Glasson v Earthquake Commission

[2017] NZHC 2778

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2016-409-000343 [2017] NZHC 2778

BETWEEN

PETER LLOYD GLASSON AND ANNE

MARJORIE GLASSON AND DRL TRUSTEES LIMITED AS TRUSTEES OF THE PETER AND ANNE GLASSON FAMILY TRUST

Plaintiffs

AND

THE EARTHQUAKE COMMISSION First Defendant

AND

SOUTHERN RESPONSE EARTHQUAKE SERVICES LIMITED Second Defendant

Hearing:	13 November 2017
Appearances:	D J C Russ and J Maslin for the Plaintiff No appearance for the First Defendant A R Tosh and A L Holloway for the Second Defendant
Date:	13 November 2017

ORAL JUDGMENT OF NATION J

[1]     These proceedings have been before the Court for a significant time. Approximately one month ago, Southern Response Earthquake Services Limited (Southern Response) and The Earthquake Commission (EQC) applied to have the hearing, which had been set down to begin on 13 November 2017, adjourned.  The primary driver for that was that they had discovered that the engineer, who both those

parties were going to use as the primary expert, or one of the primary experts, to give

GLASSON v SOUTHERN RESPONSE [2017] NZHC 2778 [13 November 2017]

evidence for defence, was not available and even the firm he worked for was unable to assist. At that stage, both EQC and Southern Response anticipated they would have to separately engage a new expert and were concerned they would simply not have enough time to do so in a way that would avoid them being prejudiced in defending the case that had been brought against them.

[2]      After hearing detailed submissions  about  that,  I refused  the  adjournment because the Court was anxious to see these proceedings brought to a conclusion.  At the time I did that, I acknowledged there was the potential for a problem to emerge which would mean there would be such prejudice that perhaps the hearing could not proceed as anticipated.  In refusing that adjournment, I was conscious of the fact that I was putting all parties under considerable pressure in terms of making sure they were ready for trial.

[3]      One development that has taken place since then is that matters have been resolved as between the plaintiffs and EQC, so EQC are no longer involved, but certainly there is obviously a real contest between the plaintiffs and Southern Response.

[4]      Southern  Response  engaged  new  experts,  particularly  a  new  structural engineer.  They acknowledge that engineer, as an independent expert, has come up with a repair strategy and perhaps also further evidence about just what damage was caused by the earthquake, which is different from the expert evidence that had been available and was being used by both EQC and Southern Response before then.

[5]      This sort of situation has arisen in other cases where shortly before trial an expert comes up with a different theory or a different opinion as to either what damage was caused by the earthquakes or as to what the appropriate repair strategy is.  The parties then find themselves working under intense pressure just before trial to deal with what is essentially a new theory.

[6]      That is what has occurred in this case and I accept that there is nothing underhand about this.  Experts are required to give independent expert opinion to the

Court.  It is possible when this happens that it creates a need for new opinions to be considered by the other side’s experts. That has happened in this case.

[7]      As a result of that, it has not been possible for the parties to comply strictly with the very tight timetable that I prescribed in the expectation and with the hope that this matter would be able to start and the Court could deal with all issues in the time allocated beginning on 13 November 2017.

[8]      In a memorandum that was filed only this morning, Mr Holloway, for Southern Response, has referred to the extensive evidence that has been now served by way of further reply or in response to Southern Response’s evidence.   Both counsel acknowledge that at least a significant portion of that evidence from the plaintiffs’ experts is new in the sense that it is their response to the new approach which has been taken by Southern Response’s engineer. But, the evidence that has been served in this way is extensive.

[9]      There are also new witnesses to be called who did not file original briefs.  Not all of that evidence may relate to the new approach that has been taken by Southern Response’s expert but, nevertheless, it is extensive evidence.   There is also a considerable amount of documentation that the plaintiffs want to have included in the bundle of documents and, while that was served electronically in the days just prior to the trial starting, counsel has not had the opportunity to consider those documents.

