Birchfield v Birchfield
[2025] NZHC 2609
•8 September 2025
IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA MĀWHERA ROHE
CIV-2024-418-005
[2025] NZHC 2609
BETWEEN EVAN RAYMOND BIRCHFIELD, GARY PAUL BIRCHFIELD AND ANDREW LEE BIRCHFIELD
Plaintiffs
AND
ALLAN JOHN BIRCHFIELD
First Defendant
AND
BIRCHFIELD COAL MINES LTD
Second Defendant
Hearing: 5 September 2025 Appearances:
R J Hollyman KC (via VMR), G K Riach and M K Crimp for Plaintiffs
P A Cowey and J J Taylor for First Defendant
C L Webber and R L Symon for Second DefendantJudgment:
8 September 2025
JUDGMENT OF EATON J
This judgment was delivered by me on …….. at ……… pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
BIRCHFIELD v BIRCHFIELD [2025] NZHC 2609 [8 September 2025]
[1] The first defendant, Allan Birchfield (Allan), has served a subpoena on the first named plaintiff, his brother, Evan Birchfield (Evan). That subpoena requires Evan to appear at trial and give evidence. It also requires him to produce documents.
[2] The plaintiffs apply to set aside the subpoena. Alternatively, a direction is sought that Evan give evidence remotely, either from his home on the West Coast or from the Greymouth Court, with “live transcription” of the questions he is asked.
[3] Mr Cowey, for Allan, acknowledges the requirement within the subpoena that Evan bring documents to trial should be set aside. That reflects the prior tailored discovery orders made in this proceeding. He otherwise opposes the application to set aside the subpoena. He does not accept there are grounds to order that Evan give evidence remotely or with transcription of questions.
[4] In the light of the fast-approaching 15 September 2025 trial date, the current applications were given an urgent hearing date.
Factual background
[5] Evan, Gary and Allan are brothers. Andrew is Evan’s son. Andrew, Gary and Allan are co-owners of the Kaiata Yard (the Yard) situated at 434 Main Road, Kaiata, Greymouth, as tenants in common (Andrew 25 per cent, Gary 50 per cent, Allan 25 per cent). Andrew recently assumed ownership of his father’s interest in the Yard.
[6] Evan, Gary, Allan and their sister, Karen, are each 25 per cent shareholders (either personally or through family trusts) in Birchfield Holdings Limited, the parent company of Birchfield Coal Mines Ltd (BCML). Disputes arose and Allan was removed as a director of BCML and other related entities in April 2019.
[7] BCML uses the Yard primarily for its retail coal sales to the public and for storage, and as a waypoint for distribution of wholesale quantities of coal to its customers. The plaintiffs and BCML say that it uses the whole of the Yard. Allan says it does not.
[8] There is acrimony within the family and the parties agree that the current ownership structure of the Yard cannot continue.
[9] The plaintiffs, as majority owners, seek orders that Allan be bought out of his minority share for fair value. The plaintiffs’ case is that Allan does not use the Yard but is regularly on-site. During those visits Allan drives in and around the Yard in a dangerous manner, filming and confronting staff and disrupting BCML’s operations. His conduct poses a health and safety risk to BCML staff, contractors and visitors. The second defendant, BCML, supports the plaintiffs’ application for a buyout.
[10] Allan proposes that the Yard be partitioned to leave him on one side of a fence and Andrew and Gary on the other. Allan’s case is that a forced sale would cause greater hardship to him than the hardship the subdivision order will cause the plaintiffs. His case is that subdivision is not only feasible, but also consistent with the historic use of the property.
Issues in dispute relevant to evidence Evan might give
[11] For the purpose of the current applications, the parties generally agree that the relevant issues are as follows:
(a)How is the Yard being used, both historically and presently?
(b)Was there a licence granted to the second defendant for exclusive use of the Yard?
(c)What is the hardship to the respective parties of the alternative proposals?
The subpoena
[12] On 31 July 2025, Evan was served with a subpoena issued by Allan’s lawyers. That subpoena ordered Evan to attend this Court on 17 September 2025 and to bring with him and produce all information and documents relating to the property.
[13] When serving the subpoena, Allan failed to comply with r 9.7(6) of the High Court Rules 2016 (the Rules) requiring a party intending to call a witness who has not provided a brief to serve a notice including information as set out in r 9.7(6)(b).
