DAVERN v QBE INSURANCE (AUSTRALIA) LTD [2023] NZHC 182

DAVERN v QBE INSURANCE (AUSTRALIA) LTD [2023] NZHC 182 [13 February 2023]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2020-409-390[2023] NZHC 182BETWEEN JOHN TIMOTHY DAVERN AND MARITADAVERNFirst PlaintiffsAND IAG NEW ZEALAND LIMITEDSecond PlaintiffAND QBE INSURANCE (AUSTRALIA)LIMITEDDefendantHearing: 7 February 2023 (by VMR)Counsel: D J Cooper KC and V A Ma for PlaintiffsD H McLellan KC and A J Peat for DefendantJudgment: 13 February 2023JUDGMENT OF OSBORNE J(admissibility of evidence — reasons)This judgment was delivered by me on 13 February 2023 at 4.00 pm pursuant to Rule 11.5of the High Court RulesRegistrar/Deputy RegistrarDate:[1] The trial of this proceeding is scheduled to commence on 13 February 2023.[2] Briefs of evidence have been exchanged. The defendant, QBE Insurance(Australia) Ltd (QBE), has given notice under r 9.11(2) High Court Rules 2016 thatthere is an admissibility issue relating to the entire brief of evidence of Murray James,the Corporate Manager of the second plaintiff, IAG New Zealand Ltd (IAG).[3] By a results judgment (the Results Judgment), I directed the removal of aspectsof Mr James's brief.1 These are my reasons.A procedural matter[4] I deal first with a procedural issue initially raised by the second plaintiff'ssolicitors but responsibly not pursued in counsel's submissions.[5] In terms of r 9.11 High Court Rules, any challenge to the admissibility of abrief, in whole or in part, must be notified to the party or parties concerned within 20working days after receipt of the brief by the challenging party. Under r 9.11(2), thereis then a requirement for notice to be given to the Court if the issue is not resolvedbetween counsel within a further 10 working days.[6] In this case, Mr James's brief was served on 13 October 2022. Consequently,r 9.11(1) required that notice of objection be given by 11 November 2022 (that iswithin 20 working days). The defendants' solicitors gave notice on 25 November2022, 10 working days late.[7] There is commentary in McGechan on Procedure that the consequence of abreach of the timing requirements under r 9.11(1) may be that any subsequentobjection is not entertained by the Court.2 The commentary then contains theadmonition: "Parties should therefore be vigilant in complying with the noticerequirement."1 Davern v QBE Insurance (Australia) Ltd [2023] NZHC 137.2 Robert Osborne (ed) McGechan on Procedure (online ed, Thomson Reuters) at [HR9.11.02].[8] The latter part of the commentary is clearly correct — vigilant compliance withr 9.11(1) is to be expected. That said, the Court will retain a power to consider theissue of admissibility whether or not the affected party raises the objection within thespecified period. Such flows inevitably from the power of the Court to control its ownprocesses, including at trial, a power the trial Judge is required to exercise under ss 7,and 9 Evidence Act 2006 in relation to evidence which is irrelevant or will have anunfairly prejudicial effect on or needlessly prolong a proceeding. This obligation isnot limited to the situation in which a party raises the non-compliance of evidencewith ss 7 and 8. Furthermore, within the High Court Rules, r 1.5(1) expressly providesthat a failure to comply with the requirements of the Rules must be treated as anirregularity and does not nullify any step taken in the proceeding. By r 1.5(2)(b) theCourt (in relation to such irregularities) may make any order dealing with theproceeding generally as it thinks just.[9] Also relevant in this case are the provisions of the Evidence Act in relation toexpert evidence (especially ss 23 and 25). I refer particularly to s 25(1) whichprovides:Admissibility of expert opinion evidence(1) An opinion by an expert that is part of expert evidence offered in aproceeding is admissible if the fact-finder is likely to obtainsubstantial help from the opinion in understanding other evidence inthe proceeding or in ascertaining any fact that is of consequence to thedetermination of the proceeding.[10] The correct approach in this case, therefore, is to treat the defendant's latenotification of its objection as an irregularity and to then deal with the issue before theCourt as I think just. In relation to QBE's particular objections to Mr James's briefs,the just resolution will flow from the application of ss 7, 8 and 9 Evidence Act. Giventhe central requirement of admissibility that evidence be relevant,3 I will initially turnto the issues for trial, as identified through the pleadings.3 Evidence Act 2006, s 7(2).The plaintiffs' claims and the issues[11] The first plaintiffs, John and Marita Davern, own a Christchurch property (theproperty) damaged in the Canterbury Earthquake Sequence. The insurance policy inrelation to the property was underwritten by IAG.