have themes that suit the sport or athlete
  • music genre suitable for audience aged 15 to 40
  • radio show could be simulcast on the web and, potentially, as a TV show
  • radio shows will promote NZ music only, to qualify for funding from NZ on Air.

– Mei Hsu, 23 April 2003

The meeting

Mei has met Max Million, the owner of national radio station Smash FM, during her media studies. Max has been in the industry for more than twenty years and is very experienced in managing radio programming. Mei contacts Max and sets up a meeting to talk about her idea.

When they meet, Mei first asks Max to promise to keep this information confidential – secret. Max agrees and promises not to give the idea to any rival companies.

Mei presents her idea. She thinks it is original and brilliant, but Max Million seems unimpressed – he even looks like he is falling asleep through Mei's presentation. Mei is upset when Max says he won't take the idea further – in particular, he's concerned about where the funding would come from.

Mei blames herself and her inexperience for the unsuccessful meeting. She forgets about it after a couple of weeks.

The surprise

Six months later, Mei turns on her favourite radio station, Hush FM, and is surprised to hear Sam Dunk hosting the "Hip-Hop Hour". Her amazement grows as she listens to "Smooth Silky Sounds", hosted by a soccer star, "Techno Times", hosted by a tennis player, then "Rugby Rock", hosted by a rugby player. Mei checks out the Hush FM website and finds that the programmes are being simulcast over the web. She's really upset when she sees that Hush FM is a subsidiary company of Smash FM, owned by Max Million.

Mei is outraged. She thinks Max stole her idea.

Getting legal help

Mei doesn't know what to do. The High Court building is just across the road from her media studies school, so she decides to start there, and she tells the person on the counter her story. Court staff can't give legal advice, so they suggest that she talks to a lawyer. Lawyers are qualified in law, and legal advice should only be given by someone properly qualified.

When Mei explains her story to a lawyer, he advises her to make an application for an interim injunction. It would immediately stop the radio station using her idea without her authorisation.

He also suggests that she apply for legal aid as she is a student with little money. Legal aid is government funding to pay for legal help for people who cannot afford a lawyer.

Based on Mei's story, her lawyer thinks she has a claim of about $500,000. This claim would have to be filed in the High Court, which can deal with claims over $200,000.

Mei asks her lawyer to start the case in the High Court, and she is granted legal aid.

What if Mei didn't get legal aid?

  • Mei could continue the case on her own and pay the costs herself. She can apply not to pay the court fees (for the fees to be waived) if she cannot afford to pay them. Mei could decide not to take the case to court.
  • Max Million could apply for an order for security of costs (a sum of money held by the court until a decision is reached) if he believes Mei will be unable to repay the costs of the defendant (Max) if she loses the case. If security was set and Mei could not pay the security, her claim may be struck out.

Starting the case – proceedings are filed

Mei's lawyer (also called her "counsel") files the proceedings in the High Court for Mei (who is now called "the plaintiff") to sue Max Million (who is now called "the defendant").

Mei's counsel files these documents:

  • An application for an interim injunction – a document for a temporary order of the court telling a person to stop doing something.
  • An affidavit in support – a document that is "sworn" as true and correct and sets out why Mei's application should be successful.
  • Undertaking as to damages – a document that states that Mei will pay any damages awarded against Max Million as a result of the injunction.
  • A memorandum – a document from counsel explaining why the injunction is urgent.
  • A statement of claim – a document that gives details of the claim that the plaintiff (Mei) makes against the defendant (Max). This is often referred to as the substantive claim.
  • A notice of proceeding – a document that tells the defendant (Max) that Mei is taking legal action against him.
  • An application for fee waiver (to ignore the lawyer's fee) because Mei is getting legal aid. Someone can also apply to have the fee waived if they cannot pay the filing fee on a document, or where the case has significant "public interest" This means it is a case about an important subject that affects a lot of people, and that the public has a right to know about.

Interim injunction considered – will the shows be pulled off air?

The court deals with the interim injunction urgently. If the judge decided to grant it and pull the sports DJ shows off air, it would happen fast. The filed documents are processed in the court registry and given to a High Court Judge to consider the application for interim injunction.

Among other things, the judge considers:

  • the loss that the radio station would suffer if they were made to stop broadcasting the Sports DJ shows

compared with

  • the loss to Mei due to not being paid for having her idea used.

The judge also considers the fact that Mei has legal aid. If she is not successful with her claim, she would not be able to pay Max Million's legal costs.

The judge decides that he will not grant the injunction to stop the shows being broadcast. He thinks it will be suitable for Mei to "sue for damages". Damages are a sum of money that would pay towards Mei's unfair treatment.

Although the judge does not uphold her injunction, her lawyer advises her to continue with her substantive claim, and sue Max for damages.

What if the injunction were granted?

