Ambrose v Pickard

[2009] NZCA 502

IN THE COURT OF APPEAL OF NEW ZEALAND

CA548/2009
[2009] NZCA 502

BETWEENCHAS AMBROSE

Appellant

ANDAMANDA PICKARD

First Respondent

ANDTROY TAYLOR

Second Respondent

CA549/2009

AND BETWEEN  RINNAI NEW ZEALAND LIMITED

Appellant

ANDAMANDA PICKARD

First Respondent

ANDTROY TAYLOR

Second Respondent

Hearing:24 September 2009

Court:William Young  P, Glazebrook and Hammond JJ

Counsel:I G Hunt for Appellant in CA548/2009

P J L Hunt for Appellant in CA549/2009
M D Lloyd for Respondents

Judgment:22 October 2009 at 11.30 am

JUDGMENT OF THE COURT

AThe appeal against the refusal to order further discovery is allowed but, because an appropriate authority has now been provided, the only order we need make is to set aside the order for costs made in the High Court which is accordingly set aside.

BThe appeal against the refusal to provide security is dismissed.

CWe reserve costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by William Young P)

Introduction

[1]        Amanda Pickard and her teenage son Troy (suing through his grandfather as a litigation guardian), are suing Chas Ambrose, a gas fitter, and Rinnai New Zealand Limited, a gas heater supplier, for damages of approximately $1.6m.  For ease of reference, we will refer to Miss Pickard and her father, collectively, as “the plaintiffs” and to Mr Ambrose and Rinnai, collectively, as “the defendants”.  The claim focuses on the allegedly inappropriate installation in Miss Pickard’s house in 1998 of a gas heater, flue and adaptor which resulted, on the plaintiffs’ case, in Miss Pickard and Troy suffering from carbon monoxide poisoning between 1998 and 2001.  The trial is scheduled to commence on 27 October 2009.

[2]        In the judgment under appeal which was delivered on 13 August 2009, MacKenzie J declined to order the plaintiffs to provide additional security for costs: CIV 2003-091-143.  He also dismissed an application by Mr Ambrose for further discovery.

Factual background

[3]        The statement of claim alleges that in 1998 Mr Ambrose installed a gas heater in Miss Pickard’s house.  This heater had been imported into, and distributed within, New Zealand by Rinnai, as the agent of the manufacturer of the heater.  He connected the heater to a flue that he had earlier installed but which had been designed for a different type of gas heater.  The plaintiffs maintain that this was on the advice of, and using an adaptor supplied by, Rinnai.  They claim that the system which resulted was dangerous and that, as a result, Miss Pickard and Troy suffered from carbon monoxide poisoning between 1998 and 2001, which in turn has had a number of negative consequences for them.

[4]        In 2003, the plaintiffs commenced proceedings in the District Court against the defendants seeking damages.  The main components of the damages then sought were general damages of $80,000 in relation to each of Miss Pickard and Troy.  An amended statement of claim filed in March 2005 increased the damages claim significantly and the proceedings were transferred to the High Court. 

[5]        In a judgment delivered on 16 December 2005 Ronald Young J rejected an application (based on the ACC bar) to strike out the claim (a ruling that was upheld by this Court: CA13/06 10 August 2006).  He did, however, order that the plaintiffs provide security for the costs of the defendants in the sum of $5,000 each.  In ruling that security be provided, the Judge expressed doubts as to the strength of the plaintiffs’ case.  At the time the plaintiffs had the benefit of the qualified immunity from costs which is available to those who are legally aided.

[6]        The case was to be heard on 22 September 2008.  A few days before the trial was scheduled to commence, however, legal aid was withdrawn.  This was because of what the Legal Services Agency regarded as the unreasonable refusal of a substantial offer of settlement given.  Counsel then acting for the plaintiffs had recommended acceptance of the offer and an independent assessor appointed by the Legal Services Agency was of the same view.  The result of the withdrawal of legal aid was that the trial was adjourned. 

[7]        The plaintiffs challenged the decision of the Legal Services Agency and this challenge was initially successful before the Legal Aid Review Panel.  On a further appeal to the High Court, however, the decision of the Legal Services Agency was restored.  So the plaintiffs are no longer legally aided.  The judgment reinstating the decision of the Legal Services Agency was delivered in July 2009.  This was followed by an application for additional security for costs which had earlier been signalled by the defendants as likely in the event that the appeal by the Legal Services Agency to the High Court was successful.

