Jabbara v Southern Cross Benefits Limited
[2024] NZCA 370
•5 August 2024 at 3.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA193/2023 [2024] NZCA 370 |
| BETWEEN | STEWAR SINGH JABBARA |
| AND | SOUTHERN CROSS BENEFITS LIMITED |
| Hearing: | 13 May 2024 |
Court: | Thomas, Fitzgerald and Osborne JJ |
Counsel: | Appellant in person |
Judgment: | 5 August 2024 at 3.30 pm |
JUDGMENT OF THE COURT
AThe appeal is dismissed.
B The appellant must pay the respondent’s costs for a standard appeal on a band A basis and usual disbursements.
____________________________________________________________________
REASONS OF THE COURT
(Given by Fitzgerald J)
Introduction
In late 2021, Mr Stewar Singh Jabbara, a retiree residing in India, commenced proceedings in the District Court against Southern Cross Benefits Ltd (Southern Cross) seeking $105,000 in damages. This followed Southern Cross declining to indemnify Mr Jabbara under an insurance policy he took out with the company for costs associated with heart surgery he underwent in December 2020, while he was visiting New Zealand.
In November 2022, Mr Jabbara filed an application in the High Court, seeking the transfer of his proceedings from the District Court to the High Court. Jagose J declined that application.[1] Mr Jabbara, who has represented himself throughout the proceedings, now appeals against Jagose J’s decision.
Background to the appeal
The policy and each party’s position in the proceedings
[1]Jabbara v Southern Cross Benefits Ltd [2023] NZHC 632 [judgment under appeal].
Mr Jabbara, who was in New Zealand visiting family members, took out a health insurance policy with Southern Cross on the morning of 17 December 2020. Later that day, he was admitted to Auckland City Hospital requiring urgent treatment for triple artery (coronary) disease. He was subsequently invoiced approximately $116,000 for the treatment he received, of which $105,000 remains outstanding. This is the amount claimed against Southern Cross in the underlying proceedings.
Mr Jabbara says that the costs of his treatment are covered by the insurance policy he took out with Southern Cross. He argues that the exclusion clauses upon which Southern Cross relies in declining his claim are not enforceable against him, as they were not disclosed to him prior to purchasing the policy online.
Southern Cross says that it was entitled to decline Mr Jabbara’s claim under the policy, referring in particular to two exclusion clauses:
(a)First, that Mr Jabbara’s treatment was required because of a pre‑existing medical condition, and thus the costs associated with his treatment are excluded by the policy wording. At the time he took out the policy, Mr Jabbara had a medical history and/or symptoms which indicated he may have a coronary medical condition and, in the months prior to taking out the policy, he had been seeking and receiving medical treatment for that condition.
(b)Second, even if Mr Jabbara’s claim was not excluded by the pre‑existing medical condition exclusion, its liability to Mr Jabbara is limited to $5,000. The policy provides that, if the insured is over 65 years old (as Mr Jabbara is), and an “Unexpected Event” (as defined in the policy) occurs within three weeks of the start date of the policy, Southern Cross’s liability is limited to $5,000. As noted, Mr Jabbara took out the policy on 17 December 2020, and was admitted to Auckland City Hospital later the same day.
Southern Cross says that the exclusion clauses form part of the binding contract between it and Mr Jabbara. It says that that the policy terms and conditions, including the exclusions, were available to Mr Jabbara on its website where he purchased the policy on 17 December 2020. It further says that Mr Jabbara had already purchased two previous “Visiting New Zealand” policies from Southern Cross, and thus he was, or ought to have been, familiar with the terms of the policy.
The progress of Mr Jabbara’s proceedings to date
Given the grounds of Mr Jabbara’s appeal, which include suggested “procedural unfairness” in the District Court, it is necessary to trace the progress of his proceedings in that Court.
Mr Jabbara commenced his proceedings in the District Court in late 2021.[2] Southern Cross was served in April 2022 and, in May 2022, filed its statement of defence.
