Quigley v Fenwicke

[2021] NZHC 2718

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-1573

[2021] NZHC 2718

IN THE MATTER

of an appeal of CIV-2019-004-2298 and CIV-2019-004-2335

BETWEEN

IAN QUIGLEY

Appellant

AND

ROSEMARY FENWICKE

First Respondent

KANTILAL KANJI
Second Respondent

Continued …

Hearing:

On the papers

Appearances:

Appellant in person in both proceedings

A L Holloway and M A Karlsen for the Respondents in CIV-2021-404-1573

D Tuigeregere and L Hawes-Gandar for the Respondents in CIV-2021-404-1574

Judgment:

11 October 2021

JUDGMENT OF GAULT J

This judgment was delivered by me on 11 October 2021 at 4:00 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………………

QUIGLEY v FENWICKE [2021] NZHC 2718 [11 October 2021]

Continued …

CIV-2021-404-1574

UNDER

the District Court Act 2016

IN THE MATTER

of an appeal pursuant to s 124 of the Act

BETWEEN

IAN QUIGLEY

Appellant

AND

SARVESH DATT, NATASHA MITCHELL, JOANN CROWLEY and ROBERT CHEETHAM

Respondents

[1]                 Mr Quigley seeks a waiver of the requirement to pay security for costs in two appeals against the decision of Judge G M Harrison in the Auckland District Court on 5 March 2021.1

[2]                 The respondents oppose waiver. The parties consent to determination of security for costs on the papers.

Background

[3]Mr Quigley suffered a fall in 2011 and a car accident in 2015.

[4]                 He sought compensation from the Accident Compensation Corporation (ACC). In 2017 he was medically assessed by Dr Kanji, who contracted with ACC. ACC then made a decision about the level of Mr Quigley’s compensation. Mr Quigley sought a review of that decision through FairWays Resolution, which was successful.

[5]                 In 2018 Mr Quigley was medically assessed by Dr Fenwicke, who also contracted  with  ACC.  ACC  then  made  another  decision  about  the  level  of   Mr Quigley’s compensation.

[6]                 Mr Quigley brought Court proceedings, initially in the High Court but discontinued those proceedings and brought proceedings in the District Court.

[7]                 Strike out applications in Mr Quigley’s six separate claims were heard together. The District Court Judge struck out all six claims.

[8]                 The first appeal relates to claims against Dr Fenwicke and Dr Kanji (the doctor respondents). The second appeal relates to claims against four defendants who are all employees  of  ACC  (the  ACC  respondents).   The  common  issue  is  whether   Mr Quigley’s claims are barred by the Accident Compensation Act 2001 (the Act).

1      Quigley v Fenwicke [2021] NZDC 3881.

Approach to security for costs on appeal

[9]                 Under r 20.13(2) of the High Court Rules 2016, the Judge must fix security for costs at the case management conference relating to the appeal, unless the Judge considers that in the interests of justice no security is required. As Lang J said in Ngai Te Hapu Inc v Bay of Plenty Regional Council:2

The guiding principle is that an appellant will generally be required to provide security for the respondent’s costs. Security may be waived where it is in the interests of justice for that to occur, but exceptional circumstances will be required. In considering an application for waiver the Court is entitled to have regard to the importance of the issues raised by the appeal and the public interest in determining those issues. Although impecuniosity is not usually sufficient without more to justify a waiver, it may affect the quantum of security ordered.

Security sought

[10]              Applying the formula in r 20.13(3),3 security for a one day category 2 appeal, or two appeals heard together over one day, would be $2,390 unless the Judge otherwise directs. In response to Mr Quigley’s waiver request, the respondents seek

$2,390 for each of the two appeals.

Analysis

[11]I turn to the factors I consider to be relevant.

Impecuniosity

[12]              Mr Quigley has been unable to find a lawyer willing to take on the case and apply for legal aid.

[13]              He has filed a signed but unsworn affidavit of financial hardship indicating that his family’s weekly expenses exceed income (including ACC) by $910. He does not disclose his assets and liabilities. The doctor respondents submit that, taking

2      Ngai Te Hapu Inc v Bay of Plenty Regional Council [2018] NZHC 643 at [5].

3      The amount of security must be fixed in accordance with the following formula, unless the Judge otherwise directs: (a ÷ 2) × b

where—

a    is the daily recovery rate for the proceeding as classified by the Judge under rule 14.4; and b is the number of half days estimated by the Judge as the time required for the hearing.

Mr Quigley’s figures at face value, he appears to lack disposable income and they will be put to  undue  risk  as  to  cost.  The  ACC  respondents  question  the  level  of  Mr Quigley’s expenses and the lack of evidence that he could not raise funds.

[14]              I accept that Mr Quigley’s financial disclosure indicates he lacks disposable income. While he may or may not be able to raise security for costs, as indicated impecuniosity itself is not usually sufficient to justify a waiver. Indeed, it highlights the cost risk to successful respondents.

