Pickering v Attorney-General [2001] NZCA 334; (2001) 15 PRNZ 369 (22 August 2001)

Last Updated: 12 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 127/01

	BETWEEN	ROBERT JAMES PICKERING
		Applicant

	AND	ATTORNEY-GENERAL
		Respondent

Hearing:	22 August 2001
Coram:	Richardson P Gault J Thomas J
Appearances:	J A Hope for Applicant
	I C Carter and G A J Stanish for Respondent
Judgment:	22 August 2001

JUDGMENT OF THE COURT DELIVERED BY RICHARDSON P

[1] We are satisfied that the court lacks jurisdiction to hear and determine this proposed interlocutory appeal.
[2] The proposed appeal is from the decision of Hammond J of 3 May 2001 granting applications by the Attorney-General under r509 for orders that eight persons named appear and be examined on oath before the High Court. The orders were made in the context of attempts to progress to a hearing the Attorney-General's application made in December 1999 for leave to issue a writ of arrest against Mr Pickering for alleged breaches of injunction orders to restrain future breaches of the criminal law. The arrest application relies on affidavit evidence sworn by co-operative deponents and filed with that application. It also relies on the evidence proposed to be adduced from the eight persons named in the r509 application.
[3] Rule 509 provides:

(1) If any person having knowledge of facts relevant to a proceeding or interlocutory application refuses to make an affidavit as to those facts, any party may apply for an order to such person to appear and be examined on oath before the Court, or such person as the Court appoints, as to the matters concerning which he has refused to make an affidavit.

(2) Upon any application under subclause (1), the Court may -

(a) Make such orders, as the Court thinks just, for the attendance of that person before the Court, or before the person therein named, for the purpose of being examined as aforesaid, and for the production of any documents specified in the order; and

(b) May impose such terms, as the Court thinks just, as to the examination and the costs of and incidental to the application and examination.

(3) Any person who disobeys any order made under subclause (2) shall be liable to proceedings for contempt.

[4] In terms of r509 the High Court was satisfied that those eight persons had knowledge of facts relevant to the Attorney-General's application and had refused to make affidavits as to those facts. The applications were accordingly granted on terms that the taking of evidence from the eight persons was to take place on 10 September 2001, the date presently set for the hearing of the arrest application, or at such date and time thereafter as the trial Judge, Justice Anderson, might direct, and expressly without prejudice to whatever lawful objections as to the admissibility of the evidence that might then be made on Mr Pickering's behalf.
[5] The principles governing jurisdiction to appeal interlocutory rulings under s66 of the Judicature Act are well settled by Association of Dispensing Opticians of New Zealand Inc v Opticians Board [2000] 1 NZLR 158 and earlier decisions of this court. If the ruling sought to be questioned on appeal will have some substantive effect on rights and liabilities in issue or may substantially affect the shape of the hearing, it will ordinarily be amenable to appeal but, if it was made as part of the trial management process and does not have those effects, the ruling should in the ordinary course not be susceptible to appeal (paras [34] - [36]). Thus, as noted in the Opticians' case at para [27], this court in Murphy v Murphy [1989] 1 NZLR 204 held that a ruling declining an application to re-hear part of the evidence in a matrimonial property matter was not a judgment, decree or order within the meaning of s66 but, rather, the giving of the ruling was a step taken in the course of disposing of the matter and lacked any independent determinative effect.
[6] On our assessment of the ruling sought to be questioned by Mr Pickering, it was made as part of the trial management process and was not a ruling having a substantive effect on rights or liabilities in issue or substantially affecting the shape of the hearing.
[7] Mr Hope submitted that the orders in question significantly affected the shape of the substantive hearing. He emphasised that the evidence was crucial evidence that would implicate Mr Pickering in the alleged breaches and so, in his submission, the nature and importance of that evidence was a relevant consideration. He also emphasised the effect of the ruling on the length of the hearing, the possibility that reluctant witnesses might become hostile, which might lead to applications by the Attorney-General to cross-examine them, and the importance of allowing the threshold set by r509 to be tested on appeal. Finally, he submitted that the pre-trial addition of the r509 evidence might impact in an unfair and significant way on the substantive hearing set for 10 September 2001.
[8] We are satisfied that there is no substance in jurisdictional terms in those submissions. If all the evidence were to be given orally (r496) the Attorney-General could have issued witness summonses in the ordinary way which Mr Pickering, as the other party to the proceeding, could not have challenged. Here, because the evidence was in this class of case ordinarily adduced by affidavit, r509 provides for the equivalent of witness summonses to allow material evidence to be brought before the court where witnesses are reluctant to give relevant evidence on affidavit. Any such witness giving evidence by affidavit is subject to being called for cross-examination (r508) and witnesses giving evidence pursuant to an order under r509 are in a similar position to a deponent who has made an affidavit and is called for cross-examination. If there are any timing difficulties affecting the trial they may be dealt with by adjournment if the interests of justice require.
[9] We are satisfied that the interests of Mr Pickering are sufficiently protected by the terms that the High Court imposed on the granting of the r509 applications and by the supervision of the trial Judge in this case. It is basically a question of case management of the hearing of the arrest application. Rule 509 is a mechanism to bring evidence before the court and many of the matters raised by Mr Hope in his submissions are consequences of a rule provided for sensible management purposes. The present objection appears to be essentially a tactical move to keep admissible evidence out.
[10] For the reasons given the proposed appeal is dismissed for want of jurisdiction. No questions of costs arise.

Solicitors

Till Henderson King, Hamilton, for applicant
Crown Law Office, Wellington, for respondent