Fletcher v The LawLink Group Limited
[2023] NZHC 2622
•21 September 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2021-470-000071
[2023] NZHC 2622
BETWEEN DARRYL JOHN FLETCHER
Plaintiff
AND
THE LAWLINK GROUP LIMITED
First Defendant
RESOLUTION LIFE AUSTRALASIA LIMITED
Second Defendant
Hearing: 7 September 2023 Appearances:
D J Fletcher, Plaintiff in Person
P McKinnon for the First Defendant
D J Friar and J F Hall for the Second DefendantJudgment:
21 September 2023
JUDGMENT OF ASSOCIATE JUDGE GARDINER
This judgment was delivered by me on 21 September 2023 at 3.30 p.m. pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date.......................................
Solicitors:
Morgan Coakle, Auckland Bell Gully, Auckland
FLETCHER v THE LAWLINK GROUP LTD [2023] NZHC 2622 [21 September 2023]
Introduction
[1] Darryl Fletcher, a former lawyer and partner of a Tauranga law firm, brings a claim against Resolution Life Australasia Limited (Resolution Life) for breaching a group income continuance policy procured by The LawLink Group Limited (LawLink). He claims that Resolution Life wrongly required medical reports and medical assessments and then stopped paying him a total disability benefit when he refused to comply with those requirements. Mr Fletcher sues to recover the benefit and general damages.
[2] Mr Fletcher now applies for leave to amend his statement of claim and to file interlocutory applications: for summary judgment and for an interim payment pursuant to r 7.69 of the High Court Rules 2016. Leave is required because the close of pleadings date has passed.
[3] As directed by Associate Judge Sussock on 15 August 2023, Mr Fletcher filed a draft amended statement of claim together with a memorandum containing his submissions in support of his applications for leave.1 Resolution Life filed a memorandum setting out its submissions in opposition. I heard oral submissions from Mr Fletcher and Mr Friar during a telephone conference.
Procedural background
[4] Following a judicial settlement conference in December 2022, this proceeding was set down for a 5-day trial in August 2023. As set out in the Minute of Associate Judge Sussock dated 12 December 2022:
(a)the deadline for interlocutory applications was 22 December 2022;
(b)the close of pleadings date was 24 March 2023; and
(c)Mr Fletcher’s briefs of evidence were due on 28 April 2023.
1 Referring to further submissions in an earlier memorandum of 4 August 2023.
[5] On 17 January 2023, the Court emailed the parties noting that the deadline for interlocutory applications had passed and seeking an update from the parties. Mr Fletcher, who was then represented by counsel, did not indicate that he intended to make any applications.
[6] Mr Fletcher did not serve his briefs of evidence by 28 April 2023. Counsel for Resolution Life made inquiries with Mr Fletcher’s counsel and then sought an urgent case management conference. In response, on 9 May 2023 counsel for Mr Fletcher filed a memorandum requesting an adjournment of the August 2023 trial.
[7] On 11 May 2023, the parties attended a teleconference before Justice Campbell. Having heard from counsel for all parties, His Honour adjourned the August 2023 trial. Mr Fletcher did not raise any amendments or applications at that conference.
[8] The Court rescheduled the trial for early May 2024, with Mr Fletcher's briefs of evidence due on 27 October 2023. The defendants’ briefs of evidence are due on 8 December 2023.
[9] On 22 June 2023, Mr Fletcher notified the Court and the parties that he was now acting in person.
Legal principles
[10] No amended pleading may be filed, and no interlocutory application may be made, or step taken, after the close of pleadings date without the leave of the Judge.2 The purpose of the close of pleadings date is to ensure that the pleadings are settled, and all interlocutory matters are completed so that the parties can concentrate on preparing for the hearing.
2 High Court Rules 2016, r 7.7.
[11] A party seeking to take steps after the close of pleadings date must “surmount the three formidable hurdles” of showing that doing so would be in the interests of justice, will not significantly prejudice the other parties, or cause significant delay.3
[12] When determining whether to give leave to a party to amend their pleading after the close of pleadings date the Court regards the following principles:4
(a)The paramount consideration is that the parties should have every opportunity to ensure that the real controversy goes to trial to secure the just determination of the proceeding.