[2]Records indicate that the first document was filed 11 November 2021, and the statement of claim was filed on 12 January 2022.
A first case management conference was held (by telephone) before Judge D J Clark in early June 2022. Mr Jabbara’s daughter, Ms Khanna, who lives in New Zealand, appeared by telephone on Mr Jabbara’s behalf. No issue was taken with this at the time. Judge Clark made various timetabling orders, including for Mr Jabbara to file an amended statement of claim. Mr Jabbara duly filed an amended statement of claim, and Southern Cross filed an amended statement of defence. Discovery was largely completed in or around August 2022.
On 19 October 2022, a second case management conference was held before Judge Clark. Ms Khanna again appeared on Mr Jabbara’s behalf.
In advance of the conference, the parties filed memoranda. Southern Cross confirmed that it considered the matter ready to be set down for a short trial, stating that the hearing would likely be accommodated within one day. It sought a short trial fixture on the first available date after 1 December 2022.
Mr Jabbara’s memorandum stated that he now intended to file an application for summary judgment, on the basis that the claim raised few factual disputes, and any such disputes could be determined by the Court on affidavit evidence. The memorandum further stated that, if Mr Jabbara was successful on his summary judgment application, the proceedings would be determined expeditiously and, if unsuccessful, “the parties may have gained insights as to the further issues of law or fact that need to be resolved”, and “the process may then lead to further amendment of pleadings and discovery and thereafter a trial may be heard”. Mr Jabbara requested that a half-day fixture be allocated for the hearing of his summary judgment application.
Southern Cross filed a memorandum in response, setting out its position that there were a number of factual matters in dispute and that summary judgment was not appropriate in those circumstances. Southern Cross noted that Mr Jabbara would require the Court’s leave in order to apply for summary judgment in any event, and confirmed that it would oppose any such application. Southern Cross also noted that Mr Jabbara was not represented by counsel, was therefore not incurring legal costs, and was understood to reside in India, and as such, if his claim was unsuccessful, it was not clear that he would be in a position to meet any costs award in Southern Cross’s favour.
Against this backdrop, Judge Clark addressed the question of Mr Jabbara’s representation at the second case management conference. His minute, issued following the conference, records that he told Ms Khanna that the ability of a non‑lawyer to represent another person in court proceedings was “extremely limited”.[3] He recorded that Mr Jabbara would need to apply for leave for Ms Khanna to continue to represent him, and made timetable directions for Mr Jabbara to file the necessary application.
[3]The Judge referred to the District Court Act 2016, which provides in s 107(3) that in “special circumstances” and with the permission of the Court a person (P) who is located outside of New Zealand may be represented “by an agent authorised by a person holding P’s power of attorney to become a party to the proceeding in P’s name”.
As to the suggested application for summary judgment, Judge Clark’s minute noted that, given five months had passed since Mr Jabbara had commenced his proceedings, he would need the Court’s leave before filing any such application.[4] The Judge accordingly made further timetable orders for Mr Jabbara to file an application for leave to apply for summary judgment. A two-hour fixture on 23 February 2023 was subsequently scheduled for both leave applications to be heard.
[4]District Court Rules 2014, r 12.4(2).
On 7 November 2022, Mr Jabbara filed an interlocutory application seeking leave for Ms Khanna to represent him in the proceedings. However, instead of filing an application for leave to apply for summary judgment, Mr Jabbara filed a substantive application for summary judgment. He also filed a second amended statement of claim.[5] We apprehend from his submissions, subsequently filed in this proceeding, that Mr Jabbara was of the view that he did not require leave to apply for summary judgment, because:
(a)at the second case management conference, Judge Clark had already permitted him to proceed by way of summary judgment; and/or
(b)because he had filed a further amended statement of claim, this reset the clock in terms of applying for summary judgment.
[5]This again alleged that the terms and conditions of the policy were not drawn to his attention prior to purchasing the policy. It also stated: “The plaintiff further pleads and relies on relevant provisions of the Insurance Reform Act 1977”.
