Fitzgerald v IAG New Zealand Limited

[2017] NZHC 2705

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2016-404-000779 [2017] NZHC 2705

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 Jamiesonand M Gall for Defendant
Judgment:	2 November 2017

ORAL JUDGMENT OF GENDALL J

FITZGERALD v IAG NEW ZEALAND LIMITED [2017] NZHC 2705 [2 November 2017]

[1]      Thank you for your submissions counsel.   I will give a decision now with respect to matters before the Court.  Of necessity, given the time, it will need to be relatively brief and next week hopefully I will follow it up with some more detailed reasons and a way forward in this matter.  But it will be apparent from what I am saying that on a conditional basis the applications before the Court will be approved and, with some reluctance, the trial of this matter due to commence on Monday next for five days, will need to be adjourned.

[2]      The proceeding between these parties some time ago was set down for a five day trial to commence in this Court on Monday next, 6 November 2017.  Before the Court today, arranged at some considerable haste, is an interlocutory application for leave brought by the defendant to offer supplementary briefs of evidence.   This application  is  dated  1  November  2017  and  is  supported  by  an  affidavit  of Abbey Frances Bradford, also dated 1 November 2017.

[3]      The application is opposed by the plaintiffs.  That opposition is supported by affidavits   of   Stephen   Patrick   Fitzgerald,   sworn   1   November   2017,   and Robert Bruce Smith, also sworn 1 November 2017.

[4]      The application seeks leave for the defendant to offer supplementary briefs of evidence from:

(a)       Craig Brian Lewis, IAG's previously instructed structural engineer in this matter, this brief dated 21 September 2017; and

(b)Donald Edward Bruggers, a geotechnical engineer who has had no previous  involvement  in  this  proceeding,  this  brief  being  dated

27 October 2017.

[5]      Mr Lewis is a structural engineer who was engaged by the defendant some time ago, was engaged in providing a joint report with a structural engineer engaged by the plaintiffs and he has provided an initial brief of evidence for this matter.  By way of contrast, Mr Bruggers was engaged by the defendant in this proceeding only

a matter of about three weeks ago and previously had not been engaged in any way in this matter.

[6]      The  admission  of  the  supplementary  briefs  of  evidence  here  is  at  the discretion of the Court and leave is required.   Rule 9.8 of the High Court Rules provides:

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 Procedure identify a range of principles which are also relevant to the granting of leave in light of the overall question in a case such as this whether it is in the interests of justice to do so.2  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].

22     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]      These principles may be gleaned from the recent case of Signal v Berry3 and the earlier case of Total Air Supply Co Ltd v Total Air Supply (2007) Ltd.4   The first of these principles is simply a reflection of the fact that what is involved is a discretion and that the exercise of such will be informed by the context of the

particular case.  Prejudice to one or other party is commonly at issue in a decision of this kind.  In Signal v Berry the plaintiffs contended that there could be no prejudice to the defendants because they would have access to the supplementary briefs for some eight months before the new trial fixture. In that case Brown J addressed the rule of prejudice at para [24] as follows:

In  a  number  of  cases  the  prejudice  has  been  accepted  as  especially significant because of the late stage at which the evidence is provided. For example  in Madretsma the  reply brief  in  question was  served  upon  the defendants on the last working day before trial. The Judge considered that the defendants should not have been expected to cross examine on material brought to their attention at such a late stage, noting that further examination of the information within it would have been necessary before cross examination could be properly carried out.

[9]      In Signal  v Berry the fact that a new fixture further down the line was contemplated was a decisive factor in Brown J’s decision to grant leave to admit the supplementary briefs.  In considering the authorities in this area it would appear that prejudice which usually sounds in the degree of time available before trial and the ability of other parties to respond to that evidence is a guiding and often decisive factor in cases involving the discretion under r 9.8.  There also appears to be a need to consider the purpose for which the supplementary evidence is sought to be admitted in terms of what of the existing evidence it is designed to address.

[10]     Turning now to the evidence in question, I deal first with the evidence of

Mr Donald Bruggers.  Here, IAG considers, as I understand it, that there will be no

3      Signal v Berry [2016] NZHC 1126.

4      Total Air Supply Co Ltd v Total Air Supply (2007) Ltd  HC Auckland CIV-2008-404-7627,

25 May 2011.

or limited prejudice to the plaintiffs if the evidence of Donald Bruggers is admitted because it is said this evidence will address an issue indicated as a key one in the opening that has been served at this point.