[14] By letter dated 18 August 2025, Evan’s solicitors wrote to Allan’s solicitors advising that they had instructions to apply to set aside the subpoena on the grounds of non-compliance with r 9.7(6) and that the subpoena was an abuse of process insofar as it required Evan to bring documents to Court. Following a minute issued by this Court dated 25 August 2025 Allan’s solicitors served a r 9.7(6) notice and confirmed the requirement to bring documents could be set aside.
Further evidence from Evan and Allan
[15]Evan and Allan have filed affidavits relevant to the current applications.
Evan’s affidavit
[16] Evan deposes that the r 9.7(6) notice does not make it clear what evidence he is expected to give. He explains that the reason he had not filed evidence was because he did not work in the business day-to-day so cannot comment on recent events or the claimed ongoing use of the Yard by Allan. He does, however, depose that he has read and agrees with the history of the Yard as described by the other witnesses to be called by the plaintiffs and second defendant. He said he strongly supports the application for a sale order. He further deposes that he has read Allan’s evidence detailing allegations made against Gary and Karen. He describes them as hurtful and wrong and confirms he does not agree with them at all.
[17] If he is required to give evidence, he relevantly deposes that he is 73 years old, suffers serious mobility issues and is largely deaf. He explains that his mobility is limited, and travel is painful and challenging. He attached a medical certificate to his evidence. He requests that, if required to give evidence, he be permitted to give evidence remotely from his home and with assistance to ensure that he understands questions. He asks that questions be transcribed.
Allan’s affidavit
[18] Allan deposes that Evan’s attitude towards him is hostile and that they do not speak. He describes Evan as the only person besides himself who was witness to the circumstances of the purchase of the property, the use of the property until their father’s death and then the use of the property until their mother’s death. He says Evan is also a “key witness” to the sad history of acrimony within the family. Allan says he is “willing to consider” that Evan give evidence from the Greymouth Court.
Submissions
Plaintiff
[19] Mr Hollyman KC, for Evan, submits the r 9.7(6) notice is non-compliant, lacking the necessary detail to fairly inform the plaintiffs of the evidence the first defendant intends to lead. Further, and with reference to the test proposed in NZX Ltd v Ralec Commodities Pty Ltd,1 he submits Allan has failed to take reasonable efforts to obtain a brief from Evan, and more particularly that any evidence from Evan is unnecessary, highlighting that Evan says he has not been an eyewitness to Allan’s behaviour. Mr Hollyman says the generalised evidence Allan says Evan might give is either not disputed or is irrelevant. Further, Evan has made it clear he does not agree with Allan’s various allegations.
[20] Mr Hollyman further submits that the broader interests of justice favour setting aside the subpoena. He points to Evan’s mobility and hearing issues as outlined in the medical report attached to Evan’s affidavit.
[21] Alternatively, and with reliance on Evan’s health issues, he seeks the alternative mode of evidence orders.
First defendant
[22] Mr Cowey and Mr Taylor made submissions on behalf of Allan. They say the defence always anticipated that Evan would file a brief of evidence on behalf of the
1 NZX Ltd v Ralec Commodities Pty Ltd [2016] NZHC 799.
plaintiffs and that Allan acted promptly to serve a subpoena when it became clear that was not the case. They submit the notice served is adequate and that it is “obvious” that given Evan’s longstanding relationship with Allan and the Yard that Evan is able to give relevant evidence.
[23] Mr Cowey highlights that Evan is the only living witness, other than Allan, to the entire timeline of events from the purchase of the Yard in 1978 to the present, highlighting that Gary became an owner in 2002 through inheriting his mother’s share and Andrew only became an owner very recently. He submits Evan’s evidence is necessary to, in effect, complete the historical record.
[24] Mr Taylor acknowledges that r 9.76 protects litigants against trial by ambush but submits the plaintiff cannot be ambushed by his own evidence. He submits that Allan had no option available to attempt to obtain a brief from Evan given he was represented and chose not to give evidence. He highlights that Allan and Evan no longer speak.
[25] Mr Taylor submits that Evan’s evidence is material to Allan’s case that the property has been consistently used by Allan, Evan and associated companies since it was purchased by the Birchfield family in 1978. Mr Taylor referred specifically to documents filed by the plaintiffs in this proceeding supporting his argument that historical use of the Yard is a relevant issue and one that Evan could be expected to speak to. He says Evan will be able to give evidence that the Yard has been used as a workshop and contractor’s depot by Allan, Evan and their father since 1978.
