Burden v Debonaire Furniture Ltd

[2017] NZHC 1553

IN THE HIGH COURT OF NEW ZEALAND

WELLINGTON REGISTRY

CIV-2014-485-11179

[2017] NZHC 1553

UNDER

the Copyright Act 1994 and the Fair Trading Act 1986

IN THE MATTER

of infringement of copyright and breach of the Fair Trading Act 1986

BETWEEN

IAN JAMES BURDEN

First Plaintiff

PLANTATION GROWN TIMBERS (INTERNATIONAL) LIMITED

Second Plaintiff

PLANTATION GROWN TIMBERS (VIETNAM) LIMITED

Third Plaintiff

AND

DEBONAIRE FURNITURE LIMITED

First Defendant

BURDEN FURNITURE
(INTERNATIONAL) LIMITED
Second Defendant

BURDEN FURNITURE CO LIMITED
Third Defendant

LINDSAY JOHN BURDEN
Fourth Defendant

JEREMY DAVID SMITH
Fifth Defendant

ROBERT WAYNE SMITH

Sixth Defendant

Hearing:

21 June 2017

Counsel:

G Hazel and J R Wach for Plaintiffs

G F Arthur for First, Fifth and Sixth Defendants

BURDEN v DEBONAIRE FURNITURE LIMITED [2017] NZHC 1553 [6 July 2017]

Judgment: 6 July 2017

JUDGMENT OF THOMAS J

Introduction

[1]    The  plaintiffs  allege  furniture  imported  by  the  first   defendant   into  New Zealand infringes copyright owned by the plaintiffs and constitutes a breach of the Fair Trading Act 1986. The first, fifth and sixth defendants deny the claim and counterclaim against the plaintiffs. The second, third and fourth defendants deny the claim, but do not appear to be taking any steps in the proceeding at this stage.1

[2]    The first, fifth and sixth defendants have applied for two witnesses to give evidence by audio-visual link (AVL). Affidavits in support of the application from the two witnesses have been filed. The plaintiffs oppose the application and have filed affidavits in support of that opposition.

Application

[3]    The application concerns two witnesses, Edwin Elting and Craig Morrow. Both witnesses have signed briefs of evidence which have been served on the plaintiffs. The application is on the basis the evidence is essential for a fair proceeding to enable the defendants to present their defence.

[4]    Mr Elting resides in Kentucky, United States of America. Mr Morrow spends most of his time in Ho Chi Minh City, Vietnam. It is proposed the witnesses give evidence by AVL and the defendants say they will ensure the technology will provide a high-quality transmission. They propose a protocol to cover the requirements and practical arrangements for the giving of evidence by AVL.

[5]    The defendants say evidence by AVL is now routine and does not adversely affect the ability to assess the credibility of witnesses or the reliability of the evidence.

1      By a Minute of 15 December 2014, Brown J noted the one page documents which purport to be statements of defence by the second, third and fourth defendants do not provide an address for service. It is unclear whether this omission has been rectified.

[6]    The plaintiffs say the balance of convenience does not favour the witnesses giving their evidence by AVL and neither witness has given good reason for absence from New Zealand for the trial. The plaintiffs maintain the inconvenience suffered by the witnesses would be modest.

[7]    Furthermore, the plaintiffs question the credibility of the witnesses, saying Mr Morrow has attempted to interfere with and disrupt evidence processes in the High Court of New Zealand in the past and there are no adequate sanctions for perjury in the event he gives false evidence.

Mr Elting

[8]    Mr Elting will give what the defendants say is important evidence about the origins of the design of the Irish Coast furniture at issue in the proceeding. He will say the designs originated from a United States company, not from Ian Burden. This would mean there was no originality in the plaintiffs’ alleged artistic works and no copyright.

[9]    Mr Elting is an American citizen and the co-CEO of a company based in Kentucky. Mr Elting deposes he is not willing to come to New Zealand to give evidence because it would significantly interrupt his business. While he travels a great deal for business within the United States and to Asian countries, he says he cannot spare the week necessary to come to New Zealand to give evidence. Mr Elting explains that, when he is away, business decisions or actions are deferred, and he does not allow work trips to take any more time than absolutely necessary. It is important for him to be in the United States in June.2

[10]   Mr Elting attended at the High Court of New Zealand in person as a witness in September 2015 for the plaintiffs’ proceedings against ESR Group Ltd (the ESR case). He notes that took him away from work for a week and was quite disruptive.