[12] IAG and Orange H Management Ltd (Hawkins Management) are parties to aRebuild Solution Master Agreement dated 13 August 2012 (2012 RSMA). The 2012RSMA is the same contract as applied to the repair works on the property of theplaintiffs in Sleight v Beckia Holdings Ltd.4[13] Under the 2012 RSMA, Hawkins Management agreed to indemnify IAG inrelation to claims incurred by IAG as a result of any breach of the 2012 RSMA5 andalso provided a guarantee and indemnity to IAG in relation to liabilities arising froma failure to perform any obligation under the 2012 RSMA.6[14] The plaintiffs allege that Hawkins Management made a sequencing error inrelation to the construction of a required retaining wall which resulted in pleadeddefects.[15] From June 2012 to the present, Hawkins Management and Orange H GroupLtd (Hawkins Group) held liability policies of insurance with QBE. Both HawkinsManagement and Hawkins Group have subsequently been placed in receivership andliquidation, resulting in the plaintiffs joining QBE as defendant under the Law ReformAct 1936.[16] The plaintiffs plead two causes of action.[17] Firstly, plaintiffs claim judgment in relation to the defendants on the basis thatHawkins Management, in carrying out the repair works, breached a duty of care owed4 Sleight v Beckia Holdings Ltd [2020] NZHC 2851 [Sleight High Court]. The decision wassubsequently the subject of the Court of Appeal judgment in IAG New Zealand Ltd v QBEInsurance (Australia) Ltd [2022] NZCA 208 [Sleight Court of Appeal].5 Clause 17.2 of the 2012 RSMA.6 Schedule 5, cl 1.1 of the 2012 RSMA.to the first plaintiffs through particularised breaches including failures of monitoringor supervision and failures to provide for correct sequencing. Additionally the firstplaintiffs allege that Hawkins thereby breached guarantees under ss 28 and 29Consumer Guarantee Act 1993 (the CGA) through the provision of unsatisfactoryservices.[18] As a second cause of action, the second plaintiff (IAG) repeats the earlierallegations and alleges that Hawkins (in breach of contract) did not meet its obligationsunder the 2012 RSMA, causing IAG loss to its indemnification of the first plaintiffsfor the repair costs and continuing expenses. IAG relies on both the indemnity andthe guarantee (in the RSMA). Additionally, IAG asserts that Hawkins breached a dutyof (tortious) care owed to IAG.[19] By its pleadings, QBE admits that IAG and Hawkins are parties to the 2012RSMA and admits the terms of the 2012 indemnity and the 2012 guarantee.[20] QBE denies it owed a duty of care to the first plaintiffs or that it owed any dutyto IAG other than in accordance with the 2012 RSMA. QBE denies that its conductinvolved any breach of contract or was negligent.[21] In his submissions for the plaintiffs, Mr McLellan KC has described IAG'sprimary pleaded claim as being that Hawkins breached its obligations under the 2012RSMA. Mr McLellan acknowledges that IAG also claims in tort, but notes that theparticulars of that claim mirror those for breach of contract.The purpose and content of Mr James's briefPurpose[22] Mr James has had management roles at IAG since 2012, including in relationto earthquake claims. Since January 2016, he has been the Corporate Manager forIAG's NZI sales team in the lower North Island and across the South Island. He wasnot involved in the drafting of the 2012 RSMA. From March 2013, he had roles firstas General Manager for Loss Adjusting and Specialist Partners and then as GeneralManager for the Canterbury Rebuild Program Delivery where he worked withHawkins Management and had responsibility for the loss-adjusting team. He statesthat he dealt frequently with personnel from Hawkins. In his brief, he explains thepurpose of his evidence:11 I will describe IAG's claims handling process before and after theCanterbury earthquakes and, in particular, how the handling processoperated where both the house and the property's retaining walls wereearthquake damaged. I will address the Services that HawkinsManagement agreed to provide under the 2012 Rebuild SolutionMaster Agreement and how those services related to retaining wallrepairs.[23] There is no suggestion that Mr James had any involvement in the claim inrelation to the repair work carried out on the Daverns' property.[24] In response to QBE's r 9.11(2) memorandum, Mr Cooper KC, bymemorandum, recorded that the plaintiffs consider Mr James's evidence relevant tothe dispute as to the scope and nature of the obligations assumed by HawkinsManagement under its contract with IAG.