ELVA COLGAN v AUCKLAND COUNCIL [2020] NZHC 1833

ELVA COLGAN v AUCKLAND COUNCIL [2020] NZHC 1833 [27 July 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV 2019-404-00406[2020] NZHC 1833BETWEEN ELVA COLGANPlaintiffAND AUCKLAND COUNCILDefendantHearing: On the papersJudgment: 27 July 2020JUDGMENT OF DUFFY JThis judgment was delivered by me on 27 July 2020 at 4.30 pm pursuant toRule 11.5 of the High Court Rules.Registrar/ Deputy RegistrarSolicitors:Maurice Blackburn Lawyers, BrisbaneMedico Law Lawyers, Auckland[1] The plaintiff in this proceeding filed her statement of claim on 8 March 2019.[2] The claim is an action for damages brought in negligence for her personalinjury; the development of pleural mesothelioma, a type of cancer caused by asbestosexposure. The plaintiff alleges that her pleural mesothelioma was caused by asbestosexposure arising out of washing the work clothes of her late husband, a formeremployee of the Auckland Harbour Board who was exposed to asbestos during hisemployment with that entity between 1971 and 1988.1 A portion of this time periodwas before the coming into force of the first Accident Compensation Act 1972.2 Theplaintiff has earlier applied for cover under the Accident Compensation Act 2001. Herapplication was rejected on the basis her mesothelioma was not a work-related injury.[3] On 8 July 2019, this court delivered judgment in Calver v AccidentCompensation Corporation.3 Before the delivery of Calver v Accident CompensationCorporation the general understanding was that the Accident Compensation Act 2001did not provide cover to people like the plaintiff who suffered from mesotheliomacaused by exposure to asbestos outside of employment. It was also generallyunderstood that persons who were not entitled to cover under the AccidentCompensation Act 2001 and who had suffered personal injury before the passing ofthe Accident Compensation Act 1972, were entitled to seek common law damages fortheir injuries because their right to sue for such injury had not been extinguished.4[4] In October 2019 this court granted the Accident Compensation Corporationleave to appeal the decision of Calver. A hearing date has yet to be set. The outcomeof the appeal is likely to determine whether the plaintiff is entitled to bring an actionfor damages in negligence for her injury. If the Court of Appeal upholds the decisionof this Court, the plaintiff's present action will be barred by the operation of theAccident Compensation Act 2001. On the other hand, if the Court of Appeal allows1 The Auckland Harbour Board was dissolved in or about 1989 and its liabilities were assumed bythe Auckland Regional Council. When the Auckland Regional Council was dissolved theAuckland Council assumed its liabilities.2 This legislation came into force on 1 April 1974.3 Calver v Accident Compensation Corporation [2019] NZHC 1581, [2019] 3 NZLR 261.4 The statutory bar against recovery of damages for personal injury that was imposed by theAccident Compensation Act 1972 has been continued in subsequent legislation leading up to theAccident Compensation Act 2001.the appeal and decides that cover is not available for non-work related mesotheliomathe plaintiff will be entitled to bring her action in negligence.[5] The plaintiff seeks an extension of time for service of six months pursuant tor 5.73 of the High Court Rules. She submits there is a good reason to extend the periodfor service, this being that the availability of the plaintiff's right to bring theproceeding depends on the outcome of the appeal in Calver v Accident CompensationCorporation. Until the appeal has been determined the state of the law in respect ofthe plaintiff's entitlement to bring her case is unclear.[6] The plaintiff's application for an extension of time for service came beforeGault J in July 2020. In a minute dated 2 July 2020 His Honour directed the plaintiffto file a further memorandum addressing whether there is any authority supporting anextension where the plaintiff has elected to delay service in a case of this nature, andfurther information regarding the prejudice to the plaintiff if an extension is notgranted. The plaintiff has helpfully provided me with a subsequent memorandumoutlining the relevant case law on the exercise of r 5.73 and its equivalent in otherjurisdictions.[7] I consider the authority to extend time for service to be a broad discretionarypower that is available to this Court. Here, it would serve little purpose if the plaintiffhad served the defendant within the 12 month time-frame. Delivery of the judgmentin Calver established a bar to this proceeding. Had the plaintiff served the proceedingshe is likely to have found herself facing an application for strike out. Any action thatwould engage the defendant at this time may later result in a liability for the plaintifffor costs. I consider the plaintiff has acted responsibly by delaying service of herclaim. This is an appropriate case where an extension of time should be granted.[8] Accordingly, the 12-month period for serving the statement of claim on thedefendant is extended by a further six months.Duffy J