[11]   In the defendants’ submission, the  expense  of  Mr  Elting  travelling  to  New Zealand is not justified. They note he is independent from the defendants and

2      The trial was scheduled to commence in June 2017, but has been adjourned.

they have no way of compelling him to attend the trial or arranging for his commitments to be adjusted to enable him to travel to New Zealand.

Mr Morrow

[12]   Mr Morrow will also give evidence about the origins of the designs of the Irish Coast furniture, saying they did not originate from Mr Burden. Mr Morrow will give evidence about the history of the second and third plaintiffs’ business in Vietnam (PGT), about the origins of other designs claimed by the plaintiffs, and the design process at PGT.

[13]   Mr Morrow is the owner and operator of Morrow Marketing Management Ltd. He is an Australian citizen and spends most of his time in Ho Chi Minh City.

[14]   Mr Morrow deposes his knowledge of relevant issues comes from his having been present when the products were created and he was the business partner of Ian Burden, the first plaintiff, at the relevant time.

[15]   Mr Morrow’s company has supplied furniture to the first defendant but otherwise does not have a relationship with it. Mr Morrow and his company are defendants in proceedings brought by the plaintiffs in other cases, but do not have any products at issue in this proceeding.

[16]   Mr Morrow says he is not available or willing to come to New Zealand to give evidence. He runs a busy business from Vietnam, having to supervise 22 direct employees and employees of sub-contracted factories. He is also responsible for dealing with suppliers to his company and his customers. He travels for business within Vietnam and to other Asian countries, Australia, the United States and Europe. He says he does not have the time to be away for any matters other than business, noting his company slows down whenever he is away.

[17]   Mr Morrow says he attended in the High Court of New Zealand in person as a possible witness in September 2015 for the ESR case. That took him away from Vietnam for a week, but in the end he was not required to give evidence. He refers to an incident in the departure lounge at Auckland International Airport where he says he

was confronted by Mr Stone, the Australian solicitor for the plaintiffs, who, accompanied by New Zealand Police, attempted to serve him with some documents. Mr Morrow outlines the circumstances and considers there was no need for the behaviour, which in his view was done with  intent  either  to  stop  him  leaving New Zealand or to embarrass him. He believes Mr Stone had convinced New Zealand Immigration officials to allow Mr Stone through immigration and into the departure lounge for this purpose. He is very concerned about returning to New Zealand as he has no confidence he will be treated properly. He says several weeks after the incident the plaintiffs sent pictures of him at the departure lounge with the Police to factories in Vietnam and told those factories he was arrested.

[18]   Mr Morrow also contends that, when he was waiting to give evidence at the ESR trial, Ian Burden’s wife falsely accused him of taking photographs of her staff in the courtroom. He says she had a High Court security guard demand he hand over his telephone for any photographs to be inspected, but no pictures were found.

[19]   Although willing to cooperate by giving evidence by AVL, Mr Morrow is not available to come to New Zealand because of his business commitments and previous experience. He is familiar with the technology and does not envisage any difficulties, saying he would be available to give evidence from 8.00 am Vietnam time, which is

1.00 pm New Zealand time.

Affidavits in opposition

[20]   The plaintiffs have filed five affidavits in opposition. Three of them outline the circumstances of the incidents at Auckland Airport and the Auckland High Court. They dispute Mr Morrow’s version of events.

[21]   Tran Xuan Chi Anh, a member of the Ho Chi Minh City Bar Association, was asked to give an expert opinion on Vietnamese law applicable to a witness giving evidence by AVL from Vietnam for a trial in New Zealand. He says there are no legal sanctions (civil or criminal) available against an individual who commits perjury in Vietnam when giving evidence by video for a New Zealand trial. There is no mutual legal assistance agreement between New Zealand and Vietnam.

[22]   Ian Burden deposes that a number of the statements in Messrs Eltings’ and Morrows’ briefs of evidence are “incorrect and untrue”. He notes he himself will be travelling from Ho Chi Minh City to give evidence and that travel from Vietnam to Australasia is common. He also comments on the issue of Mr Stone trying to serve documents on Mr Morrow at Auckland Airport.

The law

[23]   Mr Hazel, appearing for the plaintiffs, submitted that the starting point is High Court Rule 9.51, which provides:

9.51     Evidence to be given orally

Unless otherwise directed by the court or required or authorised by these rules or by an Act, disputed questions of fact arising at the trial of any proceeding must be determined on evidence given by means of witnesses examined orally in open court.

[24]   A witness giving evidence by AVL will, it seems to me, comply with this requirement. The witness will be examined orally and this will take place in open court.

