Chesterfields Preschools Limited (in liquidation) v Sisson
[2016] NZHC 2855
•28 November 2016
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV-2016-409-000040 [2016] NZHC 2855
BETWEEN CHESTERFIELDS PRESCHOOLS
LIMITED (IN LIQUIDATION) Plaintiff
AND
THERESE ANNE SISSON Defendant
CIV-2016-409-000185
BETWEEN THERESE ANNE SISSON (AS TRUSTEE ANOLBE FAMILY TRUST) Plaintiff
ANDTHE OFFICIAL ASSIGNEE (IN THE ESTATE OF DAVID JOHN HAMPTON) First Defendant
THE COMMISSIONER OF INLAND REVENUE
Second Defendant
CIV-2016-409-000453
BETWEEN THERESE ANNE SISSON Applicant
ANDIAG NEW ZEALAND LIMITED First Respondent
CHESTERFIELDS PRESCHOOLS LIMITED
Second Respondent
SUSAN MAREE STIKKELMAN Third Respondent
Hearing: 28 November 2016 Appearances:
B Russell and K M Kendrick for Chesterfields Preschools
Limited (In Liquidation)No Appearance by Ms Sisson)
CHESTERFIELDS PRESCHOOLS LIMITED (IN LIQUIDATION) v SISSON [2016] NZHC 2855 [28 November 2016]
P J Shamy, S M Kinsler and C L Russell for IRD
G Slevin for Official Assignee
M Mitchell for IAG NZ LtdJudgment:
28 November 2016
ORAL JUDGMENT OF GENDALL J
[1] Sometime ago a trial in these proceedings was scheduled to take place for three – five days commencing today, 28 November 2016 in the High Court at Christchurch. Very much at the eleventh hour the plaintiff in proceeding -185, Ms Sisson, has made application to adjourn the hearing of these matters she says for medical reasons. I now give my decision with respect to that adjournment application. Of necessity I need to set out certain matters here in some detail which I now do.
[2] The basis for the adjournment sought by Ms Sisson is outlined in a medical certificate she has provided to the Court dated 28 November 2016 from a Dr Mark Cohen of Ilam Medical Centre Limited. This medical certificate states:
Therese [Ms Sisson] presents today for treatment of a medical condition that makes her unable to function as self represented litigant currently. She has initiated treatment and remains impaired for a period of at least one month.
[3] In addition, Ms Sisson has provided an email to this Court today,
28 November 2016 at 12:57 p.m. which states in part:
I am currently experiencing periods of dizziness and retching, lack of clarity of thought and lapses of concentration.
This letter is addressed to the Court.
[4] As background to this matter it seems the medical issues of which Ms Sisson complains surfaced on Saturday last, 26 November 2016. At 4 p.m. that day she advised this Court and, as I understand it, counsel for other parties. In part:
Dear Registrar and Counsel,
I advise that I am very unwell and regrettably I am not well enough to run a fixture next week. I am writing to advise you of the situation as early as possible. A medical certificate will be provided as soon as possible on Monday.
[5] It was not until 9:40 a.m. this morning, 28 November 2016, that Ms Sisson saw a medical practitioner with respect to this condition and it was this visit which prompted the letter from Dr Cohen that I have referred to above.
[6] When these proceedings were called before me at 10:00 a.m. today,
28 November 2016, counsel for all other parties, some of whom had travelled some distance to be in Christchurch for the commencement of this hearing were present along with a number of other parties in Court. Ms Sisson was absent. After discussion this matter was adjourned until 10:30 a.m. today, 28 November 2016, to enable Ms Sisson to attend and to give time for the medical certificate in question to be provided. Ms Sisson did not attend at 10:30 a.m. The matter was then adjourned until 12 p.m. midday, and I issued a minute providing directions in part which read as follows:
(b) If [Ms Sisson] is reasonably able to attend at that adjournment hearing Ms Sisson is required to be present in Court at that time [12 p.m. midday].
(c) Failing this, Ms Sisson is to provide a detailed response to the Court in support of her adjournment application.
(d) In addition, Ms Sisson is to provide to the Court by midday today a more detailed medical certificate from her general practitioner Dr Mark Cohen to provide detailed reasons as to why she is unable to continue with the hearing of this matter today. If necessary, certain details of that medical certificate or report can be seen as confidential to myself as Judge in this proceeding.
[7] At midday today again there was no appearance by Ms Sisson and once again I adjourned this matter until 2 p.m. today to enable some further explanation of matters to be provided by Ms Sisson together with a more detailed medical certificate to be made available by Dr Cohen.
[8] At 12:57 p.m. today Ms Sisson emailed the Registrar of this Court and stated amongst other things:
I have spoken with Dr Cohen who is able to provide further information to Justice Gendall. A letter is being prepared by Dr Cohen to be available early this afternoon. I am currently experiencing periods of dizziness and retching, lack of clarity of thought and lapses of concentration.
[9] In communicating with the Court I understood that Ms Sisson indicated as a result of matters outlined in her email, she would be unable to be present in Court at
2 p.m. today when the matter was called again.
[10] When these proceedings were again called at 2 p.m. there was no attendance by Ms Sisson, nor had any updated letter from Dr Cohen been provided to the Court.
[11] Before me other counsel who have patiently attended Court since 10 a.m. this morning in the hope that some resolution of this highly unfortunate state of affairs might occur made certain submissions to me.
[12] First, it was noted that at no point today has Ms Sisson’s attendance at this Court been formally excused. Indeed, directions have been issued by this Court requiring her attendance but it seems these have simply been ignored, according to counsel.
[13] Secondly, before me counsel present suggested that the medical certificate which is before the Court from Dr Cohen is inadequate.
