Tillemans v Tillemans

[2020] NZHC 1907

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2018-409-258

[2020] NZHC 1907

BETWEEN

STEPHEN COGLE AND ALEXIS COGLE

Plaintiffs

AND

IAG NEW ZEALAND LIMITED

Defendant

Hearing:

30 July 2020

(By telephone conference)

Counsel:

A M S Williams assisting the Plaintiffs

R W Raymond QC and V Ma for Defendant

Judgment:

31 July 2020

JUDGMENT OF ASSOCIATE JUDGE LESTER

(in respect of application for adjournment of hearing)

This judgment was delivered by me on31 July 2020 at 3.00pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar 31 July 2020

COGLE v IAG NEW ZEALAND LIMITED [2020] NZHC 1907 [31 July 2020]

[1]        On 21 November 2019, a direction was made that the positive defence in this proceeding be determined before Mr and Mrs Cogle’s claim.1

[2]        On 30 May 2020, the Court advised the parties that the 10 days of hearing time required   to   determine    the    positive    defence,    was    available    commencing 7 September 2020. Mr and Mrs Cogle opposed that date being allocated. That issue was the subject of a telephone conference on 17 June 2020. Following adjustments to the timetable  for  the  exchange  of  evidence,  which  shortened  the  time  IAG New Zealand Limited (IAG) had for its evidence, the fixture date was confirmed. IAG’s evidence was due on 29 June 2020 and it says all of its evidence was filed on or before that date. Mr and Mrs Cogle say one brief was not served until 3 July 2020.

[3]        The issues Mr and Mrs Cogle have to reply to in the positive defence have been well signalled by IAG from early on. IAG say it was entitled to declare invalid Mr and Mrs Cogle’s insurance policy under which they claimed for earthquake damage to their property because of fraud  or  dishonesty  by  Mr  and  Mrs Cogle.  Mr  and  Mrs Cogle’s solicitor in their memorandum filed in opposition to the setting down, anticipated IAG would be calling eight to 10 witnesses, including one expert. Such was recorded in the 21 November 2019 judgment as was the 10 day hearing time estimate. As it happens, IAG filed nine briefs, including one expert.

On 14 July 2020, a notice of change of address for service dated 10 July 2020 was filed by Mr and Mrs Cogle which  showed  they  were  self-represented.  Mr  and Mrs Cogle’s previous solicitors have advised the Court that on 30 June 2020 they advised Mr and Mrs Cogle they could no longer accept instructions “… unless the firms engagement terms were met to pay outstanding fee accounts” and arrangements were made for future fees, in particular, the September hearing.

1      Cogle v IAG New Zealand Limited [2019] NZHC 3049.

[4]        The notice by which Mr and Mrs Cogle advised they were acting for themselves, referred to them seeking legal aid which prompted Mr Raymond QC, counsel for IAG, on 21 July 2020, to seek a telephone conference to confirm that arrangements for the September 2020 fixture were on track. That request in turn prompted a formal application for an adjournment by Mr and Mrs Cogle. That application has been filed by Mr Williams who is acting for Mr and Mrs Cogle in respect of the adjournment. Mr Williams advises he would accept instructions for an adjourned hearing if legal aid was granted.   However,  he is not available for the     7 September 2020 hearing date. I am grateful to Mr Williams providing assistance to Mr and Mrs Cogle and the Court at short notice.

[5]        A telephone conference was held on 30 July 2020 to address the adjournment application.

[6]        While IAG opposed the application, it did not file a notice of opposition. IAG’s position is that it will abide the Court’s decision in respect of the adjournment. That said, the memorandum filed by counsel for IAG effectively opposes the application and is critical of the quality of the information filed in support of the adjournment application, albeit by the time of the telephone conference some of its concerns had been addressed.

[7]        No responsibility of any delay in the hearing of the positive defence rests with IAG. It agreed to shorten the time for providing its evidence to make the September hearing date work and it met that time frame. It wants the hearing to proceed.

Legal principles

[8]        The application for an adjournment is made pursuant to r 10.2 of the High Court Rules 2016 which provides:

10.2     Adjournment of Trial

The court may, before or at the trial, if it is in the interests of justice, postpone or adjourn the trial for any time, to any place, and upon any terms it thinks just.

[9]        The commentary in McGechan on Procedure makes it clear that, in considering the interests of justice, the court must consider not only the interests of the immediate parties, but also the interested parties in cases “waiting in the queue” for a hearing.2 An allocation of 10 days hearing time is a significant commitment of court resources.

[10]      The adjournment is sought on the basis that Mr and Mrs Cogle are unrepresented. They say they wish to be represented by counsel but cannot fund representation and so must apply for legal aid.

