RUTHERFORD v SOVEREIGN ASSURANCE COMPANY LTD [2016] NZHC 1312

RUTHERFORD v SOVEREIGN ASSURANCE COMPANY LTD [2016] NZHC 1312 [16 June 2016]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYCIV-2014-419-000282[2016] NZHC 1312IN THE MATTER of the Contractual Remedies Act 1979BETWEEN ROSS RUTHERFORDPlaintiffAND SOVEREIGN ASSURANCE COMPANYLIMITEDDefendantHearing: 10 June 2016Counsel: AD Banbrook for PlaintiffAS Ross and PMC Gibbs for DefendantJudgment: 16 June 2016JUDGMENT OF ASHER J(Staying proceedings)This judgment was delivered by me on Thursday, 16 June 2016 at 4.30 pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors/Counsel:Clyde Law Ltd, Hamilton.Chapman Tripp, Auckland.A D Banbrook, Auckland.Introduction[1] This case is set down for hearing in September 2016. While I have been Duty Judge at Hamilton I have presided over three conferences relating to the conduct of this file. Those conferences arose immediately out of a minute of Heath J where, after a long history of defaults, his Honour made an unless order against Mr Rutherford. In a minute of 6 April 2016 following a conference at which there had been a failure to attend on behalf of the plaintiff, or his counsel Mr Banbrook, hedirected:[6] I make an order that unless Mr Rutherford files and serves, on or before 13 May 2016, an affidavit and makes available for inspection the listedcategories of documents, his claim shall be struck out.He also stated:[8] Having regard to the history to the application for particular discoveryand the time that has passed since it was filed, I consider costs should beawarded in favour of Sovereign on the interlocutory application. I make anorder for costs against Mr Rutherford on a 2B basis, together with reasonabledisbursements. Those costs and disbursements shall be quantified by theRegistrar. If compliance has been made with the "unless" order but costshave not been paid, counsel for Sovereign may make an oral application atthe next call for an order striking out the proceeding for non-compliancewith the direction to pay costs.[9] For the purpose of making further procedural directions to ensure theSeptember hearing date is not lost, I adjourn the proceeding for mention inthe Chambers List at 9am on 1 June 2016. The conference will be held bytelephone, immediately following call of other proceedings in the List inCourt. Memoranda shall be filed and served no later than 27 May 2016 forthat conference. The memoranda should set out the directions each partyseeks. In the event there has been no compliance with the "unless" ordermade today, Sovereign may make submissions on questions of costs at thattime.[2] The defaults of the plaintiff worked at two levels. On the one hand therewere the interlocutory/discovery defaults referred to by Heath J. However, in themeantime there was also a failure by the plaintiff to file his briefs of evidence for thepending trial, as required by the trial directions.[3] No memorandum was filed by or on behalf of the plaintiff. However, anaffidavit of Mr Rutherford sworn on 13 May 2016 was filed.[4] Before the 2 June 2016 conference, Mr Ross for the defendant filed amemorandum submitting that the affidavit of 13 May 2016 did not comply with theorder and that there were more documents to be discovered. He specified thosedocuments. He applied for an order that the unless order applied and to strike out theproceeding. In addition, he pointed out that the costs of $6,348 had not been paid inbreach of the order.[5] At the telephone conference on 2 June 2016 it was apparent that the discovery was incomplete and no costs had been paid. I gave the plaintiff a furtherchance. The minute was dictated in the presence of Mr Banbrook for the plaintiff,and Mr Ross and Ms Gibbs for the defendant. Mr Banbrook consented to the ordersbeing made, and indeed had appeared to ensure the costs were paid. Having set outthe background I directed as follows:[12] I therefore in summary make the following orders:(a) There will be a telephone conference at 2.15 pm on Thursday, 9 June 2016.(b) Before that telephone conference Mr Rutherford is to:(i) File a further affidavit disclosing the April 2011 court file and the file from the Lyttelton rehabilitation centre. This will involve Mr Rutherford contacting both the court and the centre and obtaining copies of the documents. Obviously this must be pursued immediately if there is going to be compliance within a week.(ii) The costs and disbursements of $6,348 are to be paid before that conference.(c) The plaintiff's briefs and bundle nominations are to be filed alsobefore that conference.[6] In the days that followed none of these orders were complied with. No memorandum was filed on or behalf of the plaintiff. The costs were not paid. Whenthe telephone conference took place at 2.15 pm on Thursday, 9 June 2016 Mr Rossagain urged me to strike out the proceeding.