[8]        The plaintiffs are now funding the litigation with the assistance a third party who wishes to remain anonymous but whose identity is in fact known to the defendants.

[9]        Miss Pickard strongly believes in the merits of the claim and is distinctly impatient with, and suspicious of, those who do not share her beliefs, including particularly the defendants, their counsel and their expert witnesses.  An associated and difficult element of this appeal is that there have been aspects of the way in which the case has been conducted which have been justifiably criticised by counsel for the defendants.  We need not discuss this in detail as it is exemplified by Miss Pickard’s behaviour in relation to the discovery issue which we will now address.

The discovery issue

[10]The defendants will be contending at trial that the gas heater did not discharge harmful quantities of carbon monoxide and that symptoms experienced by Miss Pickard and Troy are not the result of exposure to carbon monoxide.  They will seek to show that there are other possible explanations for those symptoms.  For this reason they have sought information about Miss Pickard’s medical history. 

[11]There have been considerable difficulties between Miss Pickard and the defendants in relation to the provision of medical information.  It is clear that she regards the disclosure requirements to which she is subject as intrusive and invasive of her privacy.  In any event, she has not gone about meeting her discovery obligations in an orthodox way but rather has provided authorities which permit the release of medical information held about her as from 1993 to 2008.

[12]It appears from letters that the defendants obtained in the discovery process that Miss Pickard received medical attention in 1991.  In an undated letter which we believe must have been sent on or shortly after 16 August 1999, Miss Pickard’s general practitioner, Dr Julia Tyler, wrote to Dr Philip Boulton, an ophthalmic surgeon.  This was by way of explanation for an appointment which she had arranged for Miss Pickard to see Dr Boulton.  The letter commenced in this way:

Thank you for seeing this 42 year old who was sen [sic] by yourself eight years ago with an injury to her right eye resulting in a permanent central loss of vision. 

(Emphasis added.)

The letter went on to refer to a more recent injury suffered by Miss Pickard.

[13]Dr Boulton reported to Dr Tyler on 24 August 1999.  In this letter he said:

Thank you for your communication regarding this patient who appears to have been managing quite well in recent years since her 1991 accident until she knocked her head severely on a cupboard on 16.8.99.  Since then she has been aware of a change in her (R) vision and has experienced pains down the (R) side of her face which radiate into her T.M.J region.  She related her 3 hour saga at the Wellington Hospital Eye Clinic.  I note her changing social history.

Her eyes appeared normal and white with no bruising or swelling etc.  (R) vision with her glasses is a patchy 2/12 which is better rather than worse compared to my 1991 record…

(Emphasis added.)

[14]These letters strongly suggested the existence of records held by both doctors associated with a 1991 accident and a resulting head injury.  Further, given the apparent seriousness of the accident, these letters also suggested the likely existence of associated ACC records.  More generally, the letters made it almost inevitable that there were some documents generated in 1991 which were discoverable but which had not been discovered and lay outside the scope of the authorities provided by Miss Pickard.

[15]In fairness to Miss Pickard, it should be noted that, in a minute dated 23 September 2008, Simon France J recorded that other than in respect of one issue relating to Troy, there were no outstanding discovery issues.  He continued (at [4]):

In response to a query from Miss Pickard, it was confirmed no further requests for medical files should be expected.

[16]However, since at least March 2009, the solicitors for Mr Ambrose have been seeking information associated with Miss Pickard’s previous head injuries.  For instance, in a letter of 24 March 2009 to Mr Lloyd, who by then had been retained as Miss Pickard’s counsel, they referred in general terms to her previous head injuries and then went on:

Very little has been disclosed concerning those injuries.  It seems likely, from the apparent severity of the injury(ies), that [Miss Pickard] would have made an application or applications to the Accident Compensation Corporation and had cover granted in respect of them but no documents concerning such claims have been disclosed.  We request that [Miss Pickard] provide us with authority to obtain from ACC copies of all documents in connection with any claims that she has made to them.

Mr Lloyd did not reply to this letter.

[17]There was a follow up letter of 7 April 2009 in which the same information was sought but again there was no reply.

[18]A third letter of 26 June 2009 evoked a response from Mr Lloyd on 29 June 2009 in which he said:

I’ve asked Mrs Pickard to provide signed authorities to … ACC agreeing to the release of your relevant records.  I expect to hear from her today about this and will let you know if there are any difficulties.