Second defendant
[26]Ms Webber confirmed that BCML will abide the decision of the Court.
Legal principles
[27] The principles that apply in considering an application to set aside a subpoena were captured by Moore J in MacKenzie v MacKenzie.2 Although subpoenas are administratively issued by the registry, the Court may control cases of abuse of process
2 MacKenzie v MacKenzie [2018] NZHC 1744 at [27]–[28].
and prevent wrongful use of subpoenas. The Court possesses an inherent discretionary jurisdiction to set aside subpoenas.
[28] To set aside a subpoena, the applicant should show it was irregularly issued, illegally procured or is being used oppressively for an improper purpose (these grounds may overlap). Absent abuse, the sole question is “whether or not any admissible evidence can be properly given in answer to the witness summons”.3
[29] If the subpoena is not set aside, and no brief has been provided, the party who intends to call the witness will require a direction under r 9.10 of the Rules that the witness give evidence orally.
[30] In NZX Ltd v Ralec Commodities Pty Ltd4 a two-stage test was proposed in considering whether to allow oral evidence from witnesses appearing pursuant to a subpoena:
(a)First, have all reasonable efforts been exhausted to obtain a brief?
(b)Secondly, is the evidence from the proposed witness necessary?
[31] That test has subsequently been confirmed by this Court5 and counsel are agreed it should apply to the current application to set aside the subpoena.
Discussion
The r 9.7(6) notice
[32] Rule 9.7 of the Rules deals with the requirements in relation to a brief of evidence. Rule 9.7(6) addresses the calling of a witness who has not provided a brief. That rule provides as follows:
9.7 Requirements in relation to briefs
…
3 At [28]; citing Re Golightly [1974] 2 NZLR 297 (SC) at [302].
4 NZX Ltd v Ralec Commodities Pty Ltd, above n 1, at [16]–[18].
5 Wright v Attorney-General [2021] NZHC 2695 at [41]; and Oxygen Air Ltd v LG Electronics Australia Pty Ltd [2018] NZHC 2912 at [9] and [14].
(6)A party intending to call a person as a witness must, if that person has not provided a brief,—
(a)serve a notice on the other parties to the proceeding informing them that the party intends to call the person as a witness; and
(b)include the following information in the notice:
the name of the intended witness:
(ii)the steps that have been taken to obtain a brief from the intended witness:
(iii)the reasons for the intended witness not providing a brief:
(iv)an explanation of the relevance of the evidence of the intended witness:
(v)details of the evidence that the party expects the intended witness to give.
…
The belated notice served by Allan reads as follows:
(i)Our client intends to call Mr Evan Raymond Birchfield as a witness in the abovenamed proceeding;
(ii)He is a represented party;
(iii)No brief has been filed by Mr Evan Birchfield for reasons which are unclear;
(iv)Mr Evan Birchfield’s evidence is relevant to the issues in dispute, in particular the use of the Kaiata Yard property, the history of ownership; and the relationship between the owners and occupiers; and
(v)We expect Mr Evan Birchfield will give evidence covering the matters traversed in Mr Allan Birchfield’s brief concerning ownership and use of the Kaiata Yard from 1978 to 2025.
[34] That notice complies with r 9.7(6)(a) and (b)(i). Beyond that it is, in my view, wholly non-compliant.
[35] It fails to address what, if any, steps have been taken to obtain a brief from Evan. The notice suggests that because Evan is a party to the proceedings, Allan is
relieved of any obligation to take steps to obtain a brief. I do not accept that. That the proposed witness is an opposing party might explain why that witness has refused to provide a brief, but it does not relieve the party serving the notice of the obligation to take steps to obtain a brief and to particularise those steps within the notice.
[36] The reasons advanced in the notice for not providing a brief for Evan— “reasons which are unclear”—reflects a blatant disregard for the rule. The notice suggests it is for the plaintiff to explain why Allan proposes calling a witness who has not filed a brief. That is disingenuous.
[37] I agree with Mr Hollyman that r 9.7(6)(b)(iv) and (v) in effect require the party serving the notice to provide a “will say” statement for the intended witness. “Details” of the evidence the witness is expected to give are required. Allan’s notice gives no such detail. It refers in general terms to Allan’s brief, but that brief runs to 31 pages addressing matters over the course of five decades including a schedule of allegations of misconduct. Based on the notice neither the parties nor the Court are any better informed as to what evidence it is that Allan intends to elicit from Evan.
