Rosenberg v AMP Services (NZ) Limited

[2020] NZHC 631

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-000767

[2020] NZHC 631

BETWEEN

REBECCA ROSENBERG

Applicant

AND

AMP SERVICES (NZ) LIMITED

Respondent

On the Papers
Judgment:	24 March 2020

JUDGMENT OF HINTON J

This judgment was delivered by me on 24 March 2020 at 2:00 pm pursuant to Rule 11.5 of the High Court Rules

…………………………………………………………………… Registrar/Deputy Registrar

Solicitors:
Chapman Tripp, Wellington

Party:
R Rosenberg

ROSENBERG v AMP SERVICES (NZ) LIMITED [2020] NZHC 631 [24 March 2020]

Introduction

[1]                 On 31 July 2018, I dismissed Ms Rosenberg’s application for review of Associate Judge Osborne’s decision of 13 November 2017 striking out her claim.1 Ms Rosenberg now applies for leave to appeal to the Court of Appeal.

Background

[2]                 Ms Rosenberg claims that AMP Services (NZ) Ltd breached a contract of life insurance following the death of her father Allen Rosenberg on 18 April 2006 by not paying out in respect of that policy.2 Allen Rosenberg was the sole policy owner and beneficiary.3

[3]                 AMP’s substantive defence is that the policy ended before Allen Rosenberg died, because of non-payment. AMP has also pursued and obtained strike-out on the bases that Ms Rosenberg has no standing and secondly under the Limitation Act 1950.

[4]                 Ms Rosenberg’s position in respect of the limitations issue has changed twice, without formal repleading. I have previously noted that her “prosecution of this case is so exhaustive and scattered, that it unreasonably adds to the workload of the Court.”4 I (and other judges) have indulged a number of procedural irregularities because she is self-represented.

[5]                 Before the Associate Judge, Ms Rosenberg proceeded on the basis that Allen Rosenberg had died intestate, that she was a beneficiary on his intestacy, and that the life insurance proceeds formed part of his estate. The Judge held that claim to be infelicitously devised. The right to bring proceedings against a stranger to an estate vests in the administrator(s) or executor(s) of an estate, not a beneficiary.5 Ms Rosenberg therefore lacked standing.

1      Rosenberg v AMP Services (NZ) Ltd [2018] NZHC 1929, [2018] NZAR 1459.

2      The life insurance policy in question was in fact held with AXA’s New Zealand operation. In 2011, AMP took over AXA’s New Zealand operations. For convenience and clarity, I refer to the respondent as AMP throughout.

3      In her most recent submissions, Ms Rosenberg has claimed that her mother was also a policy owner. That submission is inconsistent with the express terms of the document, and I put it to one side.

4 Above n 1 at [26].

5      Rosenberg v AMP Services (NZ) Ltd [2017] NZHC 2232 at [32] and [34]. [37]-[38] and [41]-[42].

[6]                 Before me, Ms Rosenberg instead based her position regarding standing on a will, uncovered in February 2018, by which Allen Rosenberg had appointed Ms Rosenberg’s mother as executrix and devised to her mother his whole estate.6 Also, on 24 January 2017, so before the will was found, Ms Rosenberg’s mother had purported to assign to Ms Rosenberg her “share” of the life insurance proceeds.7

[7]                 I held that Ms Rosenberg had no standing to bring the claim, her revised position notwithstanding. I also found the claim was time-barred since April 2012 as any cause of action had accrued with Allen Rosenberg’s death on 18 April 2006. I dismissed a number of arguments regarding postponement or extension of the limitation period.

The Present Application

[8]                 As recorded in my Minute of 13 May 2019, at the prolonged telephone hearing of Ms Rosenberg’s application for leave to appeal on 8 May 2019, she identified thirteen potential grounds of appeal.8

[9]                 On the standing point, Ms Rosenberg’s strongest possible case on appeal would see her rely on the document dated 24 January 2017 by which Ms Rosenberg’s mother gave Ms Rosenberg her “share” of Allen Rosenberg’s “insurance policy and any related benefits.” Ms Rosenberg says this document was effective to assign to her both any proceeds under the policy and the right to sue under the contract.

[10]              As to the limitation issue, at the hearing I identified two arguments that had not previously clearly emerged relating to equitable fraud and reasonable discoverability, which I endeavoured to set out in some detail in my Minute of May 2019. The factual basis for these clams is that Ms Rosenberg’s mother had been required to ask AMP for a copy of the policy, Allen Rosenberg not having retained one at his death, and AMP did not provide a copy of the policy until January 2019.

