Body Corporate 354085 "Perspective Apartments" v Auckland Council [2016] NZHC 200 (11 February 2016)

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BETWEEN	BODY CORPORATE 354085 "PERSPECTIVE APARTMENTS" AND OTHERS First and Second Plaintiffs
AND	AUCKLAND COUNCIL First Defendant ARROW INTERNATIONAL LTD Second Defendant IGNITE ARCHITECTS LTD Third Defendant KIWI ROOFING LTD First Third Party

Hearing:	10 February 2016
Counsel:	D R Bigio, D S McGill and A M Park for Plaintiff S C Price, J K Wilson, H E Gillies and I Stephenson for First Defendant No appearance by, or on behalf of, Second Defendant W A Holden, H W King and J H Whitehead for Third Defendant No appearance by, or on behalf of, first third party
_Judgment:	_{11 February 2016}

BODY CORPORATE 354085 "PERSPECTIVE APARTMENTS" AND OTHERS v AUCKLAND COUNCIL [2016] NZHC 200 [11 February 2016]

[1] The substantive proceeding here is a civil trial regarding allegations of negligence against the Auckland Council in respect of defective roofs of the “Perspective Apartments”. The plaintiffs have applied to adduce supplementary evidence. I heard the application at the beginning of the trial, after hearing skeletal openings by the parties and the plaintiffs’ opening. I decline to exercise my discretion to allow the proposed supplementary evidence to be adduced. I reserve my discretion to revisit this question, at the request of the plaintiff, in relation to one proposed new witness for the plaintiff, Mr Tid, after hearing the evidence of Mr Alexander.

[2] Neither the High Court Rules nor the timetable set for this trial provide for supplementary evidence to be filed or served. Rule 9.8 of the High Court Rules provides that “[t]he acceptance and use of the supplementary brief in court will be at the discretion of the trial judge”.

[3] As Heath J stated in Western Park Village Ltd v Baho, this gives the Court a

“wide discretion” for which “[t]he touchstone will be the interests of justice”.¹

Similarly Toogood J stated in Total Air Supply Co Ltd v Total Air Supply Company (2007) Ltd, in relation to a previous version of the rule, that leave should be determined “by considering the overall justice of the case, weighing the prejudice which would be suffered by the plaintiff if leave was refused, against such prejudice

as might occur to the other parties if the plaintiff was permitted to adduce it”.²

[4] Mr Bigio, counsel for the plaintiff, submits that (except for itemised summary paragraphs) the proposed supplementary evidence constitutes replies to the defendant’s briefs of evidence and is necessary in order to deal with factual

_{inaccuracies and respond to alternative methodologies. He says it does
not relate to}

²Total Air Supply Co Ltd v Total Air Supply Company (2007) Ltd HC Auckland CIV 2008-404-

new issues. He also says that much of the evidence, particularly that of Mr Alexander, Ms Van Eeden, and Mr Marshall, largely addresses matters to which they are likely to be called upon to respond in cross-examination. Mr Bigio says that the plaintiffs would be prejudiced by the evidence not being admitted and that any prejudice to the defendants could be mitigated through more time being made available and, possibly, adjournment.

[5] Mr Price is counsel for the first defendant, the Auckland Council. He submits that some of the supplementary evidence raises new issues that are not consistent with the pleadings. He says that the Council’s experts would require three weeks to respond to the proposed supplementary evidence and that this could not all be done in parallel to the court hearing, due to the need for him to be briefed on their conclusions for the purpose of cross-examination. Otherwise, the introduction of the proposed supplementary evidence is said to be “intensely prejudicial” to the Council. The implication is that, if the supplementary evidence is adduced, an adjournment may be required to enable the Council witnesses, fairly, to respond to the supplementary evidence. To the extent that the evidence is in reply to the defendants’ witnesses or in anticipation of cross-examination, Mr Price submits that it should be adduced orally, including through relevant cross-examination, if that occurs.

[6] The third defendant, Ignite Architects Ltd, abides the decision of the Court. Court for the first third party, Kiwi Roofing Ltd, had been excused from the part of the hearing which dealt with this application. The second defendant is in liquidation and is not participating in the proceedings.

[7] Mr Price invited me to read the supplementary evidence, an invitation with respect to which Mr Bigio professed himself agnostic. The parties having outlined the nature of the evidence, I do not consider it is necessary to do so.

[8] My starting point is that neither the High Court Rules, nor the timetable for trial consented to by the parties and set by the Court, provide for supplementary evidence. The standard process for a civil trial is for briefs of evidence to be served

in advance and that further responses or replies should await the hearing and testing of oral evidence at trial. This contrasts with other court procedures such as applications for judicial review where there is rarely oral evidence and provision is usually made in the timetable for reply affidavits. In the context of a civil trial, there needs to be good reason, in the interests of justice, for the Court to exercise its discretion to allow supplementary evidence to be adduced.

