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 the principle that every person has an inherent right to be present at a trial or any other proceeding in

1      Reynolds v Calvert [2015] NZHC 870.

2      Robinson Crothall Ltd v Snap On Inc (2002) 16 PRNZ 430 (HC).

3      Maruha Corporation & Anor v Amaltal Corporation (2004) 17 PRNZ 67 (HC).

4      Sissons v Olsen (1951) 1 WWR (NS) 507 (BC CA).

which he is a party.  Such a right must, however, not conflict with the fair and proper judicial conduct of the action or the proceedings.

[5]      Sidney Smith JA expressed the position in that case in somewhat different terms.  He said:

If from the pleadings or otherwise it appears that the examinations of the co- parties will cover the same ground and their credibility will be a factor then it seems to me their exclusion should be ordered.5

[6]      In the New Zealand context, particularly having regard to s 27 of the Bill of Rights Act,  Heath  J  concluded  in  Robinson  Crothall  that,  both  as  a  matter  of principle and practise, the approach of O’Halloran JA was to be preferred over that of Sidney Smith JA, and held at [40]:

I agree with O’Hallaran JA that the right of a party to be in attendance throughout a trial should be regarded as a fundamental right.  It should only be interfered with for good and sufficient reasons.   The Court can, in its discretion, make an order excluding a party where it is necessary to do so to ensure a fair trial to another party or where because of exceptional circumstances it is necessary to clear the Court.  Examples where the latter power may be exercised would be to restore order or where it is necessary in the interests of national security to close the Court.

[7]      His Honour held that he was  not satisfied  that  the defendants  would  be sufficiently prejudiced to justify the order sought.  He said, at [41]:

In particular I find expressly that it is not necessary to ensure a fair trial to the defendants to make the order sought.  The plaintiffs are committed to an evidential  position  and  I  am  not  persuaded  that  the  presence  of  other plaintiffs in the Court prior to them giving evidence is likely to undermine the ability of the defendants to cross-examine the plaintiffs.

[8]      That was a reference to [39] of his decision in which he identified what is now the customary course (and the course followed in this case) whereby witnesses give their evidence in advance by way of a prepared brief of evidence.  Heath J did, however, reserve a right if something, which he described as “extraordinary”, arose

which was not currently in his contemplation.6

[9]      In the Maruha case an order was made excluding corporate representatives of the defendant from hearing the evidence of the plaintiffs’ witnesses.   That was

5      At 511-512.

against the background of a trial which Priestley J said was notable, not only for its competing views but “more importantly serious allegations of deceit, misrepresentation and concealment, quite apart from standard credibility issues”.7

His Honour held that in those particular circumstances the interests of justice were not served by allowing witnesses giving evidence on those topics to be able to hear the evidence of the other side’s witnesses on the same topics.

[10]     In Reynolds v Calvert8  Dunningham J declined to make an order excluding parties even though issues of equitable fraud and concealment were pleaded.   She held:

[20]      While issues of concealment and equitable fraud are pleaded they are primarily advanced on the basis of the documentary evidence provided. Motive is not a primary issue in my view.   Futhermore, any explanations which are now provided as to why things happened, which have not been given before or which are inconsistent with a contemporaneous document, can properly be the subject of comment in closing submissions.  The issues are primarily legal issues to be argued on the facts as presented in which, to a large extent, appear to be undisputed.

[11]     I distill from these authorities the following principles:

1.There  is  jurisdiction  to  exclude  parties.     Whether  to  do  so  is discretionary, with the discretion exercised on a principled basis.

2.Attendance by parties is a fundamental right which should only be interfered with for good and sufficient reason.  There is an onus on the party applying and it is not one that is lightly discharged.

3.Although  the  test  may  not  be  appropriately  cast  in  terms  of  a requirement   for   an   “exceptional”   or   “extraordinary”   case   the discretion should be sparingly exercised.

4.Cases involving deceit, misrepresentation and concealment will often, but not always, justify an order.

7      Maruha Corporation & Anor v Amaltal Corporation above n 3, at [14].

5.Other than in such cases the weight of authority favours the right of a party to attendance.

[12]     The present case is not one involving allegations of the character identified by Priestly J in Maruha.  The nature of the evidence, from what I have distilled from the  briefs  so  far,  focuses  primarily  on  the  second  plaintiffs’ alleged  distress  in consequence of the problems encountered with the building.  That has its genesis in the weathertightness issues but is said to have been exacerbated by the structural issues.  It is unlikely that any of these plaintiffs will have compartmentalised their stress in terms that a certain percentage is attributable to one reason or another.  To the extent that there are issues of credibility they are, in my view, routine and not sufficient in my opinion to take the case outside the generality of a case where the presumption applies.

[13]     In terms of cross-examination related to the status of the building or what is required to be done, there are, in my view, real issues as to the relevance of any views expressed by the second plaintiffs.   Indeed, I will be reluctant to entertain extensive cross-examination on that subject.

[14]     The central issue in this case, as I am presently appraised, is “did the building meet the requirements of the Building Code when designed and if not was that as a result of the defendants’ negligence?”9   If it did not meet those requirements, issues will arise in terms of the required standard of remediation and whether damages are appropriately awarded in substitution or in addition to the cost of such remediation. These are issues of law and/or issues which will be determined on the basis of expert evidence.  The second plaintiffs’ assumptions about such issues are likely to be of little assistance to me.  Nor do I consider the position materially different as recast

by Mr O’Callahan in terms of the “choices people are making and why”.  What those choices are and what the plaintiffs’ motivations may be, seem to me (at least at this stage) largely irrelevant. Again the question is whether a breach of duty is made out. Moreover, even if I considered the evidence as to the “choices made and why” more

relevant than I do based on my admittedly limited knowledge of the case at this

9      Noting the plaintiffs’ case that this in turn necessitates either that the building was designed in accordance with an “acceptable solution”, “approved verification method” or “alternative solution”.

stage,  I would still consider the application to  fall short of the sort  of unusual circumstances necessary to rebut the presumption identified in the authorities.

[15]     Accordingly, exercising my discretion, I decline to make the order sought.

[16]     As identified in discussions with counsel for the plaintiffs however, it will be open for the defendants to make submissions about the quality of evidence of individual second plaintiffs based on their exposure to their co-plaintiffs’ evidence. The defendants cannot be expected to identify who among those in the public gallery at any given time are plaintiffs.  I therefore require the plaintiffs’ counsel to compile a list of plaintiffs present in court at the commencement of each witness’ evidence and to provide this to the defendants on a daily basis.   If during the evidence any other plaintiff enters the court and is identified as such by counsel, their name is to be added to the list.   That may in turn necessitate a junior counsel being present throughout this part of the evidence.

[17]     In addition, and as recognised in [42] of Heath J’s judgment, if a particular issue arises outside the contemplation of what is discussed in this judgment and which is, in his Honour’s words, “extraordinary”, that may be raised and will be dealt with in the same manner as his Honour indicated in that passage of his judgment.

[18]     Costs on the application are reserved.

Muir J