Ambrose v Pickard [2010] NZCA 504 (5 November 2010)

Last Updated: 9 November 2010

IN THE COURT OF APPEAL OF NEW ZEALAND

CA548/2009

[2010] NZCA 504

BETWEEN CHAS AMBROSE
Appellant

AND AMANDA PICKARD
First Respondent

AND TROY TAYLOR
Second Respondent

Court: William Young P, Glazebrook and Hammond JJ

Counsel: I G Hunt for Appellant
Respondents in Person

Judgment: 5 November 2010 at 2.30pm

(on the papers)

JUDGMENT OF THE COURT

1. Ms Pickard and Mr Taylor are ordered to pay Mr Ambrose costs of $4,800 and disbursements of $1,331.25.
2. The security paid into Court by Mr Ambrose is to be refunded to him.
   

REASONS OF THE COURT
(Given by William Young P)

Introduction

[1] On 24 September 2009 we heard an appeal by Mr Chas Ambrose against a judgment of MacKenzie J delivered on 13 August 2009 in which he dismissed an application by Mr Ambrose for further discovery against Ms Amanda Pickard and her son, Mr Troy Taylor.[1] The documents sought were medical and ACC records. They were said to be relevant to the claim for damages advanced by Ms Pickard and Mr Taylor based on the contention that they had suffered adverse effects as a result of carbon monoxide poisoning caused by the negligence of Mr Ambrose and Rinnai New Zealand Ltd (“Rinnai”). In the course of the hearing before us, Ms Pickard agreed to provide an authority to enable Mr Ambrose to obtain access to the documents which he was seeking. In substance, therefore, his appeal was successful but the only order required of the Court was to set aside the award of costs made against Mr Ambrose, on this issue, in the High Court.[2]
[2] Before the judgment was released on 22 October 2009, Mr Hunt provided the Court with documents obtained pursuant to the authority. He also invited us to reserve the question of costs for further determination. This we did. We also, at his request, directed that a transcript of what Ms Pickard had herself said to us be typed and provided to the parties.
[3] The case duly went to trial and the claim by Ms Pickard and Mr Taylor was dismissed in a judgment delivered by MacKenzie J on 21 December 2009.[3]
[4] Mr Ambrose has applied now to this Court for an order for costs in relation to the proceedings before us last year. As well Mr Ambrose seeks a direction that the security for costs of $2,370.00 he paid be refunded to him.
[5] Ms Pickard and Mr Taylor lodged submissions on 19 May 2010, a day later than provided for in the timetabling direction but this is of no particular moment. These submissions made it clear that they intended to seek an extension of time for an appeal against the substantive decision of MacKenzie J. In response, the President directed by minute of 26 May 2010 that:

(a) if they applied for an extension of time to appeal against the judgment of MacKenzie J by 25 June, the costs application would be dealt with at the same time as the application for an extension of time to appeal, but otherwise:

(b) the Court would address the costs application and give a decision on it allowing for any additional submissions which Ms Pickard and Mr Taylor might file and serve by 25 June.

[6] As it turned out no application for an extension of time to appeal was filed by 25 June and no further submissions were lodged. We note that Ms Pickard and Mr Taylor have subsequently applied for an extension of time for an appeal but, given the earlier direction of this Court, we think it appropriate now to deal directly with the costs issue.

