Hargreaves v The HC Christchurch CIV-2002-409-000725
[2011] NZHC 1411
•19 October 2011
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV-2002-409-000725
BETWEEN PENELOPE ANN HARGREAVES Plaintiff
ANDTHE RADIO NETWORK LIMITED First Defendant
ANDTHE RADIO NETWORK OF NEW ZEALAND LIMITED
Second Defendant
Hearing: 17 October 2011
Appearances: Plaintiff Appears in Person
P R Jagose and C E Deans for Defendants
Judgment: 19 October 2011
RESERVED JUDGMENT OF CHISHOLM J
Introduction
[1] By decision delivered on 20 November 2008[1] Judge Christiansen struck out this proceeding on the basis that it was time-barred by the Limitation Act 1950. Having reviewed that decision, I reinstated the plaintiff’s claim to the limited extent described in the judgment delivered on 16 March 2010.[2] The defendants now seek leave pursuant to Rule 7.52 of the High Court Rules for the proceeding to be struck
out or for alternative relief.
HARGREAVES V THE RADIO NETWORK LIMITED HC CHCH CIV-2002-409-000725 19 October 2011
[1] Hargreaves v The Radio Network Limited & Anor HC Christchurch CIV 2002 409 725 20 November 2008
[2] Hargreaves v The Radio Network Limited & Anor HC Christchurch CIV 2002 409 725 16 March 2010
[2] This matter has an extremely long history which is summarised in the
16 March 2010 judgment. Given that summary a brief account of events leading to the application before the Court will suffice.
[3] On 11 October 2002 the plaintiff issued this proceeding seeking damages for bodily injury and other loss/damage alleged to have been caused by emissions from a radio mast operated by the defendants. By judgment delivered on 28 May 2003
Associate Judge Christiansen refused the plaintiff ’s application (pursuant to s 4(7) of the Limitation Act 1950) to bring the claim for bodily injury out of time. However, he declined the defendants’ application to strike out the remainder of the claim.
[4] A later application by the defendants to have the proceeding struck out was granted by Associate Judge Christiansen on 20 November 2008 on the ground that it was time-barred by s 4(1) of the Limitation Act. When arriving at that decision Associate Judge Christiansen proceeded on the basis that he could safely rule out any possibility that any new causes of action accrued after 11 October 1996 (which was the critical date in terms of the Limitation Act).
[5] In my judgment of 16 March 2010 I concluded that the Associate Judge had erred in striking out the claim because:
[90] Looking first at the nature of the damage/loss, it must be debateable whether the damage/loss alleged to have been suffered by the plaintiff after
11 October 1996 could be accurately categorised as a continuation or progression of the damage arising before that time. In my view the
possibility that separate and distinct damage/loss arose after that date cannot be reasonably excluded. That conclusion reflects first, that this issue
involves matters of fact and degree incapable of proper determination without the evidence being tested and, secondly, that in a strike out situation
the facts pleaded in the statement of claim should be taken as capable of proof.
[91] The further amended statement of claim refers to matters which might arguably be construed as separate and distinct damage/loss arising after 11 October 1996. For example, it is pleaded that the electro sensitivity of horses bred between 1992 and 1998 has affected the performance and value of the next generation. Specific reference is made to progeny that has been affected and, on the pleadings, it is clearly arguable that these losses only arose after 11 October 1996. To take one example, “One Eye” must
have been born around 2006 and it is pleaded that she cannot be raced because of deformity
[92] Beyond that the statement of claim refers to horses, a dog and cattle
that were on the plaintiff’s farm and suffered problems well after 11 October
1996. In addition, the plaintiff claims for damage to her reputation as a horse trainer and loss in the value of her farm down to the present time. It must be arguable that to the extent that these losses reflect events after
11 October 1996, they are separate and distinct losses. In this respect it is perhaps significant that the plaintiff did not vacate her property with some
animals until “late October 1996” and did not finally remove all of her
animals until August 1998.
[93] A similar situation emerges when the nature of the emissions is examined. Again it must be debatable whether they could be properly regarded as a continuous event. On the pleadings various stations with differing frequencies came and went and the power was increased in February 2000. And in her affidavit of August 2008 the plaintiff claims that power was also increased in June 1999 and that a guy wire has been used for transmission since 2004. She claims that this form of transmission increases power “over my property”. The plaintiff also deposes that she discovered a document in 2002 showing that permission was given in 1997 to transmit from a small antenna which increased the emissions at her boundary “by about 25 microwatts”.
My conclusion was that, at the very least, it was arguable that separate causes of action had arisen since 11 October 1996 and that under those circumstances it would be contrary to principle for those causes of action to be struck out.
[6] The application for review was granted and the orders of the Associate Judge setting aside the plaintiff’s claim were revoked. The judgment went on to say “The claim is reinstated, with the limitation issue to be determined at trial”.[3] Although there was no direction in my judgment that the statement of claim would need to be amended, that was the view adopted by the Associate Judges who subsequently handled the matter. Obviously that was the reality of the situation.
