JABBARA v SOUTHERN CROSS BENEFITS LTD [2023] NZCA 401

JABBARA v SOUTHERN CROSS BENEFITS LTD [2023] NZCA 401 [28 August 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA194/2023[2023] NZCA 401BETWEEN STEWAR SINGH JABBARAApplicantAND SOUTHERN CROSS BENEFITS LIMITEDRespondentCourt: Gilbert and Goddard JJCounsel: Applicant in personC M Brick and T L Utama for RespondentJudgment:(On the papers)28 August 2023 at 9.30 amJUDGMENT OF THE COURTA The application for leave to appeal is declined.B There is no order as to costs.____________________________________________________________________REASONS OF THE COURT(Given by Goddard J)Background[1] This application arises out of a proceeding that Mr Jabbara filed in theDistrict Court against Southern Cross Benefits Ltd (Southern Cross), claiming anindemnity under a travel insurance policy issued by Southern Cross.[2] Mr Jabbara lives in India. He purchased travel insurance from Southern Crossfor a holiday visit to New Zealand. While he was in New Zealand he underwent heartbypass surgery in Auckland. He claimed some $105,000 from Southern Cross by wayof indemnity for the costs of that surgery. Southern Cross declined to indemnifyMr Jabbara. Southern Cross says that cover for the surgery is precluded or limited byan exclusion clause and a stand-down limit in the Southern Cross standard policyterms. Mr Jabbara's position is that these clauses were not disclosed to him prior topurchasing the policy, and do not apply to him.[3] Ms Khanna is Mr Jabbara's daughter. She lives in New Zealand. On behalf ofher father, for whom she holds a power of attorney, she prepared various documentsand participated in case management hearings before the District Court.[4] It appears that the question of whether Ms Khanna was entitled to appear incourt on behalf of Mr Jabbara arose at a case management conference beforeJudge D J Clark on 19 October 2022. Judge Clark issued a minute dated19 October 2022 recording (among other matters) that Mr Jabbara/Ms Khanna wouldneed to file an application for leave for Ms Khanna to appear on Mr Jabbara's behalf.[5] Any such application would fall to be decided under s 107 of the District CourtAct 2016, which provides:107 Right to appear(1) A natural person who is a party to a proceeding in the court may—(a) appear and act for himself or herself; or(b) be represented by a lawyer.(2) A corporation may—(a) appear and act through any officer or attorney of thecorporation; or(b) be represented by a lawyer.(3) In special circumstances and with the permission of the court, a person(P), whether a natural person or a corporation, may be represented—(a) by an agent authorised in writing by P, if P is in New Zealandor carries on business in New Zealand; or(b) if P is not in New Zealand or does not carry on business inNew Zealand, by an agent authorised by a person holding P'spower of attorney to become a party to the proceeding in P'sname.(4) An agent who represents a person under subsection (3) is not entitledto receive any fee or reward for doing so.Application to transfer proceedings to the High Court[6] An application was made to the District Court for permission for Ms Khannato represent Mr Jabbara in the District Court. But that application was not pursued.Rather, for reasons that need not be set out here, Mr Jabbara applied to have hisproceeding transferred to the High Court under s 89 of the District Court Act.[7] That application was listed for mention in the Duty Judge List before Lang Jon 16 February 2023. The Judge issued a minute dated 16 February 2023(the 16 February minute) in which he allocated a fixture for that application on23 March 2023, and made timetable directions leading up to that hearing.High Court minutes in relation to representation[8] In the 16 February minute the Judge went on to address the question ofrepresentation of Mr Jabbara:[5] I record that, although Mr [Jabbara] has filed documents on his ownbehalf, he resides overseas. On that basis he has asked his daughter andattorney, Ms Khanna, to act as his agent in relation to the present application.Ms Khanna has acted in the past as Mr [Jabbara's] agent at appearances in theDistrict Court. Section 107 of the District Court Act 2016 permits a party tobe represented by an agent at hearings in the District Court in specialcircumstances and with the permission of the Court. However, there is nocorresponding provision in the Senior Courts Act 2016.[6] Parties to proceedings in this Court may represent themselves or theymay instruct a lawyer to act on their behalf. They may not, however, berepresented by an agent. It will therefore be necessary for Mr [Jabbara] toattend in person (or remotely by electronic means) when the application isheard. Alternatively, he will need to instruct a lawyer to act on his behalf atthe hearing.[9] A memorandum was filed on behalf of Mr Jabbara seeking an order thatthe High Court state a case to this Court on the issue of representation. Lang J issueda minute dated 7 March 2023 saying:[2] In my minute issued on 16 February 2023 I referred at [5] and [6] tothe issue of representation. However, it will ultimately be for the Judge whopresides on 23 March 2023 to determine that issue based on the situation thatpresents itself on that date. I therefore propose to take no further action inrelation to this matter.