IAG New Zealand Limited v Evans
[2023] NZHC 1843
•13 July 2023
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2022-409-520
[2023] NZHC 1843
UNDER the Canterbury Earthquakes Insurance Tribunal Act 2019 IN THE MATTER
of an intended appeal against a decision of the Canterbury Earthquakes Insurance Tribunal
BETWEEN
IAG NEW ZEALAND LIMITED
Applicant
AND
PAUL FREDERICK WILLIAM EVANS and JOY ELIZABETH EVANS
Respondents
Hearing: 14 June 2023 Appearances:
C F Finlayson KC and B R D Cuff for Applicant C R Johnstone for Respondents
Judgment:
13 July 2023
JUDGMENT OF OSBORNE J
This judgment was delivered by me on 13 July 2023 at 4.30 pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
IAG NEW ZEALAND LIMITED v EVANS [2023] NZHC 1843 [13 July 2023]
Background
[1] The respondents, Paul and Joy Evans, owned a house property that suffered significant damage in the Port Hills earthquake of February 2011. Their property was insured by IAG New Zealand Limited (IAG). Issues between the parties were referred to the Canterbury Earthquakes Insurance Tribunal (Tribunal) shortly after the Tribunal was established in 2019.1
[2] The Tribunal came to its final determination in two substantive stages. First, there was a hearing in mid-2021 which was intended to comprehensively deal with all issues including quantum.
[3] In December 2021 (following a six-day hearing) the Tribunal issued a liability decision (the liability decision).2 In reaching the liability decision, it became apparent to the Tribunal that the scope of repairs would need to be revisited based on the Tribunal’s findings. The quantification of the cost of remediation was then to be completed.3
[4] The Tribunal’s quantum determination was delivered on 11 October 2022 (the quantum decision).4 The cost of remediation was quantified at $1,341,782.61 (excluding GST). All sums referred to in this judgment will be exclusive of GST unless noted otherwise.
Application for leave to appeal
[5] IAG now applies for leave to bring an appeal, requesting this Court to set aside the quantum decision and remit the matter to “Chair Boys to properly consider the evidence of IAG’s Experts”.
[6] IAG’s first proposed grounds of appeal related to the way in which the Tribunal assessed (or did not assess) evidence in awarding $1,341,782.61.
1 Under the Canterbury Earthquakes Insurance Act 2019, s 55.
2 Evans v IAG New Zealand Ltd CEIT-0013-2019, 16 December 2021 [the liability decision].
3 Liability decision, above n 2, at [202], [229].
4 Evans v IAG New Zealand Ltd CEIT-0013-2019, 11 October 2022 [the quantum decision].
[7] Subsequently IAG amended its proposed grounds of appeal to additionally assert that an undisclosed peer review process adopted by the Tribunal led to substantive errors and breaches of natural justice or procedural fairness.
The determination of quantum — what happened?
[8] In the liability decision, the Chair, when reserving the quantification of the cost of remediation, undertook a resolution of disputed issues with measurements, remediation strategies and methodologies which he was in a position to resolve on the evidence already adduced.5 The Chair, in doing so, recorded he had worked from the scope and estimated cost presented by David Whyte (Whyte Construction) (called by the Evans as an expert in building) as his scope and estimated cost was the most complete.6 The Chair in the liability decision identified areas which required adjustment, and areas where Mr Whyte’s scope was challenged by either John Creighton (John Creighton Builders) (called by IAG as an expert in building) or Heidi van Eeden (Maynard Marks, at the time) (called by IAG as an expert in quantity surveying).7 In short, by the liability decision, the Tribunal found IAG liable to pay compensatory damages as sought by Mr and Mrs Evans on account of remediation costs.8 Mr Whyte was directed to revise his scope to be circulated to Ms van Eeden for comment and for Mr Whyte’s subsequent response, with any areas not able to be agreed to be submitted to the Tribunal to make final rulings accordingly.9
[9] Before the mid-2021 hearing, there had been prepared numerous build scopes and cost estimates. Joint site visits had taken place. A Scott Schedule had been created.10
[10] Following the liability decision, Mr Whyte lodged his revised remediation scope and estimate ($1,259,043.00) in early-March 2022 and provided the same to Ms van Eeden for her review. Ms van Eeden’s revised costing ($828,299.16) was provided on 13 April 2022.
