Mathias v Earthquake Commission
[2024] NZHC 533
•13 March 2024
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 23/9 8.22 am T R Melzer 22/9 6.25 pm CLFL 23/9 8.22 am K Lalloo 22/9 9.01 pm CLFL 23/9 8.22 am G Jefferson 22/9 9.17 pm CLFL 23/9 8.22 am PS Thomas 05/10 7.27 pm GS 06/10 3.49 pm LE & NL Wade 06/10 9.30 am GS 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 seek to extend a time limit specified by an order.3
[9] I am satisfied it is in the interests of justice that extensions of time be granted in all cases. The extensions are personal to the applicants named above and are not in any way to be construed as a wider extension of time. I now give reasons for that conclusion.
[10] Firstly, the representative action is ongoing. The Earthquake Commission (EQC) does not claim any prejudice from an extension other than the obvious fact that the class will be six members larger than it otherwise was — some 260 having opted-in before the deadline.
[11] There is something of a common theme in the reasons given for the failure to bring an application on time. In respect of Ms Hearn, she received a copy of the opt-in form by email on 21 September 2023 but did not have a printer or scanner to complete it and needed to wait until a relative was home to use their printer and scanner, hence emailing it to the funder just after the cut-off on 22 September 2023.
[12] In respect of Ms Melzer, she completed the on-line registration form under the impression that was the final form. She did not realise there was a second opt-in form to be completed. She did not see the email telling her of the need to do so until after the deadline.
1 Robert Osborne and others McGechan on Procedure (online ed, Thomson Reuters) at [HR1.19.01].
2 At [HR1.19.01], citing Day v Ost (No. 2) [1974] 1 NZLR 714 and Ratnam v Gumarasamy [1965] 1 WLR 8, [1964] 3 All ER 933 (PC).
3 Mathias v EQC [2022] NZHC 3105.
[13] In respect of Mr Jefferson, he too had limited access to the internet and was busy with work commitments.
[14] Ms Wade, similarly, was not aware there would be a second form to be completed.
[15] Ms Lalloo’s reason for not meeting the deadline is that she did not learn of the action until 19 September 2023 and she emailed her form to the funder the evening of 22 September 2023, thinking that would be enough.
[16] EQC suggests these practical issues, internet difficulties or work commitments or the like are not good reason for their failure to opt-in on time. I do not agree. It has to be recalled that the opt-in process is aimed at individual homeowners. Their actions in completing the opt-in process cannot be judged against how a solicitor may have acted in meeting a filing deadline. These actions showed they intended to opt-in before the cut-off but encountered hurdles in doing so.
[17] EQC also queries whether all of the applicants in fact qualify to be members of the class. That is an issue for another day. EQC has filed an application seeking orders declaring that a number of applicants who opted-in do not qualify to be members of the class. EQC has leave to amend that application if it wishes to pursue that argument in respect of any of the six applicants who are now members of the class.
[18] The reason advanced by Ms Thomas following the filing of her application, is thin. She says she learnt about the class action on 22 September 2023 but did not get a copy of the opt-in form until 1 October 2023 and she did not action that until 5 October 2023. Be that as it may, the potential prejudice to Ms Thomas from being excluded, her delay being only two weeks, and the absence of any prejudice to EQC means it is in the interests of justice to grant the extension sought.
[19] EQC, in very detailed submissions, refer to overseas authorities as to how extensions of time are treated in different jurisdictions. The use of representative actions in New Zealand is relatively new. They are not something most people are familiar with and may not necessarily appreciate the significance of the cut-off date to
opt-in. The advantage of considering such applications under r 1.19 of the Rules is that in each case the Court will be brought back to the circumstances of the particular application.
[20] In jurisdictions where class actions are more common and better understood by the public, the need to meet deadlines is likely to be better understood. Again, we are dealing with people who are not legally qualified, having to negotiate forms that are available on the internet and where they may not have ready access to the necessary technology to lodge the opt-in forms.
Order
[21] Accordingly, there is an order under r 1.19 of the Rules that the time for each individual named in the table at [3], to file their opt-in form is extended to the time it was received by the Court.
Costs
[22] The applicant sought costs from the defendant. EQC seeks costs on the application, noting that six of the original 12 applications had already abandoned their application. If counsel cannot agree costs, then Mr Shand is to file his costs submissions (not more than three pages) within five working days and EQC to file its reply submissions, again not more than three pages, within a further five working days.
Associate Judge Lester
Solicitors:
Grant Shand, Auckland for PlaintiffRussell McVeagh, Wellington for Defendant
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