[25]   Section 83 of the Evidence Act 2006 provides the ordinary way for a witness to give evidence in a civil proceeding is orally in a courtroom in the presence of the judge, the parties and their counsel, and the public.

[26]   However, the Court of Appeal has observed that there is no default position or presumption in favour of giving evidence in the ordinary way.3

[27]   The Courts (Remote Participation) Act 2010 provides in pt 2 for the use of AVL in criminal and civil proceedings. AVL may be used in civil proceedings for the appearance of a participant if a judicial officer or registrar so determines.4 Any determination must be made in accordance with the criteria in s 5 and take into account whether or not the parties consent to the use of AVL for the appearance of the participant.5

3      V (CA492/10) v R [2011] NZCA 525 at n 8 citing R v Shone [2008] NZCA 313 at [28].

4      Courts (Remote Participation) Act 2010, s 7.

5      Section 7(3).

[28]The criteria are:

5        General criteria for allowing use of audio-visual links

A judicial officer or Registrar must consider the following criteria when he or she is making a determination under this Act whether or not to allow the use of AVL for the appearance of any participant in a proceeding:

(a)the nature of the proceeding:

(b)the availability and quality of the technology that is to be used:

(c)the potential impact of the use of the technology on the effective maintenance of the rights of other parties to the proceeding, including—

(i)the ability to assess the credibility of witnesses and the reliability of evidence presented to the court; and

(ii)the level of contact with other participants:

(d)any other relevant matters.

[29]   The use of AVL for the purpose of a witness giving evidence in both criminal and civil proceedings was already relatively well used under the Evidence Act 2006. This is in the context of the underlying purpose of the Evidence Act being to help secure the just determination of proceedings, including recognising the importance of rights affirmed by the New Zealand Bill of Rights Act 1990, promoting fairness to parties and witnesses and avoiding unjustifiable expense and delay.6

[30]   Section 103 of the Evidence Act enables a judge to direct a witness give evidence in an alternative way as provided for in s 105. It sets out mandatory factors to which the Judge must have regard, including the need to ensure the fairness of the proceeding and the views of the witness.7

[31]   Section 19 of the Courts (Remote Participation) Act 2010 inserted s 102A into the Evidence Act, which specifies nothing in the Courts (Remote Participation) Act

6      Evidence Act 2006, s 6.

7      Section 103(4).

affects or limits the ability of a party to apply under s 103(1) of the Evidence Act to give evidence in an alternative way.

Issues and analysis

[32]   In my assessment the following issues require particular consideration in this case:

(a)nature of the proceeding;

(b)availability and quality of technology and practical arrangements;

(c)potential impact of the use of AVL on the assessment of credibility of the witnesses and the level of contact with other participants;

(d)perjury; and

(e)views of the witnesses.

(a)Nature of the proceeding

[33]   Mr Hazel said the evidence of Mr Elting and Mr Morrow was a principal part of the defence and could significantly affect the balance of the case. He said it was not only important to this trial, but also to other related proceedings. He referred to various cases in support of his submission that the more important the witness, the more important attendance in person.8

[34]   The contrary position also has some support in various cases. That is, the more important the witness, the more likely an application for AVL will succeed if, without AVL, the witness would not attend.9 Indeed in the Ra Ora decision, which predated the Evidence Act, Fisher J said:10

8      For example Chu v Han (2003) 17 PRNZ 9 (HC).

9      For example Yang v Chen HC Auckland CIV-2007-404-1751, 13 May 2010; and Erceg v Erceg

[2014] NZHC 2601, (2014) 22 PRNZ 245.

10     Ra Ora Stud Ltd v Colqhoun (1997) 11 PRNZ 353 (HC) at 356.

However, it seems to me that the concern expressed by Mr Jones that the evidence of Mr Lloyd goes to the very heart of the trial and therefore makes the quality of his evidence critical, is not a reason for declining a video-link. My own experience with closed circuit television, with the support of authorities as to evidence by video-link, suggests that the latter provides an adequate opportunity to assess the nuances of the giving of the evidence and in particular credibility.

I also consider that, while there is an overlap, Mr Holdsgrove’s evidence will not be an adequate substitute for Mr Lloyd’s. I accept that the unavailability of Mr Lloyd and Mr Nelson must be regarded as a matter of inconvenience only but it seems to me that in this day and age, particularly when dealing with key commercial figures, the threshold for allowing evidence of this kind by this means ought not to be set too high. In all the circumstances, and subject to the qualifications that follow, I am prepared to grant the application that the evidence of these two witnesses be taken by video-link.