5 The liability decision, above n 2, at [202].
6 At [202].
7 At [202]–[228].
8 At [194].
9 At [229].
10 A document setting out the parties’ evidence with cost estimates for labour and material at each item claimed. Evaluative and settlement conferences had taken place.
[11] Mr Whyte provided a further revised estimate ($1,250,567.00) on 26 April 2022.
[12] The Tribunal, on 27 April 2022, appointed an independent quantity surveyor Ms Goodman-Jones to facilitate discussions between Mr Whyte and Ms van Eeden (or Ms van Eeden’s replacement if she was not available). This was discussed with counsel.
[13] On 29 April 2022, Ms van Eeden provided a revised costing ($815,705.39). Shortly afterwards counsel filed a joint memorandum with the Tribunal identifying remaining areas of disagreement over methodology and scope or estimation matters.
[14] Ms Goodman-Jones held the directed facilitation meeting on 24 May 2022 and, on 31 May, provided a report by reference to the parties’ Scott Schedule quantum adjustments for agreed and disagreed items (amended for a GST error a few days later). Her updated estimate comparison showed $1,518,247.00 on Mr Whyte’s May 2022 estimate and her adjusted estimate cost of $1,380,892.00.
[15] In the meantime, Mr Whyte and Ms van Eeden exchanged further revised costings. Ms van Eeden’s revised costings did not include adjustments for the items discussed at the facilitated meeting or the agreed outcome of a bracing solution provided by Babbage Consultants Ltd on 23 May 2022 — rather, Ms van Eeden’s 31 May 2022 document responded to Mr Whyte’s (overtaken) 26 April document.
[16] The Chair of the Tribunal convened a final case management conference for 15 June 2022. Mr Johnstone for Mr and Mrs Evans filed a memorandum in advance of the conference which the Chair accepted as submissions.11
[17] At the conference counsel agreed that the remediation costings were to be determined by the Tribunal on the papers.12
11 Minute of Chair Boys, CEIT-0013-2019, 15 June 2022 at [3].
12 At [1].
[18] It was agreed Mr Whyte’s costing of 11 June 2021 would serve as the scope of works, modified by the findings set out in the liability judgment. The correspondence and reporting produced by the conferral process, culminating in Ms Goodman-Jones’ report of 31 May 2022 (with addendum of 3 June 2022) building on Mr Whyte’s costing, would provide the evidence for the final determination.13
[19] Upon that basis the Chair directed the filing of submissions following on from Mr Johnstone’s submissions IAG by 28 June and Mr Johnstone’s reply by 5 July 2022.14
[20] On 28 June 2022 IAG’s submissions were filed with new evidence. Two repair costings schedules were attached, both stated to be based on Ms Goodman-Jones’ scope. Ms van Eeden’s schedule put the repair cost at $988,355.94. Mr Creighton put the repair cost at $1,097,796.66. IAG submitted the reasonable cost of repair was between those two figures, plus GST. Attached to IAG’s submissions was also a further schedule prepared by Ms van Eeden stating a rebuild cost of $1,462,936.00.
[21] The Evans filed reply submissions on 5 July 2022. For the Evans, Mr Johnstone objected to the introduction of IAG’s three new schedules as they had not formed part of the facilitation process. Mr Johnstone noted the Tribunal’s express (15 June 2022) direction for the completion of the quantum hearing was confined to the filing of submissions. Mr Johnstone submitted the Tribunal, were it to allow into evidence any of the three new costings, should attach reduced weight to that information as none of it had been subject to independent analysis (unlike Mr Whyte’s estimate as reviewed and reported on by Ms Goodman-Jones). Mr Johnstone then responded to the submissions contained in IAG’s memorandum. Mr Johnstone attached to his submissions an updated estimated repair cost table taking into account Ms Goodman-Jones’ report, producing a total repair cost of $1,416,344.00. He noted that the difference between that calculation and Ms van Eeden’s figure was now reduced to $40,770.00 (inclusive of GST).
