FLETCHER v THE LAWLINK GROUP LTD [2023] NZHC 2622

FLETCHER v THE LAWLINK GROUP LTD [2023] NZHC 2622 [21 September 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2021-470-000071[2023] NZHC 2622BETWEEN DARRYL JOHN FLETCHERPlaintiffAND THE LAWLINK GROUP LIMITEDFirst DefendantRESOLUTION LIFE AUSTRALASIALIMITEDSecond DefendantHearing: 7 September 2023Appearances: D J Fletcher, Plaintiff in PersonP McKinnon for the First DefendantD J Friar and J F Hall for the Second DefendantJudgment: 21 September 2023JUDGMENT OF ASSOCIATE JUDGE GARDINERThis judgment was delivered by me on 21 September 2023 at 3.30 p.m.pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate.......................................Solicitors:Morgan Coakle, AucklandBell Gully, AucklandIntroduction[1] Darryl Fletcher, a former lawyer and partner of a Tauranga law firm, brings aclaim against Resolution Life Australasia Limited (Resolution Life) for breaching agroup income continuance policy procured by The LawLink Group Limited(LawLink). He claims that Resolution Life wrongly required medical reports andmedical assessments and then stopped paying him a total disability benefit when herefused to comply with those requirements. Mr Fletcher sues to recover the benefitand general damages.[2] Mr Fletcher now applies for leave to amend his statement of claim and to fileinterlocutory applications: for summary judgment and for an interim payment pursuantto r 7.69 of the High Court Rules 2016. Leave is required because the close ofpleadings date has passed.[3] As directed by Associate Judge Sussock on 15 August 2023, Mr Fletcher fileda draft amended statement of claim together with a memorandum containing hissubmissions in support of his applications for leave.1 Resolution Life filed amemorandum setting out its submissions in opposition. I heard oral submissions fromMr Fletcher and Mr Friar during a telephone conference.Procedural background[4] Following a judicial settlement conference in December 2022, this proceedingwas set down for a 5-day trial in August 2023. As set out in the Minute of AssociateJudge Sussock dated 12 December 2022:(a) the deadline for interlocutory applications was 22 December 2022;(b) the close of pleadings date was 24 March 2023; and(c) Mr Fletcher's briefs of evidence were due on 28 April 2023.1 Referring to further submissions in an earlier memorandum of 4 August 2023.[5] On 17 January 2023, the Court emailed the parties noting that the deadline forinterlocutory applications had passed and seeking an update from the parties.Mr Fletcher, who was then represented by counsel, did not indicate that he intended tomake any applications.[6] Mr Fletcher did not serve his briefs of evidence by 28 April 2023. Counsel forResolution Life made inquiries with Mr Fletcher's counsel and then sought an urgentcase management conference. In response, on 9 May 2023 counsel for Mr Fletcherfiled a memorandum requesting an adjournment of the August 2023 trial.[7] On 11 May 2023, the parties attended a teleconference beforeJustice Campbell. Having heard from counsel for all parties, His Honour adjournedthe August 2023 trial. Mr Fletcher did not raise any amendments or applications atthat conference.[8] The Court rescheduled the trial for early May 2024, with Mr Fletcher's briefsof evidence due on 27 October 2023. The defendants' briefs of evidence are due on8 December 2023.[9] On 22 June 2023, Mr Fletcher notified the Court and the parties that he wasnow acting in person.Legal principles[10] No amended pleading may be filed, and no interlocutory application may bemade, or step taken, after the close of pleadings date without the leave of the Judge.2The purpose of the close of pleadings date is to ensure that the pleadings are settled,and all interlocutory matters are completed so that the parties can concentrate onpreparing for the hearing.2 High Court Rules 2016, r 7.7.[11] A party seeking to take steps after the close of pleadings date must "surmountthe three formidable hurdles" of showing that doing so would be in the interests ofjustice, will not significantly prejudice the other parties, or cause significant delay.3[12] When determining whether to give leave to a party to amend their pleadingafter the close of pleadings date the Court regards the following principles:4(a) The paramount consideration is that the parties should have everyopportunity to ensure that the real controversy goes to trial to secure thejust determination of the proceeding.