Davidoff v Accident Compensation Corporation
[2018] NZHC 2757
•24 October 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2016-404-002657
CIV-2016-404-003067 [2018] NZHC 2757
BETWEEN JOHN G DAVIDOFF
Appellant
AND
ACCIDENT COMPENSATION CORPORATION
Respondent
On the papers: Judgment:
24 October 2018
JUDGMENT OF HINTON J
This judgment was delivered by me on 24 October 2018 at 12.00 pm pursuant to Rule 11.5 of the High Court Rules
…………………………………………………………………… Registrar/Deputy Registrar
Solicitors:
Medico Law Ltd, Auckland
Party:
John G Davidoff
DAVIDOFF v ACCIDENT COMPENSATION CORPORATION [2018] NZHC 2757 [24 October 2018]
Introduction
[1] The Accident Compensation Corporation (ACC) applies to strike out two applications filed by Mr Davidoff in late-2016 seeking special leave to appeal to the High Court against two separate decisions of the District Court. In both instances in the District Court, Mr Davidoff was declined leave to appeal to the High Court.
[2] ACC say that Mr Davidoff’s applications should be struck out as an abuse of process, or otherwise for want of prosecution.
[3] On 21 August 2018, after hearing from ACC, I issued a Minute indicating that while the orders appeared to be appropriate, before I issued a decision I required a memorandum from ACC setting out the history of the communications, or attempts at communications, with Mr Davidoff. That memorandum has since been provided.
Facts
[4] Mr Davidoff filed the first proceeding, CIV 2016-404-2657, on 21 October
2016. He filed the second proceeding, CIV 2016-404-3067, on 25 November 2016. The two proceedings then seem to have been treated in tandem.
[5] It appears that the first case management conference, in respect of the first proceeding, was vacated on 14 November 2016. A further Case Management Conference Notice (CMC Notice) was sent via both post and email to Mr Davidoff advising of a conference on 29 November 2016. Mr Davidoff did at this time respond, saying that he had health issues. He requested that the conference be scheduled for a time after 1.00 pm. On 28 November 2016, Katz J, noting Mr Davidoff’s health issues, directed that the conference be adjourned to the first available date.
[6] A new CMC Notice was sent to Mr Davidoff on 26 January 2017 regarding a conference on 28 February 2017 at 9.00 am. The Registry also emailed Mr Davidoff requesting his contact details so that the conference could be held by telephone.
[7] Mr Davidoff emailed the Registry on 1 February 2017 declining a teleconference, saying that it was inconvenient for him to gather and organise evidence
and relay it properly to a Judge. (He may have mistakenly thought the conference was to be a hearing, when it was only for purposes of directions.) He also, by further email, requested a hearing after 1.00 pm for medical reasons.
[8] The Registry again emailed Mr Davidoff on 17 February 2017, requesting his telephone contact details as soon as possible, perhaps having overlooked his earlier email.
[9] On 24 February 2017, Mr Davidoff emailed the Registry, again declining a teleconference and requesting a hearing in person.
[10] In a further email on 8 March 2017, Mr Davidoff emailed very lengthy submissions (in various parts) to the Registry.
[11] The matter seems to have rested there. No directions conference has been held and there has been no correspondence in relation to the applications for leave to appeal from Mr Davidoff, either to the Registry or to the respondent.
[12] On 15 August 2018, ACC applied to strike out both applications and attempted to serve the relevant documents on Mr Davidoff, using the services of Docuserve. Docuserve was provided with three known addresses for Mr Davidoff, plus his telephone number and email address. Further investigations revealed a possible fourth address. Despite this, Mr Davidoff proved elusive and Docuserve was unable to serve, or otherwise contact him. Amongst other things, Docuserve emailed Mr Davidoff and asked him to contact them regarding the documents as soon as possible, but seems to have received no reply.
Argument for strike-out
[13] Rule 15.1 of the High Court Rules 2016, allows the Court to strike out a proceeding as an abuse of process. ACC cites the case of Yarrow v Finnigan in support of its application to strike out the two proceedings as an abuse of process.1 In that
1 Yarrow v Finnigan [2017] NZHC 1755.
case, Williams J noted that an abuse of process can fall into a number of categories, but relevantly includes:2
(a) A deliberate failure to comply with Court orders; and
(b)Continuing litigation without any intention of bringing it to a conclusion.
[14] Alternatively, r 15.2 allows the Court to strike out a proceeding if the plaintiff fails to prosecute its proceeding to trial and judgment. ACC again relies on Yarrow in support of its application to strike out on this ground. Williams J set out the requirements for a proceeding to be struck out for want of prosecution. Those requirements are:3
(a) The applicant has been guilty of inordinate delay;
(b) The delay is inexcusable; and
(c) The delay has seriously prejudiced the defendant.
[15] ACC submits that both applications should be struck out under both rules.
Decision
[16] Mr Davidoff has been obstructive with regard to the Court’s attempts to set the applications down for a directions conference. He has not contacted the Court, nor ACC, since 8 March 2017. That was 19 months ago. That is a clearly excessive delay in bringing applications for leave to appeal to a hearing and determination.
[17] Mr Davidoff was unable to be served with this strike-out application, but I consider he will be aware of it, whether by email or otherwise. He has not sought to oppose the application.
2 At [10].
3 At [17].
[18] I accept the submission from ACC that they have been ready to proceed with these matters.
[19] I also accept that ACC is seriously prejudiced by Mr Davidoff’s delay.
[20] However, while I agree with ACC that Mr Davidoff has failed to prosecute his applications in terms of r 15.2, and in terms of r 15.1, relying on the second leg in Yarrow, it is just conceivable that he does not understand a directions conference is still required, and/or considers he has taken such steps as are required of him by filing submissions.
[21] Out of an abundance of caution, I set the two applications for leave to appeal down for a 10-minute teleconference at 2.00 pm on Tuesday, 30 October 2018. I note that the time is set to suit Mr Davidoff, although it is inconvenient to the Court. I will not entertain any objection to a teleconference. The usual face-to-face list is
at 9.00 am. That does not suit Mr Davidoff. The alternative is a teleconference.
Mr Davidoff does not need to organise any papers. If he attends the teleconference, I will have to consider an order that he pay security for costs and I will allocate a hearing date for the applications. If he does not attend, both applications to appeal will be struck out under r 15.2 for want of prosecution, and in the alternative under r 15.1 as
an abuse of process.
--------------------------------------------------- Hinton J