13 Minute of Chair Boys, above n 11, at [2].
14 At [5].
The quantum decision
[22] As stated, in the quantum decision the Chair determined Mr and Mrs Evans’ reasonable costs of remediation was $1,341,782.61.15
[23] In the quantum decision, the Chair directly addressed the Evans’ objections to the additional evidence of Ms van Eeden and Mr Creighton that accompanied IAG’s submissions. The Chair made a number of findings in relation to the additional evidence of which the following are most relevant:
(a)the Tribunal is inquisitorial and has wider powers to receive evidence than apply under the rules of court or the Evidence Act 2006;16
(b)information provided following the facilitation process (including in counsels’ submissions, as to alternative cladding products) was not properly supported and could be given no weight;17
(c)as Ms van Eeden and Mr Creighton were experts who had given sworn evidence in the proceeding, their comparative estimates provided with IAG’s closing submissions were admissible and were to be considered;18
(d)the fact that challenges contained in the comparative estimates of Ms van Eeden and Mr Creighton to approaches to measures and rates were not raised during the facilitation process and therefore were not tested by questioning or discussed through to the end of the facilitation process made Ms van Eeden’s and Mr Creighton’s challenges to measures and rates difficult to assess;19 and
15 Quantum decision, above n 4, at [82], [95], Table 1.
16 At [9], citing Canterbury Earthquakes Insurance Tribunal Act, ss 3 and 20.
17 At [14].
18 At [15].
19 At [16].
(e)any change of mind on the part of an expert, following facilitation, requires cogent and compelling reasons to explain the abandonment of an earlier position.20
[24] In the quantum decision, the Chair then discussed each of the areas that remained in dispute and drew conclusions. It is clear from the decision the Chair reached his conclusions after consideration of each of the experts’ evidence, including the final van Eeden and Creighton schedules. By way of one example (not a largely significant item of cost in its own right) this was the Tribunal’s reasoning in relation to the item for scaffolding and shrinkwrap:21
[45] It was agreed by the parties that scaffolding was necessary. This was broken down as 25 weeks for main scaffolding and 6 weeks for stair scaffolding. The parties disagreed about the coverage required, driven by differing views about the need for weather protection in the form of shrink- wrapped scaffolding. If shrink wrap is required, the scaffolding must go above the pitched roofs, to provide the box structure for the weatherproofing. If not, it need only go to the eaves.
[46] In the Initial Decision I found that the extent of the work required meant shrink wrap was a prudent measure. This has been challenged by IAG as Mr Creighton has indicated that he would be prepared to do the roofing work without wrap. However, along with the roofing, most of the cladding of this building and a number of glazing units will require removal and replacement. As such my finding stands and the cost will include shrinkwrap. This also means that the amount of scaffolding involved must extend to roof height. Ms Goodman-Jones concluded that Mr Whyte’s scaffolding provision of 728 m² was acceptable and I adopt this figure.
[25] The Chair then brought together each of his conclusions in relation to disputed areas in a discussion headed “Quantum”:
Quantum
[79] The Additional Evidence includes a repair estimate prepared by Mr Creighton which purportedly prices Mr Whyte’s scope as costing
$1,262,466.16 to carry out. It includes a similar estimate prepared by Ms van Eeden pricing the work at $1,136,609.33 (both including GST). As stated above these estimates are evidence which must be considered. However, beyond the areas discussed above the number of the variances between Mr Whyte’s estimate and those of Mr Creighton and Mr van Eeden are driven by differences in rates and measures which were not raised during the expert’s conferral..
20 Quantum decision, above n 4, at [17].
21 At [45]–[46].
[80] If I take the Additional Evidence at face value, I cannot meaningfully resolve these differences without reopening the conferral or directing a further hearing is set down to consider these matters. I will not do so. I am directed by this Tribunal’s empowering legislation to provide speedy, flexible, and cost-effective dispute resolution. The repairs in question in this case occurred in 2014, and this application was filed in the Tribunal three years ago. The Initial Decision was sealed in December 2021. Both parties agreed to this matter being heard on the papers. There was sufficient time and opportunity for the disagreements raised in IAG’s submissions, and in the estimates of Mr Creighton and Mr van Eeden to have been raised earlier.