[25] For the plaintiffs, it has further been asserted that:It is important to have evidence as to what he, as someone who is familiar withthe IAG and Hawkins processes and the contractual relationship between theparties would have expected to have occur on site to comparison with (sic) theevidence from other witnesses who set out to what (sic) did at 9 Crest Lane.Content[26] Mr James's brief spans some 34 pages (154 paragraphs).[27] After introductory passages, Mr James deals with a number of topics:(a) [12]–[34]: description in general terms of how IAG processed claimsbefore the earthquakes;(b) [35]–[39]: how IAG responded to the September 2010 earthquake,including entry into a (2010) RSMA with a Hawkins company;(c) [40]–[75]: how IAG responded to the February 2011 earthquake,including entry into the 2012 RSMA with Hawkins Management, andhow the IAG dealt with claims (including the Daverns') through anumber of "silos";(d) [76]–[145]: how in 2012, IAG and Hawkins Management developed anon-EQC Silo Solution document for dealing with a range of non-EQCworks to damaged properties and the roles of IAG and HawkinsManagement in that process;(e) [146]–[152]: how IAG dealt with problems with repair works;(f) [153]–[154]: a brief conclusion as to what IAG was relying on Hawkinsto do under the 2012 RSMA.The admissibility objections[28] QBE's solicitors identified QBE's admissibility objections in a Schedule to thenotice given to the plaintiffs in November 2022. It is reproduced as the Schedule tothis judgment.[29] As Mr McLellan has elaborated, QBE's primary objections to Mr James's briefare:(a) Mr James's evidence is effectively a report on documents he did notauthor and includes abstract postulations about what he would haveexpected to have occurred generally, not in relation to the Daverns'particular insurance claim;(b) Mr James's evidence includes his opinions on contractualresponsibilities that Hawkins may have had under the 2012 RSMA,when he is not qualified as an expert and the nature of Hawkins'responsibilities is a submission which is the domain of counsel; and(c) Mr James's evidence will needlessly prolong the hearing:(i) despite the length of his brief, he refers to the Daverns' propertyin only three places;(ii) having regard to the length of Mr James's evidence and likelycross-examination, his evidence is likely to take up to one dayof the ten allocated days;(iii) relative to the lack of directly probative evidence in the brief, itis disproportionately lengthy evidence and, in terms of s 8(1)Evidence Act, would needlessly prolong the proceeding; and(iv) QBE has had to prepare briefs in response to Mr James's brief,a substantial part of which would not be called if Mr James'sevidence is not admissible.[30] Mr McLellan characterises the first 50 paragraphs of the brief as [reporting] ondocuments and postulations about what Mr James would expect to have generallyoccurred", and says that that material is objectionable because of content that ishearsay, irrelevant or such as to needlessly prolong the hearing.[31] Mr McLellan invokes the observations of the Supreme Court in BathurstResources Ltd v L&M Coal Holdings Ltd.7 The Court described ss 7 and 8 EvidenceAct as the "engine room of the Act".8 Mr McLellan referred particularly to the Court'sexplanation as to how ss 7 and 8 applied to contractual interpretation:9[62] Applying s 7 in the context of contractual interpretation, evidence isprima facie admissible if it has a tendency to prove or disprove anything ofconsequence to determining the meaning the contractual document wouldconvey to a reasonable person having all the background knowledgereasonably available to the parties in the situation in which they were at thetime of the contract. We say prima facie as relevant evidence may still beinadmissible in terms of s 8, or in terms of one of the Act's (or any other Act's)exclusionary provisions.7 Bathurst Resources Ltd v L&M Coal Holdings Ltd [2021] NZSC 85, [2021] 1 NZLR 696.8 At [61].9 At [62].[32] Mr McLellan notes that Mr James is not qualified as an expert and is thereforenot qualified to give opinion evidence. Were he so qualified, in Mr McLellan'ssubmission, s 25(1) Evidence Act would apply to render the evidence inadmissiblebecause the Court is unlikely to obtain substantial help from Mr James's opinionevidence.