Jabbara v Southern Cross Benefits Limited
[2023] NZCA 401
•28 August 2023 at 9.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA194/2023 [2023] NZCA 401 |
| BETWEEN | STEWAR SINGH JABBARA |
| AND | SOUTHERN CROSS BENEFITS LIMITED |
| Court: | Gilbert and Goddard JJ |
Counsel: | Applicant in person |
Judgment: | 28 August 2023 at 9.30 am |
JUDGMENT OF THE COURT
AThe application for leave to appeal is declined.
BThere is no order as to costs.
____________________________________________________________________
REASONS OF THE COURT
(Given by Goddard J)
Background
This application arises out of a proceeding that Mr Jabbara filed in the District Court against Southern Cross Benefits Ltd (Southern Cross), claiming an indemnity under a travel insurance policy issued by Southern Cross.
Mr Jabbara lives in India. He purchased travel insurance from Southern Cross for a holiday visit to New Zealand. While he was in New Zealand he underwent heart bypass surgery in Auckland. He claimed some $105,000 from Southern Cross by way of indemnity for the costs of that surgery. Southern Cross declined to indemnify Mr Jabbara. Southern Cross says that cover for the surgery is precluded or limited by an exclusion clause and a stand-down limit in the Southern Cross standard policy terms. Mr Jabbara’s position is that these clauses were not disclosed to him prior to purchasing the policy, and do not apply to him.
Ms Khanna is Mr Jabbara’s daughter. She lives in New Zealand. On behalf of her father, for whom she holds a power of attorney, she prepared various documents and participated in case management hearings before the District Court.
It appears that the question of whether Ms Khanna was entitled to appear in court on behalf of Mr Jabbara arose at a case management conference before Judge D J Clark on 19 October 2022. Judge Clark issued a minute dated 19 October 2022 recording (among other matters) that Mr Jabbara/Ms Khanna would need to file an application for leave for Ms Khanna to appear on Mr Jabbara’s behalf.
Any such application would fall to be decided under s 107 of the District Court Act 2016, which provides:
107 Right to appear
(1)A natural person who is a party to a proceeding in the court may—
(a)appear and act for himself or herself; or
(b)be represented by a lawyer.
(2)A corporation may—
(a)appear and act through any officer or attorney of the corporation; or
(b)be represented by a lawyer.
(3)In special circumstances and with the permission of the court, a person (P), whether a natural person or a corporation, may be represented—
(a)by an agent authorised in writing by P, if P is in New Zealand or carries on business in New Zealand; or
(b)if P is not in New Zealand or does not carry on business in New Zealand, by an agent authorised by a person holding P’s power of attorney to become a party to the proceeding in P’s name.
(4)An agent who represents a person under subsection (3) is not entitled to receive any fee or reward for doing so.
Application to transfer proceedings to the High Court
No application was made to the District Court for permission for Ms Khanna to represent Mr Jabbara in the District Court. Rather, for reasons that need not be set out here, Mr Jabbara applied to have his proceeding transferred to the High Court under s 89 of the District Court Act.
That application was listed for mention in the Duty Judge List before Lang J on 16 February 2023. The Judge issued a minute dated 16 February 2023 (the 16 February minute) in which he allocated a fixture for that application on 23 March 2023, and made timetable directions leading up to that hearing.
High Court minutes in relation to representation
In the 16 February minute the Judge went on to address the question of representation of Mr Jabbara:
[5] I record that, although Mr [Jabbara] has filed documents on his own behalf, he resides overseas. On that basis he has asked his daughter and attorney, Ms Khanna, to act as his agent in relation to the present application. Ms Khanna has acted in the past as Mr [Jabbara’s] agent at appearances in the District Court. Section 107 of the District Court Act 2016 permits a party to be represented by an agent at hearings in the District Court in special circumstances and with the permission of the Court. However, there is no corresponding provision in the Senior Courts Act 2016.
[6] Parties to proceedings in this Court may represent themselves or they may instruct a lawyer to act on their behalf. They may not, however, be represented by an agent. It will therefore be necessary for Mr [Jabbara] to attend in person (or remotely by electronic means) when the application is heard. Alternatively, he will need to instruct a lawyer to act on his behalf at the hearing.
A memorandum was filed on behalf of Mr Jabbara seeking an order that the High Court state a case to this Court on the issue of representation. Lang J issued a minute dated 7 March 2023 saying:
[2] In my minute issued on 16 February 2023 I referred at [5] and [6] to the issue of representation. However, it will ultimately be for the Judge who presides on 23 March 2023 to determine that issue based on the situation that presents itself on that date. I therefore propose to take no further action in relation to this matter.