(b)Availability and quality of technology and practical arrangements

[35]   The briefs of evidence of Messrs Elting and Morrow refer to some 28 exhibits of somewhere between 59 and 73 pages.

[36]   Mr Hazel referred to the fact that Mr Elting will likely be cross-examined for some two to three hours (as he was in the ESR case). Mr Morrow’s cross-examination, however, in his assessment is likely to require two to three days. Mr Hazel said he had many matters to put to Mr Morrow. He referred to document MOR108, an attachment to Mr Morrow’s brief of evidence. This is an A3 document showing sketches of various pieces of furniture and photographs of what I infer to be some of the furniture at issue in the proceeding. As I understand it, the purpose is to show the similarity between the sketches (presumably produced by another party) and the furniture. Mr Hazel said it was necessary to look at those sketches and photographs in detail, focusing on particular aspects, for example the space between handles, the handles themselves, the design of feet on the furniture. He said there were many technical documents like this and in his submission, if Mr Morrow gives evidence by AVL, it will expand the time required for his cross-examination by about 50 per cent.

[37]   Having considered Exhibit MOR108, I am not satisfied it would be particularly difficult to cross-examine on it, notwithstanding the detail involved.

[38]   Mr Hazel conceded that a witness in the ESR case gave evidence by AVL. He described the process as “fine” but more stilted and subject to some delay. He agreed

that documents additional to those in the common bundle were put to that witness without any undue difficulty.

[39]   Mr Arthur, appearing for the applicant defendants, referred to the draft protocol he had prepared. He agreed it would be possible to have the common bundle in both electronic and hard copy form and there was a need for the AVL suite to have a fax machine, a computer and internet available. That being so, he did not envisage any undue practical problems.

[40]   Mr Morrow suggested he would make himself available  from  1.00  pm  New Zealand time. Mr Arthur agreed that Mr Morrow would have to make himself available to start by 10.30 am New Zealand time at the latest.

[41]   Advances in modern technology allow the Court to have more comfort that technical issues can be minimised. As Stevens J observed in the Deutche Finance case:11

[14] Evidence by video-link is no longer the unusual or novel mode of  giving evidence it once was. As Giles CJ noted over a decade ago in Sunstate Airlines (Qld) Pty Ltd v First Chicago Australia Securities Ltd (unreported, NSWSC, 11 March 1997) at 6, it is now an “accepted feature of litigation”. Operating in a world where improvements in technology increasingly enable people to enter into complex and global business arrangements, the courts must be attuned to the needs of modern litigants and to the practicality of conducting modern litigation in today’s business world. Indeed, Williams J in R v Wong HC AK CRI 2005-004-15296 16 May 2006 stated at [56] “ … it would be odd if, in the 21st century, courts were to refuse to use such technology and insist on compliance with an aphorism which long pre-dates the electronic age”.

[42]   There is nothing to indicate that there would be any problems with the availability and quality of the technology.

(c)Potential impact of the use of AVL on the assessment of credibility of the witnesses and level of contact with other participants

[43]   Mr Hazel emphasised that the credibility of the two witnesses, particularly Mr Morrow, is to be challenged strongly. He referred to the affidavit of Mr Stone, who says Mr Morrow previously attempted to evade service of documents and disrupt

11     Deutche Finance New Zealand Ltd v Commissioner of Inland Revenue (2007) 18 PRNZ 710 (HC).

High Court proceedings. An affidavit from Mr Salter in support of the plaintiff’s opposition to the application alleges Mr Morrow essentially asked Mr Salter to lie and made certain threats of withholding Mr Salter’s furniture and money should he not do so.

[44]   Mr Hazel then discussed the findings of the trial judge in the ESR case, where Mr Elting was a witness and Mr Morrow was to be a witness, although ultimately was not called to give evidence.12

[45]   In his written submissions, Mr Hazel suggested that testing credibility by AVL would unfairly disadvantage the plaintiffs, particularly in relation to Mr Morrow. In his oral submissions, Mr Hazel suggested that, far from seeking to prevent the witnesses from giving evidence, the plaintiffs’ opposition to the application was because they considered it would be beneficial to the plaintiffs to have the witnesses give evidence, in part, I infer, given the experience in the ESR case.

