Grace v Orion New Zealand Limited

[2020] NZHC 2038

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2017-409-000454

[2020] NZHC 2038

BETWEEN

C GRACE AND OTHERS

Plaintiffs

AND

ORION NEW ZEALAND LIMITED

First Defendant

LEISURE INVESTMENTS NZ LIMITED PARTNERSHIP

Second Defendant

Hearing:

10 August 2020

Counsel:

C M Stevens and B R D Cuff, S K Battersby and C S M Henley for Plaintiffs

T C Weston QC and M J Dennett, R J H Scott and S M Crosbie for First Defendant

G N Gallaway, W J Hamilton and L A Merrick for Second Defendant

Ruling:

10 August 2020

Reasons:

12 August 2020

REASONS FOR RULING OF GENDALL J

Admissibility – Barbara Theinert-Brown

GRACE v ORION NEW ZEALAND LIMITED [2020] NZHC 2038 [10 August 2020]

[1]    On 10 August 2020 I gave a ruling with respect to challenges by the first defendant to the admissibility of certain evidence included in the brief of evidence of Barbara Theinert-Brown called for the plaintiffs.

[2]    MsTheinert-Brown was a resident of Early Valley Road at the time of the fires, she and her partner having rented a cottage from Mr Nicholson and Ms Dunningham.

[3]    The paragraphs in her brief of evidence to which the first defendants object are paragraph 6 and paragraph 20. The original objection to paragraph 13 has been withdrawn and I need not address this.

[4]So far as paragraph 6 is concerned, where relevant, this states:

I’ve got video footage 2016 which I am currently trying to locate of sparks flying off the power pole in front of our house. The power lines themselves were not well maintained either and apparently the insulation cracks in hot weather and then rain, humidity enters causing a power shortage.

[5]    In my ruling of 10 August 2020, I confirmed that the first sentence noted above is unobjectionable and is admissible.

[6]    The second sentence starting “The power lines themselves were not well maintained…” I ruled is inadmissible. In part, this appears to be opinion evidence from Ms Theinert-Brown who is not an expert in these matters. Also, it is inadmissible evidence which does not fall within the exception contained in s 24 of the Evidence Act or otherwise it is inadmissible hearsay. For these reasons this second sentence in paragraph 6 is inadmissible.

[7]Turning now to paragraph 20, this states as follows:

I remember the police told Katie Ward and Phil Claude that their house had only suffered smoke damage, but the whole house had gone! So following that mishap the police appeared to have a policy of not saying anything and you would find out for yourself when they escorted you home.

[8]    So far as this paragraph 20 is concerned, Mr Weston for the first defendant indicated that it is a matter which the Court may be comfortable to deal with rather than having this paragraph ruled fully inadmissible. I agreed that that was an

appropriate course and, in my ruling of 10 August 2020, directed that this paragraph 20 was to be included as evidence and, as a result, was to remain. The weight attributed to this evidence, however, will be another matter entirely, even though from a technical viewpoint there may be minor admissibility issues. However, I directed it is to remain and I confirm that direction.

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

Gendall J

Solicitors:

DLA Piper New Zealand, Auckland Kennedys, Auckland

Chapman Tripp, Christchurch

Copy to

Craig Stevens Barrister, Wellington

Thomas Weston QC, Barrister, Tai Tapu