[1] This is an appeal against a pre-trial ruling of Wild J in the High Court in relation to applications under r508 of the High Court Rules brought in a proceeding seeking extraordinary remedies (effectively prerogative orders) under Part 7 of the Rules.
[2] The High Court Judge ruled that the affidavits of three of the witnesses for the respondents should be admitted as evidence on the basis that only one of them need be produced for cross-examination at the hearing. That aspect of the ruling is challenged on appeal. The appellant asks this Court to order that the use of the affidavits of a Mr Brown and a Dr Kukkady be made conditional on their being produced by the respondents for cross-examination at the substantive hearing.

Background facts

[3] During 2002 the Waikato District Health Board, the second respondent in the appeal, advertised for a surgeon for the Paediatric Surgery Unit at Waikato Hospital. The advertisement specified that:

Applicants must be suitably qualified medical practitioners with Fellowship of the Royal Australasian College of Surgeons or equivalent. It is essential that you hold or are eligible for registration in New Zealand.

The appellant applied for the position, as did the fourth respondent to the appeal, Dr Kukkady. Applicants were interviewed by a panel, chaired by a Dr Weston, which made a recommendation for the appointment of the fourth respondent to an appointments advisory committee. The advisory committee passed that recommendation on to the third respondent, the Chief Operating Officer of the Board. He appointed the fourth respondent to the position.

[4] The appellant then brought this proceeding seeking to invalidate the appointment of the fourth respondent. The proceeding named the Chief Executive of the Health Board as first respondent. It raises issues relating to the appointment process. It seeks invalidation of the appointment of the fourth respondent and orders requiring the second respondent to appoint another person from among the applicants who were qualified for the position. They are said to include the appellant but not the fourth respondent.

Procedural basis of claim

[5] In the fourth amended statement of claim, dated 11 February 2003, the appellant put the procedural basis of its claim as follows:

The purported decision of the Third Defendant to appoint the Fourth Defendant to Position 14841 was an action which is subject (to) the extraordinary remedies contained in Part 7 of the High Court Rules and/or was an exercise of statutory power in terms of section 3 of the Judicature Amendment Act 1972.

[6] Reliance on the appointment being the exercise of a statutory power has since been eschewed by the appellant. Mr Carruthers QC, who argued the appeal for the appellant, confirmed that the appellant was now bringing a claim that was confined to seeking extraordinary remedies under Part 7 of the High Court Rules.
[7] The amended statement of claim also pleads that the second respondent erred in treating the experience and qualifications of the fourth respondent as equivalent to those of a Fellowship of the Royal College of Surgeons. It had also failed to take into account that the fourth respondent did not hold a current New Zealand practising certificate and that he had either been the subject of a disciplinary inquiry during his previous employment or, at least, at the time of his application was aware of circumstances that might to lead to such an inquiry. The appellant also contended that it was unreasonable for the second respondent to decide that the fourth respondent’s qualifications were equivalent to those for the Fellowship, and that the process leading to his appointment had been unfair, because the interview panel had included a member who had formed a pre-determined belief not to support the appointment of the appellant. Finally, the panel had not included an independent member as the appellant had requested.

Application to cross-examine

[8] The respondents’ affidavits were made by Dr Weston, Mr Brown, who was another member of the interviewing panel, and the fourth respondent. The solicitors for the appellant filed a notice under r508 of the High Court Rules to cross-examine the three deponents at the substantive hearing. The respondents, wishing to resist such cross-examination, applied to the High Court for an order setting aside the notice of production. That application was declined by Ronald Young J. On appeal, this Court decided the High Court had no jurisdiction under the rule to set aside the r508 notice. The effect of r508 was to require the party served to elect whether to produce a deponent for cross-examination or face the consequence that the deponent’s affidavit might not be used in evidence. The respondents could, however, apply under rr438 and 455 for an order that an affidavit be read, notwithstanding that the deponent would not be produced for cross-examination. In considering such an application the High Court would take into account all matters relevant to the ends of justice, including the practice against cross-examination in proceedings in the nature of judicial review, and the potential prejudice to the party serving the notice should affidavit evidence be relied on which had not been tested by cross-examination: White v Wilson [2004] 1 NZLR 201 at [20].
[9] Following delivery of the Court’s judgment on 21 August 2003, the appellant obtained subpoenas which were served on the three deponents requiring their attendance for cross-examination. The respondents then applied to the High Court for orders that the deponents’ affidavits be read without there being cross-examination.