[46]   Mr Hazel relied on the Ithaca decision.13 He also referred to the decision of the Federal Court of Australia in Deputy Commissioner of Taxation v Binetter,14 where an application to give evidence by AVL was rejected on the grounds cross-examination:15

… where credit, credibility and reliability, is critical to the claim to be determined should, all things being equal, be given to the court in person and not by video link from some other place.

[47]   Many criminal cases have considered the issue of fairness when evidence is given in an alternative way in the context of the difficulty of assessing demeanour and therefore the veracity of the witness. Such arguments have generally not been accepted.16 Further, in a case concerning a complainant giving evidence from Germany in a trial where sexual offending was alleged, the Court of Appeal agreed

12     I note Mr Morrow was in fact a defendant in the ESR case, but there were difficulties serving him.

13     Ithaca (Custodians) Ltd v Perry Corp (2002) 16 PRNZ 773 (HC).

14     Deputy Commissioner of Taxation v Binetter [2017] FCA 69.

15 At [8].

16     See Richard Mahoney and others The Evidence Act 2006: Act and Analysis (3rd ed, 2014, Thomson Reuters) at n 3207 and the cases cited therein.

there was some force in the observation that “evidence by video link has not previously been seen as adversely affecting an ability to assess credibility”.17

[48]   The Supreme Court in Taniwha v R gave consideration to demeanour and assessment of credibility in the context of a criminal appeal.18 The Court’s analysis included consideration of the Law Commission’s discussion paper entitled Evidence Law: Character and Credibility, which pointed to research demonstrating that popular beliefs regarding demeanour are erroneous.19 The Supreme Court considered that, if a judge in a jury trial considered it appropriate to address demeanour in the context of assessing credibility in summing up to the jury, the judge could include reference to:

(a)whether the witness’ evidence is consistent with the evidence of other witnesses which the jury has accepted;

(b)whether the witness’ evidence is consistent with objective evidence such as documents or text messages and, if it is not, what explanation is offered for any inconsistencies;

(c)whether the witness’ account is inherently plausible; and

(d)whether the witness has been consistent in their account over time and, if not, why not?

The Court emphasised the jury must consider a witness’ evidence in the context of all the evidence in the case.20

[49]   Although that decision involved a criminal trial, similar observations apply when it comes to assessing the credibility of a witness in a civil proceeding. In other words, New Zealand courts focus on a critical analysis of the evidence with an emphasis on consistency and how the evidence relates to other material. There is little support for the notion that demeanour is a reliable indicator of credibility. This context

17     R v Simi [2008] NZCA 515 at [26].

18     Taniwha v R [2016] NZSC 123, [2017] 1 NZLR 116 at [26]–[47].

19     At [26]–[27], citing Law Commission Evidence Law: Character and Credibility (NZLC PP27, 1997).

20     Taniwha, above n 18, at [45].

is important when considering the observations which have been made in various cases about the potential difficulty in assessing credibility when a witness gives evidence by AVL. A number of the authorities relied on by Mr Hazel predate the Evidence Act and, to that extent, have more limited weight. Many of the more recent authorities on which he relies are Australian cases. It is for this reason that I prefer the guidance of the Supreme Court in Taniwha.

[50]   The plaintiffs clearly disagree with the evidence to be given by both witnesses. The use of AVL will not change in any way the ability for those witnesses to be challenged. The plaintiffs doubt the credibility of Mr Morrow in particular and again, as the cases have indicated, credibility can be challenged and assessed by the finder of fact notwithstanding that the witness gives evidence by AVL.

(d)Perjury

[51]   The availability of sanctions for perjury, particularly where the credibility of the witness is to be questioned, is a relevant consideration.21

[52]   I note this is an issue in relation to Mr Morrow only. Mr Elting, a resident of the United  States,  would  be  more  easily  subject  to  proceedings.  I  also  note  Mr Morrow’s affidavit evidence of frequent travel to Australia, Europe and the United States.

[53]   Mr Hazel fairly conceded it was important to keep this issue in perspective and the plaintiffs are highly unlikely ever to initiate perjury proceedings against a defence witness. In his submission, however, it was a consideration particularly relevant to Mr Morrow because, he said, the availability of sanctions for perjury would reinforce to Mr Morrow his obligations to the Court.

21 Ra Ora Stud, above n 10; Deutche Finance, above n 11, at [25]; Omni Marketing Group, Asia Pte Ltd v Transactor Technologies Ltd [2008] 3 NZLR 252 (HC) at [16]; and Yang v Chen, above n 9, at [72].