[11]      The affidavit filed in support of the application for adjournment puts some of the blame for Mr and Mrs Cogle’s situation on their previous solicitors. The affidavit alleges that Mr and Mrs Cogle had put in place arrangements to fund the hearing, through a mixture of making monthly payments, the provision of security, and assistance from family members. Mr and Mrs Cogle refer to an email from Cavell Leitch (Mr and Mrs Cogle’s previous solicitors), sent 15 January 2020 which referred to likely legal costs being in the region of $70,000 - $80,000 plus GST and disbursements. It is clear from the email that this was an estimate and the possibility of the fees being higher was raised. However, at that time, Cavell Leitch was aware of the 10 day estimate for the positive defence hearing and that IAG would be calling approximately 10 witnesses.

[12]      Mrs Cogle, in her affidavit, refers to IAG providing its briefs at the end of June 2020 and she says:

Upon receipt of those briefs Cavell Leitch reviewed the estimate of costs they had previously given us. The estimate was twice the initial estimate.

[13]      Mr and Mrs Cogle say arrangements could not be made with Cavell Leitch for them to continue to accept instructions.

[14]      On 14 July 2020, a copy of a letter signed by Mr and Mrs Cogle was provided to the High Court Registry in which an adjournment was sought. In that letter, they

2      Andrew Beck (ed) McGechan on Procedure (online looseleaf ed, Thomson Reuters) at [HR10.2.02(1)].

refer to the 15 January 2020 email with the fee estimate of Cavell Leitch and they then say:

Although we  advised  Cavell  Leitch  of  the  changes  to  our  finances  on  5 May 2020 due to our current funder issues and proposed an alternative funding arrangement to take collateral against our property; it wasn’t until  30 June 2020 that Cavell Leitch rejected our alternative proposal.

We were not aware Cavell Leitch had rejected our offer of security over our property until 30th of June 2020 when we received a letter and further estimate of $156,000.00 to take our case to trial in September. This amount was double the original figure, which we could have covered, and we had to agree to this increased amount within 3 days and source funding in the timeframe.

[15]      It being clear to me that this letter had not been provided to either IAG or Cavell Leitch, I requested that Cavell Leitch provide a response to this letter. I did so, as a significant plank of Mr and Mrs Cogle’s argument for an adjournment is in plain terms that they have been left in the lurch by their solicitor doubling the fee estimate and rejecting the taking of security in respect of fees.

The solicitor’s response

[16]      A memorandum responding to Mr and Mrs Cogle’s letter of 14 July 2020 was filed by their former solicitors, Cavell Leitch. In substance, it did not dispute what Mr and Mrs Cogle said. It is unfortunate that counsel attending the telephone conference at which the September hearing date was confirmed did not draw to the Court’s and IAG’s attention that Mr and Mrs Cogle  had  on  5 May 2020  advised the firm that Mr and Mrs Cogle could no longer fund the litigation. Instead, Cavell Leitch approached the conference on the basis that the proposed hearing date did not allow sufficient time for preparation. Had the funding difficulties which placed the continued involvement of the firm in clear doubt been brought to the Court’s attention, such would have been a material consideration in whether to allocate a hearing date which required immediate action from all counsel involved.

Further ground of adjournment

[17]      As noted, Mr and Mrs Cogle wish to be represented by counsel. They say they are unable to represent themselves due to medical conditions. The evidence in support

of their claimed inability to represent themselves is in the case of Mrs Cogle, missing, and in the case of Mr Cogle, sparse.

[18]      There is no medical evidence provided that Mrs Cogle lacks the ability to represent herself.  There is an  unsigned  letter  from someone who is described  as   a community support worker who says she has worked alongside the Cogle family, but the letter is expressed in general terms and reports what others in the organisation, or other community workers, have had to say. As I have said, this letter is unsigned.

[19]      The medical evidence provided in respect of Mr Cogle is dated.   There is     a report from a Specialist Occupational Physician dated 21 November 2018 which does state:

…the assessment today suggests Mr Cogle is not currently fit to pursue his usual work activity as a construction project management.

…

There is however considerable scope for a successful return to medical work fitness in this role with a relatively modest improvement in his overall symptoms given that he has been able to maintain a robust level of work function over a number of years despite the presence of significant psychosocial stressors.

[20]      Attached to Mrs Cogle’s affidavit is a document which is advanced as being an update as to Mr Cogle’s medical condition. It is called a “Progress Certificate of Medical Attendant” in respect of  an income protection insurance claim  made by  Mr Cogle. It is written in informal terms. In respect to the question:

If  your patient is not able to attend work due to the claimed condition, is     a return to work expected? If, no please state reason why. If yes when would this be and in what capacity i.e. partial / full time / restricted duties?