High Court judgment

[10] In his ruling Wild J set aside the appellant’s subpoenas. He held that it was not open to the appellant to obtain a subpoena limited to the purposes of cross-examination of a witness. That ruling is not disputed in the appeal.
[11] The Judge approached the question of whether the three deponents should be cross-examined on the basis that the proceeding was akin to judicial review so that the necessity for cross-examination had to be established by the appellant. Dr Weston had convened the interview panel and the Judge decided that he should be cross-examined about those aspects of that stage of the appointment process which were in issue. Accordingly he ruled that Dr Weston’s affidavit could not be used as evidence in the proceeding unless he were available for cross-examination.
[12] Mr Brown, a paediatric surgeon, was a member of the interview panel who had been involved in consideration of previous applications by the appellant for positions with the second respondent. He is the person who is alleged to have pre-determined that the appellant should not be appointed to the position on this occasion. Wild J accepted the submission of Mr Jagose, counsel for the respondents, that to succeed on this cause of action the appellant would have to prove that the panel as a whole had a closed mind in undertaking its part in the selection process. The panel had comprised four persons (with five being present at some parts of the interviewing). There was no allegation that anyone other than Mr Brown had predetermined the appellant’s application. It followed, the Judge reasoned, that cross-examination of Mr Brown was not necessary for the Court fully and fairly to decide the predetermination question which was the issue to which Mr Brown’s evidence was addressed. He ruled that his affidavit could be used without cross-examination.
[13] The fourth respondent had filed three affidavits. The first sets out his professional qualifications and the position in relation to his specialist registration at the time of his application. The other two affidavits addressed an allegation made by the appellant in her affidavits that the fourth respondent had been the subject of a disciplinary inquiry following a complaint of sexual harassment while employed at a Children’s Hospital in Los Angeles. The fourth respondent has deposed that he was unaware of any such complaint and that there was no basis for such an allegation to be made against him. Wild J took the view that in substance the proceeding was a challenge to the appointment process of the District Health Board. Any questions about the interviewing panel’s understanding of the fourth respondent’s qualifications, his practising status and eligibility for registration, could properly be directed to Mr Weston whom the Judge had permitted to be cross-examined. But, the Judge said, cross-examination of the fourth respondent about the alleged incident in Los Angeles could:

only be a pointless vendetta motivated by (the appellant’s) apparently poor attitude towards Mr Kukkady an attitude hardly befitting a medical professional.

Accordingly the Judge ruled that the fourth respondent was not to be cross-examined.

Submissions on cross-examination

[14] In the appellant’s written submissions in support of the appeal there is a challenge to the Judge’s approach to the question of cross-examination in treating what is now a Part 7 proceeding as one akin to judicial review. Counsel submitted that, in a proceeding for judicial review under the Judicature Amendment Act 1972, and in a proceeding for extraordinary remedies under Part 7 of the High Court Rules, there was a common starting point in that neither party had a right to cross-examine. The question for the Court of whether in any particular case there should be cross-examination however was to be approached “from opposite ends of the spectrum” in the two types of proceedings. The appellants argued that the combined effect of rr628, 449(a) and 455(1) was that in proceedings brought under Part 7 there was a prima facie entitlement to cross-examine once a party had submitted affidavit evidence, and that there was no requirement that the appellant establish that cross-examination was necessary. In developing this argument in his oral submissions for the appellant, Mr Carruthers emphasised that as the proceeding was not one based on exercise of a statutory power, the provisions of the 1972 Act, and in particular s10, had no application.