Merits of the appeals

[15]              It is neither possible nor appropriate to consider the merits of the appeals in any detail. But the respondents submit the appeals are hopeless and this weighs in favour of security.

[16]              The claims against the doctor respondents were struck out on the basis that they were precluded by the Act, injurious falsehood could not be established and/or the Court had no jurisdiction to enforce the Privacy Act 2020. The claims against the ACC respondents were similarly struck out on the basis they were precluded by the Act and there was no prospect of the various claims succeeding – including claims for breach of privacy and having one defendant removed from any medical role and sentenced to prison.

[17]              The respondents submit the appeals are hopeless because Mr Quigley seeks damages and s 317 of the Act bars proceedings for damages arising directly or indirectly out of personal injuries covered by the Act and s 133(5) of the Act prohibits any Court from granting a remedy for a matter covered by the Act other than a remedy provided in the Act.

[18]              Mr Quigley filed a lengthy reply which asserts his human rights and the rule of law. However, this appears to misunderstand the essential nature of the ACC regime, which provides a comprehensive “no fault” accident compensation system for dealing with personal injury and abolished the common law right to sue to recover damages for personal injury. The ACC regime does provide Mr Quigley with rights of review and appeal, which he may have confused with a right to bring civil

proceedings for damages.    I refer to this further below under the next heading “Alternative remedies”.

[19]              The strike out decision under appeal appears to involve the application of well-established principles and does not involve issues of public interest.   Overall,   I consider the likely merits of the appeals weigh in favour of requiring security to be provided.

Alternative remedies

[20]              The ACC respondents submit that although Mr Quigley is barred from bringing civil proceedings, there are alternative remedies available to him under Part 5 of the Act (seeking review of ACC decisions regarding cover or entitlements with a right of appeal to the District Court – without filing fees – and further limited rights of appeal on questions of law).

[21]              The ACC respondents submit that Mr Quigley also sought a review of the 2018 ACC decision, which was unsuccessful, but did not then appeal to the District Court. The scope of that review is unclear, as is whether the ACC respondents would oppose Mr Quigley filing an appeal out of time to the District Court against that review decision instead of pursuing this appeal. Using the review and appeal process may be a better way forward for the parties to consider.

[22]              In the meantime, in the absence of a clear agreed alternative remedy, I consider this is a neutral factor in relation to waiver of security.

Procedural history

[23]              The respondents also submit that the procedural history indicates that the appeals border on vexatious in the following respects. Mr Quigley’s statements of claim against the doctor respondents sought that they be struck off and receive prison sentences. The claim against one of the ACC respondents also sought that she be sentenced to prison. Mr Quigley’s notices of appeal  seek damages  of $1,000,000. He pursues Dr Kanji despite successfully reviewing ACC’s 2017 decision. He pursues Dr Fenwicke despite not exercising his right of appeal against ACC’s 2018 decision.

[24]              The fact that Mr Quigley did not exercise his right of appeal in respect of ACC’s 2018 decision and proceeded directly to the High Court, and then discontinued and proceeded in the District Court, highlights that he does not clearly understand the correct procedures but does not of itself make his court action vexatious. I accept that without the benefit of legal advice, Mr Quigley has struggled with the correct procedures. It was, however, misconceived and inappropriate to seek disciplinary or criminal sanctions in his civil proceedings. Although the notices of appeal estimate his loss at around $1,000,000, Mr Quigley must now understand that even a successful appeal could only overturn the strike out decision so that any tenable civil claim could be considered on its merits in the District Court. Also, the District Court’s civil jurisdiction is limited by statute.

[25]              The procedural history is unfortunate and does not support a waiver of security. Even though costs were not ordered following his earlier discontinuance in this Court, Mr Quigley needs to understand that the general costs principle is that an unsuccessful party must pay costs to the successful party. Consistent with that general principle, costs were ordered in the District Court following the strike out decision under appeal. That general principle applies on appeals to this Court also.

Public interest

[26]              I accept the case is important to Mr Quigley. But, as indicated, it does not involve issues of public interest weighing against security.

Conclusion

[27]              Together or separately, the factors do not persuade me this is an exceptional case where the interests of justice mean that security should not be ordered. I consider it is appropriate to require security to be provided.

Quantum

[28]              As indicated, the respondents seek $2,390 for each of the two appeals.  Where there are multiple respondents, it is appropriate to order that security be paid in respect of each respondent or group of respondents with the same legal representative.

Given the appeals are to be heard together on one day, I do not consider that the amount of security should be $2,390 per appeal. Whether or not expressed as a reduction, I fix the amount of security at $1,195 per appeal. Mr Quigley is to pay the total of $2,390 into Court within 10 working days.

Result

[29]Mr Quigley is to pay security for costs of $1,195 in each appeal (totalling

$2,390) within 10 working days.

Gault J

Parties / Solicitors:

The Appellant

Mr A L Holloway and Ms M A Karlsen, Wotton + Kearney, Auckland Mr D Tuiqereqere and Mr L Hawes-Gandar, Medico Law Ltd, Auckland