Faloon v Public Trust HC Tauranga

[2011] NZHC 1791

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2010-470-000052

UNDER  the Trustee Act 1956

IN THE MATTER OF     an application under ss 66, 67 and 68 of the Act in the ESTATE OF THOMAS JOHN FALOON

BETWEEN  CLARENCE JOHN FALOON First Applicant

ANDRUTH ENID FALOON Second Applicant

ANDTHREE TRUSTEES IN THE 1977-YEAR DIVERSION OF THE KAWAU STREAM TRUST

Third Applicant

ANDPUBLIC TRUST Respondent

Hearing:         6 December 2011

Counsel:         First Applicant in person

HGP Stokes for Respondent

Judgment:      6 December 2011

JUDGMENT OF ASHER J

Solicitors:

Public Trust, DX GX10100, Hamilton. Email:  [email protected]

Copy to:

CJ Faloon, 43B Twentieth Avenue, Tauranga 3112. Email: [email protected]

FALOON V PUBLIC TRUST HC TAU CIV-2010-470-000052 6 December 2011

[1]      Clarence John Faloon and Ruth Enid Faloon seek leave to appeal from a decision of Duffy J delivered on 15 August 2011.[1]   In that decision Duffy J declined to grant a review of a decision of Associate Judge Doogue of 30 September 2010 striking out this proceeding.[2]

[1] Faloon v Public Trust HC Tauranga CIV-2010-470-52, 15 August 2011.

[2] Faloon v Public Trust HC Auckland CIV-2010-470-52, 30 September 2010.

[2]      In the course of this application for leave he seeks to cross-examine Daniel Bernard O’Dea.  Mr O’Dea is a senior trust officer for the Public Trust.  He swore two affidavits of 5 May 2010 and 29 May 2010 on behalf of the Public Trust in support of its application to strike out.  It is necessary to rule on whether under r 7.28 of the High Court Rules Mr O’Dea should be ordered to attend for cross- examination.

[3]      Rule 7.28 provides that a Judge may “in special circumstances” order the attendance for cross-examination of a person who has made an affidavit in support of, or in opposition to, an interlocutory application.  I have not heard argument on the point and am prepared to accept for the purposes of this decision that an application for leave to appeal is an interlocutory application within the ambit of r 7.28.

[4]      The meaning of “special circumstances” was considered by the Court of

Appeal in Kidd v Van Heeren:[3]

There is no dispute that, as has been accepted in other contexts, “special circumstances” are wide, comprehensive and flexible words indicating something abnormal, uncommon or out of the ordinary but something less than extraordinary or unique ….

[3] Kidd v Van Heeren (1997) 11 PRNZ 422 (CA) at 424.

[5]      Examination  of  some  cases  Sleeman  v  ANZ  Banking  Group  (NZ)  Ltd,[4]

[4] Sleeman v ANZ Banking Group (NZ) Ltd (1994) 7 PRNZ 508 (HC).

Burslem Holdings Ltd v G.B. & J.M. Bockett Ltd[5]  and Walls & Roche Royal Oak

Pharmacy Ltd v Oceania Care Company (No 1) Ltd[6]  indicates that when special circumstances are found any order for attendance for cross-examination is precisely

defined so as to be limited to a determinative or directly relevant issue of narrow ambit.  I have not been referred to, and have not been able to find, any case where attendance for cross-examination has been ordered in an application for leave to appeal.

[5] Burslem Holdings Ltd v G.B. & J.M. Bockett Ltd [1989] 2 NZLR 238 (HC).

[6] Walls & Roche Royal Oak Pharmacy Ltd v Oceania Care Company (No 1) Ltd HC Auckland CIV-2010-404-3391, 6 August 2010.

[6]      Turning to this application, Mr Faloon has identified [40]-[42] of Mr O’Dea’s affidavit of 5 May 2010 relating to an offer of settlement as of particular interest for the purposes of cross-examination.   However, the circumstances of that offer of settlement do not figure in either of the judgments of Associate Judge Doogue or Duffy J.   Their decisions turn on an overview of the pleadings and, accepting the truth of the statements in those pleadings, whether causes of action are made out.

[7]      At the hearing of both the strike-out application and the application to review, Mr Faloon did not seek to cross-examine Mr O’Dea.  He has not pointed to any new circumstance that has arisen since those hearings that would warrant the unusual step of ordering attendance for cross-examination.

[8]      Although I do not express a final view on this matter, it appears to me that there is no conceivable basis upon which if leave to appeal were granted, leave to cross-examine Mr O’Dea would be granted by the Court of Appeal in the course of hearing the substantive appeal.  This would be because the evidence is not fresh and in any event the cross-examination would appear to have no relevance to the points sought to be advanced on appeal.  Even more so, therefore, there is no good reason to order the attendance of Mr O’Dea for cross-examination in this leave application.

[9]      For  the  reasons  given,  no  special  circumstances  are  made  out.     The application for an order that Mr O’Dea attend for cross-examination is refused.

……………………………..

Asher J