[81] Furthermore, Mr Creighton’s estimate lacks enough detail for me to make a meaningful comparison with Mr Whyte’s updated estimate. Mr van Eeden’s estimate, while more detailed, includes items which I have found required adjustment, such as the stucco cladding system, the scaffolding, and shrinkwrap. It also includes additional information about issues, such as the availability of building materials, which has not been tested. These should have been raised during the conferral but were not.
[82] Following the conferral Mr Whyte produced an updated repair cost estimate which allowed for the adjustments that were agreed to during the conferral process. Ms Goodman-Jones use this to produce a cost comparison. I have used this cost comparison and adjusted it when necessary to reflect my findings above. I calculate the reasonable repair costs at $1,543,050 (incl).
…
The recall application
[26] IAG, upon delivery of the quantum decision, applied to the Tribunal for recall of the decision on the basis it contained material errors and did not accord IAG natural justice or procedural fairness. The principal focus of the recall application was that the Tribunal had incorrectly held IAG had not raised objections to rates and measures during the facilitation process.
[27] The Chair refused to recall the decision on the basis he had no power to do so. He identified IAG’s challenge as relating to assumptions he made about the content of the conferral report, where he had observed that objections to rates and measures had not been raised by IAG during the facilitation process. The Chair, noting IAG asserted rates and measures had been so raised, accepted that his view of Ms van Eeden’s objections to rates and measures may have been inaccurate. That stated, the Chair recorded the inaccuracy was irrelevant to the outcome.
[28] Implicitly the Chair found any misunderstanding on his part as to whether rates and measures had been raised in the facilitation process was immaterial as he had
nonetheless taken into account all the evidence before him (including the schedules of Ms van Eeden and Mr Creighton, which he had ruled to be relevant and admissible).
Leave to appeal: the statutory framework and principles
[29] The Canterbury Earthquakes Insurance Tribunal Act 2019 (the Act), by s 54, provides for appeals from decisions of the Tribunal. Section 54 provides:
54 Appeals
(1)A party to a claim that has been decided by the tribunal may appeal on a question of law or fact that arises from the decision.
(2)An appeal must be filed in the High Court and requires the leave of the High Court.
…
(4)The High Court may—
(a)confirm, modify, or overturn the tribunal’s decision:
(b)order a remedy or award costs or interest that could be ordered or awarded by the tribunal.
(5)Except to the extent modified by this Act, the High Court Rules apply to an appeal brought under this section.
…
[30] Counsel both submitted, notwithstanding the absence of prior authority, principles applicable to this application for leave were identified by the Court of Appeal in Greendrake v District Court of New Zealand.22 The Court of Appeal, in declining leave to the applicant to appeal from a decision of the High Court, stated:
[6] In Finewood Upholstery Ltd v Vaughan, to which Dunningham J referred to in the leave decision, Fitzgerald J appropriately observed that the requirement for leave to appeal should serve as a filtering mechanism to ensure that unmeritorious appeals of interlocutory orders, or appeals of interlocutory orders of no great significance to either the parties or more generally, do not unnecessarily delay the proceedings in which the orders were made.23 The following considerations were recognised as relevant on an application for leave to appeal:
(a)a high threshold exists;
22 Greendrake v District Court of New Zealand [2020] NZCA 122.
23 Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [13].
(b)the applicant must identify an arguable error of law or fact;
(c)the alleged error should be of general or public importance warranting determination or otherwise of sufficient importance to the applicant to outweigh the lack of general or precedential value;
(d)the circumstances must warrant incurring further delay; and
(e)the ultimate question is whether the interests of justice are served by granting leave.24
[7] This Court in Ngai Te Hapu Inc v Bay of Plenty Regional Council indicated that considerations similar to the principles applicable to applications under the former s 24G of the Judicature Act 1908, as explained in Meates v Taylor [Leave],25 apply to applications under s 56(5), stating:
We agree that leave to appeal should only be granted where the significance or implications of an arguable error of fact or law, either for the particular case or for the applicant or as a matter of precedent, warrants the further delay which the appeal process would involve.