[54]   A witness who commits perjury commits an offence under the Crimes Act 1961.22 The unavailability of legal sanctions in Vietnam against an individual who commits perjury when giving evidence by AVL in a New Zealand trial and the lack of a mutual legal assistance agreement between New Zealand and Vietnam does not materially alter the position in this case in my assessment. It would be no different if the witnesses attended in person and then left New Zealand. Either way, it would still be an offence, but clearly the practicality of criminal charges would in either case be problematic.

(e)Views of witnesses

[55]Mr Hazel accepted the defendants cannot compel the witnesses’ attendance.

[56]   In Mr Hazel’s submission, the cost of travelling to New Zealand and accommodation would be modest in the context of a trial which will last at least three weeks. In his submission it was important to balance the inconvenience and cost against what was at stake.23

[57]   I accept Mr Arthur’s submission that the fact both witnesses might travel a great deal does not mean they should therefore travel even more. The impact of their travel on their businesses means time spent in their home offices can become even more important.

[58]   Mr Morrow is adamant in his refusal to attend. The affidavit evidence went into some detail as to the events at Auckland Airport and Mr Hazel sought to justify the actions taken by Mr Stone.

[59]   As I indicated at the hearing, however, it is not for me to make any findings about what in fact happened. What is clear is that there was a decision Mr Morrow would not be required to be a witness in the ESR case and he was therefore free to leave the country. By Mr Stone’s own admission, he gave both the Police and immigration authorities the impression Mr Morrow was attempting to leave the country when he should instead have been giving evidence. Furthermore, the actions

22     Crimes Act 1061, s 109.

23     Ithaca, above n 13, at [29].

of the police officer in requiring Mr Morrow to pick up the documents Mr Stone was attempting to serve on him and putting his foot on Mr Morrow’s luggage so he was unable to move it until he picked up the documents seem entirely without any justification or indeed authority. In the circumstances, therefore, no matter whether Mr Morrow might have tried to avoid service of proceedings at various stages,      Mr Morrow’s concerns about the events at the airport are entirely understandable. It is therefore not surprising he is not prepared to accept the assurances and undertakings that he would not be subject to any similar confrontation should he come to New Zealand.

[60]   It is also not for me to come to any conclusion about the allegations made by Mr Salter referred to above. I accept Mr Arthur’s submission that they are demonstrative of the significant history between Mr Morrow and the plaintiffs. If the allegations are relevant to the proceeding and an assessment of Mr Morrow’s credibility or veracity, I see no difference between his being cross-examined while physically in the courtroom or appearing by AVL.

[61]   I am satisfied there are good reasons to support the witnesses’ views that they cannot attend the trial in person. Mr Burden notes that he will attend in person but, as he is the plaintiff, that would be expected. Messrs Elting and Morrow have been called as witnesses and their circumstances and views must be given weight.24

Conclusion

[62]   I have considered the fact of and reasons for the plaintiffs’ opposition to the application. However, having regard to the need to ensure the fairness of the proceeding, the views of the witnesses, the ability to assess the credibility of the witnesses and the reliability of their evidence, I am satisfied it is appropriate for both witnesses to give evidence by AVL.

24 There was some discussion between counsel after the hearing as to whether the  witnesses’  concerns could be overcome. By memorandum dated 26 June 2017, counsel for the applicant defendants confirmed this was not possible. Even with a pre-arranged time for giving evidence, Mr Elting would still have to be absent from his business for an unacceptable time. The offers to allay Mr Morrow’s concerns did not go far enough to satisfy him and, in any event, he too would still be absent from his workplace for an unacceptable period. I note the observations of Mr Hazel in his reply memorandum of 27 June 2017.

Orders

[63]The application is granted.

[64]   I accept the draft protocol is appropriate. There being no objection to the protocol, I direct it shall apply, subject to the inclusion of the following:

(a)a computer and internet connection is to be available to the witness in the AVL suite;

(b)the common bundle is to be available to the witness both in hard copy and electronic copy; and

(c)there will be need to be some accommodation as to sitting time, but this should be kept to a minimum. As Mr Elting will be required for perhaps half a day, a convenient time should be able to be arranged. In the case of Mr Morrow, he is clearly going to be required for some days. At the latest, he must make himself available to begin by 10.30 am each day, New Zealand time.

[65]   Any issues as to costs are to be addressed by the applicant defendants within 28 days of the date of this judgment, with any response 14 days thereafter.

Thomas J

Solicitors:

James and Wells, Auckland for Plaintiffs

McCabe and Company, Wellington for First, Fifth and Sixth Defendants