[7] At the telephone conference on 9 June 2016 Mr Banbrook asserted that he had not seen a copy of my minute. I have checked and the court records show it wassent to Mr Banbrook at 4.17 pm on Friday, 2 June 2016. Mr Banbrook said that hehad problems with his emails. He offered no satisfactory explanation as to why thebriefs had not been filed, or the costs not paid. He did, however, say that he wouldarrange for this all to be done by 5 pm on that day.[8] My minute at that conference recorded:[5] At the telephone conference today Mr Banbrook advises that because ofa computer failing he had not received a copy of the minute. He does notaddress the position of his instructing solicitors. It seems that today he hasendeavoured to contact Phoebe Peters at this court to get a copy. Ms Petershas been away today. He says that he will have the cheque and the briefsreferred to in my minute of 2 June 2016 delivered to Ms Gibbs at ChapmanTripp by 5 pm today. He says he has no knowledge of the matters referred toin [12](b)(i) of my minute, which refers to a further affidavit disclosing theApril 2011 court file and the file from the Lyttelton Rehabilitation Centre.These matters were discussed extensively at the 2 June conference and theminute I made back then was a consequence of those discussions. Therefore,I cannot understand why Mr Banbrook is now expressing no knowledgeabout these matters.[6] The facts speak for themselves. It seems to me that the plaintiff hasbeen given every possible opportunity to comply with the various orders thathave been made. The history of default is quite remarkable. I have decidednot, however, to strike out the claim this afternoon. I will wait to see whattranspires later this afternoon.[7] There will be another telephone conference at 9 am tomorrow, 10 June2016. If there has not been compliance with the directions made in myminute of 2 June 2016 in relation to the briefs and the costs, I will vacate thefixture set down for September 2016 and I will stay the proceedings untilfurther order of the Court.[9] Today Mr Ross renews his application for strike out of the proceedings andfor full costs.[10] A cheque was received for the costs before 5 pm. It was a cheque signed byMr Banbrook personally. Some documents called "statements" have been served.They were statements of Nathan Williams, David Quilliam and Shayne Yates. Theydo not on their face relate to these proceedings, having as a heading "RossRutherford – Lumley General Insurance (NZ) Ltd". They are dated 7 December2011. They appear to be draft statements sent by Mr Banbrook to the statedindividuals and designed for proceedings with a different insurer.Discussion[11] Rule 9.7(4) of the High Court Rules sets out the requirements in relation towitness statements. It provides that every witness statement must be signed by thewitness by whom the brief is made. I do not accept that the documents given toMr Ross constitute compliance with my minutes. The documents served are notsigned and do not appear to relate to this proceeding, but rather to a dispute with adifferent insurer, Lumley General Insurance (NZ) Ltd. They appear to be draft briefsof witnesses to the accident. The fact of the accident, however, is not the issue inthis case.[12] The fact that there was an accident and that Mr Rutherford sustained injuriesappears to be admitted at para 9 of the statement of defence. There are issues as tohow the accident was caused, but the affirmative defences that are raised allege abreach of the duty of disclosure when the policy commenced, misstatement by theplaintiff in his proposal, and a lapse of the policy. These are issues that would beexpected would be addressed in a brief by Mr Rutherford. As I have said, thereappears to be no brief prepared for him or anyone else for this pending hearing.None have been served.[13] The statements provided do not cover the matters at issue in the proceeding.They also do not address the physical and mental injuries allegedly incurred in theaccident, or Mr Rutherford's inability to work since that date. I accept that thesedetails should be provided in briefs at this point of time because, as Mr Ross asserts,the defendant will wish to investigate the claimed injuries. They will wish to brieftheir own experts and indeed they may wish to seek to examine Mr Rutherford unders 100 of the Judicature Act 1908. They are effectively stalled in their preparation bythe non-compliance.[14] Mr Banbrook in today's telephone conference said a number of times that hehad difficulty in getting hold of his client. As Mr Ross pointed out, this is not easilyreconciled with the fact that Mr Rutherford signed a detailed affidavit on 13 May2016.[15] The briefs of evidence were to have been served by 29 April 2016. It seemsclear to me that no effort has been made to prepare briefs. Instead, as I have said,some old witness statements prepared in relation to a different claim, have beendelivered in a token attempt to comply with the directions.