The application for costs

[7] The hearing on 24 September 2009 concerned challenges not only to the refusal of further discovery but also the dismissal by MacKenzie J of an application for additional security for costs. On the second aspect of the appeal Mr Ambrose (and his co-defendant, Rinnai) were unsuccessful. In the ordinary course of events Ms Pickard and Mr Taylor would be entitled to costs in relation to that aspect of the case, which is why our initial inclination was to make no order for costs.
[8] The issue as to discovery arose in this way.
[9] The defendants in the High Court denied that Ms Pickard and Mr Taylor had been exposed to harmful levels of carbon monoxide. They sought to find and advance explanations other than carbon monoxide poisoning for the symptoms which Ms Pickard and Mr Taylor attributed to carbon monoxide poisoning. To advance this line of defence, the defendants required access to the medical records of Ms Pickard and Mr Taylor.
[10] Ms Pickard had not complied in an orthodox way with her obligation to discover medical files. Instead she provided the defendants with authorities to collect medical information starting in 1993. Material obtained pursuant to these authorities (in the form of correspondence in 1999 between her general practitioner and a specialist) suggested that she had suffered and been treated for head injuries in 1991. Ms Pickard declined to make available pre-1993 medical notes or to authorise the defendants to obtain them. Her position was that there was no accident in 1991. She had, however, not bothered to go back to the doctors to see what the 1991 references in the 1999 correspondence related to – a most cavalier approach to her discovery obligations.
[11] As it turned out, Ms Pickard had had an accident in 1988 which resulted in treatment in 1991. There were documents in existence in relation to this which were plainly discoverable and which she had not discovered. She was thus in very substantial breach of her discovery obligations.
[12] We conclude that Ms Pickard was disingenuous when she focussed on what she knew to be the fact that the 1999 correspondence was mistaken in referring to the accident as having occurred in 1991. The 1988 accident was reasonably serious and resulted in medical treatment. It is implausible in the extreme to imagine that she had forgotten it. Indeed, in the course of the remarks which Ms Pickard made to us at the hearing on 24 September 2009, she made reference to the possibility that her general practitioner was referring to something that had happened in the eighties. As well, if she had been acting with the diligence that good faith required, she would have gone back to the doctors to check to see what other relevant documents they had.
[13] The impression Ms Pickard made on us at the hearing of the appeal is similar to that recorded by MacKenzie J. She is single-mindedly convinced of the merits of her case and highly suspicious and indeed critical of all those who have expressed or advocated views which are contrary to her way of thinking. While this no doubt explains her breaches of her discovery obligations, it does not excuse them.
[14] Ms Pickard and Mr Taylor have two, and possibly up to four, things going for them by way of mitigation of what happened.

(a) When the trial of the substantive proceedings was adjourned in September 2008, the minute of the Judge recorded that “it was confirmed no further requests for medical files should be expected”. Although her obligations as to discovery continued to trial and were independent of whatever specific requests for files were made, Ms Pickard seems to have taken the Judge’s remarks as drawing a line under those obligations.

(b) During both 2008 and 2009 Ms Pickard and Mr Taylor were under considerable pressure getting their case ready for trial.

(c) It is possible (and we are basing this on the submissions filed by Ms Pickard and Mr Taylor in respect of which the timetable orders did not provide for response by Mr Hunt) that the defendants had some ACC records in relation to the 1988 injury.

(d) It may be that the 1988–1991 records were not particularly material to the Judge’s eventual conclusions, in that they were not mentioned in his judgment. This last point, however, may simply be a reflection of the fact that the Judge concluded that Ms Pickard and Mr Taylor had not been exposed to harmful levels of carbon monoxide.

[15] While we can see that first two of these factors may have been material to the conduct of Ms Pickard, we note that in the judgment of MacKenzie J of 21 December 2009, there is sharp criticism of Ms Pickard in relation to her approach to discovery, with the Judge concluding that she had suppressed other medical notes made in 1999. This criticism related to events which occurred in 2004. While the Judge was prepared to accept that when the particular documents were suppressed in 2004, Ms Pickard may have thought that they were not relevant, he was satisfied that she could not have retained that view up until trial.[4] We recognise that those conclusions may themselves be challenged on appeal should an extension of time be granted. However, they were relied on by Mr Hunt in his submissions and the voluminous submissions filed by Ms Pickard and Mr Taylor give no explanation for the apparent suppression of medical notes referred to by the Judge.
[16] The third and fourth points referred to above at [14] are, at best, by way of mitigation only.
[17] We have read carefully the submissions lodged by Ms Pickard and Mr Taylor. They are voluminous (extending to no less than 193 paragraphs) and are full of criticism, addressed to (amongst others) their previous legal representatives, the legal representatives of Mr Ambrose and the defence medical expert, Dr Gorman. Save that they make (one way or another) the first three of the points referred to in [14], they do not otherwise provide an answer to the application for costs.
[18] The order sought by Mr Hunt is for the payment of costs of $4,800 and disbursements of $1,331.25. The underlying calculations made allowance for the unsuccessful appeal as to security for costs. In the circumstances we see the amount claimed as modest.

Disposition

[19] Accordingly Ms Pickard and Mr Taylor are ordered to pay Mr Ambrose costs of $4,800 and disbursements of $1,331.25. The security paid into Court by Mr Ambrose is to be refunded to him.

Solicitors:
Young Hunter, Christchurch for Appellant

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[1] Pickard v Ambrose HC Wellington CIV-2003-091-143, 13 August 2009.
[2] Ambrose v Pickard [2009] NZCA 502.
[3] Pickard v Ambrose HC Wellington CIV-2003-091-143, 21 December 2009.
[4] At [108]–[109].