Despite this, the indicated authority was not provided.

[19]There was then a fourth letter from Mr Ambrose’s solicitors of 9 July 2009 referring to the absence of response and also to Miss Pickard’s disclosure obligations associated with discovery.  This prompted a letter from Mr Lloyd of 17 July 2009 in which he said:

I expect to have an authority to allow you to obtain ACC records on Monday of next week 20 July.  The authority will be limited in scope (relating only to head injuries) as Mrs Pickard is not prepared to have disclosed sensitive material that can not possibly have any bearing on this case.

But again, the requested authority did not eventuate. 

[20]We assume that the pattern of ignored requests and the non-provision of the requested authority was primarily due to Miss Pickard’s refusal or reluctance to co-operate.  Whatever the cause, it prompted the application for further discovery by Mr Ambrose.

[21]At the hearing before MacKenzie J, it appears that the arguments on behalf of Mr Ambrose on this aspect of the case were in comparatively general terms, focusing on the numerous requests made by Mr Ambrose’s solicitors on the one hand, and, on the other hand, on the part of Miss Pickard, her general non-responsiveness and unfulfilled indications that an appropriate authority would be provided. Reliance was also placed on a report from Dr Marks, a defence expert witness who referred to medical records indicating previous head injuries but did not identify specifically the 1999 correspondence between Drs Tyler and Boulton to which we have referred. We were told by Mr Lloyd and Miss Pickard (who addressed us in person in circumstances we discuss at [25] - [26] below) that this correspondence was not specifically relied on in front of MacKenzie J.

[22]In the judgment under appeal the Judge referred to Mr Ambrose’s application for Miss Pickard to give an authority in favour of Mr Ambrose for ACC to disclose to Mr Ambrose the documents in relation to claims made by her to ACC in respect of personal injury by accident.  He then went on (at [23]):

I am of the clear view that it would not be appropriate, this close to trial, to make such an order.  There have been previous issues concerning the medical examination of the plaintiffs, and of the disclosure of medical information.  The first plaintiff had earlier given open-ended authorities to any person or entity holding medical records and/or documents relating to the health of either plaintiff between 1993 and 2008 to provide all such records and documents to the solicitors for the defendants.  There was no adequate information in the material relied on in support of the application, to satisfy me that the very extensive authority should be regarded as insufficient and that further discovery should be required at this late stage before trial.  Reliance is placed, in support of the application, in a reference in a report from Dr Marks to head injuries.  There is, however, no explanation why any further information could not have been obtained under the previous authority or, it could not, why this application could not have been made soon after Dr Mark’s report and other medical reports were obtained about a year ago.

[23]We recognise that MacKenzie J was dealing with the argument without having been taken to the 1999 correspondence which points clearly to the likely existence of 1991 records.  He thus did not realise just how strong the argument was as to the probable existence of records which lay outside the scope of the authority previously provided by Miss Pickard.  It is right to say, however, that the correspondence between the lawyers provided a reasonable basis for the likely existence of non-discovered material.  And a critical issue which the Judge seems to have overlooked is that Miss Pickard’s obligation to produce discoverable material is still extant and will remain so until the end of the trial.  The whole problem arose because Miss Pickard insisted on an unorthodox method of discovery in relation to medical records, leaving it to the defendants to extract the relevant documents themselves via authorities which she provided rather than collecting all the relevant documents and discovering them in the normal way.  In this context, and notwithstanding the indication given to Simon France J in September 2008, it was not for Mr Ambrose to explain to the Judge why he had not been able to obtain the relevant information earlier.  Rather, it was for Miss Pickard to meet her legal obligations. 

[24]When Mr Ambrose lodged material in support of this appeal, which included the two items of correspondence set out in [12] and [13] above, Miss Pickard responded with an affidavit in which she maintained, in argumentative terms, that she had not suffered a head injury in 1991.  At the hearing we accepted that it was possible that the reference to a 1991 accident in the 1999 correspondence between the doctors was mistaken and, as it transpires (see [43] below) this was the case.  On the other hand, it is now perfectly clear that there was a significant accident in 1988, the consequences of which were being assessed in 1991 and this accident generated a significant number of discoverable documents. Miss Pickard was required to take reasonable steps to locate relevant documents which were in her possession or power.  Given the specificity of the references in the 1999 correspondence to the existence of 1991 records, she had an obvious obligation to check directly with Drs Boulton and Tyler as to what documents they had.  Yet she did not bother to do so before swearing that there had been no relevant accident.  This is not a satisfactory approach to take in relation to discovery obligations.