[14] Thirdly, the point was, in my view, properly made that given Ms Sisson communicated at 4 p.m. on Saturday last, 26 November 2016, that she was unwell, and noting the commencement of this hearing at 10 a.m. the following Monday which had been set for some considerable time, it is difficult to understand why no medical certificate or perhaps even medical treatment was sought prior to 9:40 a.m. today, 28 November 2016.
[15] Fourthly, before me today Mr Russell, counsel for Chesterfields Preschools Limited (In Liquidation) specifically submitted that this Court should consider the plausibility of the position in which Ms Sisson represents herself today. Mr Russell suggested that Ms Sisson has a history of using delays to her advantage in other litigation in the past and delays caused by repeated adjournment requests she has made. He referred to one particular instance of this which need not be repeated at length here other than to simply note his contention that this supported the view Ms Sisson has a history of delaying litigation by seeking repeated adjournments.
[16] This position advanced by Mr Russell, as I understand it, was supported by other counsel before me.
[17] Turning now to the specific adjournment application before me, this is one brought in terms of r 10.2 High Court Rules. In terms of this rule it is clear as McGechan on Procedure points out at HR10.2.02 that a Court faced with an adjournment application must consider not only what is just as between the parties but should also take into account other litigants and the public interest in achieving the most efficient use of court resources. On this, the up to five day hearing scheduled to commence in this matter today, 28 November 2016, is obviously at risk.
[18] Secondly, McGechan on Procedure at para HR10.2.02(2) properly notes that everything practicable should be done to avoid an adjournment where this is possible. A late illness of a party however, it has been noted, is clearly a proper ground for an adjournment, and this is confirmed in Feasey v Dominion Leasing
Corporation Limited.1
[19] In the present case the reasons advanced by Ms Sisson, although not orally because she has not attended court today, relate solely to issues concerning her medical condition. As I have noted above, the medical certificate from Dr Cohen states that her “medical condition makes her unable to function as a self represented litigant currently. She has initiated treatment and remains impaired for a period of at least one month.” Ms Sisson herself has also stated that she is “currently experiencing periods of dizziness and retching, lack of clarity of thought and lapses of concentration.”
[20] It is unfortunate to say the least that, notwithstanding numerous attempts by this Court to obtain a more detailed medical certificate from Dr Cohen today, as at
3 p.m. when I am dictating this decision no such amplified medical certificate report has been provided, despite, a number of promises that this would occur. There are, of course, no doubt a number of reasons why a busy medical practitioner may have difficulty in complying with urgent requests from the Court to provide a medical report which is of assistance, and this is appreciated.
[21] Notwithstanding this, I must proceed in this matter now on the basis of the material which is before me.
11 Feasey v Dominion Leasing Corporation Limited [1974] 1 NZLR 593 (SC) at 595-596.
[22] Ms Sisson is a self represented litigant in the complex matters which are before the Court in these proceedings to be heard over the next three to five days. To proceed in her absence, unless there is a very good reason for doing so, is of course undesirable. Here the Court has before it the brief medical certificate from Dr Cohen and the statements from Ms Sisson as to her current medical condition. In the face of these there seems little alternative but for the Court to accede to the request that this matter is to be adjourned.
[23] That said, I now grant the adjournment sought with some considerable reluctance but, nevertheless, this matter is adjourned. It is adjourned to a fixed date with the hearing now to take place commencing at 10 a.m. on 13 February 2017 (up to five days are allowed).
[24] In granting this adjournment, the Court in terms of r 10.2 has a wide discretion as to the terms upon which the adjournment can be granted. It is clear the Court in terms of this discretion is able to note that interest may well be awarded to parties other than the applicant for the period of the adjournment concerned, if indeed this is warranted in terms of the ultimate outcome of the proceeding. This is simply noted at this point.
[25] As McGechan on Procedure at 10.2.04 also quite clearly states, even where an applicant for an adjournment which is granted is not at fault, costs may be awarded to the other parties, the Court recognising the inevitable additional consequential costs to those other parties. On this I refer to the decision of Hamilton
v Papakura District Council.2
[26] That said, costs with respect to the present adjournment application are reserved and I signal that they may well comprise a real issue here, given matters yet to occur.
[27] In passing, at this point I would note that the adjourned hearing of these matters set now for 13 February 2017, barring major unavoidable matters, is to be a
fixed date. In the course of normal events it will not be adjourned. I say that bearing
2 Hamilton v Papakura District Council [1997] 11 PRNZ 43 (HC).
in mind what has been a real concern with the way events have unfolded today,
28 November 2016, concerning this whole matter and the inevitable position the Court has been moved to insofar as approval of this adjournment on very late raised medical grounds is concerned.
[28] On all these matters I also formally reserve leave for any party to approach the Court further on 48 hours’ notice if additional directions may be required in the meantime.
...................................................
Gendall J
ADDENDUM
[29] It is now 3:17 p.m. on Monday 28 November 2016. I have left Court. My oral judgment noted above was delivered in open Court and concluded about
10 minutes ago. Now, I have just received by email for the first time a copy of the further promised report from Dr Cohen which was emailed to the Court by Ms Sisson at 3:15 p.m. This three paragraph report amplifies Dr Cohen’s earlier medical report on Ms Sisson’s condition. I have now had an opportunity to read this further report, a report which of course could not be taken into account in my earlier decision. It changes nothing, however. My decision above stands.
...................................................
Gendall J
Solicitors:
Lane Neave, Christchurch
Phillip Shamy, Christchurch
Meredith Connell, Christchurch
Duncan Cotterill, Auckland
Copies to: Ms Sisson
The Official Assignee
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