Quigley v Gaundar

[2020] NZHC 1027

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-1817

[2020] NZHC 1027

UNDER THE

Accident Compensation Act 2011

BETWEEN

IAN QUIGLEY

Plaintiff

AND

ANEETA GAUNDAR

First Defendant

JOANN CROWLEY
Second Defendant

SARVESH DATT
Third Defendant

Cont…/2

Hearing:	On the papers
Judgment:	18 May 2020

JUDGMENT OF ASSOCIATE JUDGE SMITH

This judgment was delivered by me on 18 May 2020 at 2pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:

Medico Law Ltd, Auckland Wotton Kearney, Wellington DLA Piper, Wellington

Copy to:
I Quigley

Quigley v Gaundar & Ors [2020] NZHC 1027 [18 May 2020]

NATASHA MITCHELL

Fourth Defendant

ROBERT CHEETHAM
Fifth Defendant

DR KANTILAL KANJI
Sixth Defendant

BEN CHEESEMAN
Seventh Defendant

DR ROSY FENWICKE

Eighth Defendant

[1]                 Mr Quigley commenced this proceeding in August 2018, without the benefit of legal assistance. He named a total of eight defendants, seven of whom were said to be employees of the Accident Compensation Corporation. The seventh defendant is a medical practitioner.

[2]                 In his claim, Mr Quigley said that he had a fall in 2011 and a crash in 2015. He said that he had spent three-and-a-half years struggling with his injuries, and alleged that ACC pushed him to admit that he was faking the injuries. He pleaded that he had lost his career, work opportunities, and various other assets, and that his treatment by ACC had “destroyed his life”. He attached a schedule to his claim, setting out alleged losses of approximately $900,000, with further claims to be advised.

[3]                 Mr Quigley’s statement of claim did not comply with the High Court Rules 2016 in various respects, and that was pointed out to him at case management conferences convened on 28 November 2018 and 14 May 2019. He filed an amended statement of claim on 20 June 2019, but the six defendants who had been served with the claim contended that the amended claim still did not comply with the Rules.

[4]                 On 19 July 2019 Associate Judge Andrew gave the plaintiff an opportunity to file and serve a further amended  statement of claim,  addressing the requirements of r 5.26 of the High Court Rules, by 31 August 2019. His Honour directed that if, following the filing of the further amended statement of claim, the defendants wished to pursue applications to strike out the proceeding, submissions in support of the strike-out applications were to be filed by 16 September 2019.

The Discontinuance

[5]                 Mr Quigley did not file a further amended statement of claim. Instead, he sent an email to the Registrar on 15 August 2019 advising that, because he could not afford the costs of the litigation in this Court, he would take the case back to the District Court, and “the defendants will be dealt with in separate cases”.

[6]                 By reply email the Registrar asked Mr Quigley to confirm that he wished to withdraw from the proceeding. If that was his intention, he was advised to file a signed notice of discontinuance in accordance with r 15.19 of the High Court Rules.

[7]                 Mr Quigley did not then file a formal notice of discontinuance. He simply replied to the Registrar advising:

Yes, I confirm to discontinue as to the cost involved so that this case has been picked up in the District Court. Thank you.

[8]                 The Registrar copied that advice to counsel involved for the active parties (all defendants apart from the first and seventh defendants), and asked them to inform the Court as to whether there would be any issues as to costs.

[9]                 Counsel for the sixth and eighth defendants asked the Registrar to clarify Mr Quigley’s comment about the matter being “picked up in the District Court”. On 16 August 2019 the Registrar replied saying that he could not comment on Mr Quigley’s intentions in the District Court, and that counsel should discuss that with Mr Quigley. On 22 August 2019, counsel for the sixth and eighth defendants confirmed that there would be no issue as to costs.

[10]              Also on 22 August 2019, counsel for the second, third, fourth and fifth defendants filed a memorandum advising that if Mr Quigley did discontinue the proceeding as indicated, his client would not seek costs against him.