[25]At the end of the hearing we indicated that we would be allowing the appeal by Mr Ambrose in this respect.  If necessary we would have required Miss Pickard to swear a further affidavit, but this time after having made proper enquiry as to the existence of such documents.  But given the proximity of trial, formal orders of that kind would have been a clumsy way of resolving the issue and we sought from Mr Lloyd a more straight-forward solution.  After some discussion, he suggested that we should hear from Miss Pickard and we agreed to do so. 

[26]In the course of what followed, Miss Pickard made the important point that the 1999 letters had only come into close focus within the last few days prior to the hearing before us. This is referred to at [21] – [23] above but it was something we had not appreciated until she addressed us directly. It does provide at least something of a context for her lack of co-operation and her affidavit assertions to which we have referred. And in the end, after some discussion with members of the Bench she did agree to, and subsequently did, provide an appropriate authority in which she consented to the release of medical and ACC records pertaining to head injuries between 1986 and 1993.

[27]Given that this authority has now been provided, there is no need for us to make formal orders in relation to this aspect of the appeal other than in respect of costs in the High Court, and, given what is referred to later in this judgment (see [45] below) to reserve the costs in relation to this appeal.

[28]As already indicated, Miss Pickard’s conduct over the discovery issue is reasonably typical of what the defendants complain about in relation to her conduct of the litigation.  This conduct is, in a sense, understandable given her mindset about the merits of her case and the lack of merit of any view to the contrary, and her concerns about privacy.  But it does not conform to what is required of litigants.  On the other hand, the difficulties that have resulted have been, in the end, resolved.  Although all of this must have resulted in some unnecessary costs, we suspect that these costs are of only limited significance in the context of the entire costs generated by the litigation.

Security for costs

[29]Costs incurred on all sides to date appear to be in excess of $700,000.  The trial will take some three weeks and a number of expert witnesses will be giving evidence.  If unsuccessful, Miss Pickard has admitted that she will be unable to meet an order for costs and her father will plainly argue that his involvement as litigation guardian for Troy does not expose him to costs liability.  The third party funder may conceivably have put himself at risk of being required to pay costs to the defendants if they are successful at trial, but he too can be expected to seek to avoid liability.  Understandably the defendants (and their insurers) are concerned that if they succeed at trial they will be unable to secure payment of their costs.  It is thus common ground that there is jurisdiction to order security.

[30]The application for security for costs was declined by MacKenzie J for the following reasons:

(a)He was not prepared to engage in an assessment of the strength or otherwise of the plaintiffs’case. He considered that given that he is to be the trial Judge, it would “not be appropriate to examine, even in a preliminary way, the merits of the claim, or of the defence”: at [7].

(b)He did not consider that the way in which the proceedings had been conducted previously was of significance. In particular he did not consider that it would be appropriate to make an order for security for costs which had already been incurred by the defendants. He viewed the proper objective of an order for security as being to “protect the position of the defendant for costs to be incurred”: at [9].

(c)He noted the tight time frame to trial and was anxious to avoid any further disruption.

(d)He considered that the most significant consideration was whether the order for further security would result in the claim not being able to be pursued. 

(e)He was satisfied that the plaintiffs could not provide security of $30,000 to each defendant, a total sum of $60,000. (This is what he erroneously recorded that the defendants were seeking. In fact, they were seeking $80,000 each, a total of $160,000.) He also accepted that the third party funder would not meet such an order and that therefore there was a “high probability” that if security was ordered as sought, the plaintiffs would not be able to meet it: at [17].

(f)He thought it was relevant that the costs of each of the defendants would be far more than $30,000 and that therefore provision of security in that sum in relation to each defendant would merely “temper the potential injustice to the defendants”: at [19]. As is apparent from what we have already said, the $30,000 reference was an error, as each defendant sought $80,000.

(g)He was not prepared to make an assessment as to whether there was a level in which the provision of further security would not pose a significant risk that the claim could not be pursued.  This was because he thought that (at [19]):

... any amount less than that now sought would not temper the potential injustice to an extent which would justify an award.

(h)He regarded the fact that both defendants are insured as material.

(i)All in all he was satisfied that the balance came down heavily against the imposition of a requirement for further security.

