Prager-Macholl v Stuhlmann [2012] NZHC 72 (2 February 2012)

Last Updated: 17 April 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-000917 [2012] NZHC 72

IN THE MATTER OF the Law Reform (Testamentary Promises) Act 1949

AND IN THE MATTER OF the estate of ANGELA LEGGETT

BETWEEN GIUSSEPPINA PRAGER-MACHOLL Plaintiff

AND SUSAN MICHELL AND ROSS RICHARD STUHLMANN Defendants

Hearing: 2 February 2012

Counsel: SA Grant and BR Saldanha for Plaintiff

KF Gould for Defendants

Judgment: 2 February 2012

_{ORAL JUDGMENT OF ASHER J}

Solicitors/Counsel:

SA Grant, DX CX10258, Auckland 1140. Email: [e-mail]

BR Saldanha, DX CX10258, Auckland 1140. Email: [e-mail]

_{KF Gould, PO Box 1011, Shortland Street, Auckland 1140. Email:} [e-mail]

PRAGER-MACHOLL V MICHELL AND STUHLMANN HC AK CIV-2010-404-000917 [2 February 2012]

Introduction

[1] The plaintiff brings this claim under the Law Reform (Testamentary Promises) Act 1949. The matter came before me as Duty Judge last week to consider an application to have the plaintiff’s evidence given by way of affidavit. After a hearing that was part-heard, and lasted approximately half an hour, the hearing resumed today and the application for evidence to be given by way of affidavit has been withdrawn. I will consider that issue first.

[2] However, I record that a second issue has arisen which I also need to determine. This is an application made orally to serve a brief out of time of Angela Rita Horner, the daughter of the plaintiff. This is essentially a corroborative brief of evidence supporting the plaintiff’s evidence. Ms Grant who represents the plaintiff also seeks an order that in addition to the plaintiff’s evidence being given by video link (which Mr Gould does not oppose subject to an appropriate protocol), Ms Horner’s evidence also be given by way of video link. Mr Gould opposes that application.

The application for evidence to be given by way of affidavit

[3] This application is withdrawn today and Ms Grant instead seeks an order that the plaintiff’s evidence be given by way of video link. Indeed, there was an application to this effect filed last year but it was not pursued because the plaintiff’s position changed and the application to file by way of affidavit was substituted.

[4] Mr Gould does not oppose the plaintiff’s evidence being given by way of video link. It is clearly sensible that this be done. There are cost factors that I will refer to shortly, but also the plaintiff is 88 years of age and clearly unable to endure a trip to New Zealand to attend the trial.

[5] The protocol of course is important and the terms are basically agreed, and I

will return to these later in the judgment.

[6] Because of the late notice of the video link application the courtrooms in which a video link is available are being used next week for other purposes. Accordingly, there will have to be a special unit hired so that the video link can take place.

[7] Given that it is the plaintiff’s wish to have her evidence given by way of video link and it is the late notice that has caused this problem, it is appropriate that the plaintiff meet these costs. There has been quite a history of non-compliance with orders in this proceeding and there was a considerable delay in the plaintiff paying security for costs. In the circumstances, I propose acceding to Mr Gould’s request that I direct that costs of the video link be paid in advance of the trial.

[8] Subject to the protocol and these conditions I propose making the video link order in relation to the plaintiff.

The application to have Ms Horner’s evidence heard by way of video link

[9] Angela Rita Horner is the daughter of the plaintiff and the god-daughter of the deceased Angela Leggett. She is 62 years old. She records in her brief, consistent with the material on the file, that her mother lives with her, is severely disabled and Ms Horner asserts “completely dependent on me”. It seems that the plaintiff’s health, in particular her mental health, has deteriorated over recent months.

[10] Ms Grant has this morning presented a brief from Ms Horner. Essentially it corroborates what her mother asserts referring to similar statements being made in her presence by the deceased and supporting what the plaintiff says about events.

[11] I appreciate that Ms Grant has recently been briefed as counsel in this matter. However, it must be recorded that it is most unsatisfactory that a brief of evidence of this significance is served so late. The briefs of evidence were to have been served by 15 October 2011.

[12] Mr Gould has argued that the late filing of this brief will place a burden on the defendants in their preparation. I accept that it is unsatisfactory from the defendants’ point of view to receive a brief so late. I have indeed considered whether I should direct that the brief not be read. I would have not hesitated to make such a direction if I thought there would be significant prejudice arising from the late filing. However, I do not consider that there will be significant prejudice. The evidence of Ms Horner does not raise new issues and is essentially corroborative. The matters that the defendants will need to check in relation to evidence before cross-examination are more or less the same issues that they would have to check in any event before cross-examination of the plaintiff.

[13] The very late filing of the brief may of course be an issue that the defendants wish to raise in terms of the credibility of Ms Horner. However, that is a matter that will be able to be fully assessed by the trial Judge and should not in itself be a basis for refusing to allow the brief to be read.

[14] The second matter that arises is whether I should accede to the oral application to have the evidence given by way of video link. The alternative would be to have Ms Horner leave her mother and fly out to New Zealand on short notice next week to give her evidence.

[15] This Court now regularly makes orders that evidence be given by way of video link, particularly in relation to overseas witnesses where the cost of bringing that witness to New Zealand is disproportionate to the amounts at issue in the proceedings. There is no doubt about the jurisdiction of the Court to order evidence by way of video link.[1]

[16] The estate in question is worth approximately $450,000 and the plaintiff’s claim is for, at the maximum, half. The amount at issue therefore is at the very most a little over $200,000. The cost of travel to New Zealand and accommodation would

_{be considerable.}

[17] As against that I recognise that there are still advantages in having a witness whose credibility is at issue giving evidence directly in front of the trial Judge, rather than by way of video link. There is less risk of any interference with the witness and there may be nuances that a Judge picks up when the witness is directly before him or her that might be missed when the evidence is by way of video link. However, the cost factor is a powerful one and in this case prevails, recognising the need for the just, speedy and inexpensive conduct of litigation.