Southern Cross objected to Mr Jabbara filing the application for summary judgment without leave. On 15 November 2022, Judge Clark issued a minute confirming that the 23 February 2023 hearing would deal only with the leave applications.
Southern Cross did not file a statement of defence to the second amended statement of claim, on the basis that it did not consider the amended claim disclosed a fresh cause of action.[6] However, on 24 November 2022, it filed a notice of opposition to the “interlocutory application by the plaintiff seeking leave to apply for summary judgment”. It also advised that it would abide the Court’s decision on Mr Jabbara’s application for Ms Khanna to represent him in the proceedings, albeit on the condition that Ms Khanna be joined as a party to the proceeding and be jointly liable with him for any costs. As Mr Jabbara/Ms Khanna did not agree to that proposal, Judge Clark subsequently confirmed that Mr Jabbara’s application for leave for Ms Khanna to represent him in the proceedings would need to be heard at the 23 February hearing.
[6]Pursuant to the District Court Rules, r 7.69(6), if an amended claim discloses a fresh cause of action, the defendant “must” file a statement of defence to it. In contrast, and pursuant to r 7.69(7), if the amended claim does not disclose a fresh cause of action, a defendant “may” file a statement of defence.
On 16 December 2022, and in the belief that Southern Cross was required to file a statement of defence to the second amended statement of claim, Mr Jabbara sought judgment by default against Southern Cross. This was declined by Judge Clark on 21 December.
In the interim, on 19 December 2022, Mr Jabbara filed an application in the High Court, pursuant to s 89 of the District Court Act 2016, seeking an order transferring his proceedings from the District Court to the High Court (the transfer application). The transfer application was made on the grounds that “the current procedural trajectory of the proceedings in the Court below is likely to result in an unjust outcome”, and that removal to the High Court would enable the matter to be “determined quickly and cost-effectively”. The transfer application also stated that prompt payment of Auckland City Hospital’s invoice was of substantial public interest.
In a memorandum accompanying the transfer application, Mr Jabbara stated that “[t]he proceeding is currently mired in procedural manipulations and arm-twisting tactical manoeuvres by the Defendant”. It is also clear from the memorandum that Mr Jabbara believed that he had already been permitted to file an application for summary judgment (stating that the 23 February 2023 hearing was later “reduced” to a hearing of the leave applications only), and that Southern Cross was in default of filing a statement of defence to his second amended statement of claim.
Following confirmation from the High Court registry that his application to transfer the proceedings to the High Court would be called in the High Court on 16 February 2023, Mr Jabbara filed a memorandum in the District Court requesting that the 23 February hearing in that Court be vacated. This was granted by Judge A Sinclair on 20 January 2023. In her minute vacating the hearing, the Judge stated:
… the Court notes that the procedural complications to which the plaintiff/Ms Khanna refer, appear largely to arise as a consequence of the way in which this claim has been prosecuted to date. The plaintiff/Ms Khanna are urged to seek legal advice from a lawyer skilled in civil litigation before taking any further steps.
On 26 January 2023, Southern Cross filed a notice of opposition to the transfer application.
In advance of the first call of the transfer application in the High Court, the parties filed memoranda; Ms Khanna again doing so on behalf of Mr Jabbara. The transfer application was called before Lang J on 16 February 2023, and the Judge made timetable orders, leading to a one-hour hearing of the application on 23 March. In his minute issued following the appearance, Lang J noted that Ms Khanna purported to act for Mr Jabbara, and observed that there was no equivalent provision in the Senior Courts Act 2016 to s 107 of the District Court Act.[7] The Judge stated that Mr Jabbara would therefore need to appear in person at the March hearing (or remotely by electronic means), or instruct a lawyer to appear on his behalf.
[7]See above n 3.
On 24 February 2023, Mr Jabbara filed a detailed memorandum requesting Lang J to recall his minute of 16 February, and state a case to the Court of Appeal as to the ability of Ms Khanna to represent him at the hearing of the transfer application. On 7 March 2024, Lang J issued a minute noting that the issue of representation at the 23 March hearing would need to be a matter for the judge presiding at the 23 March hearing, and that he did not propose to take any further action on Mr Jabbara’s memorandum.
