Herron v Wallace
[2016] NZHC 1127
•27 May 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2013-404-1806 [2016] NZHC 1127
BETWEEN STUART WALTON HERRON
Plaintiff
AND
WAYNE ANDREW WALLACE First Defendant
SHADES OF AUTUMN LIMITED Second Defendant
BELMONT LIFESTYLE VILLAGE LIMITED
Third Defendant
Hearing: 25 to 28 May 2015 and 4 to 8 April 2016 Counsel:
CT Patterson and RA Dellow for plaintiff
DA Towle for defendants at the 25 to 28 May 2015 hearing
JE Hodder QC for defendants at the 4 to 8 April 2016 hearingJudgment:
27 May 2016
JUDGMENT OF FAIRE J
This judgment was delivered by me on 27 May 2016 at 4:45 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Skeates Law, Auckland (G Skeates) Bruce Dell Law, Auckland
Herron v Wallace [2016] NZHC 1127 [27 May 2016]
Contents
Introduction ............................................................................................................[1] The objection..........................................................................................................[6] Defendants’ response............................................................................................[10] The contested evidence ........................................................................................[13] The law .................................................................................................................[15] Was permission already granted? .........................................................................[20]
The challenges to the brief .........................................................................................
Rule 9.11 [23] Hearsay [28] Opinion [32] Submission [37] The particular objections [38]
The exhibits ..........................................................................................................[58] Chronology...........................................................................................................[70] Conclusion............................................................................................................[71]
Introduction
[1] This judgment is part of a non-typical progression of this case through hearing. To summarise the background in brief, Mr Herron has brought a claim against Mr Wallace for recovery of a debt he says is owing. The case was part heard in May 2015. In September 2015 the defence sought leave to advance an affirmative defence of oppression. Leave was granted with consent and timetabling orders were made for the filing of evidence in relation to the oppression defence. A brief of evidence of the first defendant, Mr Wallace, was filed in December 2015.
[2] The plaintiff, Mr Herron, initially intended to give evidence. However, on the first day of the resumed hearing on 4 April 2016, the Court was informed that Mr Herron would no longer be giving evidence.
[3] This judgment provides my reasons for ruling on the plaintiff’s objections to supplementary evidence in chief, re-examination and aspects of cross-examination of Mr Wallace as well as the production of certain exhibits and amendments to the chronology.
[4] During the hearing, the Mr Patterson signalled to the Court that the plaintiff intended to raise objections to certain pieces of evidence (“the contested evidence”). The background to this position is given in my minute of 8 April 2016 which provided:
[1] The plaintiff’s counsel signalled an intention to object to the
evidence to be led on behalf of the defendants.
[2] Counsel were content, because of time constraints, that I provisionally hear the evidence but reserve the objection on the basis that it be determined on the papers. I adopt counsel’s approach and confirm, by consent, the orders that I announced in court, namely that
a) The defence evidence is provisionally heard subject to the
court ruling on the plaintiff’s objection to it;
b) The plaintiff’s submissions in support of the objection to the
defendants’ evidence shall be field and served by 4pm on
12 April 2016, together with copied of any authorities referred to;
c) The defendants’ answer to the plaintiff’s objection shall be
filed and served by 2:15 pm on 15 April 2016; and
d)The Case Officer responsible for this file shall bring the memoranda to me on receipt.
[5] I have received memoranda from both Counsel on the issue and I now analyse the objections.
The objection
[6] The plaintiff, by memo dated 7 April 2016 objects to specific aspects of Mr Wallace’s second brief of evidence. These objections are on the basis that the statements are not relevant, or contain submission, opinion, hearsay, or a combination of these.
[7] The plaintiff, by memo dated 12 April 2016, objects to:
(a) The supplementary evidence in chief of Mr Wallace;
(b) The production of exhibits provisionally numbered 12 to 27; (c) Aspects of the cross-examination of Mr Wallace; and
(d) The re-examination of Mr Wallace. [8] The plaintiff objects on the grounds that:
(a) While the defendants did seek and were granted permission under s 98 of the Evidence Act to have Mr Wallace read out his brief of evidence, no application was made by the defendants to produce the supplementary evidence and the exhibits that were provisionally produced.
(b)All of the evidence could have been produced at the May 2015 hearing.
(c) The defendants failed to comply with r 9.8.
[9] The plaintiff submits that if the supplementary evidence is introduced, there will be unfairness that could not be remedied by an award of costs or adjournment as:
(a) The defendants have been given a second opportunity to launch a credibility attack on Mr Herron.
(b) Exhibits 17 to 23 are irrelevant, and therefore, inadmissible under s
7(2) of the Act.
(c) The loan documents were already the subject of examination during the May 2015 hearing.
(d)The defendants have failed to comply with r 9.6 by failing to incorporate exhibits 12 to 27 into the common bundle. Exhibits 15 and 16 were not discovered according to rule 9.6(2). The balance of the exhibits was discovered, but less than two hours working hours before commencement of the trial.
(e) The evidence was offered after the plaintiff had closed his evidential case.
