Mathias v Earthquake Commission - [2024] NZHC 533

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2021-009-2441

[2024] NZHC 533

BETWEEN
CAROL ANN MATHIAS

Plaintiff

AND

THE EARTHQUAKE COMMISSION

Defendant

Hearing: (On the papers)

Counsel:

G D R Shand for Plaintiff

C J Curran and N L Walker for Defendant

Judgment:

13 March 2024

JUDGMENT OF ASSOCIATE JUDGE LESTER

(Application for extension of time to opt-in to representative action)

MATHIAS v THE EARTHQUAKE COMMISSION [2024] NZHC 533 [13 March 2024]

[1] In this proceeding, Ms Mathias sues as a representative of a class on an opt-in basis. The deadline for people who considered they qualified to be a member of the class to opt-in was 5:00 pm on 22 September 2023.

[2] Originally, 12 people applied for an extension of time but that had reduced to six by the time the application was considered by the Court. Therefore, only six now seek an extension of time to opt-in.

[3]The details of the active applications are:

Name Date/Time Who Court Lodged Date/Time

J          Hearn          & F Tunbridge 22/9    5.19 pm CLFL Email 23/9 8.22 am

T R Melzer 22/9    6.25 pm CLFL Email 23/9 8.22 am

K Lalloo 22/9    9.01 pm CLFL Email 23/9 8.22 am

G Jefferson 22/9    9.17 pm CLFL Email 23/9 8.22 am

PS Thomas 05/10 7.27 pm GS Email 06/10 3.49 pm

LE & NL Wade 06/10 9.30 am GS Email 06/10 3.49 pm

[4] In the above schedule, the second column headed “Date/Time” is the date that the applicant sent their opt-in form to either the funder of the representative action or to Mr Shand, counsel. The last column also headed “Date/Time” is when each applicant’s opt-in form was emailed to the Court.

[5] Accordingly, the first four opt-in forms were filed the day after the cut-off for filing and the last two entries were two weeks late.

[6] The applications rely on r 1.19 of the High Court Rules 2016 (the Rules) which provides:

1.19 Extending and shortening time

(1)The court may, in its discretion, extend or shorten the time appointed by these rules, or fixed by any order, for doing any act or taking any proceeding or any step in a proceeding, on such terms (if any) as the court thinks just.

(2)The court may order an extension of time although the application for the extension is not made until after the expiration of the time appointed or fixed.

[7] The McGechan commentary on r 1.19 notes the tension between an unfettered discretion to extend time and the expectation that timeframes in the Rules and in court orders are to be complied with.1 That tension is resolved through balancing a wide variety of factors in order to determine where the overall justice lies. Nonetheless, in order to exercise the discretion, the courts require a proper foundation to grant an extension.2

[8] I am satisfied that r 1.19 of the Rules creates a jurisdiction to grant the extension sought as the applicants…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mathias v Earthquake Commission

Details

AGLC: Mathias v Earthquake Commission [2024] NZHC 533
Case: [2024] NZHC 533
Decision Date: 13 March 2024

CaseChat Overview and Summary

In the case of Mathias v The Earthquake Commission, the plaintiff, Carol Ann Mathias, sought to represent a class of people in a representative action against the defendant, the Earthquake Commission. The dispute centred on the plaintiffs' application for an extension of time to opt-in to the representative action, which had a strict deadline of 5:00 pm on 22 September 2023. Six individuals, whose applications for an extension were still active, sought an extension under rule 1.19 of the High Court Rules 2016. This rule allows the court to extend or shorten time for any act or proceeding, provided it is exercised judiciously and with proper foundation.

The court was required to determine whether the applications for an extension of time were justified under rule 1.19, balancing the discretionary power to extend time with the expectation that timeframes in the Rules and court orders should be adhered to. The court considered various factors, including the ongoing nature of the representative action, the lack of prejudice to the Earthquake Commission, and the individual circumstances of each applicant that led to their late submissions. Each applicant had reasons such as technological limitations, misunderstandings about the opt-in process, or being unaware of the action until shortly before the deadline. The court found these reasons sufficient to warrant an extension of time, recognising the practical difficulties faced by non-legally qualified individuals in navigating the opt-in process.

Associate Judge Lester concluded that it was in the interests of justice to grant the extensions in all six cases. The extensions were personal to the applicants and did not set a precedent for broader extensions. The court issued orders extending the time for each individual named in the applications to file their opt-in forms to the time they were received by the court. Additionally, the court addressed the issue of costs, noting that if the parties could not agree on costs, they would need to file submissions within a specified timeframe.

Orders