(b) Due regard must be had to whether the proposed amendment will causesignificant delay or prejudice another party.(c) The Court should consider the merit, or absence thereof, in a proposedamended pleading. Even where serious prejudice and significant delaywill arise, an amended pleading may nevertheless be permitted if theproposed claim has substantial merit and will not cause injustice to theother party.Leave to amend the statement of claim[13] Mr Fletcher's existing statement of claim sets out five causes of action: breachof contract and breach of trust against Lawlink; and breach of contract, breach of s 9of the Fair Trading Act 1986 and negligence against Resolution Life. He proposes toamend his statement of claim to introduce three further causes of action: estoppel,conspiracy and unlawful means, and breach of s 27 of the Fair Trading Act.3 Jessica Gorman and others McGechan on Procedure (online ed, Thomson Reuters) at [HR7.7.01],citing Elders Pastoral Ltd v Marr (1987) 2 PRNZ 383 (CA), and Body Corporate 172108 vGundry [2014] NZHC 954 at [40].4 Oraka Technologies Ltd v Geostel Vision Ltd [2015] NZHC 991 at [17].Submissions[14] Mr Fletcher attributes the proposed amendments to information that emergedafter the judicial settlement conference in December 2022. Specifically, he says thatthrough an (open) exchange of correspondence between his former solicitors andResolution Life's solicitors between 3 February and 14 June 2023, Resolution Lifearticulated how it had been interpreting the 'total disablement' definition in theinsurance policy. At the same time, Mr Fletcher contends, Resolution Life changedits position to accept the interpretation he and LawLink advanced.[15] Mr Fletcher considers Resolution Life's position on the 'total disablement'definition to be relevant to the reasonableness of the medical assessment andinformation it requested of him, and therefore important to his claim. He says that itwas not until 14 June 2023 that he had sufficient clarity about Resolution Life'sposition to assess the potential impact on his statement of claim.He raised amending his pleading with the Court shortly thereafter.[16] Resolution Life opposes leave being given, submitting that it has not changedits position, and that it only agreed to Mr Fletcher's interpretation to narrow the issuesbefore trial. Furthermore, it communicated this position to Mr Fletcher's solicitors inFebruary 2023, so Mr Fletcher has had seven months to amend his statement of claim.[17] Resolution Life's submits that in any event, the interpretation of the definitiondoes not affect its position concerning its requests for medical records and a medicalexamination. It submits that on the existing pleadings Mr Fletcher can contest whetherResolution Life had insufficient information available to assess whether Mr Fletchermet the total disablement definition, and whether Resolution Life was entitled torequest the information and medical assessments that it did, and to cease paying thebenefit because Mr Fletcher did not comply with those requests.[18] Further, Resolution Life submits that although Mr Fletcher seeks to rely on analleged change of position by Resolution Life in 2023 to amend his claim, his proposedamendments instead consist of assertions relating to conduct from 2011 to 2020 thathe had already made well before the alleged change of position. That alleged changeof position therefore provides no basis for Mr Fletcher to seek leave out of time tomake amendments that could have been made well before the close of pleadings date.[19] Resolution Life submits that granting leave would risk delay in the proceedingsand put the adjourned trial date at risk. It submits that the risk of delay creates a realrisk of prejudice to Resolution Life. In particular, if the Court ultimately agrees (inthe substantive proceeding) that medical examinations of Mr Fletcher should takeplace, the delay from a further trial adjournment will make it more difficult for themedical experts conducting an examination to make a backward-looking assessmentof Mr Fletcher, which would need to be made as at 30 July 2020.Assessment[20] I am prepared to give Mr Fletcher leave to amend his statement of claim toinclude allegations that relate to Resolution Life's interpretation of the totaldisablement definition, for the following reasons.[21] First, I consider there is a strong interest in Mr Fletcher being permitted topresent his full claim at trial. The outcome of the proceeding will have profoundpersonal consequences for Mr Fletcher. Justice demands that he is given theopportunity to advance what he considers to be the real dispute, provided giving himthat opportunity is not outweighed by injustice to the defendants.