6      Probate was granted to Ms Rosenberg’s mother on 12 April 2018.

7 Above n 1 at [13].

8      Rosenberg v AMP Services (NZ) Ltd (Minute of Hinton J) HC Auckland CIV-2016-404-767, 13 May 2019 at [1].

[11]              As noted, Ms Rosenberg’s application for leave raises at least eleven other potential points of appeal, though her application’s prolix and discursive nature means these are not wholly clear. Nonetheless, it is clear that, save for one, they each revisit matters already determined. The single apparently novel point relates to whether sufficient information was before the Court to allow strike-out to proceed. I address this point below, together with the equitable fraud and reasonable foreseeability points. I also address the thrust of the balance of Ms Rosenberg’s application for leave.

Applicable Principles

[12]              Section 26P(1AA) of the Judicature Act 1908 applies.9 The application for leave is governed by the same criteria that governed an application for leave to bring a second appeal under s 67 of that Act.10 The ultimate question is whether justice requires a further appeal, which requires at a minimum that the proposed appeal:11

(a)raises a question of law or fact that is capable of bona fide and serious argument; and

(b)involves some public or private interest of sufficient importance to justify the cost and delay in a further appeal.

[13]              As these criteria reflect, not every alleged error is so important to warrant a third examination of a matter by a Court.12 In particular, appeals that cannot provide any realistic hope of benefit to the intending appellant should not be entertained.13

Analysis

The proposed grounds of appeal

[14]              The six-year time bar under s 4(1)(a) of the Limitation Act 1950 applies. The cause of action in respect of this life insurance policy accrued when the life insured

9      Senior Courts Act 2016, sch 5 pt 2 cl 11.

10     Mackenzie v Attorney-General [2016] NZCA 24 at [13].

11     Waller v Hider [1998] 1 NZLR 412 (CA) at 413.

12     At 413.

13     At 413.

died, subject to contrary express contractual language. As set out in my judgment, this is well-established, and an appeal on this point is not available.14

[15]              Ms Rosenberg plainly disagrees with my conclusion that there is no express contractual language postponing the accrual of the cause of action in this case. Nonetheless, she has not identified any question of law relating to the construction of the policy that warrants a further appeal on this basis. Even if, as she asserts, cl B of the policy did postpone the accrual of the cause of action until a claim was made,15 a claim was made, and declined, in 2006. The proceeding would remain time-barred.

[16]              Similarly, even if the position is in any way varied by the fact Ms Rosenberg also claims in respect of her father’s superannuation entitlements, the available evidence indicates those entitlements were fully paid out in 2002. Time having run from that point, the proceeding is still hopelessly time-barred.16

[17]              I also reiterate my view that the doctrines of equitable fraud (in the context of s 28 of the Limitation Act 1950) and reasonable discoverability do not assist Ms Rosenberg. The short point, made by Mr Knight for AMP in response to the matters set out in my May 2019 Minute, is that concealing from a party the essential elements of their claim is different from not providing them with material that may have been useful in appraising the strength of that claim. Equitable fraud is concerned only with the former, not the latter. As he submits, the material matters Ms Rosenberg and her mother needed to know to make a claim – the existence of the insurance policy and the life insured’s demise – were known to them in 2006. The doctrine, and s 28, cannot assist Ms Rosenberg.17 Similarly, even though I accept there may be some wider

14 Above n 1, at [55]-[59], referring to Arnold v American International Assurance Company (Bermuda) Ltd t/a AIG Life HC Auckland CIV-2008-404-6987, 4 June 2009 at [24]; Scott v Sovereign Assurance Company Ltd [2011] NZCA 214 at [27] and [35].

15 As to which, see Robert M Merkin and others Colinveaux’s Law of Insurance in New Zealand

(Thomson Reuters, Wellington, 2014) at [7.4.2(3)]; and Arnold at [31].

16 See Limitation Act 1950, s 4(3).

17 Inca Ltd v Autoscript (NZ) Ltd [1979] 2 NZLR 700 (SC) at 710. I note, for completeness, that this Court’s decision in Brinsdon v Beazley [2019] NZHC 808, on which Ms Rosenberg placed reliance in her most recent submissions, does not assist her. In that case, knowledge of the terms of the insurance policy was critical to knowing the essential elements of the claim as the plaintiff’s cause of action was founded on an insurance broker’s allegedly deficient advice as to the terms of the plaintiff’s policy and the coverage available thereunder. That is not the case here.

interest in whether the application of reasonable discoverability can be expanded,18 this is not an appropriate case to explore that issue on appeal as it is indisputable that the cause of action was in fact discovered in 2006.