[38] The requirements of r 9.7(6) are mandatory. That reflects the fundamental “no surprises” premise of civil litigation. There can be no suggestion the rule does not apply if the intended witness is an opposing party. Mr Taylor submits, and I accept, that Evan could hardly be ambushed by his own evidence but concedes that the co-plaintiffs might be.
[39] The notice reflects no genuine effort to comply with either the letter or spirit of the rule. I agree that non-compliance with r 9.7(6) would rarely determine an application to set aside a subpoena. However, given what I consider to be significant and flagrant non-compliance with r 9.7(6), I would have been minded to set the subpoena aside on that ground alone. There are further relevant considerations.
The two-stage test
[40] I must consider whether it would be appropriate to make an oral evidence order under r 9.10. That engages the two-step test discussed.
Reasonable efforts to obtain brief exhausted?
[41] In my view Allan has failed to take any reasonable steps to obtain a brief from Evan. Mr Taylor submits that given the hostility between the parties, there was little Allan could have done to have Evan produce a brief. I do not accept that submission. On learning that the plaintiffs did not intend calling Evan to give evidence at trial, it was both open to Allan and reasonable, in my view, for him to have invited the plaintiffs to formally agree to factual allegations set out in Allan’s brief or to request the plaintiffs to raise particular matters with Evan that the defendant might seek to offer in evidence at trial.
[42] I agree with Mr Taylor if I was to find that evidence from Evan was necessary, that might well overcome Allan’s failure to take reasonable attempts to secure a brief. I accept that his failure, in large part reflects the novelty of Allan’s proposal to call an opposing party he describes as hostile.
Is Evan’s evidence necessary?
[43] Necessity involves more stringent tests than mere relevance.6 The paucity of information within the notice does not permit the first defendant to establish that Evan’s evidence is necessary. In his evidence, Allan expands on the r 9.7(6) notice and raises general topics of relevant evidence he believes Evan could give. I deal with each of the four topics.
[44] First, Allan says Evan could speak to the circumstances of the purchase of the property. Mr Hollyman says that while there might be a dispute about how the original purchase was funded, it is not a dispute of any moment because the question of ownership has significantly moved on. He submits that how Allan paid for his 25 per cent shareholding is not relevant.
[45] At this stage, I do no more than express my doubt as to the relevance of this topic. Even if Allan’s historical account is contested, I am not satisfied that dispute is of any significance to the ultimate issues.
6 Hawkins v Davison (No 2) (1990) 3 PRNZ 700 (HC) at 703.
[46] Secondly, Allan believes Evan could give evidence about the use of the property from the time of purchase until their father’s death. Allan and Evan’s father died in 1990. Mr Hollyman confirmed there is no dispute that Allan, Evan and their father had operated the business together up until that point. Again, I am satisfied that even if this topic is relevant, there is no significant dispute.
[47] Thirdly, Allan refers to evidence as to the use of the property from their father’s death until their mother’s death. Allan and Evan’s mother died in 2002. Again, Mr Hollyman questions whether there is any real dispute regarding the use of the property up to 2002 that will be relevant to determination of the issues at trial. He highlights that both Allan and Evan’s sister, Karen, and their brother, the plaintiff, Gary, are both giving evidence as to this particular topic and will be available for cross-examination. Evan has deposed that he has read and agrees with the history of the Yard as laid out by other witnesses including Karen and Gary. Mr Taylor could not point to any particular evidence that Evan might give particular to this time period.
[48] Fourthly and finally, Allan describes Evan as a key witness to the sad history of acrimony within the family. Acrimony within the family is not disputed. The focus of the plaintiffs’ case is on recent events on site, some of which fall under the umbrella of acrimony. However, none of those incidents are said to have involved or been witnessed by Evan.
[49] Given the unlikelihood of dispute or of Evan being able to give relevant evidence on topic, I am not satisfied his evidence is necessary in relation to any of the four topics raised by Allan.
[50] However, there is a further factor I consider to be of some significance in considering the question of necessity. That is the rule in Jones v Dunkel.7 That rule, more appropriately described as a principle of the law of evidence, authorises but does not mandate reasoning that the absence of evidence, including the failure of a party to call a witness, may in some circumstances allow an inference that the missing evidence would not have helped the party’s case.8 It follows that if a party fails to call a witness
7 Jones v Dunkel (1959) 101 CLR 298.
8 Perry Corporation v Ithaca (Custodians) Ltd [2004] 1 NZLR 731 (CA) at [153].
who could reasonably be expected to give evidence in relation to an issue in dispute and relevant to the determination of the proceeding, an adverse inference might be drawn.
