Appanna v Anglesea Hospital Limited [2018] NZHC 303 (2 March 2018)

Last Updated: 8 March 2018

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-1794 [2018] NZHC 303

BETWEEN	NALENDRA APPANNA Plaintiff
AND	ANGLESEA HOSPITAL LIMITED Defendant

Hearing:	1 March 2018
Appearances:	H H Waalkens QC and E B Sweet for Plaintiff M J Fisher and K J Ng for Defendant
Judgment:	2 March 2018

JUDGMENT OF PALMER J

This judgment is delivered by me on 2 March 2018 at 11.00 am pursuant to r 11.5 of the High Court Rules.

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Registrar / Deputy Registrar

Counsel/Solicitors:

H H Waalkens QC, Auckland

DLA Piper New Zealand, Wellington

M J Fisher, K J Ng, Barristers Auckland Kemps Weir Lawyers, Auckland

APPANNA v ANGLESEA HOSPITAL LTD [2018] NZHC 303 [2 March 2018]

The application(s)

[1] A hearing was set down on 1 March 2018 for an interlocutory application dated 18 December 2017 by Anglesea Hospital Ltd (Anglesea), the defendant, for five orders. On 22 February 2018, Anglesea filed an amended notice of interlocutory application seeking three orders for: further and better discovery; expert conferencing; and parts of Dr Appanna’s brief not to be read at trial.

[2] At the beginning of the hearing Mr Fisher, for Anglesea, advised the discovery application had “resolved itself”, which also resolved the expert conferencing matter.

[3] The only outstanding issue was the application that passages in Dr Appanna’s brief should not be read. During his oral submissions on that application, I did not find merit in any of Mr Fisher’s objections that he canvassed. I indicated to Mr Fisher I considered the most practical way of dealing with these sorts of issues was to address them at trial, in light of all the other evidence and what appears then to be relevant and irrelevant. Mr Fisher indicated the provisional observations I made were applicable to all his other objections so he withdrew his request that the application be dealt with now and agreed it be deferred to the commencement of the trial.

[4] Mr Waalkens QC, for Dr Appanna, sought costs in respect of the application and asked they be determined now. Mr Fisher preferred they be determined later. Both counsel made oral submissions.

Costs

[5] It is a fundamental principle of New Zealand civil law that costs follow the event – a losing party pays a winning party a contribution towards their legal costs.¹ Rule 14.8 of the High Court Rules 2016 provides costs on an opposed interlocutory application must be fixed when the application is determined, unless there are special reasons to the contrary. I consider it is convenient to make a costs order in respect of this application now, rather than waiting for the end of the proceedings.

1. Rule 14.2(1)(a) of the High Court Rules and Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109, [2013] 1 NZLR 305 at [8].

[6] For the sake of simplicity, I assume one half of the costs of the application up until the hearing can be attributed to the objections to Dr Appanna’s statements and one half can be attributed to the discovery and expert conferencing issues. The costs of the hearing of the application are all attributable to the objections to Dr Appanna’s statements, since that was the only issue still outstanding.

Objections to Dr Appanna’s statements

[7] Mr Waalkens submits Angelsea’s objections to Dr Appanna’s statements are nitpicking, reflect an unreasonably narrow view of what the rules require and are the sorts of issues that arise in every trial. Relevance is the primary criterion and that cannot properly be considered pre-emptively. He submits costs ought to follow the event on a 2C basis as the attendances required for this matter were more than usual.

[8] Mr Fisher submits he has not withdrawn the application in relation to the objections to Dr Appanna’s statements, but simply agreed it be deferred, so he submits costs in relation to that matter be reserved.

[9] I consider the costs of the application and hearing in relation to Anglesea’s objections to Dr Appanna’s statements should be determined and should be awarded to Dr Appanna. I agree with Mr Waalkens this matter should not have been the subject of an application for a pre-trial hearing. One day of court hearing time was allocated and a quarter of a day was used. That would not have been necessary had these objections simply been left to be dealt with at trial as they should have been. But I do not agree what was involved was out of the ordinary. I direct Anglesea to pay costs for one half of the application up until hearing, and all the costs of the hearing, to Dr Appanna on a 2B basis.

Discovery and expert conferencing

[10] Mr Waalkens submits Anglesea’s application for discovery has changed since it was first made and Dr Appanna has responded promptly. He says it could never have succeeded and the proper approach would have been for Anglesea to seek an order under r 9.34 of the High Court Rules. Mr Waalkens submits Anglesea’s application for expert conferencing was ill-conceived as it envisaged the experts
conferencing before they exchanged information which is not envisaged by the rules. He also submits the information sought was not in the possession of Dr Appanna’s expert so it would not have helped.

[11] Mr Fisher submits Anglesea’s expert, Mr Lucas, consistently identified the information he sought, which was not responded to by Dr Appanna until his latest affidavit of 28 February 2018. He submits the discovery application was properly brought and elicited relevant information, so Anglesea should be awarded costs. Mr Fisher submits the Court can direct experts to conference on specified matters before they have exchanged information and it was perfectly sensible to use the rule in that way to facilitate resolution of an impasse. He submits Anglesea should not be punished by a costs award for acting on the advice of an independent expert.

[12] I consider the parties were talking past each other about the sort of information that was sought and held respectively. In relation to the discovery and expert conferencing issues, I order costs in respect of half the application, up until hearing, lie where they fell.

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Palmer J