On 13 March 2023, Mr Jabbara filed an application for leave to appeal to this Court against Lang J’s 16 February minute. Mr Jabbara also requested that the 23 March hearing be adjourned pending this Court determining Mr Jabbara’s appeal. On 15 March, Lang J issued a further minute, again stating that it would be for the presiding judge to determine the question of representation at the 23 March hearing, and directing the registry to take no further steps in relation to Mr Jabbara’s application. Mr Jabbara subsequently sought leave to appeal to this Court, which was declined, the Court describing the application as “misconceived”.[8]
The hearing of the transfer application and the judgment under appeal
[8]Jabbara v Southern Cross Benefits Ltd [2023] NZCA 401 at [20].
The transfer application came before Jagose J on 23 March 2023. Mr Jabbara appeared by audio-visual link from India. The Judge explained to Mr Jabbara that he had read all of the papers and asked if Mr Jabbara had any further submissions to make. The Judge recorded that Mr Jabbara responded that he could not understand the Judge. Ms Khanna, who was present in the public gallery, is recorded as having advised the Judge that Mr Jabbara had difficulty hearing and “was not very tech savvy”.[9]
[9]Judgment under appeal, above n 1, at [2].
The Judge then addressed representation. Noting that there had been no response by Mr Jabbara to Lang J’s observations about representation (other than to file an application for leave to appeal), the Judge declined to grant leave for Ms Khanna to represent Mr Jabbara at the hearing. The Judge stated that his decision was influenced by his “clear view” that Mr Jabbara’s written submissions would not benefit from any oral expansion.[10] There being no objection by Southern Cross, the Judge advised that he would therefore determine the matter on the papers. Following the hearing, Mr Jabbara filed a further 24 pages of submissions in support of the transfer application.
[10]At [3].
Turning to the substantive application, the Judge approached it as involving the exercise of a discretion, which he stated must be exercised in light of all relevant circumstances “obviously including s 89(2)’s mandatory considerations”.[11] After setting out the background to the proceedings, the Judge then said the following:[12]
[12] Diverging somewhat from his pleaded grounds for removal — in written submissions, supported by 500-plus pages of bound documents (oddly omitting Southern Cross’ defences) and authorities — Mr Jabbara argues by reference to s 107(3) (right to appear in the District Court), and s 7 of the Insurance Law Reform Act 1985 (need for insurable interest restricted) and s 11 of the Insurance Law Reform Act 1977 (certain exclusions forbidden), his case is complex. He argues the insurance disclosure issues require the High Court’s decision in the public interest. He says, as the amount at issue entitles Southern Cross to elect transfer to this Court under s 86, the District Court’s jurisdiction is immaterial. Mr Jabbara contends Southern Cross’ position in the proceeding has delayed, and will continue to delay, hearings in the court below, in which it has “exploited” its financial superiority to his detriment. He resists Southern Cross’ contentions for retention in the District Court, and argues as lacking any defence it has “raise[d] procedural obstacles as a subterfuge to delay and frustrate the claim”.
[13] In my assessment, Mr Jabbara’s claim for contractual damages arising out of an insurance contract is lacking in any significant complexity, as illustrated by his intended application for summary judgment. The statutory provisions to which he refers are obvious in their substance. That leave is required to progress in the manner he prefers does not add to the case’s complexity. The existing combination of legislation and caselaw, including as relied on by Mr Jabbara, illustrates no further precedent is required. His characterisation of the case transparently is an attempt to avoid his now‑undesired forum, as his application for removal outlined.
[14] The amount in issue is relatively modest, presently not being carried by any party to the proceeding, and the presumed imbalance of the parties’ financial resources contraindicates the proceeding’s removal to this Court from its more accessible present forum. The diversion of very significant but misguided effort on Mr Jabbara’s part into the present application illustrates the lack of any interest of justice in removal. Nothing is served by such removal except further delay, greater uncertainty as to representation and an indeterminate period to resolution.
