Fitzgerald v IAG New Zealand Limited

[2017] NZHC 2717

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2016-404-000779

[2017] NZHC 2717

BETWEEN

STEPHEN PATRICK FITZGERALD, NICOLA MARY FITZGERALD AND HAMISH ALEXANDER SCOTT

Plaintiffs

AND

IAG NEW ZEALAND LIMITED

Defendant

Hearing:	2 November 2017
Appearances:	S P Rennie and R Harris for Plaintiffs C Jamieson and M Gall for Defendant
Judgment:	6 November 2017

JUDGMENT OF GENDALL J

FITZGERALD v IAG NEW ZEALAND LIMITED [2017] NZHC 2717 [6 November 2017]

[1]        This judgment relates to an application by the defendant in this proceeding for leave to offer a supplementary brief of evidence of Craig Brian Lewis.

[2]        Argument on this application together with a further application for leave regarding a brief of evidence of a geotechnical engineer, Mr Bruggers, who the defendant  proposed  to  introduce  in  this  proceeding,  was  heard  before  me  on   2 November 2017. At that point I gave my oral decision with respect to the leave application relating to Mr Bruggers’ evidence but I reserved my decision with respect to the supplementary brief of evidence from Mr Lewis. I now give that decision with respect to the evidence of Mr Lewis.

[3]        As I noted in my oral judgment of 2 November 2017, Mr Lewis is a structural engineer who, some time ago was engaged by the defendant in this proceeding. He provided a joint report with a structural engineer engaged by the plaintiff to assist the parties in this proceeding and, in addition, he has provided an initial brief of evidence for the hearing of this matter.

[4]        The supplementary brief of evidence from Mr Lewis proposes to introduce a portion of a Christchurch City Council property file relating to this matter. The file relates to a proposed addition to the house in question in 2015 which, I understand, did not proceed. Although this addition obviously included foundation design, the plaintiffs’ initial position was that it was difficult for the Court to say this was relevant to the determination at issue here as to whether the original foundation of the dwelling should be repaired or rebuilt.

[5]        Notwithstanding this, the defendant contends that the plaintiffs’ objection to Mr Lewis’ supplementary brief of evidence which is confined to questions of admissibility cannot succeed here. The defendant says this material which had been omitted earlier must be admissible as it relates to matters at the heart of this proceeding, whether the foundation of the dwelling can be repaired or rebuilt. It seems it includes a producer statement from a recognised firm of engineers relating to a design for foundations it is said to extend and alter the existing foundations of the dwelling and for which the Christchurch City Council was prepared to issue the plaintiffs with a building consent for that particular form of design.

[6]        As I note in my 2 November 2017 oral judgment in this proceeding, the admission of a supplementary brief of evidence must be at the discretion of the Court and leave is required. Rule 9.8 of the High Court Rules:

9.8      Supplementary briefs

(1)A party wishing to offer a supplementary brief must serve it as soon as possible.

(2)The acceptance and use of the supplementary brief in court will be at the discretion of the trial Judge.

[7]        The discretion under r 9.8(2) is a broad one. The guiding principle or touchstone is whether its admission and use is in the interests of justice.1 The authors of McGechan on Procedure2 identify a range of principles which are relevant to the granting of leave in light of the overall question in a case such as the present one whether it is in the interests of justice to do so. These principles are as follows:

(a)Leave will necessarily depend on the particular facts and circumstances of the case.

(b)A balancing of where lies the overall justice of the case is required, weighing the prejudice to the party that served the supplementary brief if leave is refused against the prejudice to other parties if leave is granted.

(c)The fact that the supplementary brief improves the evidential case of the party seeking to offer it is not, without more, a basis for refusing leave.

(d)The prejudice may be especially significant where the supplementary brief is provided at a late stage in the proceeding.

1      Western Park Village Ltd v Baho [2013] NZHC 1909 at [12].

2      Andrew Beck (ed) McGechan on Procedure (online looseleaf ed, Thomson Reuters) at [HR9.0.02].

(e)Granting an adjournment to allow more time to respond and/or ordering costs that reflect the extra work required in responding to the supplementary evidence may minimise prejudice resulting from a grant of leave.

[8]        In the present case, on 2 November 2017 effectively without major opposition from the plaintiffs, I directed that in light of the additional evidence which the defendant was endeavouring to place before the Court, the trial of this matter scheduled for 6 November 2017 was to be vacated and rescheduled in 2018. This was to give the plaintiffs time to consider, in particular, the new evidence from the geotechnical engineer Mr Bruggers which had just been provided, on what it seems was a critical issue in this proceeding, and to respond.

[9]        Given this delay in the present proceeding, it seems that there would be little prejudice to the plaintiffs if this supplementary evidence of Mr Lewis was allowed here. Necessarily, a time for the plaintiffs to provide any evidence in reply is available.

[10]      Further, and in any event, given that Mr Lewis’ supplementary evidence in light of its subject matter related to issues entirely within the knowledge of the plaintiffs and the fact that ample time and opportunity for reply is available, I am satisfied that leave should be granted here for its admission.

[11]The defendant’s application accordingly succeeds.

[12]      Leave is now granted to the defendants to now offer the supplementary brief of evidence of Craig Brian Lewis, dated 21 September 2017, in this matter and for that evidence to be admitted in the trial of this proceeding.

[13]Costs are reserved.

...................................................

Gendall J

Solicitors:

Rhodes & Co, Christchurch Young Hunter, Christchurch