[31] For IAG, Mr Finlayson KC noted Finewood involved consideration of an appeal from an interlocutory application. To that extent he submitted consideration
(d) in Finewood (“the circumstances must warrant incurring further delay”) (above at [30]) should be accorded less weight where a final, substantive decision is the subject of the proposed appeal.
[32] Cutting across the proposition that concern over delay should be less significant in relation to proposed (substantive) appeals from the Tribunal to this Court is the fundamental rationale and purpose of the establishment of the Tribunal. The Tribunal was established in 2019 to address delays experienced in the resolution of earthquake damage claims. Section 3 of the Act provides:
Purpose
The purpose of this Act is to provide fair, speedy, flexible, and cost-effective services for resolving disputes about insurance claims for physical loss or damage to residential buildings, property, and land arising from the Canterbury earthquakes.
(emphasis added)
24 Ngai Te Hapu Inc v Bay of Plenty Regional Council [2018] NZCA 291.
25 Meates v Taylor (1992) 5 PRNZ 524 (CA) at 526.
[33] Under s 37(1) of the Act the Tribunal, when managing the adjudication of claims (including at hearings), is required to have regard to the s 3 purpose.
[34] The Tribunal’s powers under s 39(1) of the Act include such obvious case management steps as the setting of timetables, directions as to the production of documents and the exchange of statements of evidence and requirements for experts to confer.
[35] Accordingly, while the imperative to avoid (unnecessary) further delay through appeals in relation to interlocutory decisions arises for conceptually different reasons, there remains, in relation to proposed appeals from determinations of insurance claims, a requirement for this Court to place significant weight on the value of the finality of determinations and consequential avoidance of further delay of insurance claims that relate to damage sustained (in this case) eight years before the resolution process under the Act was established, and eleven years before the Tribunal was in a position to finally determine the quantum of the Evans’ entitlements.
First proposed appeal ground — error in relation to quantum
[36] In essence, IAG asserts that the quantum awarded ($1,341,782.61) was in error. IAG asserts the appropriate quantum would have been between $988,355.94 and
$1,097,796.66. That is the range that represented the reasonable cost of repair in terms of IAG’s submissions to the Tribunal in June 2022. Taking the top end of IAG’s proposed range, the assertion is essentially that the Tribunal awarded Mr and Mrs Evans $243,985.95 too much (being the difference between $1,341,782.61 and
$1,097,796.66).
[37] In IAG’s proposed notice of appeal, it is asserted the Tribunal erred in its quantum in reaching its quantum award because the Tribunal:
(a)did not properly consider evidence of Ms van Eeden and Mr Creighton filed with IAG’s submissions to the Tribunal;
(b)incorrectly treated issues raised by IAG’s experts in relation to rates and measures as not having been raised during the conferral process;
(c)erred in consideration of the conferral process;
(d)overlooked expert agreements as to m2 for replacement and awarded more m2 areas than necessary; and
(e)failed to properly assess the information provided with IAG’s submissions.26 As no submissions were developed by IAG in relation to this ground, it will not be further considered here.
Submissions
[38] As Mr Cuff, for IAG, gathered his submissions other than under the points in the notice of appeal, I will deal with the submissions themselves.
ARefusal to consider IAG’s evidence
[39] Mr Cuff submitted the Tribunal had refused to consider IAG’s evidence by not considering Ms van Eeden’s and Mr Creighton’s 28 June schedules. Mr Cuff submitted a failure to consider that evidence was clearly evident from Table 1 to the quantum decision which “does not even refer to the costings of [IAG’s] expert builder and quantity surveyor”.
[40] This submission is without merit. The quantum decision first contains a careful analysis of admissibility which led the Tribunal to rule the evidence both relevant and admissible.27 The evidence of either or both Ms van Eeden and Mr Creighton is considered in disputed areas, with the Chair recording in each area his reasons for conclusion.