[33] Mr McLellan observed that IAG's pleadings rely on the express terms of the2012 RSMA, and not on any implied term. The text of the 2012 RSMA is thereforewhat will be of central importance, as reflected in the approach this Court took in theSleight case, adopting the interpretation approach required by the Supreme Court inFirm Pl 1 Ltd v Zurich Australian Insurance Ltd.10[34] Mr McLellan submitted that Mr James's evidence is in large part an attempt toadd a gloss to the text of the 2012 RSMA, an approach rejected by this Court inSleight:11Although IAG does not plead or allege that an implied term as to qualityshould be included in the 2012 RSMA and its case is based on the expresswords of the contract, in evidence and submissions IAG has attempted toproject a meaning into the 2012 RSMA that I am satisfied the words do notbear. In evidence of certain experts advanced by IAG, opinions wereexpressed that Hawkins had both an expectation and a responsibility throughaccepted practice to monitor quality and compliance of the builder's work,both through the currency and at the completion of each building contract. Inmy view, that is not, however, what the bespoke 2012 RSMA clearly provided.It would not be appropriate here for the Court to imply a term in the 2012RSMA relying simply on what in some of the evidence before me was referredto as "common practice".[35] In short, Mr McLellan invited the Court to apply to Mr James's brief therequirements of r 9.7(4) High Court Rules, which relevantly states:Every brief—(a) (b) must be in the words of the witness and not in the words of the lawyerinvolved in drafting the brief:10 Sleight High Court, above n 4 at [437], citing Firm Pl 1 Ltd v Zurich Australian Insurance Ltd[2014] NZSC 147, [2015] 1 NZLR 432.11 Sleight High Court, above n 4, at [467].(c) must not contain evidence that is inadmissible in the proceeding:(d) must not contain any material in the nature of a submission:(e) must avoid repetition:(f) must avoid the recital of the contents or a summary of documents thatare to be produced in any event:(g) must be confined to the matters in issue.[36] The importance of requiring good practice in relation to the content of briefs isreinforced by the provisions of r 9.7(5), which provides not only that the Court maydirect that a brief may not be read in whole or in part, but the Court may, in relation toa non-complying brief, make such order as to costs as the Court sees fit.[37] The need for enforcement of the requirements for briefs under r 9.7(4) has veryrecently been identified by the Rules Committee as a significant issue in restrictingaccess to civil justice. That follows a three year process of review and consultation,culminating in the Committee's report entitled "Improving Access to Civil Justice".12[38] The Committee there identified that many judges consider that briefs andaffidavits often contain much inadmissible material, submissions disguised asevidence and unnecessary recitation of the documentary record.13 The Committeereferred to the prohibition of inadmissible material under r 9.7(4), discussed thedifficulties facing trial Judges when objections arise at or shortly before trial, andagreed that the current processes and practices for briefs of evidence remain a keycause of the unnecessary expansion of litigation.14Submissions for the plaintiffs[39] For the plaintiffs, Mr Cooper emphasised that Mr James (as explained in hisbrief) was responsible for managing IAG's response to Canterbury earthquake claims,including IAG's relationship with Hawkins. His involvement was direct andextensive.12 Rules Committee "Improving Access to Civil Justice" (November 2022) Courts of New Zealandwww.courtsofnz.govt.nz/about-the-judiciary/rules-committee/access-to-civil-justice-consultation13 At [177].14 At [178]–[181].[40] In relation to Mr James providing evidence of context, Mr Cooper referred topassages in the judgments of the Court of Appeal and this Court in the Sleight casewhich referred to context evidence, including that given by Mr James (for IAG) "fromthe insurance industry's perspective" and from a Mr Wood (for QBE) setting outHawkins' perspective.15[41] Mr Cooper submits that IAG's objection proceeds on an incorrect assumptionthat the case involves only a claim for breach of contract under the 2012 RSMA.Mr Cooper refers (correctly) to four additional sets of issues being:(a) the Daverns' claim under the CGA;(b) the Daverns' claim in the tort of negligence;(c) IAG's claim in the tort of negligence; and(d) QBE's affirmative defences alleging failure to mitigate loss andcontributory negligence.Consumer Guarantees Act[42] The Daverns invoke the implied guarantees under ss 28 and 29 CGA. QBEdenies that Hawkins Management provided services to the Daverns on the ground thatits only role was to provide contractual services to IAG under the 2012 RSMA. MrCooper notes that the same argument was rejected in Sleight where this Courtconsidered the relationship between the Sleights and Hawkins, including "[f]rom theSleights' perspective", despite the Sleights' rights against Hawkins under the CGA notbeing limited by any