[9] I also note that one factor to be weighed in the evaluation of the overall interests of justice is the effect on public resources of vacating a four week trial at its outset. Here, the proceedings were commenced in December 2013 and the trial date has been clear since February 2015. This application to adduce supplementary evidence comes at the last minute.

[10] I do not propose to allow supplementary evidence to be adduced in advance where it simply anticipates possible lines of cross-examination by the defendants. Such evidence can be given at the time if such questions occur in cross-examination. If they do not, neither the court, the parties nor the other witnesses need to be troubled by it.

[11] That means that Mr Marshall’s proposed supplementary evidence will not be adduced. Mr Marshall’s supplementary evidence is three paragraphs long and said by Mr Bigio to be “likely to form the basis of his answers to questions that would be likely to be put to him in cross-examination in any event”. Mr Marshall is at liberty to provide the answers foreshadowed to questions in cross-examination if that occurs.

[12] Neither will Ms Heidi Van Eeden’s proposed supplementary evidence be adduced. I understand her proposed evidence to be a comparative cost analysis of an alternative scope of remedial works proposed in a brief of evidence by Mr White, a witness for the first defendant. I understand Mr White’s evidence to be an alternative to, and therefore contradictory of, evidence of Ms Van Eeden in her original brief of evidence. If this is a significant matter, and the first defendant intends to rely on Mr White’s evidence, its counsel will no doubt be required to put

that evidence to Ms Van Eeden in the course of discharging his cross-examination duties under s 92 of the Evidence Act 2006. In answering, Ms Van Eeden would then be at liberty to draw upon the work she has put into her proposed supplementary brief. If this occurs, I would take notice of the advice from the first defendant that it has had access to Ms Van Eeden’s proposed supplementary brief of evidence since late Wednesday 3 February 2016. It may also be that such matters may then feature in the cross-examination of Mr White by counsel for the plaintiff, though I do not prejudge my rulings on any objections to that. I note that, by then, Mr White will have had the 2-3 weeks his office advised (according to a memorandum of the Council) was required to consider Ms Van Eeden’s supplementary brief.

[13] The same point applies to the proposed supplementary evidence of Mr Stephen Alexander. Mr Bigio says that his evidence, also, largely addresses (in advance) matters to which he is likely to be called upon to respond in cross- examination. So, for example, both counsel spent some time disagreeing about one strand of Mr Alexander’s supplementary evidence which is said to relate to the nature of the ceiling light fittings. As I understand it, Mr Alexander’s proposed supplementary evidence responds to what he considers to be inaccurate evidence by Mr Cooper, a witness for the first defendant, that conflicted with Mr Alexander’s original brief of evidence. If the Council relies on Mr White’s evidence its counsel will be required to put it to Mr Alexander in discharging his cross-examination duties. If and when he does so, Mr Alexander would be at liberty to respond, drawing on the work he has put into his proposed supplementary brief. I would deal with any objections as to the scope of his response, and its relationship to the pleadings, at the time. I would also take notice of the advice by the Council that his proposed supplementary brief was served at the end of Thursday 4 February 2016 and was to be the subject of discussions between Mr Alexander and Mr Cooper, the relevant Council witness, yesterday. Such matters may also then feature in the cross- examination of Mr Cooper, though I do not prejudge my rulings on any objections.

adduced by a new witness, Mr Tid, that “corroborates” (as Mr Bigio put it) evidence

already provided by another of the plaintiff ’s witnesses, Mr Alexander. Mr Tid’s proposed evidence apparently goes further than Mr Alexander’s regarding evidence of the usual practice of council officers at the relevant time. But Mr Bigio properly says that such evidence does not demonstrate that usual practice was reasonable which, as he says, is the question at issue.

[15] At this point in time, I do not consider that any additional value from such evidence is likely to provide good reason to allow supplementary evidence to be adduced at the beginning of trial from a new witness when it merely corroborates the evidence of another witness. However, I reserve my discretion to revisit this question, at the request of the plaintiff, if the evidence of Mr Alexander, including his evidence under cross-examination, indicates that it would be unfair not to do so.

[16] Finally I note that, compared with the usual trial process which the Council advocates for and which my decision upholds, the defendants have benefited from seeing the proposed responses of the plaintiffs’ witnesses to questions that are likely to be required to be put to them in cross-examination.

[17] I reserve questions of costs in relation to this application to be considered at together with costs of the substantive proceedings.

High Court of New Zealand Decisions

Body Corporate 354085 "Perspective Apartments" v Auckland Council [2016] NZHC 200 (11 February 2016)

High Court of New Zealand

Body Corporate 354085 "Perspective Apartments" v Auckland Council [2016] NZHC 200 (11 February 2016)