Position under the 1972 Act

[15] A series of cases have established that there is a rule of practice in judicial review proceedings brought under the Judicature Amendment Act 1972 that cross-examination of those who give evidence is not permitted as of right. In NZ Fishing Industry Association Inc. v Minister of Agriculture and Fisheries [1988] 1 NZLR 544 (CA), Cooke P, in his judgment, expressed the opinion that “the Courts should not allow a Minister to be cross-examined in such proceedings unless this is clearly necessary to enable the case to be disposed of fairly” (554). Next, in delivering the judgment of the Court in Minister of Energy v Petrocorp Exploration Limited [1989] 1 NZLR 348 (CA), Cooke P emphasised that what he had said in the NZ Fishing Industry Association Inc case represented his understanding of existing practice. The Court accepted that it was a desirable practice which should be maintained (at 353).
[16] The Court also identified the procedural provisions of s10 of the 1972 Act as a possible legal basis for the practice. Section 10 empowers a Judge to give directions, including consequential directions, concerning affidavit evidence at a conference with the parties and counsel. The other possible legal basis was r508 of the High Court Rules under which special leave of the Court was required to use an affidavit if a party, on whom a notice to do so had been served, failed to produce the deponent for cross-examination. Cooke P said that the general practice of granting special leave to use the affidavit of a Minister as evidence under r508(3), without permitting cross-examination, might be justified in terms of that rule along with affidavits of other deponents in special categories such as heads of tribunals.
[17] An attempt to displace the practice that cross-examination in judicial review proceedings was not permitted as of right, in the context of a notice to cross-examine decision-makers who were not Ministers, was made in Roussel Uclaf Australia Pty Ltd v Pharmaceutical Management Agency Limited [1997] 1 NZLR 650 (CA). Members of the respondent’s Board had filed affidavits and the applicant for judicial review sought to cross-examine them. In its judgment the Court reiterated that the rule was one of practice, noting that the Court retained the power to permit the cross-examination of Ministers in appropriate cases. The case before the Court did not involve Ministers and, in that context, the Court in a judgment delivered by Richardson P articulated a more general statement of the practice at 657-658:

And the practice in New Zealand in refusing cross-examination except where it is shown that the justice of the case requires otherwise is consistent with the practice in the United Kingdom as stated in de Smith, Woolf and Jowell, Judicial Review of Administrative Action (5th ed, 1995) p672, para 15-034:

“Although the Court has a discretion to order cross-examination, unlike in other proceedings cross-examination is used not as a matter of course. Rarely has cross-examination of deponents on their affidavit evidence been ordered. Cross-examination may be appropriate where there is a conflict of evidence or where the applicant alleges that a precedent fact to the making of a decision did not exist. But cross-examination is only exercised when justice so demands.”

Conclusions

It is unnecessary to recapitulate the interpretation arguments. The rule of practice is clearly settled. We favour the broad view referred to in... Petrocorp and also articulated earlier in this judgment, that it is founded sufficiently in the nature of judicial review and the provisions of s10. It is doubtful also that when R508 was drafted it was intended to alter the settled and approved practice concerning the limitation of cross-examination in judicial review situations except where the interests of justice require it. But, as the Court observed in Petrocorp, it is sufficient to record that the rule of practice has a proper foundation. It was not argued that, if not barred by R 508 the rule was nevertheless an undesirable practice. On the contrary, we are satisfied that it accords with the purpose of judicial review and the wider interests of justice.

[18] In the present case the appellant has previously sought to bypass the rule of practice on the basis that s10 had no application to the proceeding now being formulated because it is one outside of the scope of the 1972 Act, seeking extraordinary remedies under Part 7. Rule 508 applied on its terms. The High Court accepted the argument, but on the earlier appeal this Court decided that r508 did not give a party the right to cross-examine the maker of an affidavit. It was open to a party given notice of a requirement to produce a deponent, to bring the matter before the Court instead of submitting. In a judgment delivered by Anderson J the Court said:

[19] In our view both R 438 and R 455 entitle a party to apply to the High Court for an order that the evidence of any deponent or part of the evidence of any deponent may be read notwithstanding that such deponent is not produced for cross-examination at the hearing or indeed, that such affidavit or parts of an affidavit shall be read but that the deponent shall not be cross-examined on the affidavit or any parts thereof even if produced.

[20] In considering any such application the Court would no doubt take into account all matters relevant to the ends of justice including, on the one hand, the practice against cross-examination in proceedings in the nature of judicial review and, on the other hand, the potential prejudice to the party who served a notice should evidence be relied on by the other party without submitting it to the test of cross-examination.