[10] An application was then filed in the High Court on behalf of Mr Jabbaraseeking leave to appeal to this Court against the "decision" contained in Justice Lang'sminute of 16 February 2023. Lang J issued a minute dated 15 March 2023 reiteratingthe observation made in his 7 March 2023 minute:[2] As I endeavoured to explain in my minute issued on 7 March 2023, itwill be for the Judge who presides on 23 March 2023 to determine whetherMs Khanna should be permitted to act as Mr [Jabbara's] agent or attorney inrelation to the present application. I have therefore made no decision on thatissue. The Registry should not take any further steps to process the applicationfor leave to appeal.Application for leave to appeal to this Court[11] Mr Jabbara has now applied to this Court for leave to appeal against whatMr Jabbara describes as a decision of Lang J on 16 February 2023 to the effect thatMr Jabbara could not be represented in the senior courts by his attorney or agent,because s 107 of the District Court Act does not apply to the senior courts, and thereis no corresponding provision in the Senior Courts Act 2016.[12] Mr Jabbara wishes to argue that s 107(2) to (4) apply in the High Court, andthat permission should be granted for Ms Khanna to represent him in connection withthe application for transfer.[13] Southern Cross abides the decision of the Court in respect of this application.Discussion[14] Mr Jabbara's application faces two difficulties.[15] The first is that Lang J did not make any decision in the 16 February minute.We can see how that minute could have been read as a decision on whether Ms Khannacan appear for Mr Jabbara before the High Court. But as the Judge explained in hisminutes dated 7 March 2023 and 15 March 2023, the question of whether Ms Khannacould appear on Mr Jabbara's behalf in relation to the transfer application was a matterfor determination by the judge presiding at the hearing of the transfer application on23 March 2023. Following the issue of the three minutes, it was very clear that Lang Jhad not finally determined any issue in relation to the representation of Mr Jabbara.Rather, he had identified the issue but was leaving the final determination of anyapplication for permission for Ms Khanna to represent Mr Jabbara in the High Courtto the judge presiding on 23 March 2023.[16] Thus there was no decision on representation in the 16 February minute, andin the absence of such a decision there can be no appeal.[17] The second barrier to the proposed appeal by Mr Jabbara is that it is very clearthat s 107 of the District Court Act only applies to hearings before the District Court.In particular, when s 107(3) is read in context it is plainly the case that "the court"referred to is the District Court. The argument that s 107(3) applies to hearings beforethe High Court has no prospect of success.[18] This Court has previously held that there are limited circumstances in which asuperior court may exercise the residual discretion to allow an unqualified advocate toappear before it.1 Cooke J described this discretion as "a reserve or occasionalexpedient, for use primarily in emergency situations when counsel is not available orin straightforward matters where the assistance of counsel is not needed by the Courtor where it would be unduly technical or burdensome to insist on counsel".2This Court noted that a more liberal approach is provided for by statute in some othercourts, including the District Court, but made it clear that this was not the positionbefore the senior courts, and that there were good reasons not to adopt a more liberalapproach to representation before the senior courts.31 Re G J Mannix Ltd [1984] 1 NZLR 309 (CA) at 314.2 At 314.3 At 313–314.[19] We emphasise that the application before this Court relates only to the16 February minute. The Judge who presided at the hearing on 23 March 2023,Jagose J, recorded that Ms Khanna sought to appear on behalf of Mr Jabbara and thathe declined her leave to do so.4 The decision that Jagose J made about representationat the hearing on 23 March 2023 was the operative decision, not the earlier observationmade by Lang J in the 16 February minute. The application before us does not relateto the decision of Jagose J, and for the reasons set out above it is very clear that leaveshould not be granted to pursue an appeal in relation to anything said by Lang J in the16 February minute.[20] Southern Cross was put to some cost in responding to this application, despitenot opposing it: their lawyers were required to review the material filed bythe applicant, file a r 19A memorandum, and file one further short memorandum.They should not have been put to the trouble and cost of responding to this application,which for the reasons explained above was misconceived. But any costs award wouldbe minimal in these circumstances, and Southern Cross did not seek costs. On balance,we consider that an award of costs is not appropriate.Result[21] The application for leave to appeal to this Court is declined.[22] There is no order as to costs.Solicitors:Fee Langstone, Auckland for Respondent4 Jabbara v Southern Cross Benefits Ltd [2023] NZHC 623 at [3].