terms contained in the 2012 RSMA.16[43] Mr Cooper submits that the full range of services provided by HawkinsManagement under the Managed Repair Programme therefore requires considerationof Hawkins Management's overall role, including the manner in which it interacted15 Sleight Court of Appeal, above n 4, at [6]; Sleight High Court, above n 4, at [36]–[38] and [438]–[440].16 Sleight High Court, above n 4, at [348]–[349].with IAG and others in the provision of services. Just as with the Sleights, the Davernswere not parties to and had not seen the 2012 RSMA — in Mr Cooper's submissionthe relevant evidence cannot be limited by a focus on the terms of the RSMA. MrCooper observes that QBE's same argument (as to Hawkins Management notproviding services to the Daverns/Sleights) was unsuccessful in the Sleight case.17Negligence[44] Mr Cooper observes there is a parallel in the Daverns' claims under the CGAand in negligence, in that QBE responds to both by pleading that HawkinsManagement's involvement was for the exclusive benefit of IAG and that the natureand extent of Hawkins' Management's involvement was determined solely by the 2012RSMA. Mr Cooper observes that any inquiry as to the existence and scope of a dutyof care necessarily requires an assessment of the full context in which the defendanthas provided the services in question — what the leading Supreme Court judgment inNorth Shore Council v Attorney-General described as "everything bearing upon therelationship between the parties".18Failure to mitigate loss and contributory negligence[45] Section 3(1) Contributory Negligence Act 1947 provides:Where any person suffers damage as the result partly of his own fault andpartly of the fault of any other person or persons, a claim in respect of thatdamage shall not be defeated by reason of the fault of the person suffering thedamage, but the damages recoverable in respect thereof shall be reduced tosuch extent as the court thinks just and equitable having regard to theclaimant's share in the responsibility for the damage:Provided that—(a) This subsection shall not operate to defeat any defence arising undera contract:(b) Where any contract or enactment providing for the limitation ofliability is applicable to the claim, the amount of damages recoverableby the claimant by virtue of this subsection shall not exceed themaximum limit so applicable.17 Sleight High Court, above n 4, at [348]–[340].18 North Shore Council v Attorney-General [2012] NZSC 49, [2012] 3 NZLR 341 at [156].[46] Mr Cooper observes that flowing from that provision, the inquiry in relation tocontributory negligence is similar to that when determining the existence, scope andbreach of a tortious duty but also includes the "just and equitable" assessment. Hesubmits that the full context of the dealings and relationship between IAG andHawkins is therefore relevant.19Breach of contract claim[47] Mr Cooper submits there are disputed aspects of the breach of contract claimthat call for evidence covered by Mr James's brief. In particular, he refers to theexpress contemplation under the 2012 RSMA that the parties would agree protocols,processes and procedures for carrying out their obligations under the 2012 RSMA.QBE disputes that certain protocols were created under provisions of the 2012 RSMA.QBE also pleads that IAG is estopped from alleging that such documents hadcontractual status or can be read as part of the 2012 RSMA by virtue of the Court ofAppeal judgment in Sleight. Mr Cooper observes evidence was led by both IAG andQBE in Sleight as to documents of this type, with no suggestion in the judgments thatsuch evidence was inadmissible. Mr Cooper also submits that the Court of Appeal'sjudgment in Sleight addressed a narrower issue and that the documents referred to inMr James's evidence are different from those referred to in the Sleight judgment. Healso refers to matters of timing relating to the RSMAs that he submits render thedocuments in question a relevant part of the context in which the 2012 RSMA wasreached.