[11]              By April 2020 Mr Quigley had still not filed a formal notice of discontinuance in this Court. He eventually did so on 28 April 2020.

Defendants’ claims for costs

[12]              Having regard to that delay, the Registrar thought it appropriate to ask counsel for the second, third, fourth, fifth, sixth and eighth defendants to reconfirm their positions on costs. Those parties have now filed memoranda purporting to change their positions on costs.

[13]              Counsel for the second, third, fourth and fifth defendants submitted that in August 2019 his clients elected not to pursue costs, in anticipation that the claims against them would come to an end following Mr Quigley’s advice to the Registry that he intended to discontinue. Contrary to that expectation, Mr Quigley subsequently filed largely the same claim in separate proceedings in the District Court. The second, third, fourth and fifth defendants are now defending the claims against them in the District Court, and they have filed strike-out applications in that Court. Counsel submitted that, as the discontinuance was only filed in order to pursue the same claim in the District Court, costs should now be paid by Mr Quigley.

[14]              Counsel for the sixth and eighth defendants made a similar submission in a memorandum dated 1 May 2020. Counsel said that the August 2019 decision not to seek costs took into account that Mr Quigley was a litigant in person, and that he had made a sensible decision to discontinue. Counsel submitted that in light of the significant delay and the claims in the District Court proceedings, the sixth and eighth defendants were entitled to change their position. One set of costs was sought covering those defendants.

[15]              Mr Quigley filed a memorandum on 1 May 2020, opposing any costs orders. He said that when there was no follow-up by the Court after 15 August 2019 when he confirmed his intention to discontinue, he considered that he had done everything that needed to be done. Mr Quigley also referred to his medical difficulties, saying that he always made it clear that he needed extra explanations and reminders due to memory issues. He asked the Court to decline to make any costs orders.

Discussion and conclusions

[16]              I do not think this is a case for an award of costs against Mr Quigley. Counsel for the active defendants were clearly advised in Mr Quigley’s 15 August 2019 email that the discontinuance in this Court was filed because of costs issues, and that the case was “being picked up in the District Court”. Counsel for the sixth and eighth defendants expressly enquired about Mr Quigley’s intentions in the District Court, and counsel was invited by the Registrar to discuss that with Mr Quigley. Counsel then advised on 22 August 2019 that no costs would be sought. Similar considerations apply in respect of the second, third, fourth and fifth defendants: they advised on 22 August 2019 that if Mr Quigley did discontinue the proceeding “as indicated”, they would not seek costs against him.

[17]              The active defendants have not been required to take any further steps in this Court since August 2019, and it appears that all that has happened since then is that Mr Quigley has done what he has said he would do in his letter to the Registrar dated 15 August 2019, that was copied to counsel. He has filed proceedings against the active defendants in the District Court.

[18]              Normally a plaintiff discontinuing a proceeding would be liable for the defendants’ costs, but in this case the relevant defendants have advised the Court that they would not seek costs. The issue is whether they should be permitted to resile from that position.

[19]              I do not think they should. First, I think the active defendants were sufficiently on notice that Mr Quigley would be filing claims against them in the District Court. Secondly, Mr Quigley has spent further time and effort commencing the fresh proceedings in the District Court, presumably in the belief that he had no outstanding

costs liabilities in this Court. Thirdly, I take into account that Mr Quigley is a litigant in person, who very probably believed that he was entitled to rely on statements made to the Court on the question of costs by counsel for the active defendants, without needing to attend to the formality of filing a notice of discontinuance that strictly complied with the Rules.

[20]              Weighing those considerations, I am not satisfied that the justice of the case calls for any award of costs. The active defendants’ costs applications are accordingly refused.

[21]              Mr Quigley should not assume from this decision that he will be somehow immune from costs awards in the District Court if he is unsuccessful with the fresh proceedings filed in that Court. The only reason costs have not been awarded against him in this Court on the discontinuance, is that the active defendants said that they would not seek costs.

Associate Judge Smith