(b)Due regard must be had to whether the proposed amendment will cause significant delay or prejudice another party.
(c)The Court should consider the merit, or absence thereof, in a proposed amended pleading. Even where serious prejudice and significant delay will arise, an amended pleading may nevertheless be permitted if the proposed claim has substantial merit and will not cause injustice to the other party.
Leave to amend the statement of claim
[13] Mr Fletcher’s existing statement of claim sets out five causes of action: breach of contract and breach of trust against Lawlink; and breach of contract, breach of s 9 of the Fair Trading Act 1986 and negligence against Resolution Life. He proposes to amend his statement of claim to introduce three further causes of action: estoppel, conspiracy and unlawful means, and breach of s 27 of the Fair Trading Act.
3 Jessica Gorman and others McGechan on Procedure (online ed, Thomson Reuters) at [HR7.7.01], citing Elders Pastoral Ltd v Marr (1987) 2 PRNZ 383 (CA), and Body Corporate 172108 v Gundry [2014] NZHC 954 at [40].
4 Oraka Technologies Ltd v Geostel Vision Ltd [2015] NZHC 991 at [17].
Submissions
[14] Mr Fletcher attributes the proposed amendments to information that emerged after the judicial settlement conference in December 2022. Specifically, he says that through an (open) exchange of correspondence between his former solicitors and Resolution Life’s solicitors between 3 February and 14 June 2023, Resolution Life articulated how it had been interpreting the ‘total disablement’ definition in the insurance policy. At the same time, Mr Fletcher contends, Resolution Life changed its position to accept the interpretation he and LawLink advanced.
[15] Mr Fletcher considers Resolution Life’s position on the ‘total disablement’ definition to be relevant to the reasonableness of the medical assessment and information it requested of him, and therefore important to his claim. He says that it was not until 14 June 2023 that he had sufficient clarity about Resolution Life’s position to assess the potential impact on his statement of claim. He raised amending his pleading with the Court shortly thereafter.
[16] Resolution Life opposes leave being given, submitting that it has not changed its position, and that it only agreed to Mr Fletcher’s interpretation to narrow the issues before trial. Furthermore, it communicated this position to Mr Fletcher’s solicitors in February 2023, so Mr Fletcher has had seven months to amend his statement of claim.
[17] Resolution Life’s submits that in any event, the interpretation of the definition does not affect its position concerning its requests for medical records and a medical examination. It submits that on the existing pleadings Mr Fletcher can contest whether Resolution Life had insufficient information available to assess whether Mr Fletcher met the total disablement definition, and whether Resolution Life was entitled to request the information and medical assessments that it did, and to cease paying the benefit because Mr Fletcher did not comply with those requests.
[18] Further, Resolution Life submits that although Mr Fletcher seeks to rely on an alleged change of position by Resolution Life in 2023 to amend his claim, his proposed amendments instead consist of assertions relating to conduct from 2011 to 2020 that he had already made well before the alleged change of position. That alleged change
of position therefore provides no basis for Mr Fletcher to seek leave out of time to make amendments that could have been made well before the close of pleadings date.
[19] Resolution Life submits that granting leave would risk delay in the proceedings and put the adjourned trial date at risk. It submits that the risk of delay creates a real risk of prejudice to Resolution Life. In particular, if the Court ultimately agrees (in the substantive proceeding) that medical examinations of Mr Fletcher should take place, the delay from a further trial adjournment will make it more difficult for the medical experts conducting an examination to make a backward-looking assessment of Mr Fletcher, which would need to be made as at 30 July 2020.
Assessment
[20] I am prepared to give Mr Fletcher leave to amend his statement of claim to include allegations that relate to Resolution Life’s interpretation of the total disablement definition, for the following reasons.