[31]The relevant principles relating to security for costs are stated in A S McLachlan Ltd v MEL Network Ltd (2002) 16 PRNZ 747 (CA):

[13]       Rule 60(1)(b) High Court Rules provides that where the Court is satisfied, on the application of a defendant, that there is reason to believe that the plaintiff will be unable to pay costs if unsuccessful, “the Court may, if it thinks fit in all the circumstances, order the giving of security for costs”. Whether or not to order security and, if so, the quantum are discretionary. They are matters for the Judge if he or she thinks fit in all the circumstances. The discretion is not to be fettered by constructing “principles” from the facts of previous cases.

[14]       While collections of authorities such as that in the judgment of Master Williams in Nikau Holdings Ltd v BNZ (1992) 5 PRNZ 430, can be of assistance, they cannot substitute for a careful assessment of the circumstances of the particular case. It is not a matter of going through a checklist of so-called principles. That creates a risk that a factor accorded weight in a particular case will be given disproportionate weight, or even treated as a requirement for the making or refusing of an order, in quite different circumstances.

[15]       The rule itself contemplates an order for security where the plaintiff will be unable to meet an adverse award of costs. That must be taken as contemplating also that an order for substantial security may, in effect, prevent the plaintiff from pursuing the claim. An order having that effect should be made only after careful consideration and in a case in which the claim has little chance of success. Access to the Courts for a genuine plaintiff is not lightly to be denied.

[16]       Of course, the interests of defendants must also be weighed. They must be protected against being drawn into unjustified litigation, particularly where it is over-complicated and unnecessarily protracted.

[32]We part company with the Judge as to the need to assess the merits of the case.  The entitlement of a defendant to a proper assessment of an application for security for costs cannot depend on whether the judge hearing the application is also to be the trial judge.  And since the Judge did not provide such an assessment we must do so ourselves.

[33]The claim is complex and its strength (or weakness) is not easy to assess on the limited material available to us.  Recognising this, counsel for the defendants approached the issue in a very particular way.  Their argument was that we should proceed on the basis that the claim’s prospects of success were very largely dependent on the proposed evidence of an American expert, Dr David Penney.  This argument is largely based on comments made by Miss Pickard in an affidavit which she swore in opposition to the application for security for costs heard in the High Court.  In this affidavit, she acknowledged that the “flaw or problem” with the medical evidence she was relying on was that none of the witnesses “could claim any particular or specialised knowledge of carbon monoxide, and carbon monoxide poisoning in particular”.  According to Miss Pickard, this problem with her case had now been resolved with the evidence which Dr Penney is to give. Starting from this point, counsel for the appellants challenged the weight which could be placed on the views of Dr Penney. 

[34]Given that Dr Penney will presumably be giving evidence at trial there are limits to what we should say as to this aspect of the argument.  Nonetheless, some brief discussion is necessary.

[35]Counsel for the defendants contend that Dr Penney is something of a plaintiffs’ expert.  They noted that his ability to offer relevant opinions on the basis of his expertise (which is scientific and not medical) has, on occasion, been challenged in American courts.  As well, in one judgment to which we were taken, Gardner v Negley NE Wrk Comp 644 (2004), the Judge described Dr Penney’s evidence as seeming “at times to border on unbridled advocacy”: at 651.  Similar complaints will be made at trial by counsel for the defendants.  These complaints may get some traction given that Dr Penney’s brief of evidence contains apparently intemperate observations about the medical witnesses who will be giving evidence for the defendants.

[36]We recognise that there may be some force to these arguments.  We are, nonetheless, of the view that it would be premature to reject out of hand the evidence which Dr Penney is to give.  He has a distinguished academic record and is a world recognised expert on the toxicity of carbon monoxide.  And in any event, and notwithstanding Miss Pickard’s apparent concession in her affidavit, we are not persuaded that the plaintiffs’ case is necessarily dependent on the evidence of Dr Penney. 

[37]In short, we do not see this case as being fairly within the class of cases contemplated in [15] of McLachlan.

[38]On this basis, the next issue is whether an order for security would prevent the case from going to trial.

[39]Although there is no direct evidence as to the means of Troy’s litigation guardian or the third party funder, it is reasonably clear that on the plaintiffs’ side there is no excess liquidity.  We say this given what we told of the arrangements as to how the costs of the litigation are being addressed.  On that basis, we see no reason to differ from MacKenzie J’s assessment that a substantial order for security would prevent the case from going to trial.