[41] Nothing turns on whose calculations are reflected in Table 1 to the quantum decision — the Tribunal’s reasoning lies within the body of the decision itself, with the Table setting out the final calculations (with Mr Whyte’s and Ms Goodman-Jones’ figures included for some comparison).
26 In the proposed Notice of Appeal, an additional ground identified was that the Tribunal failed to correctly consider and apply Ruxley Electronics and Construction Ltd v Forsyth [1995] UKHL 8.
27 Quantum decision, above n 4, at [6]–[17].
BThe impact of the facilitation process having concluded
[42] Mr Cuff referred to the emphasis placed by the Chair on the fact the facilitation process had been concluded. The Chair recorded “[t]his makes these challenges difficult to assess without reopening the conferral process, which would cause delay and additional expense”.28 Mr Cuff submitted these observations on the part of the Tribunal indicated that the Tribunal considered the disputed areas to be not capable of reconciliation without reopening the facilitation process. Mr Cuff submits that the Tribunal thereby failed to undertake its duty of making a decision (based on the entirety of the evidence).
[43] There is no merit in this point. The Chair was referring expressly to the “difficulty of assessment” confronting the Tribunal where fresh areas of dispute in relation to measures or rates were being raised without the benefit of the evidentiary process involved in the expert’s conferral. It is clear from the decision that the Tribunal, notwithstanding that difficulty of assessment, carried out the assessment of each area of dispute, including by reference to the evidence of Ms van Eeden and Mr Creighton.
CA breach of natural justice
[44] Mr Cuff finally submitted, in relation to this aspect of the application, the Tribunal had failed to afford IAG procedural fairness and natural justice through the decision not to require further expert conferral. He submitted that IAG’s evidence had been effectively excluded while the Evans’ evidence was accepted without even being reviewed by the Tribunal appointed expert. This proposed ground of appeal fails on a number of levels. First, the factual underpinning of the submission is incorrect — IAG’s evidence was not excluded. It was in fact admitted and considered. Secondly, having regard to the nature of the Tribunal’s role, the Tribunal’s decision not to reopen the conferral process because it would “cause delay and additional expense”29 was correct. The Evans suffered their damage in 2011. Their claim had been through what was intended to be a comprehensive facilitation process, with Ms Goodman-Jones as a quantity surveying expert to facilitate and to provide her expert assessment to a
28 Quantum decision, above n 4, at [16].
29 At [16].
Tribunal which is comprised of legally-qualified members. The decision of IAG to submit additional evidence after Ms Goodwin-Jones’ report was completed resulted in the Tribunal appropriately according that evidence less weight precisely because it had not been tested in an expert forum. The Tribunal therefore appropriately proceeded to determine quantum on the evidence before it, taking into account whether experts’ opinions had changed since the conferral and such changes had been cogently explained.30 It is not arguable that the Tribunal, in taking this approach, breached principles of natural justice.
[45] Even had there been a basis for an argument as to breach of natural justice in this regard, an appeal would not be the appropriate procedure for such challenge, for the same reasons as I set out below in relation to the Tribunal’s peer review practice.
Proposed ground 2 — the Tribunal’s peer review process
[46] In its amended application for leave to appeal, IAG identified a peer review process adopted by the Tribunal. IAG asserted the peer review process did not accord IAG natural justice or procedural fairness.
[47] The Chair, in a letter to IAG’s solicitor following delivery of the quantum decision, explained the Tribunal’s practice:
The Tribunal’s practice is to have deliberative decisions reviewed by another Tribunal member. After review the sitting member then makes their own judgment as to whether any amendments suggested are incorporated into the final decision. The practice is an informal one and, as review is part of the Tribunal’s internal administrative process, parties and counsel are not notified. I confirm that the decisions in the present case were reviewed.
[48] Mr Finlayson identified that (under s 62 of the Act) the Tribunal’s Chair had delegated to himself (as a Tribunal member) the determination of the Evans’ claim.
