Body Corporate 325261 v McDonough - [2015] NZHC 1700

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-8000 [2015] NZHC 1700

IN THE MATTER Known as "C-Vu Apartments"

BETWEEN

BODY CORPORATE 325261
First Plaintiff

RODNEY WILLIAM COOKE AND OTHERS

Second Plaintiffs

AND

JAY MCDONOUGH First Defendant

MAUNGA REI NZ LIMITED Second Defendant

Continued over….

Hearing: 22 July 2015

Counsel:

G J Kohler QC, C Baker and D Fotiades for the Plaintiffs
S Mills QC, B O'Callahan, J A Frampton and J Ding for the
Sixth and Seventh Defendants

Judgment:

22 July 2015

ORAL JUDGMENT OF MUIR J (Re Order excluding witnesses)

Counsel/Solicitors:
G J Kohler QC, Barrister, Auckland
C Baker, Price Baker Berridge, Henderson
D Fotiades, Price Baker Berridge, Henderson
S Mills QC, Barrister, Auckland
B O’Callahan, Kirkland Morrison O’Callahan & Ho Ltd, Auckland
J A Frampton, Kirkland Morrison O’Callahan & Ho Ltd, Auckland
J Ding, Kirkland Morrison O’Callahan & Ho Ltd, Auckland

BODY CORPORATE 325261 v MCDONOUGH [2015] NZHC 1700 [22 July 2015]

AUCKLAND COUNCIL Third Defendant

GARY BICKERTON Fourth Defendant

RACHEL VENABLES Fifth Defendant

STEPHEN MITCHELL ENGINEERS LIMITED
Sixth Defendant

STEPHEN ROBERT MITCHELL Seventh Defendant

MACDONALD BARNETT PARTNERS LIMITED Eighth Defendant

MICHAEL SIMPSON Ninth Defendant

GARY JOHN SCARBOROUGH First Third Party

ROSS DUXFIELD Second Third Party

FRAMERITE INSTALLATIONS LIMITED
Third Third Party

JAMIE SIMON HUTCHENS Fourth Third Party

GARY PAUL GORDON Fifth Third Party

[1] The defendants seek an order excluding witnesses against all of the second plaintiffs in terms that they only be permitted to be present in court after they have given their evidence. There are approximately 100 second plaintiffs, most of whom are intended to be called.

[2] The defendants say that such an order is necessary in the interests of justice having regard to two intended lines of cross-examination:

1.The first was initially put by Mr O’Callahan in terms of “what is the status of the building and what is required to be done?”. However, when I questioned the relevance of such line of inquiry, given my assessment such issues were likely to turn on questions either of law or expert evidence, that position was refined to one expressed in terms “the choices people are making and why” in respect of remediation.

2.The second relates to the second plaintiffs’ source of claimed stress and, in particular, whether it derives from the weathertightness issues with the building or its alleged structural defects or both.

[3] I have been referred to the New Zealand decisions of Reynolds v Calvert,1

Robinson Crothall Ltd v Snap On Inc,2 and Maruha Corporation & Anor v Amaltal

Corporation.3

[4] In the Robinson Crothall decision there is a comprehensive discussion of this issue including the British Columbian Court of Appeal decision in Sissons v Olsen.4
In that case O’Halloran JA said that he took as his starting point what he described as “an inherent right [for a party] to be present … at a trial”. At pages 509 to 510 of the decision he said:

It seems to me, with respect, we must start with…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NZHC 1700
Decision Date: 22 July 2015

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, the case of Body Corporate 325261 v McDonough involved the Body Corporate and Rodney William Cooke as plaintiffs against Jay McDonough as the first defendant and Maunga Rei NZ Limited as the second defendant. The dispute centred around an application by the defendants for an order excluding the second plaintiffs from attending the trial until they had given their evidence. The plaintiffs, numbering approximately 100, were mostly intended to be called as witnesses. The defendants argued that such an exclusion was necessary in the interests of justice, particularly concerning two lines of cross-examination: the status of the building and what remediation was required, and the source of the second plaintiffs' claimed stress, whether due to weathertightness issues or alleged structural defects.

The legal issues revolved around the inherent right of parties to be present at a trial and the circumstances under which this right could be curtailed. The court considered relevant New Zealand case law, including Reynolds v Calvert, Robinson Crothall Ltd v Snap On Inc, and Maruha Corporation & Anor v Amaltal Corporation, which established that while parties have a fundamental right to attend, this right could be interfered with for good and sufficient reasons, such as to ensure a fair trial or in exceptional circumstances. The court noted that the defendants had not demonstrated sufficient prejudice to justify the exclusion order, particularly as the issues were more suited to expert evidence or legal argument rather than the subjective views of the second plaintiffs. The court also observed that the case did not involve allegations of deceit, misrepresentation, or concealment that might warrant such an order.

The court declined to make the exclusion order sought by the defendants, holding that the circumstances did not meet the threshold of being "extraordinary" or "exceptional" as required by the authorities. However, the court did require the plaintiffs' counsel to compile and provide a list of second plaintiffs present at the commencement of each witness's evidence to the defendants on a daily basis. This measure was intended to allow the defendants to assess the quality of evidence based on the exposure of second plaintiffs to their co-plaintiffs' testimonies. Costs on the application were reserved.

Orders