  • The radio station would have to stop the Sports DJ shows.
  • The amount of Mei's claim for damages could be reduced.
  • Mei could sell her idea to another radio station.

First case management conference

The court gives Mei's claim a first case management conference. A case management conference is a meeting at the start of the case where all preliminary issues are discussed and directions are timetabled. Directions are tasks that the parties have to complete by a certain date to prepare their case for trial.

The first case management conference is run by an associate judge. Mei is interested in what will happen to her claim, so she chooses to attend the conference with her lawyer. Max Million and his lawyer are also present.

The associate judge thanks Mei and Max for their attendance and explains that they don't have to attend the conference if they don't want to. Their counsel would normally handle the preliminary issues, directions, and timetable. Then the associate judge, Mei's counsel, and Max's counsel discuss what is required for the case.

Judicial settlement conference

At the first case management conference the associate judge makes directions about what will happen from here and offers a “judicial settlement conference”. This is an informal meeting where the parties can try to “settle” the case – this means to find agreement on what to do rather than having a formal trial. A judge would act as a referee, give guidance and set rules to ensure that the conference is fair.

Mei and Max discuss the matter with their counsel and tell the associate judge that a settlement conference would not help them. They want their day in court.

What if they both agreed to attend a settlement conference?

  • the case could settle in total
  • the case could settle in part, with the balance going to trial
  • the case could fail to settle and go to trial.

A High Court trial date is set

The associate judge then sets the matter down for trial before a High Court Judge who has jurisdiction to give a decision on a substantive matter. This means the associate judge arranges for a High Court Judge who can decide on a “substantive matter”, to try Mei's case. The trial is allocated a date of hearing (given a date), and counsel and the parties go away to prepare their case for court.

The High Court hearing

It's the day of the hearing – the final hearing where a decision will be made on the claim.

Mei is very nervous, but her lawyer has done all the preparation, and they are ready for the hearing. Max is not ready – although his lawyer asked him several times for documents, Max wasn't able to find anything that his lawyer asked for.

In the courtroom, Mei's lawyer sits at the front counsel's bench and lays out all his papers. There is a "court taker" sitting in front of the judge's bench. Their role is to:

  • open the court
  • call the case - pass any relevant documents to the judge
  • swear in any witnesses who will give evidence, and
  • collate and label exhibits, and keep a record of the proceedings.

 The witnesses must swear an oath (with a bible) or make an affirmation (without a bible) before giving their evidence, to make sure that they tell the truth.

The jury box, where twelve jurors would sit, is empty. Mei asks her lawyer if there will be a jury at this trial. He says no and explains that jury trials in civil matters are extremely rare.

The court taker leaves the courtroom, and Mei's lawyer puts on his robe. A side door to the courtroom opens, and the court taker announces both in Māori and in English "Silence. All stand for His/Her Honour the Queen's Judge." This makes Mei stand to attention, even though she has never been in a court before.

Mei's lawyer bows to the judge and introduces himself as Mr Liant for the plaintiff.  Max’s lawyer then bows to the judge and introduces himself as Mr Brass for the defendant. Mei's lawyer starts with his opening submissions and then calls his witness Mei Hsu. The court taker directs Mei to the witness stand and asks her to take the oath (swear on the bible to tell the truth).

Mei's lawyer asks his questions of the witness (a process called "examination in chief"), Max's lawyer asks his questions of the same witness ("cross-examination"), and then Mei's lawyer may ask more questions ("re-examination"). Mei gives her answers honestly, clearly, and confidently.

Max's lawyer then opens his client's defence to Mei's claim and makes his opening submissions. He calls his only witness, Max Million, to the stand. Max goes through the same process as Mei. Max is very vague about his evidence and tries to move away from the question and change the subject. This does not impress the judge.

After the witnesses have given their evidence, each counsel gives closing submissions (brief statements that sum up their side of the case). The judge advises counsel and the parties that they will reserve their decision, which means that the judge will decide and tell them the result at a later date. This gives the judge time to consider all the issues in the claim and the defence. As well as the evidence and submissions given at the hearing, the judge can also look up libraries of law and get researchers to help him examine particularly difficult case law. The court adjourns (this means the hearing is over) and the judge leaves the court room.

The Judge's decision – Mei wins her case

A week later, the judge is ready to deliver their decision. Often a reserved decision is released in writing, but this time the judge chooses to deliver the decision orally in court. Max, Mei and their counsel are directed to a courtroom to hear the judge's decision.

The judge has decided that based on the evidence before them, the submissions given by counsel, and the law, judgment is given to the plaintiff with costs. This means that Mei has won her case.

Mei has been given judgment for the sum of $500,000 because her idea (intellectual property) has been used without her permission and Max Million has received direct benefit from that. Mei has won her claim and $500,000, and she does not have to pay any costs.

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