An application was then filed in the High Court on behalf of Mr Jabbara seeking leave to appeal to this Court against the “decision” contained in Justice Lang’s minute of 16 February 2023. Lang J issued a minute dated 15 March 2023 reiterating the observation made in his 7 March 2023 minute:
[2] As I endeavoured to explain in my minute issued on 7 March 2023, it will be for the Judge who presides on 23 March 2023 to determine whether Ms Khanna should be permitted to act as Mr [Jabbara’s] agent or attorney in relation to the present application. I have therefore made no decision on that issue. The Registry should not take any further steps to process the application for leave to appeal.
Application for leave to appeal to this Court
Mr Jabbara has now applied to this Court for leave to appeal against what Mr Jabbara describes as a decision of Lang J on 16 February 2023 to the effect that Mr Jabbara could not be represented in the senior courts by his attorney or agent, because s 107 of the District Court Act does not apply to the senior courts, and there is no corresponding provision in the Senior Courts Act 2016.
Mr Jabbara wishes to argue that s 107(2) to (4) apply in the High Court, and that permission should be granted for Ms Khanna to represent him in connection with the application for transfer.
Southern Cross abides the decision of the Court in respect of this application.
Discussion
Mr Jabbara’s application faces two difficulties.
The first is that Lang J did not make any decision in the 16 February minute. We can see how that minute could have been read as a decision on whether Ms Khanna can appear for Mr Jabbara before the High Court. But as the Judge explained in his minutes dated 7 March 2023 and 15 March 2023, the question of whether Ms Khanna could appear on Mr Jabbara’s behalf in relation to the transfer application was a matter for determination by the judge presiding at the hearing of the transfer application on 23 March 2023. Following the issue of the three minutes, it was very clear that Lang J had not finally determined any issue in relation to the representation of Mr Jabbara. Rather, he had identified the issue but was leaving the final determination of any application for permission for Ms Khanna to represent Mr Jabbara in the High Court to the judge presiding on 23 March 2023.
Thus there was no decision on representation in the 16 February minute, and in the absence of such a decision there can be no appeal.
The second barrier to the proposed appeal by Mr Jabbara is that it is very clear that s 107 of the District Court Act only applies to hearings before the District Court. In particular, when s 107(3) is read in context it is plainly the case that “the court” referred to is the District Court. The argument that s 107(3) applies to hearings before the High Court has no prospect of success.
This Court has previously held that there are limited circumstances in which a superior court may exercise the residual discretion to allow an unqualified advocate to appear before it.[1] Cooke J described this discretion as “a reserve or occasional expedient, for use primarily in emergency situations when counsel is not available or in straightforward matters where the assistance of counsel is not needed by the Court or where it would be unduly technical or burdensome to insist on counsel”.[2] This Court noted that a more liberal approach is provided for by statute in some other courts, including the District Court, but made it clear that this was not the position before the senior courts, and that there were good reasons not to adopt a more liberal approach to representation before the senior courts.[3]
[1]Re G J Mannix Ltd [1984] 1 NZLR 309 (CA) at 314.
[2]At 314.
[3]At 313–314.
We emphasise that the application before this Court relates only to the 16 February minute. The Judge who presided at the hearing on 23 March 2023, Jagose J, recorded that Ms Khanna sought to appear on behalf of Mr Jabbara and that he declined her leave to do so.[4] The decision that Jagose J made about representation at the hearing on 23 March 2023 was the operative decision, not the earlier observation made by Lang J in the 16 February minute. The application before us does not relate to the decision of Jagose J, and for the reasons set out above it is very clear that leave should not be granted to pursue an appeal in relation to anything said by Lang J in the 16 February minute.
[4]Jabbara v Southern Cross Benefits Ltd [2023] NZHC 623 at [3].
Southern Cross was put to some cost in responding to this application, despite not opposing it: their lawyers were required to review the material filed by the applicant, file a r 19A memorandum, and file one further short memorandum. They should not have been put to the trouble and cost of responding to this application, which for the reasons explained above was misconceived. But any costs award would be minimal in these circumstances, and Southern Cross did not seek costs. On balance, we consider that an award of costs is not appropriate.
Result
The application for leave to appeal to this Court is declined.
There is no order as to costs.
Solicitors:
Fee Langstone, Auckland for Respondent
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