[48] Mr Cooper then responded to QBE's specific grounds of objection on thefollowing points:Reference to documents which Mr James "did not author"(a) Mr Cooper submits the authorship of the documents is not the point.Rather, Mr James is referring to documents to explain how they wereutilised in the management of the relationship between IAG andHawkins. Mr Cooper rejects QBE's suggestion that such documents19 Citing also Hooker v Stewart [1989] 3 NZLR 543 (CA) at 547.can come in as evidence through the common bundle. He argues, byreference to a particular document (a "Master Sheet"), that Mr Jamesdiscussing certain documents yields a clearer picture as to theirprovenance and function which would not result from simply producingthem in the common bundle.Non expert opinions/submissions(b) Mr Cooper submits that some examples of passages objected to by QBEdo not constitute opinion or submission but instead "describe theprocess that was followed".Lack of personal involvement at the property(c) Mr Cooper submits that Mr James's non-involvement with the propertyis irrelevant as his evidence is in relation to the relationship betweenIAG and Hawkins and the respective roles each played in the ManagedRepair Programme.Paragraphs [1]–[50](d) Mr Cooper submits that these paragraphs, which contain Mr James'sevidence in relation to IAG's claims processes and how they changed,provides relevant context. He submits that the evidence is not hearsayas Mr James speaks with direct knowledge of the matters he addresses.He refers to similar evidence led by both IAG and QBE (withoutobjection) in the Sleight case.Discussion[49] There are repeated examples in Mr James's brief of assertions as to whatHawkins was responsible for or required to do (or similar wording) under the 2012RSMA or the other documents entered into between the parties. It is one thing(permissible) to refer to documents in order to provide context for what one of theparties was doing, but it is another matter (impermissible) when the witness then seeksto state their view as to the meaning of a contract or similar document or whatobligations were created under that document. In the Results Judgment at [5](a), Iaccordingly ruled that assertions of that latter nature had to be removed from his brief.[50] That said, I did not require the removal of context from the brief of evidence,including by reference to documents of which Mr James had knowledge and withwhich he was involved in dealings with Hawkins. The suggestion for IAG thatmatters, such as reference to documents, could appropriately be dealt with simply byinclusion in the bundle, followed by counsel's submissions, is in the circumstances ofthis case incorrect, as the "Master Sheet" example relating to matters discussed by MrJames and Mr Lemmon demonstrated. Such evidence is relevant, as Mr Coopersubmitted, in establishing the provenance and function of such documents.[51] The remaining area of potential concern with Mr James's brief relates to hisassertions concerning the conduct or practice of IAG, particularly in its relations withHawkins. The plaintiffs' response to the QBE objections that the witness was notgiving evidence from his own knowledge or is otherwise speculating is, by its nature,difficult to assess when the brief is simply discussing the occurrence of events.Whether a witness indeed has such personal knowledge of events as to entitle them togive evidence about those events is a matter that is capable of exploration in cross-examination. However, the challenge having been made by QBE, it is appropriate inthe circumstances of this case (where Mr James has a lengthy brief) to require counseland Mr James to review his brief in relation to a range of assertions made regardingIAG practices and conduct to ensure he will indeed be giving evidence based on hispersonal knowledge of those matters. The direction made in the Results Judgment at[5](b) required such a review to be conducted and to be followed by the excision ofany assertions which do not represent Mr James's personal knowledge.[52] Beyond those rulings, I did not consider it practicable or appropriate toconsider whether any further passages in the brief of Mr James should be excised. Theruling in my Results Judgment deals with the evidence to be excluded. All remainingaspects of Mr James's evidence will be open to review at trial, as in the case of anyother witness, should an issue arise as to the admissibility of particular passages asthey are read from his amended brief.Costs[53] I reserve the costs and disbursements associated with the review under r 9.11High Court Rules. My present view is that costs should appropriately be paid by theplaintiffs to the defendant on a 2B basis, the defendant having been successful to asignificant degree. While the defendant has not been fully successful in that I did notrule against Mr James's brief in its entirety, virtually all the material covered insubmissions and the hearing were necessary to reach the conclusions (in favour of thedefendant) contained in this judgment.[54] In the event the parties do not agree on costs, they will be determined on thepapers upon the basis of memoranda filed (four page limit) by the defendant within 10working days after this judgment and by the plaintiffs within five working daysthereafter.Osborne JSolicitors:Duncan Cotterill, AucklandHazelton Law, WellingtonSCHEDULE