[11]At [11], referring to Fuehrer v Thompson [1981] 1 NZLR 699 (CA) at 702.
[12]Footnotes omitted.
The Judge accordingly declined the transfer application.[13]
The appeal
[13]Judgment under appeal, above n 1, at [15].
Mr Jabbara’s amended notice of appeal dated 11 September 2023 contains eight grounds of appeal:
(a)the Judge erred in failing to recognise the potential precedent value of the case;
(b)the Judge failed to acknowledge the complexity of the case, especially with regard to the interpretation of s 11 of the Insurance Law Reform Act 1977;
(c)the Judge overlooked the procedural unfairness experienced by Mr Jabbara, arising from the procedural inconsistencies in the District Court;
(d)the Judge erred in not considering the likelihood of an appeal from the District Court;
(e)the Judge misapplied or neglected the considerations set out in Kensington Developments Ltd (in rec) v Commissioner of Inland Revenue,[14] which is relevant to removal applications;
(f)the Judge erred in “fully grasping or applying the tenets related to the formation of online contracts”;
(g)the Judge relied too heavily on the financial disparities between the parties; and
(h)the Judge failed to address the broader public interest of the case, and in particular “how large insurance entities interact with individual policyholders and nuances of online contractual agreements”.
Legal principles and approach to the appeal
[14]Kensington Developments Ltd (in rec) v Commissioner of Inland Revenue [2015] NZCA 60.
The appeal centres on Jagose J’s assessment of s 89 of the District Court Act, which provides:
89High Court Judge may order removal of proceeding into High Court
(1)A High Court Judge may, on application by a party to a proceeding, order the removal of the proceeding into the High Court if the Judge is satisfied that it is desirable to do so.
(2)In deciding whether to make an order under subsection (1), the Judge must have regard to the following factors:
(a)the nature of the case:
(b)the complexity of the case:
(c)the general or public importance of the case:
(d)the amount in issue:
(e)the likely length of the hearing:
(f)the financial resources of the parties:
(g)whether it is otherwise in the interests of justice to make the order.
(3)The order may be made on such conditions, including conditions as to costs or giving security for costs, as the Judge thinks fit.
…
Southern Cross submits that the appeal proceeds by way of an appeal against the exercise of a discretion, and thus the appeal can only be allowed if Mr Jabbara satisfies us that the Judge:[15]
(a)made an error of law or principle;
(b)took into account irrelevant considerations;
(c)failed to take into account a relevant consideration; or
(d)was plainly wrong in his decision.
[15]Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32] per Blanchard, Tipping and McGrath JJ.
We are not persuaded that this is the correct approach to the appeal. In Fuehrer v Thompson, this Court examined the predecessor to s 89, s 43(6) of the District Courts Act 1947, which provided that “the High Court … may order the removal into the High Court … of any proceedings commenced in a District Court, if the High Court … thinks it desirable that the proceedings should be heard and determined in the High Court”.[16] As commentary to s 89 of the present District Court Act notes, over time, case law developed on the factors to be taken into account when considering whether removal to the High Court was “desirable” and ought to be ordered, those factors now featuring in s 89(2).[17] Other than setting out the factors to be considered, however, the overall structure of the statutory provision remains the same. In Fuehrer, this Court said the following about the approach to s 43(6):[18]
Thirdly, the structure of subs (6) is such that the discretion to order removal only becomes exercisable when the condition is satisfied, that is to say if the Court “thinks it desirable that the proceedings be heard” in the High Court. While the section is not framed in terms of onus we think that it is for the applicant to establish that desirability. … Once the Court is satisfied of the desirability of removal, the discretion becomes exercisable. …
Essentially then the decision is one of judgment as to desirability and the exercise of discretion as to removal.
[16]Fuehrer v Thompson, above n 11.
[17]Cassandra Kenworthy and others District Court Practice (Civil) (online ed, LexisNexis) at [DCA2016.89.2].
