Grace v Orion New Zealand Limited

[2020] NZHC 2000

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2017-409-000454

[2020] NZHC 2000

BETWEEN

C GRACE AND OTHERS

Plaintiffs

AND

ORION NEW ZEALAND LIMITED

First Defendant

LEISURE INVESTMENTS NZ LIMITED PARTNERSHIP

Second Defendant

Hearing:

6 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:

6 August 2020

ORAL RULING OF GENDALL J

Admissibility Issues

GRACE v ORION NEW ZEALAND LIMITED [2020] NZHC 2000 [6 August 2020]

[1]                  I will give my ruling now with respect to both of those issues which are before the Court but my detailed reasons for those decisions will have to follow.

[2]                  There are two matters before the Court. The first relates to a statement from Janine Bayley of some two and a half pages which Mr Stevens, counsel for the plaintiffs, has requested might be  read  as  evidence  by  Mrs  Bayley’s  husband,  Mr Bayley, who is shortly to give evidence. Mr Weston, counsel for Orion, objects to that course of action. It appears the statement from Mrs Bayley was provided only at about 6 p.m. last night and that for genuine health reasons she would be unable to read the statement as a witness or to provide evidence before this Court personally. It is noted in her statement, which I have had the opportunity to briefly read, that she confirms that she cannot be involved directly with anything to do with this trial at this point as a result of these health reasons, for which Mr Stevens indicates a medical certificate can be provided if required.

[3]                  A concern from Mr Weston, which hardly needs to go without saying, is that Mrs Bayley would not be available as a witness for cross-examination in the event that her statement was to be read only by Mr Bayley as evidence.

[4]                  Under all the circumstances here, it  is  unfortunate  and  regrettable  that  Mrs Bayley clearly appears to have suffered to a significant degree from the trauma and events relating to the fires and, in particular, the Early Valley Road fire which had significant effect on the Bayley property.

[5]                  Notwithstanding this, however, the provision of this late statement and the complete inability of defence counsel to cross-examine Mrs Bayley on the statement she makes, in my view, mean that this statement cannot be properly admitted as evidence in this matter.

[6]                  I rule, therefore, that it is not to be read by Mr Bayley, nor is it to be taken as evidence in this matter in any sense. Clearly, as counsel appear to acknowledge, there are matters in Mrs Bayley’s statement relating to her family, and Mr Bayley in particular, that he will be able to provide in his evidence shortly to be given.

[7]                  As to the second matter Mr Weston has raised before the Court, this is a concern that Mr Bayley, in his evidence shortly to be given, may well endeavour to provide quantum evidence relating to losses allegedly suffered by the Bayley family as a result of the fire. Mr Weston claims this is new and supplementary evidence not previously addressed in Mr Bayley’s brief.

[8]                  Whether or not that may be the case, it is my view that Mr Bayley, as a named plaintiff in this proceeding, should be in a position to put before the Court all matters of relevance relating to the plaintiffs’ broad claim and, of course he will be available for cross-examination on these issues.

[9]                  Accordingly, I rule that this quantum evidence, if indeed it is provided and, if indeed it is regarded as new or supplementary, is admissible and can be provided today.

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

Gendall J

Post Script:

When I began giving this ruling which was required in some haste on 6 August 2020, I indicated that my detailed reasons for the decisions would have to follow. Now, having given that admissibility ruling, and reviewing matters, I am satisfied that sufficient reasons are contained in this present ruling. No further reasons will follow.

Solicitors:

DLA Piper New Zealand, Auckland Kennedys, Auckland

Chapman Tripp, Christchurch

Copy to

Craig Stevens Barrister, Wellington

Thomas Weston QC, Barrister, Tai Tapu