[3] At [97]
[7] In a judgment delivered on 17 November 2010 Associate Judge Christiansen refused the plaintiff ’s application for further and better discovery and directed her to file an amended statement of claim by 28 January 2011. That date was later extended. A fifth amended statement of claim was filed and served on 29 April 2011. It is my understanding that that document was prepared by Ms Grey, then counsel for
the plaintiff, who has subsequently ceased to act.
[8] On 20 May 2011 the defendants made application for leave to obtain the following orders:
1.2 striking out all causes of action against TRN set out in the plaintiff’s fifth amended statement of claim dated 25 April 2011 (the “fifth amended claim”), and dismissing the proceeding,
1.3 alternatively to 1.2 above,
(a) striking out all causes of action against TRN set out in the fifth amended claim; and
(b) unless by a date to be set by this Court the plaintiff files and serves an application for leave to file a further amended statement of claim – together with a proposed sixth amended statement of claim, limited to causes of action arising on or after 11 October 1996, and otherwise being in compliance with the High Court Rules – which leave is granted with or without further amendment, dismissing the proceeding.
In addition the defendants sought an extension of time for the filing and service of any defence and the costs of the application. An affidavit sworn by Norman Collison was filed in support.
[9] The application is opposed by the plaintiff who has filed her documents in opposition without legal assistance. In her written and oral submissions Mrs Hargreaves expressed the view that she has already been subjected to injustice and believes that the striking out of her claim would compound those injustices. She said that once she sells a property in the United Kingdom she will be able to afford a lawyer but in the meantime cannot do so. She is also looking at the possibility of legal aid.
Discussion
[10] Given that this is a further interlocutory application to strike out the
plaintiff’s proceeding, Rule 7.52 applies:
7.52 Limitation as to second interlocutory application
(1) A party who fails on an interlocutory application must not apply again for the same or a similar order without first obtaining the leave of a Judge.
(2) A Judge may grant leave only in special circumstances.
The Court of Appeal accepted in Kidd v van Heeren,[4] that the words “special circumstances” are “wide, comprehensive and flexible ... indicating something abnormal, uncommon or out of the ordinary but something less than extraordinary or unique”.[5]
[4] Kidd v van Heeren (1997) 11 PRNZ 422 at 424
[5] Although the Court was considering those words in the context of a different Rule, its interpretation is equally applicable to Rule 7.52.
[11] Given the extraordinary history of this matter I am satisfied that there are “special circumstances” and that leave should be granted so that the application can be considered by the Court. The proceeding has now been on foot for over nine years and a fifth amended statement of claim is before the Court. Clearly the current pleading does not comply with the earlier rulings of this Court or the High Court Rules. In particular it does not recognise that neither the claim for bodily injury nor any other causes of action that accrued before 11 October 1996 can be pursued.
[12] On the other hand I am not persuaded that it would be appropriate at this stage for the proceeding to be struck out. The judgment of 16 March 2010 allowed the plaintiff to pursue the causes of action to the extent that those causes of action accrued on or after 11 October 1996 (and were not claims for bodily injury). Although it is not difficult to understand the defendants’ frustration, the interests of justice require the plaintiff to be given a reasonable opportunity to bring her pleading into line with the causes of action that she has been permitted to pursue.
[13] Given that at least in some respects the required re-pleading is far from straightforward, it would be unduly heavy handed for the Court to impose an “unless” order in the terms proposed by the defendants, especially where the plaintiff is currently self represented. Under those circumstances I am prepared to allow the plaintiff until 31 January 2012 to file and serve an amended statement of claim
which complies with the earlier rulings of this Court and the High Court Rules. If
there is an issue about whether the sixth amended statement of claim has achieved that purpose, the matter will need to come back to the Court.
[14] The plaintiff needs to understand that it is only causes of action that have accrued from and including 11 October 1996[6] that can be pursued: see [88] – [96] of the 16 March 2010 judgment. Causes of action that have accrued before that time (and claims for bodily injury) will not be permitted. The plaintiff is encouraged to obtain legal assistance when preparing the amended statement of claim.
Result
[6] Which can be pleaded as simply October 1996.
[15] Leave to bring the strike out application is granted pursuant to Rule 7.52. I decline to strike out the proceeding or to make an “unless” order. However, the plaintiff is to file and serve an amended statement of claim which complies with the earlier rulings of this Court and the High Court Rules by 31 January 2012.
[16] It is unnecessary for the defendants to file a defence to the fifth amended statement of claim. They will have the usual period for filing a defence to the sixth amended statement of claim (unless the matter has to be referred back to the Court in which case an appropriate extension of time can be granted at that time). Costs are reserved.
Solicitors:
Chapman Tripp, [email protected], [email protected]
Copy to Mrs Hargreaves, [email protected]
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