[18]Fuehrer v Thompson, above n 11, at 701–702. See also Potemkin v Protector Safety Ltd CA77/87, 7 December 1987 at 12–13 in which this Court, following Fuehrer, referred to a threshold determination of whether transfer is desirable, and if so, an overall discretion to be exercised as to whether there ought to be a transfer.
On this basis, determination of an application under s 89 involves a “two‑stage” approach, namely:
(a)stage one, which is a threshold determination, pursuant to which the Court must exercise judgment and be satisfied that removal to the High Court is “desirable”; and
(b)stage two, where, if so satisfied, the Court must then make a discretionary assessment of whether removal should in fact be ordered.
On this approach, an appeal against the stage one threshold assessment is a general appeal and the approach described by the Supreme Court in Austin, Nichols & Co Inc v Stitching Lodestar applies.[19] The Court of Appeal may take a different view from the High Court, however, the appellant bears the onus of satisfying the appellate court that it should differ from the decision under appeal. It is only if the appellate court considers that the appealed decision is wrong that the appeal threshold at stage one will be made out. When considering the High Court’s exercise of the stage two discretionary assessment, any appeal is plainly an appeal against the exercise of a discretion, and the more restrictive approach set out at [33] above will apply.
Discussion
[19]Austin, Nichols & Co Inc v Stitching Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [4].
Like in the High Court, Mr Jabbara appeared at the hearing before us by audio‑visual link from India. We confirmed that we had read his written submissions and enquired whether he wished to say anything further in support of his appeal. It did not appear to us that Mr Jabbara fully grasped what he was being asked, and he did not seek to make any further substantive submissions. He did emphasise, however, that his second amended statement of claim was his “primary” document.
Given the manner in which Mr Jabbara’s written submissions in support of the appeal were presented,[20] we have found it helpful to address the appeal by reference to the mandatory factors to be considered pursuant to s 89 of the District Court Act, and then with reference to any further matters arising from Mr Jabbara’s grounds of appeal and written submissions.
Nature of the case
[20]Comprising written submissions on the amended notice of appeal, written submissions regarding the issues on the appeal, and written “Oral Submissions in Support of Appeal”.
As Jagose J noted, Mr Jabbara’s proceedings involve a claim for contractual damages arising out of an insurance contract. There is nothing in the underlying nature of the case which suggests it ought to be heard in the High Court rather than in the District Court.
Complexity of the case
We do not consider the Judge erred in his assessment of the complexity of the case. Indeed, shorn of its procedural difficulties, it seems to be a relatively straightforward claim under an insurance policy. We observe that Mr Jabbara agreed with this sentiment in his written submissions filed in the High Court, stating that the claim was “straightforward”, but due to Southern Cross’s “obstructive conduct”, had become “convoluted, the issues complex and the process long”. We take this to be a reference to what Mr Jabbara considers to be Southern Cross’s obstructive conduct in relation to his representation by Ms Khanna, and the progress of his summary judgment application.
We address these procedural matters later in this judgment. For present purposes, however, we agree with the Judge that the substantive issues arising for determination on the claim do not appear complex. Moreover, like the Judge, it does not appear to us that there are any complex interpretation issues arising from the statutory provisions to which Mr Jabbara refers, and in particular, s 11 of the Insurance Law Reform Act. This Court explained the approach to be taken to s 11 of the Insurance Law Reform Act in New Zealand Insurance Co Ltd v Harris.[21]
The general or public importance of the case
[21]New Zealand Insurance Co Ltd v Harris [1990] 1 NZLR 10 (CA) at 15–16.
We do not consider the Judge erred in addressing this issue. As he noted, given existing case law and statutory provisions,[22] no further precedent would appear to be required, which might otherwise suggest there is some general or public importance in the issues to be determined. Rather, this case is likely to turn on a number of factual issues, for example, whether the policy terms and conditions were available to Mr Jabbara on Southern Cross’s website at the time he purchased the policy. Further, while we agree with Mr Jabbara that there is public interest in health providers being paid promptly for medical treatment provided, this is not itself a reason for the proceedings to be transferred from the District Court to the High Court. Rather, it suggests that the proceedings ought to be determined as efficiently as possible, whether in the District Court or High Court.