[22] Second, while it is difficult for me to assess the merits of Mr Fletcher'sposition, I could see how Resolution Life's interpretation of the 'total disablement'definition might affect its view of the medical information it needed to assessMr Fletcher's ongoing entitlement to cover. I consider that Mr Fletcher should begiven the opportunity to plead how he considers this interpretation to be relevant tothe reasonableness of Resolution Life's approach.[23] Third, and critically, I am satisfied that provision for Mr Fletcher to amend hisstatement of claim can be made without jeopardising the hearing. Resolution Life andLawlink do not consider that any additional discovery will be required by theamendments. I also find it difficult to conceive how the amendments, appropriatelyconfined, will involve further discovery. In my view, there is enough time before thetrial in May 2024 for the defendants to amend their pleadings in response and forevidence to be exchanged.[24] However, as presently drafted, Mr Fletcher's proposed new causes of action gowell beyond allegations arising out of or relating to the interpretation issue.Mr Fletcher looks to introduce new, unrelated matters and repeat allegations made inthe earlier causes of action. This repetition adds nothing and confuses the statementof claim. Leave to amend will be given on the condition that Mr Fletcher confines hisamendments to allegations arising out of the issue of Resolution Life's interpretationof the 'total disablement' definition.Leave to file interlocutory applications[25] I decline to give Mr Fletcher leave to file interlocutory applications forsummary judgment and/or for an interim payment. These proposed applications haveno prospect of success and will only serve to derail the trial and prolong theproceeding.[26] To obtain an order for summary judgment, Mr Fletcher would need to satisfythe Court that Resolution Life and/or LawLink have no defence to a cause of action inthe statement of claim, or to a particular part of any such cause of action.5 The questionon a summary judgment application is whether the defendant has no defence to theclaim; that is, that there is no real question to be tried.6 The Court will not normallyresolve material conflicts of evidence.7[27] Resolution Life brought a summary judgment application early on in theseproceedings. While summary judgment was not granted, Associate Judge Paulsenreferred to various difficulties that Mr Fletcher will face at trial.85 High Court Rules 2016, r 12.2(1).6 Pemberton v Chappell [1987] 1 NZLR 1 (CA) at 3.7 Krukziener v Hanover Finance Ltd [2008] NZCA 187, [2010] NZAR 307 at [26].8 Fletcher v The Lawlink Group Ltd [2021] NZHC 3543.[28] In terms of Mr Fletcher's proposed new causes of action, those causes of actionfor estoppel, unlawful means, conspiracy, and coercion will be based on disputedfactual material, and there is no plausible basis for seeking summary judgment.[29] Additionally, the purpose of summary judgment is to obtain a prompt outcomein cases where there is no reasonable defence. Mr Fletcher's claim will be heard injust over six months' time. Even if he did have a good case for summary judgment,he will not achieve a faster outcome, as a summary judgment application could not beable to be heard until March 2024 at the earliest.[30] An application for interim payment under r 7.69 of the High Court Rules hasno reasonable prospect of success either. The purpose of the interim payment regimeis to "cater for the situation where it is clear that the plaintiff will receive an award,but the amount [is] a matter for the Court".9 In this case, Resolution Life disputes thatMr Fletcher should receive a payment. That is a live issue for the trial.Result[31] Mr Fletcher has leave to file an amended statement of claim on the conditionthat he confines his amendments to those relating to the interpretation of the 'totaldisablement' definition, by 5 October 2023. I will review the amended statement ofclaim once filed, and provided it complies, adjust the existing timetable to meet thetrial date.[32] Mr Fletcher's application for leave to file interlocutory application isdismissed.[33] Costs are reserved._______________________________Associate Judge Gardiner9 Jessica Gorman and others McGechan on Procedure (online ed, Thomson Reuters) at[HRPt7Subpt5.01].