[21] First, I consider there is a strong interest in Mr Fletcher being permitted to present his full claim at trial. The outcome of the proceeding will have profound personal consequences for Mr Fletcher. Justice demands that he is given the opportunity to advance what he considers to be the real dispute, provided giving him that opportunity is not outweighed by injustice to the defendants.
[22] Second, while it is difficult for me to assess the merits of Mr Fletcher’s position, I could see how Resolution Life’s interpretation of the ‘total disablement’ definition might affect its view of the medical information it needed to assess Mr Fletcher’s ongoing entitlement to cover. I consider that Mr Fletcher should be given the opportunity to plead how he considers this interpretation to be relevant to the reasonableness of Resolution Life’s approach.
[23] Third, and critically, I am satisfied that provision for Mr Fletcher to amend his statement of claim can be made without jeopardising the hearing. Resolution Life and Lawlink do not consider that any additional discovery will be required by the amendments. I also find it difficult to conceive how the amendments, appropriately confined, will involve further discovery. In my view, there is enough time before the
trial in May 2024 for the defendants to amend their pleadings in response and for evidence to be exchanged.
[24] However, as presently drafted, Mr Fletcher’s proposed new causes of action go well beyond allegations arising out of or relating to the interpretation issue. Mr Fletcher looks to introduce new, unrelated matters and repeat allegations made in the earlier causes of action. This repetition adds nothing and confuses the statement of claim. Leave to amend will be given on the condition that Mr Fletcher confines his amendments to allegations arising out of the issue of Resolution Life’s interpretation of the ‘total disablement’ definition.
Leave to file interlocutory applications
[25] I decline to give Mr Fletcher leave to file interlocutory applications for summary judgment and/or for an interim payment. These proposed applications have no prospect of success and will only serve to derail the trial and prolong the proceeding.
[26] To obtain an order for summary judgment, Mr Fletcher would need to satisfy the Court that Resolution Life and/or LawLink have no defence to a cause of action in the statement of claim, or to a particular part of any such cause of action.5 The question on a summary judgment application is whether the defendant has no defence to the claim; that is, that there is no real question to be tried.6 The Court will not normally resolve material conflicts of evidence.7
[27] Resolution Life brought a summary judgment application early on in these proceedings. While summary judgment was not granted, Associate Judge Paulsen referred to various difficulties that Mr Fletcher will face at trial.8
5 High Court Rules 2016, r 12.2(1).
6 Pemberton v Chappell [1987] 1 NZLR 1 (CA) at 3.
7 Krukziener v Hanover Finance Ltd [2008] NZCA 187, [2010] NZAR 307 at [26].
8 Fletcher v The Lawlink Group Ltd [2021] NZHC 3543.
[28] In terms of Mr Fletcher’s proposed new causes of action, those causes of action for estoppel, unlawful means, conspiracy, and coercion will be based on disputed factual material, and there is no plausible basis for seeking summary judgment.
[29] Additionally, the purpose of summary judgment is to obtain a prompt outcome in cases where there is no reasonable defence. Mr Fletcher’s claim will be heard in just over six months’ time. Even if he did have a good case for summary judgment, he will not achieve a faster outcome, as a summary judgment application could not be able to be heard until March 2024 at the earliest.
[30] An application for interim payment under r 7.69 of the High Court Rules has no reasonable prospect of success either. The purpose of the interim payment regime is to “cater for the situation where it is clear that the plaintiff will receive an award, but the amount [is] a matter for the Court”.9 In this case, Resolution Life disputes that Mr Fletcher should receive a payment. That is a live issue for the trial.
Result
[31] Mr Fletcher has leave to file an amended statement of claim on the condition that he confines his amendments to those relating to the interpretation of the ‘total disablement’ definition, by 5 October 2023. I will review the amended statement of claim once filed, and provided it complies, adjust the existing timetable to meet the trial date.
[32] Mr Fletcher’s application for leave to file interlocutory application is dismissed.
[33]Costs are reserved.
Associate Judge Gardiner
9 Jessica Gorman and others McGechan on Procedure (online ed, Thomson Reuters) at [HRPt7Subpt5.01].
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