The amount in issue
[22]For example, Insurance Law Reform Act 1977, s 11; Firm PI 1 Ltd v Zurich Australian Insurance Ltd [2014] NZSC 147, [2015] 1 NZLR 432; and New Zealand Insurance Co Ltd v Harris, above n 21.
We agree with the Judge that the amount claimed, $105,000, is relatively modest. It is well below the $350,000 limit on the District Court’s civil jurisdiction.[23] Mr Jabbara refers to s 86 of the District Court Act, which provides that, where the amount of a claim exceeds $90,000, a defendant may require that the proceeding be transferred to the High Court. He submits that the principle of equity between parties must be considered, and that, in cases involving claims exceeding $90,000, a plaintiff who seeks removal should not be disadvantaged. What this overlooks, however, is that the District Court’s civil jurisdiction extends up to $350,000, that Mr Jabbara initially chose to proceed in the District Court, and that Southern Cross does not seek the removal of the proceedings to the High Court. We see the amount in issue as supporting the proceedings remaining in the District Court.
The likely length of the hearing
[23]District Court Act, s 74.
While there is no particular information before us as to the likely length of the substantive hearing,[24] we do not see this as being a factor weighing in favour of transfer to the High Court.
The financial resources of the parties
[24]Other than Southern Cross’s suggestion in an early memorandum before the District Court that the matter was suitable for a short trial and could be accommodated within one day.
The Judge considered the financial resources of the parties, and commented that the imbalance in their respective financial positions weighed against the proceeding’s removal to the High Court from its “more accessible” District Court forum.[25] We do not consider the Judge erred in his assessment of this factor. We proceed on the same basis as the Judge, namely that there is a resourcing imbalance weighing in Southern Cross’s favour. That fact does not suggest the proceedings ought to be transferred to the High Court and, indeed, as the Judge noted, such an imbalance would ordinarily weigh in favour of proceedings remaining in the District Court. Nor do we consider, as Mr Jabbara submits, that the Judge placed undue emphasis on this factor. It was plainly only one of a number of matters the Judge took into account in declining the transfer application.
Whether it is otherwise in the interests of justice to make the order
[25]Judgment under appeal, above n 1, at [14].
Mr Jabbara’s concerns as to what he characterises as “procedural unfairness” in the District Court fall to be considered under this factor.
We have closely examined the record of the proceedings in the District Court, and cannot discern any procedural unfairness.
First, we are unable to agree with Mr Jabbara’s submission that there was “unfairness in how the District Court handled the summary judgment application”. He submits that the District Court initially decided to permit the application for summary judgment to be made, but that was later “revoked” by Judge Clark’s minute of 15 November 2022 because the District Court was “influenced by the respondent’s fierce obstruction of the [a]ppellant’s summary judgment application”.
However, it is plain from Judge Clark’s minute of 19 October 2022 that Mr Jabbara required leave in order to file an application for summary judgment. Moreover, the minute recorded the timetabling orders made for Mr Jabbara to file the necessary application. Judge Clark accordingly did not permit Mr Jabbara to proceed by way of summary judgment at the second case management conference, nor “revoked” that decision by his 15 November 2022 minute. There is nothing procedurally unfair in Mr Jabbara being required to seek leave to proceed by way of summary judgment. Doing so simply reflects the application of the District Court Rules 2014, given the delay in Mr Jabbara seeking to proceed in that manner.
We also do not see any procedural unfairness arising from how Mr Jabbara’s representation in the District Court was handled. Perhaps somewhat generously, no issue was taken, by either Southern Cross or the Court, to Ms Khanna appearing for Mr Jabbara at the first case management conference. We do not discern anything unfair or wrong in Southern Cross later raising the issue of representation, or Judge Clark requiring Mr Jabbara to seek the Court’s leave for Ms Khanna to continue to represent him. Again, this reflects nothing more than the application of s 107 of the District Court Act, pursuant to which the Court’s permission is required. Further, but for Mr Jabbara’s intervening transfer application (and his resulting request that the 23 February 2023 hearing in the District Court be adjourned), the question of representation and Mr Jabbara’s ability to proceed by way of summary judgment would have been resolved well before now.