[40]On an orthodox application of the McLachlan principles, our conclusions as to the strength of the case and impact of an order for security indicate that no further security should be required.  It is, however, necessary to address the conduct of the case to date by Miss Pickard. 

[41]As a result of the legal aid grant (which must have funded most of the preparation for trial) and her practical immunity from costs if she loses (because of her impecuniosity), Miss Pickard has been, and remains, largely free of the usual disincentives which moderate the conduct of litigation.  As counsel for Mr Ambrose, Mr Ian Hunt, suggested, this has had the effect of encouraging (or at least not discouraging) her at times unreasonable conduct.  The defendants, on the other hand, will suffer a financial loss irrespective of the outcome.  If Miss Pickard is successful, they face the possibility of a large award of damages.  If the defendants are successful at trial, they still have to bear the costs of the litigation which, on our assessment, are likely to be between $400,000 - $500,000.  Miss Pickard’s practical immunity from an award of costs, coupled with her mind-set, mean that she will almost certainly not be prepared to settle the case on what, to a professional litigant (such as an insurer), is a rational commercial basis.  On this aspect of the case, counsel for the defendants addressed considerable argument about the rejection by the plaintiffs of the substantial September 2008 settlement offer, a rejection which was contrary to the advice of their counsel and the opinion of the assessor consulted by the Legal Services Agency.  From the point of view of the defendants, they are now locked into a process over which they have no practical control.

[42]We recognise how unsatisfactory all of this is from the point of view of the defendants but we do not see this as justifying anything other than the usual approach to security for costs. As to this, we note:

(a)The defendants are not appreciably worse off than they were in September 2008 when trial of this litigation was imminent. Indeed they are perhaps slightly better off given that Mr Pickard, as Troy’s litigation guardian, and the third party funder are arguably exposed to liability for costs should the claim fail.

(b)We are reluctant to categorise the refusal of the offer of settlement as being of critical significance in the present – security for costs – context.  Although the offer was undoubtedly substantial, it would not have completely recouped the costs already incurred.  So there was no compensation component.  In this context, it is not surprising that Miss Pickard would reject the offer.

(c)The costs which have so far been expended are necessarily sunk.  The costs of going to trial, while not insubstantial, should be appreciably less than those already incurred.  Viewed in this way – that is looking forward, rather than back – the reasonableness of Miss Pickard’s desire to go to trial is not fairly assessed by reference to the very substantial costs already incurred.

(d)Although we think that Miss Pickard has sometimes acted unreasonably there is the problem that at least on her case, the thought patterns which induced this behaviour may be a function of the carbon monoxide poisoning of which she complains.  In this context, treating her behaviour as a controlling consideration gives rise to an access to justice problem.

An addendum

[43]After this judgment was largely written but before it was released, we received a memorandum from counsel for Mr Ambrose.  Attached were documents associated with an accident Miss Pickard suffered in 1988.  Miss Pickard saw Dr Boulton in relation to this accident in 1991.  The reference to a “1991 accident” in Dr Boulton’s letter referred to in [13] was thus a mistake.  This means that when Miss Pickard denied in the affidavit referred to in [24] above that she had had an accident in 1991, she was strictly correct.  On the other hand, given the apparent seriousness of the 1988 accident and the assessments in relation to it which were made in 1991 and especially given the discovery context, counsel for Mr Ambrose maintains that her affidavit was misleading.

[44]We had initially intended to make no order for costs given that both sides had achieved some success.  But we have now been requested by counsel for Mr Ambrose to reserve the question of costs for further determination and to provide a transcript of what Miss Pickard said when she personally addressed the Court.  The latter request is associated not only with the issue of costs but also with the trial which is due to start next week.

[45]In the circumstances which have now arisen, we reserve costs.  We see no point in burdening the parties on the eve of trial with a timetable in relation to submissions as to costs, but any party may revert to the Court with an application for costs which the President will then timetable.  We also direct that a partial transcript be prepared and released to the parties covering what happened when Miss Pickard addressed the Court.

Disposition

[46]The appeal against the refusal to order further discovery is allowed but, because an appropriate authority has now been provided, the only order we need make is to set aside the order for costs made in the High Court.

[47]The appeal against the refusal to provide security is dismissed.

[48]We reserve costs.

Solicitors:

Young Hunter, Christchurch for appellant in CA548/2009

McElroys, Auckland for appellant in CA549/2009

Phillip Schmidt, Auckland for respondents