[19] It was on this basis that the matter came back to the High Court where, in the judgment that is the subject of the present appeal, Wild J, as indicated, adopted an approach which he described as akin to that the Court would take in a judicial review proceeding: the necessity for cross-examination had to be established before it would be permitted. Indeed the Judge recorded his understanding that there was agreement between the parties as to this premise.
[20] Although Mr Carruthers’ argument in this Court was directed at persuading us there was a different test when a party sought to cross-examine a deponent in a Part VII proceeding, we are satisfied that Wild J took the correct approach. We now state our reasons for this conclusion.
[21] The decisions of this Court in Electoral Commission v Cameron [1997] 2 NZLR 421 and in Royal Australasian College of Surgeons v Phipps [1999] 3 NZLR 1 each recognised a principle, in relation to the scope of judicial review, previously stated by Lord Donaldson in R v Panel on Take-overs and Mergers, ex parte Datafin plc [1987] QB 146, 159-160. The principle is that the Courts, in considering the amenability of administrative action to judicial review, are less concerned with the source of the power exercised by decision-makers (and in particular whether or not it was statutory) and now more ready than in the past to treat as reviewable the exercise of any power having public consequences. This is so even if the power is exercised by a private organisation. In all such cases the power must be exercised on public law principles. (Electoral Commission at 433; Phipps at 11).
[22] If the power in question comes within the broad definition of a statutory power under s3 of the Judicature Amendment Act 1972 the procedure for review will be the statutory one. The wide reach of this provision since enactment of the 1977 amendment to the 1972 Act is not always recognised. It was emphasised by the judgment of Cooke and Jeffries JJ in Webster v Auckland Harbour Board [1983] NZCA 47; [1983] NZLR 641 at 651:

...Parliament underlined that the modern and flexible procedural provisions of the Act are intended to have a liberal scope. If the applicants are able to show that in making any decision under attack the Board violated the express or implied requirements of some statute (which requirements could include, for instance, relevant considerations or fairness) it is highly probable that they will also be able to show that the decision decided, prescribed or affected their rights or privileges. And if their case did reach that point, we think that it would be contrary to the intent of the Judicature Amendment Act to hold that it was not sufficiently a decision under a power conferred by any Act to enable the review procedure to be used.

The Privy Council also attributed a broad meaning to “statutory power of decision” in Mercury Energy Ltd v Electricity Corporation of New Zealand [1994] 2 NZLR 385, 388.

Common practice under High Court Rules

[23] If the power is not covered by s3 of the 1972 Act the procedure for judicial review will be that under Part 7 of the High Court Rules. But the existence of the two different procedures does not alter the fact that, in both cases, the nature of the jurisdiction being exercised by the High Court is the same, being judicial review of the exercise of public power. Accordingly, practices that the Court requires be followed under the 1972 Act will, subject only to specific contrary requirements in the Part 7 Rules, apply equally to applications brought under them.
[24] In relation to the Court’s practice concerning cross-examination, the analysis in Petrocorp makes it plain that there is no contrary requirement in r508, despite the appellant’s repeated attempts in this case to unearth one. We accept that r508 applies in Part 7 proceedings, that being the effect of rr628(6), 449(a) and 455(1). But it is now established that the rule does not preclude application of the rule of practice concerning cross-examination in judicial review proceedings. This view is consistent with the Court’s earlier decision in Anderson J’s judgment in Wilson v White. This acknowledges that the presumptive entitlement to have affidavits excluded if the deponents are not produced for cross-examination, is subject to consideration of the conventional practice concerning cross-examination, and ultimately a determination on the merits.
[25] The policy reason for the rule of practice that in all judicial review proceedings leave to cross-examine will be refused by the Court, except where the interests of justice require it, lies in the need in the public interest “to fulfil the purposes of judicial review as a relatively simple untechnical and prompt procedure...” (Petrocorp 353). It also reflects the experience of the Courts that in most cases, whether there is justification for the exercise of public powers, and the nature of it, will sufficiently emerge in the course of judicial scrutiny, without having to test affidavit evidence by cross-examination. The availability of discovery in judicial review proceedings in New Zealand is in the Court’s discretion under s10(2)(i) and has enhanced the utility of judicial review within this framework. But, as the decisions of this Court which are cited in this judgment consistently recognise, there are occasions in judicial review proceedings when the rule of practice gives way to the potential for prejudice if the evidence is not tested. Cross-examination will then be permitted in the interests of justice, and if a deponent is not made available for cross-examination, the Court will not permit the affidavit of that deponent to be used.
[26] Consistently with this policy there is good reason for the Court not to allow the procedural basis chosen by an applicant for review to have a significant effect on the availability of cross-examination. The general expectation of the Court is that the simplified procedure of the 1972 Act will be availed of wherever it is available.
[27] In this case the statutory context in which the second respondent exists and operates relevantly includes, as Mr Carruthers pointed out, an obligation to be a good employer, which involves impartial selection of qualified persons for appointment: New Zealand Public Health and Disability Act 2000 s6 Definition (c). In light of this, and the breadth of s3 of the 1972 Act as explained above, this proceeding could have been brought under the 1972 Act alone. Given the common nature of statutory and common law judicial review, inconsistencies in the application of procedural rules applying to each should be minimised by the Court as much as possible. The rule of practice in relation to restrictions on cross-examination of deponents who have made affidavits, accordingly applies in the application of r508.
[28] It follows that Wild J was right in deciding that the way the appellant’s proceeding is being framed makes it akin to statutory judicial review. The rule of practice in relation to restrictions on cross-examination of deponents who have made affidavits accordingly applies in the application of r508.