[51] If, as Allan deposes, Evan is the only person alive who can give evidence as to particular historical matters that Allan addresses in his evidence, and if those historical matters are relevant to determining the proceeding, no doubt counsel will invite the Court to reason that Evan could not have given evidence on those issues that would have advanced the plaintiffs’ case. Mr Hollyman accepts that rule would apply in the present circumstances. In my view, application of that reasoning principle provides strong support for the plaintiffs’ argument that Evan’s evidence is not necessary.
[52] Not surprisingly, counsel have not identified any authority where one party has subpoenaed a named opposing party to give evidence at trial. The rule in Jones v Dunkel goes some way to explaining the novelty of that scenario and might be seen as allaying Allan’s concerns.
[53] More generally, Mr Cowey acknowledged that it was an “unusual” position for a party to seek to subpoena a witness who is an opposing party, said to be hostile, for whom the party has no signed brief, proposing that witness give evidence on topics that are otherwise only addressed by the party proposing to call the witness. I suggested to Mr Cowey that there could be no forensic advantage to Allan in calling Evan as a witness. At best, Evan might corroborate Allan’s evidence. At worst, and perhaps more likely, he would contest Allan’s evidence. Mr Cowey confirmed Allan’s instructions were clear. Mr Cowey accepted that assessment but submitted:
The first defendant’s position however looks beyond just today or the hearing and beyond Your Honour’s decision. It looks to the relations between the next generation and further parties. And to that extent, relying on, if you like, a technicality, can sometimes rob the moral victory, even though it might grant a legal victory.
[54] I infer from that submission, that Allan has in mind that within the confines of this proceeding, the Court might engage in a wider form of inquiry as to the history of the Birchfield family and its relationship with the Kaiata Yard. That is not the case.
Probative value and needlessly prolonging proceedings
[55] Finally, Mr Hollyman questions whether the proposed evidence can overcome the admissibility gateway of s 8(1) of the Evidence Act 2006. That provision provides:
8 General exclusion
(1)In any proceeding, the Judge must exclude evidence if its probative value is outweighed by the risk that the evidence will—
(a)have an unfairly prejudicial effect on the proceeding; or
(b)needlessly prolong the proceeding.
[56] I assess the probative value of any evidence Evan might give to be low. That is because Allan’s evidence on the topics he wants Evan to address is not contested and, as Allan says, there is no other live witness to address those topics. In effect, at best his evidence would be corroborative of Allan’s evidence.
[57] If Evan is required to give evidence, it will inevitably prolong the trial. Mr Cowey has estimated that Evan’s evidence in chief might take 40 minutes. But given the inevitable challenges Mr Cowey would face in leading that evidence (prohibition on asking leading questions)9 and, knowing Evan is said to be hostile to Allan and has filed evidence in this proceeding generally denying Allan’s allegations, that estimate is unlikely to be realistic.
[58] There is the additional complication that Evan suffers industrial deafness and has serious mobility issues. Those factors would inevitably slow proceedings. If, as I would be minded, the plaintiffs’ application to give evidence remotely was granted, further complications might arise which would only prolong the hearing. For a trial estimated to last four days, I consider an additional two to three hours required to hear evidence of limited probative value does not meet the 8(1) admissibility threshold.
Summary
[59] There are significant shortcomings with the s 9.7(6) notice. Allan has failed to take steps to obtain a brief from Evan. Evan’s evidence at trial is not necessary given
9 Evidence Act 2006, s 89(1).
there is little dispute as to the issues Allan proposes that Evan speak to in evidence and, if it transpires that there is a dispute, the rule in Jones v Dunkel may well apply. I am also satisfied that what I assess to be the low probative value of any evidence Evan could give is outweighed by the likelihood that it will needlessly prolong the proceeding.
[60] I am satisfied that in the unusual, and perhaps novel, circumstances, that the subpoena be set aside. It is not necessary that I deal with the plaintiff’s mode of evidence application.
Result
[61]The subpoena issued to Evan Birchfield is set aside.
[62]Costs are reserved.
...................................................
Eaton J
Solicitors:
Harmans Lawyers, Christchurch Parry Field Lawyers, Christchurch Anderson Lloyd, Christchurch
Counsel:
R J Hollyman KC, Auckland
G K Riach, Barrister, Christchurch
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