[11]     Before me today, as I understand his position, Mr Rennie for the plaintiffs responsibly acknowledged and accepted that the proposed evidence of Mr Bruggers addresses a crucial issue which will be before the Court in the trial of this matter.

[12]     It has been suggested on behalf of IAG that the plaintiffs have not put before the Court any geotechnical engineering evidence in this matter and it is contended too that the evidence of Mr Bruggers might provide a more complete picture of this case as a whole.  I am not satisfied this contention accurately reflects the position, given that Mr Harding, a geotechnical engineer, provided a report on the instructions of IAG in 2014 which has been before the parties ever since.  This report related to a detailed inspection of the property, as I understand it, which was undertaken by Mr Harding.  It has been used throughout and perhaps even to an extent relied upon by each party’s structural engineer engaged here.  Certainly, the joint report of the structural engineers makes reference to Mr Harding’s 2014 report.  Overall, before me Mr Rennie for the plaintiff acknowledged that given the need for any litigation, including obviously the present case, to have put before the Court all proper and relevant  witnesses,  then  he  apprehended  that  it  would  be  appropriate  here  for Mr Bruggers’ evidence to be accepted and heard as part of this proceeding.

[13]     Having said that, Mr Rennie also raised a range of matters concerning the propriety of this evidence and matters such as, what he contended, was Mr Bruggers’ failure as an expert witness to comply with the Schedule for Code of Conduct Required and to address other matters which were of relevance.

[14]     The upshot of all this is simply that, effectively, the evidence of Mr Bruggers in whatever shape it may take in final form should be before the Court.  That said it must follow and Mr Rennie accepts that, given the need for the plaintiffs to have a proper opportunity to consider this evidence and to obtain its own expert advice, necessarily  the  trial  of  this  matter  scheduled  to  commence  on  Monday  next,

6 November 2017, needs to be adjourned.   Directions regarding these aspects will follow.

[15]      I turn  now  to  the  second  matter  before  the  Court.    This  relates  to  the supplementary brief of evidence of Mr Lewis, for whom IAG also seeks leave.  This it seems is of somewhat less significance than the matter concerning the evidence of Mr Bruggers.  So far as this supplementary evidence from Mr Lewis is concerned, as I understand the position, it relates to a matter which has arisen concerning an additional – I’ll start again, sorry – so far as this additional evidence of Mr Lewis is concerned,  I  propose  at  this  stage  to  reserve  my  decision  with  respect  to  that evidence and the need for leave for it to be provided. This is to enable me to have an opportunity to consider that in a little more depth, given the length of time which has been necessarily truncated in the hearing of this matter.  I will give a decision with respect to the application for leave regarding Mr Lewis’ supplementary brief early in the week commencing 6 November 2017.

[16]     Lastly, issues arise as to a way forward from here.  As I have noted above, directions are now to be made. Those directions are as follows:

(a)      The trial of this matter scheduled to commence on 6 November 2017, effectively without major opposition from any party before me, is now vacated and this matter necessarily adjourned.

(b)The Registrar is directed to liaise with counsel for the plaintiffs and the defendant  to  set  this  matter down  for  a new trial  at  the  first available and suitable date which will necessarily be after 1 February

2018.

(c)      Leave is reserved for the parties to approach the Court further for additional directions if required in the meantime.

(d)A  memorandum/minute  will  be  provided  by  me  in  the  week commencing  6 November  2017.    This  memorandum/minute  is  to address additional matters which may arise concerning:

(i)       a “will say” statement of a Mr Balm which has arisen at the

outset of this hearing today;

(ii)      particular   directions   regarding   the   brief   of   evidence   of

Mr Bruggers; and

(iii)regarding submissions on costs as a result of the need for this trial to be deferred next week.

(e)      So far as costs on this matter are concerned, they are at this stage reserved.   Directions regarding costs and any other relevant matters concerning this proceeding will following in the week commencing

6 November 2017.

[17]     That is my decision today counsel.  I reserve the right just to tidy up matters of drafting but, essentially, the directions I have given will not change.

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

Gendall J

Solicitors:

Rhodes & Co, Christchurch
Young Hunter, Christchurch