Respondents’ affidavits in issue

[29] The appellant, in her affidavit, asserts that she heard Mr Brown say that he would never appoint the appellant to a permanent position with the second respondent. Mr Brown, in his affidavit, has denied saying that, adding that he approached his role as a member of the interview panel in an impartial way. The appellant argues that two issues arise in the case from the conflict in this affidavit evidence. First, did Mr Brown make the statement attributed to him and, secondly, did he approach his part in the appointment process with a closed mind? The appellant says that the first issue must turn on the relative credibility of the two witnesses. The Court’s finding on that will then be crucial to the weight that the Court will give Mr Brown’s evidence in determining the second issue. The ultimate submission is that cross-examination should be ordered if Mr Brown’s affidavit is read at the hearing whatever test is applied in relation to cross-examination.
[30] Counsel for the appellant then takes issue with Wild J’s conclusion that, whatever the position might ultimately be found to be in relation to Mr Brown’s level of detachment, to succeed on the ground of predetermination the appellant would have to prove that the interviewing panel as a whole had a closed mind in relation to the appellant’s application. There is no allegation of bias on the part of other members which would support that inference so that cross-examination of Mr Brown was in the Judge’s view, unnecessary and, implicitly, pointless.
[31] The underlying proposition that it was necessary for the appellant to show that the panel as a whole had predetermined the application or so come under Mr Brown’s influence that it had effectively done so is strongly challenged on appeal. Extensive submissions citing New Zealand, Australian and Canadian authority were put to us by counsel in written submissions. What is clear from them is that the requirement that a determining party act fairly varies with the circumstances of each case, having regard to the nature of the function being exercised: CREEDNZ Inc v Governor-General [1981] 1 NZLR 172, 179, 194 (CA). It is unnecessary to go further than that to decide the appeal, and it would be inappropriate to do so at this stage of the proceeding.
[32] We have concluded, differing from Wild J, that we cannot at this stage say that the differences in the statements before the Court as to what Mr Brown allegedly said concerning the employment of the appellant will not require resolution by the Judge at the hearing. It is arguable that, in the particular circumstances of this case, the bias of a single member of the selection panel may taint its decision. We cannot foreclose the possibility that the High Court would reach that conclusion if there were cross-examination of Mr Brown concerning this aspect of his evidence and its impact on the approach taken by the interviewing panel. The question of the credibility of Mr Brown’s evidence on the point accordingly may be an important question in the case. In those circumstances we are satisfied that if his affidavit is to be read, the interests of justice require that the appellant’s counsel be able to cross-examine Mr Brown on whether he made the statements he is said by the appellant in her affidavit to have made.
[33] Accordingly we allow the appeal on this point.
[34] The next question is whether leave should be given to the appellant to cross-examine the fourth respondent. The appellant seeks to be able to show that false statements were made by the fourth respondent to procure his appointment to the position of paediatric surgeon. His alleged failure to disclose circumstances surrounding an incident in Los Angeles at the time of application is also said to have harmed the decision-making process.
[35] The appellant sought to invoke the principle that an administrative decision is invalid if procured by statements of a party to it, which are known to be false: R v Knightsbridge Crown Court, ex parte Goonatilleke [1986] QB 1. We are satisfied that this principle does not apply in the present case. Where criminal or similar allegations are made against a person, justice requires that they not be proven by a party knowingly making false statements in the course of giving evidence. But that principle of natural justice does not extend to confer rights on an unsuccessful applicant for employment, who contends that the prospective employer’s decision was influenced by the breach by another applicant of the duty of honesty owed to the employer. In this situation the decision of the employer is not of course directed at the aggrieved applicant, whose loss is no more than of a potential benefit. That is a completely different situation to that which applied in Goonatilleke.
[36] It follows that the sole issue which must be determined on review is the propriety of the interviewing panel’s process in the course of its assessment of the fourth respondent. We are satisfied that the fourth respondent’s qualifications for the position were for the second respondent to determine in the course of a process that was in all respects under its control. The material before the interviewing panel, and evidence from Dr Weston, its chair, as to the course its process took, is before the Court. It is not for us to comment on whether it supports the appellant’s contentions. It suffices to say that the necessary material to address the issues concerning the process and assessment of the fourth respondent’s qualifications is available.
[37] Dr Weston’s affidavit refers to what the District Health Board understood in relation to the fourth respondent’s qualifications, and how it addressed the subsequent allegations concerning what was alleged by the appellant to be an extra marital affair at his former workplace. In essence it is said that the matter was dealt with at the time and was not regarded as one of a professional disciplinary nature.
[38] To determine this aspect of the appeal it is unnecessary for us to say more than that there is an insufficient link between the matter which the appellant wishes to raise in cross-examination of the fourth respondent, and the issues concerning the process which led to the panel putting forward the fourth respondent’s name for appointment to warrant departure from the rule of practice.
[39] The rule of practice exists to ensure that judicial review proceedings remains focused on the issue of the alleged abuse of power. This is a classic case for the application of that rule to avoid a tangential inquiry which is highly unlikely to shed any additional light on whether the process of the second respondent was a lawful one.
[40] Accordingly the appeal against Wild J’s refusal to give leave to cross-examine the fourth respondent is dismissed on this point.
[41] Mr Carruthers also argued that, as the affidavits of both deponents had already been used in the proceedings by the appellant, it was an abuse of process for the respondents not to answer a notice to present deponents for cross-examination. The written submissions refer us to ways in which the affidavits of Mr Brown and the fourth respondent have been used in particular in the course of interlocutory applications by the respondents.
[42] The argument relies on a line of authority supporting a principle which, with its rationale, is stated by Brett LJ in these terms in Re Quartz Hill and Co (1882) 21 ChD 642, 644:

...no person who has taken a step in a proceeding with a view to gaining an advantage should be at liberty to withdraw it if he finds that it will not answer...I cannot imagine anything more calculated to bring the course of justice into contempt than to allow a person to file evidence which if there is no cross-examination makes in his favour, but which he knows will break down on cross-examination, and then to withdraw it if he finds that cross-examination is threatened.

[43] Whatever the current position in England, in the context of judicial review in New Zealand, such a rule has no application. Rule 508 contemplates that the primary consequence of a deponent not being produced is that the affidavit will not be read. The absence of any power to compel the attendance of a deponent in judicial review proceedings (Petrocorp) indicates that it is permissible to refuse to submit a deponent to cross-examination. Given that underlying legal position, it is not an abuse of process to use an affidavit in framing a claim and in interlocutory matters but then to refuse to submit the deponent to cross-examination with the consequence that it will not be read. The prior use of an affidavit in the course of the proceeding may be a relevant consideration in deciding if cross-examination should be permitted in the particular case, but it is no more than one factor to be considered. In the present case the usage of the affidavits referred to does not significantly enhance the appellant’s application and the factor adds no weight to the application or appeal.
[44] Nor do we characterise this case as involving the unfair withdrawal of an affidavit used. The respondents do not seek to withdraw the affidavit but rather to have the Court rule that there is no need for it to be made available for cross-examination. That is a course they are entitled to take under the rules, and one which is entirely legitimate.
[45] Finally, the appellant takes issue with the Judge’s reference in his judgment to the appellant’s “pointless vendetta motivated by (her) apparently poor attitude to (the fourth respondent)”. The Judge could presumably see no other explanation for what he obviously regarded as a fishing expedition for evidence by the appellant’s counsel. We confine ourselves to saying that we would not ourselves have made the observations that His Honour did concerning the motives for the applications concerned.

Conclusion

[46] For the reasons given in this judgment we allow the appeal to the extent that we give leave to the appellant to cross-examine Mr Brown. Otherwise we dismiss it.
[47] The appellant has achieved a partial success in the appeal and in the circumstances will have costs of $1500, together with reasonable disbursements to be agreed by the parties or failing agreement as fixed by the Registrar.

Solicitors:
Russell McVeagh, Wellington, for Appellant
Chapman Tripp, Wellington, for Respondents

NZLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.nzlii.org/nz/cases/NZCA/2004/191.html