[18] There is a further factor relevant to this application. As best I can see from the material before me there is a proper basis for Ms Horner’s assertion that the plaintiff is disabled and dependent on her. It would have been helpful if the issue of her travel to New Zealand had been addressed in an affidavit. However, even in the absence of that I am prepared to accept that it could be impossible for Ms Horner to come to New Zealand to attend the Court, leaving the plaintiff alone in England.

[19] As a background factor I am mindful of the very real possibility that if Ms Horner’s evidence cannot be given by way of video link there is a probability that she will not come to New Zealand to give evidence and the risk of an injustice as a consequence.

[20] Considering these matters in balance I am persuaded that it is in the interests of justice for me to make an order that Ms Horner’s evidence be given by way of video link. However, the protocol will need to ensure that there is no prospect of her being able to talk to the plaintiff or influence her when she is giving evidence. There will also have to be a protocol in place to ensure Ms Horner does not hear the questioning of the plaintiff and is not told about it by the plaintiff or any other person.

[21] Therefore, despite my concern about the lateness of this application I will grant it.

The orders

[22] I order that the evidence of the plaintiff and Angela Rita Horner be given by way of video link. Before I set out the protocol I record that Ms Grant has advised of her wish to explore whether the video link can take place using Skype technology, which may be cheaper than the orthodox technology. She may of course explore that and have discussions with the Court.

[23] However, all issues are going to be rather dominated by the very late notice of the video link that has been given to the Court. I have now been advised by the Registry that it is by no means certain that any video technology can be made available for the hearing. If that is so that is entirely, from my perception, the fault of the plaintiff and the plaintiff will have to live with whatever consequences arise from that.

[24] The following protocols apply to the video link:

(a) The plaintiff shall make arrangements for the video link and any related matters with the Registrar of the High Court at Auckland and shall cooperate with the Registrar to ensure that this mode of evidence can be used;

(b) The video link in Colchester, England must be at the offices of an independent solicitor and be such as to allow a reasonable part of the interior of the room in which the witnesses are to be situated to be shown on the screen, yet retain sufficient proximity to depict the witnesses themselves;

(c) Each of the witnesses is to give her evidence either sitting at a plain desk or standing at a lectern;

(d) The plaintiff and Ms Horner are not to give their evidence in the presence of each other and once the first of them commences giving evidence there are to be no communications between them. The

independent solicitor must confirm to the Court that when the first witness gives evidence the other is not present, and confirm to the Court that following the first witness giving evidence, the second witness proceeds to give her evidence without there being any discussion between them.

(e) A copy of the paginated common bundle of documents is to be made available to the witnesses in Colchester, and all written materials or exhibits already discovered between the parties that the witnesses are to be referred to in the course of their evidence must be clearly identified;

(f) A facsimile machine is to be located in the Auckland and Colchester venues for the video conference;

(g) The witnesses’ evidence shall be given, and subject to cross- examination, from (if convenient to the Court) 9am until 11am on

8 February 2012, or at such other time as the Court directs;

(h) At all times during the course of the video conference, the Court may terminate the video conference if it is so unsatisfactory that it is unfair to any party to continue. Leave is reserved for counsel to apply to revoke the order for video link if it becomes necessary;

(i) The only persons to be present in the Colchester facility (other than the witnesses) are to be those operating the video and facsimile facilities and an independent notary public who is also a solicitor, to assist with the implementation of any directions or requests given or made by the Judge hearing the evidence;

(j) The costs of the presentation of the evidence by video link shall initially be borne by the plaintiff, but leave is reserved to the plaintiff to argue the issue of costs arising (including costs of the application and cost of the video link itself). It is likely that the plaintiff will have

to pay the extra cost of the hireage of the video link equipment because of the late notice. Whatever costs are involved in the video link conference must be paid by the plaintiff before the commencement of the trial;

(k) The witnesses shall swear their witness statements before a notary public in Colchester and a copy of the sworn statements shall be provided to the Court prior to the giving of the witnesses’ evidence. The notary public shall be present at the video conference facility in Colchester where the evidence is taken;

(l) The video link evidence shall be recorded and a copy provided to the Court and to counsel for both parties. The evidence will be transcribed in the usual way in the courtroom as it is given by way of FTR, or if that is not practical, by the trial Judge’s Associate.

(m) Counsel for the plaintiff is to file a written memorandum with the

Court before the commencement of the hearing as to: (i) How any issue of perjury will be covered; and

(ii) Confirming that the witnesses have received written instructions from counsel as to the New Zealand requirement that there be no communication during cross-examination of the witness. The written instructions are to be referred to counsel for the defendants by 5pm today.

_{(n) Leave to apply reserved generally.}

Costs

[25] The defendants have been successful in their opposition to the application for the plaintiff’s evidence to be given by way of affidavit. The defendants are to have costs on that application on a 2B basis, bearing in mind that there was preparation, a

part-hearing of approximately half an hour last week and an attendance today, although a relatively short one. The defendants have also been put to the cost and extra time involved in dealing with the application to serve the brief of evidence of Ms Horner out of time and for her evidence to be given by way of video link. Because this has just arisen it is not appropriate to order costs on the usual scale basis. I order that the sum of $500 be paid in relation to that aspect of the hearing by the plaintiff to the defendants.

...................................

Asher J

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[1] High Court Rules, rr 10.24 and 10.25.