[18]              Accordingly, the claim is inarguably time-barred. It follows that, whatever the consequences of the new factual basis of Ms Rosenberg’s claim in terms of her standing, any appeal of my findings on that issue could not benefit her.19

[19]              Ms Rosenberg’s new point, as noted above, is that the Court was not yet in possession of all of the material necessary for it to have, before exercising its strike- out jurisdiction. In particular, she says that she has not yet received certain conceivably relevant information from AMP contained in Allen Rosenberg’s insurance file. This point is misconceived. Strike-outs assess the pleaded case on the basis that pleaded facts can be established.20 For this reason, it was not an error to strike out the claim before that file was received. This is not a point capable of serious argument on appeal.

[20]              The other matters canvassed in Ms Rosenberg’s application do little more than revisit points already determined in my judgment. For the reasons I gave there, none of these points disclose a question capable of serious argument on appeal.

Further considerations relevant to determining the requirements of justice

[21]              As noted, the ultimate question as to leave is whether the interests of justice require leave be granted despite the cost of a further appeal. It follows any indicia as to how expensive and inconvenient a further appeal would be are relevant considerations. Three points in particular suggest a further appeal here would be costlier and more inconvenient than in most cases involving lay-litigants.

18 The principle is currently limited to certain categories of cases such as latent damage to buildings, sexual abuse, and bodily injury – there is no general doctrine of reasonable discoverability: Trustees Executors Ltd v Murray [2007] NZSC 27, [2007] 3 NZLR 721 at [38] per Tipping J.

19 I note in the interests of completeness that Ms Rosenberg’s reference to Nawisielski v Nawisielski [2014] NZHC 2039, [2014] NZFLR 973 is misconceived. The sort of circumstances in which the Judge in that case envisaged a derivative claim being brought by a statutory claimant are plainly not present here.

20   Attorney-General v McVeagh [1995] 1 NZLR 558 (CA) at 566; and Southern Ocean Trawlers Ltd v Director-General of Agriculture and Fisheries [1993] 2 NZLR 53 (CA) at 62-63. See also Couch v Attorney-General [2008] NZSC 24, [2008] 3 NZLR 725 at [33] per Elias CJ and Anderson J.

[22]              First, Ms Rosenberg disobeyed directions given by Downs J on 8 February 2018 and Lang J on 24 May 2018 by continuing to act for herself in this matter and appearing exclusively by telephone from abroad, rather than obtaining legal representation or presenting herself in person as directed. As I noted in my Minute of 13 May 2019, the telephone hearing of this application illustrated vividly why those directions were made. The inefficiencies that resulted from Ms Rosenberg’s manner of proceeding are documented in my judgment.21

[23]              Secondly, Ms Rosenberg has continuously filed voluminous and unfocused submissions and applications. On this application alone, Ms Rosenberg has filed three sets of submissions, totalling 37 pages, ‘supported’ by over a hundred other documents. These documents cumulatively run to several hundred pages in length. The small portion actually relevant to the proceeding (I would generously estimate one fifth) are largely repetitive of materials already filed. Her submissions are discursive in nature, and seldom clearly state her key points. Assisting Ms Rosenberg in marshalling her arguments has required considerable curial time and energy.

[24]              Thirdly, Ms Rosenberg has become querulous. From November 2018 onwards, she has heaped blame for her deteriorating health on the stress of dealing with AMP. She purports to upbraid counsel for AMP in respect of counsel’s alleged failures to provide her with information or refer her to authorities or statutes. Little of this material is relevant, and anyway, AMP was and is under no obligation to disclose. The claims of sharp dealing on counsel’s part to which she resorts are baseless.

Result

[25]              For all of the above reasons, I do not consider that justice requires that Ms Rosenberg be allowed a further appeal. The application for leave is dismissed.

21     Above n 1 at [18]-[29].

Costs

[26]              As to costs, while conscious that lay litigants like Ms Rosenberg are customarily afforded a measure of indulgence,22 her manner of proceeding has caused AMP even greater expense than that ordinarily associated with defending against a lay litigant. The point has come where that requires recognition. Accordingly, I order Ms Rosenberg to pay AMP’s costs on this application on a 2B basis and disbursements.

Hinton J

22     Belling v Belling (1996) 9 PRNZ 296 (HC), endorsing Aplin v Lagan (1993) 10 FRNZ 562 (HC) at 576.