[10]     Unfortunately, with the way things have developed and, I would say, perhaps despite the best efforts that have been taken by all parties, there is a situation now where there is substantial new evidence that needs to be addressed by Southern Response and its experts. There is the potential for Southern Response to indeed have to engage their own further experts or at least some limited evidence to deal with what, in a sense, is new evidence although it is by way of reply.

[11]     Mr Russ, in his submissions, acknowledges that the extent and nature of the plaintiffs’ evidence, which has just been served by way of reply, has created issues which Southern Response need time to deal with.  He hoped that the Court might be able to do this by using time in the week after the two weeks allocated.   With all that

I have heard and with a delay to the start of the trial of the sort that would be sufficient to allow Southern Response and its experts to get to grips with all the material that has just been filed, I am not at all confident or certain that, even if we went into what would be a third week that the trial would be concluded within that time.  The Court also does not have all of that week available to deal with this case.

[12]     Mr Holloway suggested that the time that has been allocated for this trial could productively be used if the trial was to proceed but to deal with limited issues.  The first one he suggested, the major one, would be so the Court could determine what damage had actually been caused by the earthquake.  He suggested that, if the Court reached a clear view about that and gave judgment on that issue, it might well be possible for the parties to resolve matters without a further hearing.

[13]     As to that, Mr Russ says the issues, in terms of the evidence, cannot be dealt with on such a limited basis or not easily and, even if the trial was to deal with just that limited issue, it would take considerable time.

[14]     I am reluctant to force the plaintiffs to deal with the case on a limited basis when normally a court deals with all the evidence on all issues.  Often problems can arise for the Court if issues are dealt with at different stages.  It is often better for the Court to hear all the evidence relating to all issues because so often the evidence on all issues is inextricably linked.  I am not in favour of dictating to the plaintiffs that the trial must proceed on a limited basis.

[15]     This is a case where, despite the efforts which the parties and counsel have taken to that point, and indeed the pressure which the Court imposed on the parties to try and make sure this time could be used, the Court has to be concerned with the overall justice of the situation.   It has to ensure that the pressure we have put on everybody does not prejudice the prospect of having a trial which is fair to both parties. With the difficulties that have emerged, through partly the changed approach that has been taken by Southern Response’s experts but also the scope and nature of the evidence which I have been told the plaintiffs are wishing to adduce in response, I have no option but to vacate this fixture. The proceedings will be adjourned.

[16]     I  know  that  considerable  effort  goes  into  being  ready  for  a  trial.    It  is unfortunate that the Court and the parties cannot take advantage of that. Nevertheless, I do not lose sight of the fact that, with the significant amount of work that has been done under significant pressure, not just by counsel but also by experts, it should be possible for the issues to have become clearer.   With all that work, there is the opportunity for the parties to consider the issues further and have regard to whether or not there is any prospect of resolving matters without a Court hearing. I acknowledge Mr Russ’ comment that these matters have quite a history without there being any real indication that was likely.

[17]     With all the work that has been done, if it would assist the parties, I could direct a conference of the experts and put particular issues to the experts for their consideration.  I would expect them to provide truly independent expert opinions to the Court because they are experts there to assist the Court not to act as advocates for either side.  If it would assist for me to direct a conference of experts, I would be willing to do so.   It would be helpful to have submissions from counsel as to the particular issues that I could ask the experts to consider. This is something for counsel to work on if they think that would assist.

[18]     Otherwise, these proceedings are going to have to be adjourned to another date. Once counsel have got to grips with all the evidence, all the material, counsel need to advise the Court of what realistically is the time that is going to be required to deal with all matters.

[19]     The hearing is vacated and the proceedings are adjourned.  I reserve costs.

[20]     The proceedings are adjourned for a telephone conference with counsel at 9.00 am on Tuesday 12 December 2017.

Solicitors:

Fletcher Vautier Moore Lawyers, Nelson

Chapman Tripp, Wellington

DLA Piper, Auckland