Jabbara v Southern Cross Benefits Limited

[2023] NZHC 623

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-11

[2023] NZHC 623

IN THE MATTER OF

s89 of the District Court Act 2016 and an application for transfer of proceeding to the High Court

BETWEEN

STEWAR SINGH JABBARA

Applicant

AND

SOUTHERN CROSS BENEFITS LIMITED

Respondent

Hearing:	23 March 2023
Appearances:	Applicant in person, remotely T L Utama for respondent
Date of judgment:	27 March 2023

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 27 March 2023 at 10.00am.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Solicitors:

Fee Langstone, Auckland

Copy to:

Applicant

JABBARA v SOUTHERN CROSS BENEFITS LIMITED [2023] NZHC 623 [27 March 2023]

[1]Mr Jabbara issued a proceeding in the District Court at Auckland seeking

$105,000 from Southern Cross Benefits Limited (Southern Cross) for breach of contract. Before me, he seeks an order under s 89 of the District Court Act 2016, removing the proceeding to this Court.

Prelude

[2]                  Mr Jabbara appeared remotely at today’s hearing by audio-visual means from India. I explained I had read all the papers filed by the parties, and asked if there was anything he wanted to add or amplify. He said he could not understand me. From the audio transmission, he seemed to have someone present with him. I asked who that was. Without any response from him or the person in his company, his daughter — Jaisleen Khanna, present in the public gallery — advised Mr Jabbara had difficulty hearing and “was not very tech savvy”.

[3]                  Ms Khanna sought to appear on Mr Jabbara’s behalf. Particularly given the lack of any response by Mr Jabbara to (except an application for leave to appeal) this Court’s prior indication “parties to proceedings in this Court may represent themselves or they may instruct a lawyer to act on their behalf”,1 I declined her leave to do so. My decision also was made on my clear view his written submissions would not benefit from any oral expansion. Without opposition from Tiffany Utama for Southern Cross, I decided I would decide the application on the papers. I asked Ms Khanna to communicate that decision to Mr Jabbara. She advised ‘she’ would appeal my decision to the Court of Appeal.

Background

[4]                  Mr Jabbara’s proceeding in the District Court presently is set out in a “second amended” (it appears a first amended) claim dated 7 November 2022. He was visiting New Zealand from 5 February 2020, and entered online into a contract with Southern Cross for health insurance during the period from 17 December 2020 to 10 February 2021.

1      Jabbara v Southern Cross Benefits Ltd HC Auckland CIV-2023-404-11, 16 February 2023 (minute of Lang J) at [6].

[5]                  On 31 December 2020, Mr Jabbara underwent heart bypass surgery at Auckland Hospital, incurring liabilities of $116,432.47 of which $105,000 remains outstanding. He contends Southern Cross refused to indemnify him under the policy in reliance on exclusion clauses in its terms and conditions. He asserts such clauses were not drawn to his attention at the time of entering the contract and therefore were not incorporated into the contract.

[6]                  Mr Jabbara’s proceeding was issued in the District Court in late October 2021. It progressed on that Court’s standard track until October 2022, when Mr Jabbara indicated he would seek summary judgment on grounds Southern Cross had no arguable defence to it. As a late application, leave then to seek summary judgment was required.2 At the same time, he sought leave to be represented by Ms Khanna.3 Judge D J Clark made timetable orders accordingly.

[7]                  The Court’s registry set the “case” down for hearing on 23 February 2023 for which Mr Jabbara paid the requisite fees. On 15 November 2022, Judge Clark issued a further minute responding to “memoranda from the parties” and advising:

For the sake of clarity, the applications to be heard on 23 February 2023 are the applications for leave. The application for summary judgment will only proceed at a later stage if the leave applications are successful.

[8]                  Mr Jabbara’s consequent application for removal to this Court is made on grounds “the current procedural trajectory of the proceedings in the Court below is likely to result in an unjust outcome” and contends for delay and increased costs if retained in the District Court, while removal to this Court for ‘quick and cost-effective determination’ enabling Mr Jabbara’s payment of Auckland Hospital’s invoice is said to be of substantial public interest and in the interests of justice.

[9]                  Southern Cross opposes on the basis the proceeding was ready to be set down for a  substantive hearing in the  District  Court, only taken  out of that course by   Mr Jabbara’s late application for summary judgment, and remains a straightforward dispute raising no issue of public importance such as may warrant the increased formality and expense in this Court.

2      District Court Rules 2014, r 12.4(2).

3      District Court Act 2016, s 107(3).

Removal of proceeding into the High Court

[10]Section 89 relevantly provides:

High 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.

[11]              A decision so to remove is one in which this Court has “the widest discretion” which it “must be free to exercise … as it sees fit in the light of all relevant circumstances”,4 obviously including s 89(2)’s mandatory considerations.

Discussion

[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

4      Fuehrer v Thompson [1981] 1 NZLR 699 (CA) at 702.

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,5 including as relied on by Mr Jabbara,6 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.

Result

[15]Mr Jabbara’s application for removal into this Court is dismissed.

Costs

[16]              In my preliminary view, from what I presently know — as the unsuccessful party in this straightforward proceeding able to be conducted by counsel considered junior in this Court, and in which a normal amount of time is considered reasonable for each step on the application — Mr Jabbara should pay 1B costs and disbursements

5      For example, Insurance Law Reform Act 1977, s 11; Firm PI 1 Ltd v Zurich Australian Insurance Ltd t/a Zurich New Zealand [2014] NZSC 147, [2015] 1 NZLR 432; New Zealand Insurance Company Limited v Harris [1990] 1 NZLR 10 (CA).

6      Young v Tower Insurance Ltd [2016] NZHC 2956. [2018] 2 NZLR 291.

to Southern Cross. If my view is not accepted by the parties, or they cannot otherwise agree, I reserve costs for determination on short memoranda each of no more than five pages — annexing a single-page table setting out any contended allowable steps, time allocation and daily recovery rate — to be filed and served by Southern Cross within ten working days of the date of this judgment, with any response or reply to be filed within five working day intervals after service.

—Jagose J