[16] Moreover, although Mr Banbrook orally asserted today that the furtherdiscovery that I had directed in my minute of 2 June 2016 was not available becausethe documents did not exist, there is no document before me indicating that this is so.[17] In summary, my directions in my minutes of 2 June and 9 June 2016 have notbeen complied with. The non-compliance is serious. There are no briefs filed for thepending trial, and given this history there can be no confidence that they will befiled. There remain unanswered gaps in the discovery that has been provided by theplaintiff.[18] The position must also be seen in relation to the long history of defaults inthis case. These were summarised by Mr Ross in his memorandum of 9 June 2016:Date: Counsel memoranda / Court direction: Due date:27/11/2014 Joint memorandum of counsel agreeingdiscovery timetable and categories ofrelevant documents that the plaintiff willprovide.30/01/20151/12/2014 Minute of Associate Judge Doogue makingtimetable orders by consent.30/01/201530/01/2015 Discovery due: plaintiff fails to providedocuments. Defendant provides documents.17/04/2015 Defendant's memorandum of counsel notifiescourt of plaintiff's non-compliance withdiscovery timetable and requests extension todiscovery timetable.20/04/2015 Minute of Associate Judge Sargisson makingtimetable directions.22/05/201522/05/2015 New discovery due date: plaintiff fails toprovide documents.26/06/2015 Defendant's memorandum of counselupdating court about the plaintiff's non-compliance with the discovery timetable.14/10/2015 Plaintiff provides his affidavit of documentsbut fails to provide copies of the documentsfor inspection.06/11/2015 Joint memorandum of counsel seekingdiscovery timetable extension.13/11/201513/11/2015 New discovery due date: plaintiff fails toprovide documents.19/11/2015 Minute of Justice Katz making timetabledirections by consent.20/11/2015 Plaintiff provides CD containing documents(but not comprehensive).29/01/2016 Defendant files interlocutory application forparticular discovery as defendant considersplaintiff's discovery is incomplete. Theplaintiff did not oppose.6/04/2016 Minute of Heath J makes "unless order"requiring the plaintiff to provide theoutstanding discovery and pay Sovereign'scosts by 13 May 2016.13/05/20168/04/2016 Plaintiff informally provides part of theoutstanding discovery.29/04/2016 Plaintiff's evidence due date: plaintiff failsto provide any briefs or bundle nominations.13/05/2016 New discovery due date: plaintiff files anaffidavit attaching further (incomplete)discovery.Plaintiff fails to pay Sovereign's costs.27/05/2016 Defendant files memorandum updating thecourt that the plaintiff still has discoveryoutstanding and has not paid Sovereign'scosts.2/06/2016 Minute of Asher J orders that before 2:15pmon Thursday 9 June 2016 the plaintiff must:provide remaining outstanding discovery, paySovereign's costs, and file briefs and bundlenominations.9/06/201609/06/2016 New discovery and evidence due date: As at12:30pm today the plaintiff has failed toprovide outstanding discovery, paySovereign's costs and file briefs.Outcome[19] It is hard to know what to make of the history of non-compliance byMr Rutherford. Mr Banbrook has said on a number of occasions that he is unable toget hold of Mr Rutherford, and it may be that Mr Rutherford is just not interested incarrying on with the proceeding. I have now been informed that Mr Banbrook'scheque given to meet the costs awarded by Heath J, has not been met.[20] However, given that there was an accident and Sovereign Assurance Co Ltdwas an insurer, the assumption cannot be made that the proceeding is necessarilyfrivolous or vexatious. In the end I have decided that striking the proceeding outmay be too severe a remedy, and the best way forward is to stay the proceeding.This seems to me to be the correct remedy as it will leave it open to Mr Rutherfordto attempt to reinstate the proceeding should there be more to his defaults than meetthe eye. I am going to vacate the fixture that is set down for 19 September 2016, asgiven the history of the matter to-date and the serious timetable lag that has alreadydeveloped, I think it unlikely the case would be ready in time and there is a risk thedefendant would be disadvantaged by inadequate discovery and last minute filing ofbriefs.Costs[21] There is already been costs orders made and a cheque has now beenprovided. I am not prepared at this point to order full costs of the proceedingsagainst the plaintiff. I do, however, order that the plaintiff is to pay the defendant'sscale costs on the three telephone conferences of 2, 9 and 10 June 2016 over which Ihave presided.Result[22] This proceeding is stayed until further order of the Court.[23] The fixture of 19 September 2016 is vacated.[24] The plaintiff is to pay the defendant's costs on the telephone conferences of 2,9 and 10 June 2016...Asher J