[49] Mr Finlayson submitted the Tribunal’s peer review process offends against elementary principles of judicial independence. He referred to the Bangalore principles of Judicial Conduct (the “Bangalore Principles”) and in particular the
30 Quantum decision, above n 4, at [17].
principle of independence.31 Mr Finlayson particularly referred to two applications of the independence aspect of the Bangalore Principles:
1.1A judge shall exercise the judicial function independently on the basis of the judge’s assessment of the facts and in accordance with a conscientious understanding of the law, free of any extraneous influences, inducements, pressures, threats or interference, direct or indirect, from any quarter or for any reason.
…
1.4 In performing judicial duties, a judge shall be independent of judicial colleagues in respect of decisions that the judge is obliged to make independently.
[50] The Supreme Court referred to the Bangalore principles in Minister of Justice v Kim.32 The Court there observed judges must be free from inappropriate influence by executive and legislative branches of government as well as independent of judicial colleagues in respect of decisions which the judge is obliged to make independently.33
[51] Mr Finlayson emphasised the Tribunal’s explanation of its peer review process, with that process leading to the suggestion of amendments, is of uncertain ambit. He submits the peer review process lends itself to the possibility that the Member, who has not heard the evidence and the submissions, and may not have the full file, might contribute a suggested amendment where he or she has only part of the story.
[52] I observed to Mr Finlayson the peer review ground was essentially an attack on the Tribunal’s process, as reflected in the fact the amended ground asserts a breach of natural justice. I suggested to him the appropriate procedure for such a claim lay in judicial review where the Tribunal, as the body whose procedure was to be reviewed, would be the respondent.
[53] Mr Finlayson initially in response suggested that, were leave to appeal granted and the Court to subsequently consider that judicial review was the required
31 Judicial Group on Strengthening Judicial Integrity The Bangalore Principles of Judicial Conduct (2002) [Bangalore Principles] at [1.1]. See also United Nations Basic Principles on the Independence of the Judiciary endorsed in GA Res 40/32 (1985) and GA Res 40/146 (1985) at [2]. The Bangalore Principles provide guidance to judges whereas the Basic Principles on the Independence of the Judiciary are addressed primarily to states.
32 Minister of Justice v Kim [2021] NZSC 57, [2021] 1 NZLR 338 from [330].
33 At [331], citing Bangalore Principles, above n 31. Application 1.4 (set out at [49] above).
procedure, that could then occur. On further discussion, he recognised the interests of finalising the Evans’ claim might be viewed as weighing in favour of IAG commencing now any judicial review application based on the peer review process. At the same time, Mr Finlayson drew my attention to r 20.15 High Court Rules 2016 which permits this Court, on an appeal, to call for a report containing (amongst other items) any matters relevant to the decision or the general administration of the enactment under which the Tribunal’s decision was made.
[54] Mr Finlayson nevertheless recognised the interests of finalising the Evans’ claim might be seen to lie in IAG commencing any review application now rather than creating the risk that a subsequent appeal decision may not provide a resolution of IAG’s concerns about the peer review process.
[55] Given the nature of the critique of the peer review process, I am not satisfied leave to appeal on that ground should be granted. In particular, the appropriate process (if IAG is intent on pursuing the matter) is that IAG pursues judicial review, with the Tribunal as respondent.
[56]I make no observation as to the merits or otherwise of this proposed ground.
Outcome
[57]I order:
(a)the application for leave to appeal the decision of the Canterbury Earthquakes Insurance Tribunal dated 11 October 2022 in Evans v IAG New Zealand Ltd is dismissed; and
(b)the costs and disbursements of the application are reserved.
Costs
[58] Having regard to the above outcome, I anticipate that the parties will be able to agree the costs and disbursements. There appears no reason why costs and disbursements should not follow the event on a 2B basis. Should the parties not
resolve those matters, costs will be dealt with on the papers with any memorandum applying for costs to be filed and served within ten working days from the date of this judgment and any response to be filed within five working days after service of the other parties’ memorandum (three page limit in each case). Costs and disbursements would then be determined on the papers. In the event no memoranda are filed within those timeframes the order of the Court (without further judgment issuing) will be that there is no order as to costs and disbursements.
Osborne J
Solicitors:
Duncan Cotterill, Auckland for Applicant Counsel: C F Finlayson KC and B R D Cuff
Cuningham Taylor, Christchurch for Respondents Counsel: C R Johnstone
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