We also agree with the Judge that transfer to the High Court is not likely to be a step that will bring about procedural clarity and speed.[26] The issue of representation, and whether Mr Jabbara ought to be permitted to proceed by way of summary judgment, will need to be determined irrespective of whether the proceeding remains in the District Court or is transferred to the High Court.[27] Further, Mr Jabbara’s first foray into the High Court led to an application for recall, an application for a case to be stated to this Court, and an unsuccessful application to this Court for leave to appeal.[28] This suggests that the procedural difficulties may continue.
[26]At [14].
[27]This Court has since confirmed that s 107 of the District Court Act relates only to representation in the District Court and not to representation in the senior courts: Jabbara v Southern Cross Benefits Ltd, above n 8, at [17]. The scope of s 107’s application was a further issue that Mr Jabbara suggested arose for determination, and added to the complexity of his case.
[28]Jabbara v Southern Cross Benefits Ltd, above n 8.
Mr Jabbara is also concerned that Southern Cross has not filed a statement of defence to his second amended statement of claim and that his resulting application for judgment by default was declined by the District Court. However, a defendant is not obliged to file a statement of defence to an amended statement of claim where the amended claim does not disclose a new cause of action. Southern Cross elected not to file a statement of defence to the second amended statement of claim for this reason.
Mr Jabbara also refers to the likelihood of appeal. We do not see this as a material factor in this case. Any appeal to the High Court would be an appeal as of right. We accept that either Mr Jabbara or Southern Cross might appeal to the High Court, depending on the outcome in the District Court. The existence of that right of appeal is not a factor which suggests the proceeding should be transferred to the High Court. To the contrary, the fact that upon transfer to the High Court, an appeal in relation to a $105,000 claim would have to be made to the Court of Appeal rather than to the (local) High Court registry is a further factor against transfer.
Mr Jabbara also says that the Judge erred in that he did not discuss what is submitted to be a binding precedent, namely this Court’s decision in Kensington Developments Ltd (in rec) v Commissioner of Inland Revenue.[29] However, the principles articulated in that decision are not mandatory relevant considerations when determining an application under s 89 of the District Court Act. Rather, Kensington Developments is an example of the application of a different statutory provision, concerning transfer from the Taxation Review Authority to the High Court, pursuant to s 138N(2) of the Tax Administration Act 1994. The fact that, in Kensington Developments, this Court discussed some matters that also arise for consideration under s 89 of the District Court Act (such as the complexity of the proceeding) does not mean the Judge erred in not referring specifically to that decision.
[29]Kensington Developments Ltd (in rec) v Commissioner of Inland Revenue, above n 14.
Finally, one of Mr Jabbara’s grounds of appeal is that “Jagose J erred in fully grasping or applying the tenets related to the formation of online contracts, notably concerning presentation and acceptance of terms and conditions”. In determining the transfer application, however, the Judge was not required to “fully grasp or apply” the tenets relating to the formation of online contracts. To the extent relevant, those matters will require consideration in determining Mr Jabbara’s substantive claim. In determining the transfer application, the Judge was required to consider those matters set out in s 89 of the District Court Act, and any other factors relevant to that application.
Standing back, we consider that the Judge was right to decline the transfer application. Transfer is not desirable. Further, it seems to us that the procedural delays and complexity that arose in the District Court stem not from any sinister or underhand conduct by Southern Cross in its response to Mr Jabbara’s claim, but rather from the manner in which the claim has been progressed to date on his behalf.
Result
The appeal is dismissed.
The appellant must pay the respondent’s costs for a standard appeal on a band A basis, together with usual disbursements.
Solicitors:
Fee Langstone, Auckland for Respondent
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