PILKINGTON V FIDELITY LIFE ASSURANCE COMPANY LIMITED HC WN CIV-2007-485-2270

PILKINGTON V FIDELITY LIFE ASSURANCE COMPANY LIMITED HC WN CIV-2007-485-2270 31 March 2008IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV-2007-485-2270BETWEEN GREGORY ALLEN PILKINGTON Plaintiff AND FIDELITY LIFE ASSURANCE COMPANY LIMITED Defendant Hearing: 31 March 2008 Appearances: H Cull QC for Plaintiff P Rzepecky & R Hern for Defendant Judgment: 31 March 2008 at OralORAL JUDGMENT OF MACKENZIE J[1] This is an application for the adjournment of a one-day fixture which has been allocated for the hearing of this proceeding on 9 April. The application seeks orders that: a) the 9 April fixture be vacated; b) a one-week fixture be allocated at the earliest date; c) all deponents be available for cross-examination on their affidavits on the new trial date; and d) timetable directions be made for an application under s 100 of the Judicature Act.[2] Briefly, the background is that the plaintiff has an income protection policy with the defendant which provides cover by way of a disablement benefit if the plaintiff becomes disabled. The plaintiff did become disabled in August 2003 and a benefit under the policy has been paid since that time. [3] I do not traverse the allegations as to what has occurred in the meantime, but simply note that certain requests were made by the insurers in relation to the completion of a daily log by the plaintiff and some other matters which resulted in these proceedings being issued in October 2007 seeking specific performance of the obligation to make monthly payments under the policy and restraining the defendant from demanding that the defendant fill in hourly time logs on a daily basis. [4] Matters were arranged by agreement between the parties to the extent that payment of benefit would continue pending the hearing of these proceedings and that the insurer's requests would not be insisted on pending the hearing and a timetable was agreed by consent which led to a one-day fixture on 9 April. [5] The defendant now submits that the nature of the issues which will need to be traversed in dealing with this proceeding and the disputes which it says arise on the affidavit evidence are such that the one-day hearing is inadequate and that a one- week hearing would be required. [6] The essential question for me is whether an adjournment is necessary in order to do justice between the parties. I bear in mind that the fixture was the subject of consent directions and that is a factor, although of course it can be the case that circumstances which arise in the course of preparation may indicate that the fixture time which has been allocated is inadequate and in many situations it will be preferable to adjourn a fixture rather than to have the fixture part-heard which may otherwise occur. The essential question for me is whether this fixture should proceed with the risk that it may not be able to be completed within the time allotted, which will of course be a matter for the trial Judge, or whether it would be better to face up to that situation now by way of an adjournment. I bear in mind that to obtain a one-week fixture it is unlikely that hearing time would be available this year.[7] The proceedings are somewhat unusual in that the relief sought relates to the rights of the insurer and the insured under the policy which is an ongoing one. Cover has been accepted and except for the question of whether the insured may cease payment because of non-compliance with the policy conditions, the continuation of cover is not in issue in these proceedings. [8] The suggestion that lengthy cross-examination will be necessary to determine the limited matters which are in issue – namely the ability of the insurer to insist upon the requirements which it has sought to impose – does not seem to me to be such that a one-week hearing should be necessary. It is not possible to separate out the issues so as to make a clear distinction between policy interpretation on the one hand and the reasonableness of actions which the insurer may wish to take under the policy on the other. The two are inextricably linked. However, given that the issues will be largely a matter of expert evidence – in particular the evidence of psychiatrists on the one hand and possibly insurance experts on the other – one would expect that a more time-efficient way of dealing with disputes than cross- examination of the experts in the usual way may be more beneficial here. That suggests to me that it is not appropriate to grant an adjournment on the basis that a one-week fixture would be required. The very nature of the claim and the policy suggests that some resolution of the position in a much shorter time frame than the defendant's application would necessarily involve is desirable. [9] For those reasons, I am satisfied that the request for an adjournment should not be granted, that the matter should proceed on the 9 th of April as scheduled. It would be for the trial Judge to determine how the fixture proceeds on that date. One of the issues which will clearly arise is whether the defendant has had an opportunity – a proper opportunity – to obtain appropriate reports from psychiatrists to enable the issues to be resolved. That is a matter on which I make no comment. It will be for the Judge to assess that in the light of the evidence which is adduced. [10] I do urge upon the parties the desirability of considering, in advance of the hearing and in the light of the limited time available, whether some clearer definition of the issues can be achieved in the meantime, and whether the differences which the defendant submits need to be considered on the evidence can be addressed in a waythat will at least enable the parties to obtain some assurance as to their respective positions within the time frame which a hearing on the 9 th of April would involve. [11] As to costs, while recognising the desirability of having costs on interlocutory applications resolved as one goes, I think that the appropriate course here is to reserve costs on the present application.A D MacKenzie JSolicitors: Gault Mitchell Lawyers, Wellington for Plaintiff McElroys, Auckland for Defendant