Yes. Possibly after a couple of years.

[21]      This very vague indication of how long Mr Cogle’s condition may last, is difficult to reconcile with the earlier specialist report, albeit I recognise the specialist report is now nearly two years old. However, these issues only highlight the inadequacy of the medical evidence.

[22]      None of this is a criticism of Mr Williams. As I have said, he has stepped into the breach at short notice.

[23]      The issue, however, is  not whether Mr  and Mrs Cogle  have put together     a perfect application for an adjournment. The factors in favour of the adjournment are that the fixture was set at relatively short notice with relatively short time frames with no indication that counsel then acting for Mr and Mrs Cogle had already essentially “downed tools”. The reality is that with Mr and Mrs Cogle’s counsel now not willing to act, the short time frame presents practical difficulties to new counsel getting up to speed before trial.

[24]      The proceeding is of considerable significant to Mr and Mrs Cogle. If the positive defence succeeds, Mr and Mrs Cogle will be left uninsured in respect of    the earthquake damage to their home. This is not an application to adjourn an interlocutory application left to the last minute as, for example, in ANZ Banking Group (NZ) Ltd v Couchman, but an application to adjourn a significant and lengthy hearing.3

[25]      On 25 October 2019, Mr and Mrs Cogle applied to have their proceeding transferred to the Canterbury Earthquakes Tribunal (the Tribunal). That application was dismissed in part because the application was accepted as being a response to IAG’s application to have the defence determined first. In the course of the application, Mr Raymond submitted that Mr and Mrs Cogle would benefit from having the rigor of the rules of evidence applied in respect of IAG’s positive defence4

– the strict rules of evidence not applying in the Tribunal. The reality is that practical protection recognised by Mr Raymond as significant in the earlier application would be lost to Mr and Mrs Cogle if they were required to self-represent.

[26]      There is the practical difficulty of the availability of civil legal aid lawyers and finally, I take into account, that IAG while wanting to retain the hearing, ultimately said it would abide.

3      ANZ Banking Group (NZ) Ltd v Couchman (1992) 6 PRNZ 34 (HC).

4      Cogle v IAG New Zealand Ltd, above n 1at [20].

[27]      Against the adjournment, there is the fact that the issues that Mr and Mrs Cogle have to face have been known for some time. They are largely factual issues. The evidence in support of the adjournment on health grounds is inadequate.

[28]      It is not certain that Mr and Mrs Cogle will receive legal aid and there is certainly some delay by them in seeking legal aid. The application has not yet been made.

[29] In the passage I have referred to from Mr and Mrs Cogle’s letter of 14 July 2020 at [15] above, they seem to be saying that they could meet the $70,000 -

$80,000 plus GST hearing costs, that being the original estimate.

Decision

[30]      Despite the inadequacies of the evidence, I am driven to conclude that it would not be in the interests of justice to require Mr and Mrs Cogle to represent themselves in a 10 day hearing. The actions of Mr and Mrs Cogle are put directly in issue by the positive defence. The positive defences raise the potential for complications in respect of the rule against self-incrimination. I also recognise there is some evidence of health issues on behalf of Mr and Mrs Cogle. I am by a narrow margin prepared to grant the adjournment.

[31]      This matter is adjourned to a further hearing on 17 May 2021 for 10 days. This date will not be adjourned if  legal  aid is not granted.  If legal aid is not granted,   Mr and Mrs Cogle will have to represent themselves – I note they have been assisted by an insurance advocate who could act as a McKenzie  friend if needs be.   It  is     a condition of the adjournment that Mr Williams file the application for legal aid forthwith and advise the Court and IAG when he has had a response to the application. Mr Williams confirmed he was available for the new hearing date in May 2021.

[32]      There is an order that Mr and Mrs Cogle are liable for IAG’s wasted costs brought about by the adjournment and the costs of the adjournment application itself, in both cases the question of costs is reserved.

[33]      There   is   to   be   a   telephone   conference   at    9.00am   on   Monday    14 September 2020 (with me) to monitor progress. Once  legal  aid is  confirmed,  Mr Williams is to propose revised timetable directions. If legal aid is not granted,  Mr and Mrs Cogle must start preparing for the hearing as it will go ahead, come what may.

Associate Judge Lester

Solicitors:

Duncan Cotterill, Christchurch

Copy to counsel: R W Raymond QC, Barrister, Christchurch

Kaiapoi Legal Limited, Kaiapoi

Copy to counsel: A M S Williams, Barrister, Christchurch

Copy to:
Mr and Mrs Cogle, Christchurch