Defendants’ response
[10] The defendants submit that leave to introduce the additional evidence was inherent in the 19 November 2015 direction and therefore, no further leave was required.
[11] The defendants submit that there will be no unfairness to the plaintiff as:
(a) The plaintiff was served with a copy of the brief of evidence in
December 2015.
(b) The plaintiff elected not to give evidence at the last minute; and
(c) The plaintiff should have objected to the evidence within 20 working days of receipt of the brief under r 9.11.
[12] The defendants also submit that the defendants could not have produced the evidence at the May 2015 trial, that the plaintiff contributed to the delay in locating exhibits 13-16 and that the defendants took all practicable steps to inform the plaintiff of the supplementary evidence.
The contested evidence
[13] The contested evidence falls into two categories which will be considered separately. The first category is the evidence in Mr Wallace’s brief of evidence. The second category is the exhibits that were produced through the examination of Mr Wallace.
[14] The plaintiff objects to the examination, re-examination and certain aspects of the cross-examination of Mr Wallace. This objection, in essence, relates to the production of the exhibits and discussion of their contents. If the exhibits are declared inadmissible then the oral evidence discussing them will also be inadmissible.
The law
[15] The jurisdiction to admit further evidence after the close of a party’s case is found at s 98 of the Evidence Act 2006 (“the Act”).
[16] Section 98 provides:
98 Further evidence after closure of case
(1) In any proceeding, a party may not offer further evidence after closing that party's case, except with the permission of the Judge.
(2) In a civil proceeding, the Judge may not grant permission under subsection (1) if any unfairness caused to any other party by the granting of permission cannot be remedied by an adjournment or an award of costs, or both.
…
(5) The Judge may grant permission under subsection (1),—
…
(b) in any other proceeding, at any time until judgment is delivered.
[17] An application under s 98 should be considered in light of the principles of the Act set out in s 6, which provides:
The purpose of this Act is to help secure the just determination of proceedings by—
(a) providing for facts to be established by the application of logical rules; and
(b) providing rules of evidence that recognise the importance of the rights affirmed by the New Zealand Bill of Rights Act 1990; and
(c) promoting fairness to parties and witnesses;
(d) protecting rights of confidentiality and other important public interests;
(e) avoiding unjustifiable expense and delay; and
(f) enhancing access to the law of evidence.
[18] The majority of the commentary and case law on this section involves a plaintiff seeking to bring additional rebuttal evidence. The Law Commission stated:1
Normally, the plaintiff or prosecution is not permitted to call further evidence (“rebuttal evidence”) after closing their case. Although the same general rule applies to defendants, it is rarely a source of dispute in that context, because usually the close of the defendant’s case will mark the end of all the evidence in the proceeding.
[19] The Law Commission also stated:2
It is clear that in civil cases a judge will usually exercise his or her discretion to permit a plaintiff to offer rebuttal evidence unless this would be in some way unfair to the defendant. Such unfairness might exist if the defendant could no longer call a previously available witness to meet the new evidence offered by the plaintiff.
Was permission already granted?
[20] The central issue in relation to s 98 is whether the defendants needed to seek permission to offer additional evidence, or whether permission had already been granted.
[21] On 19 November 2015, I issued a minute in which I:
(a) Noted that the plaintiff no longer opposed the defendants’ application
to file and serve an amended statement of defence.3
(b)Granted leave to amend the statement of defence, and ordered that it be filed by 3pm on 23 November 2015.4
1 Law Commission Evidence on Reform of the Law (NZLC R55 Vol 1, 1999) at [430].
2 At [433].
3 Herron v Wallace CIV-2013-404-1806, 19 November 2015 at [2].
4 At [4].
(c) Ordered that “[t]he defendants shall serve evidence in relation to the oppression defence and implied terms, together with a list of documents which they seek to include in the supplementary common bundle of documents by 7 December 2015”5
(d)Ordered that “[t]he plaintiff shall serve evidence in reply to the defendants’ evidence in relation to oppression, together with a list of additional documents to be included in the supplementary common bundle by 3 pm on 29 January 2016.”6
[22] The minute shows that the defendants had leave to file additional evidence to support the defence of oppression. I understand that it has been accepted by the plaintiff that the defendants had leave to file the additional brief of evidence of Mr Wallace. The objection under s 98 is to the introduction of additional exhibits which were produced during the examination in chief of Mr Wallace.
The challenges to the brief
Rule 9.11
[23] The defendants submit that the plaintiff should have challenged the admissibility of the brief of evidence within 20 working days pursuant to r 9.11, which provides:
(1) Any challenge to the admissibility of a brief, in whole or in part, must be notified to the party or parties concerned within 20 working days after receipt of the brief by the challenging party.
(2) If the issue is not resolved between counsel in a further 10 working days, notice that there is an admissibility issue must be given to the court by the challenging party.
The rule is silent as to what the repercussions are if a party does not challenge the admissibility within the required time. McGechan on Procedure states:7
The rule is silent as to the consequences of not giving notice within the prescribed time. The consequences may be that any subsequent objection is
5 At [5].
6 At [5].
7 Andrew Beck and others McGechan on Procedure (looseleaf ed, Brookers) at [HR9.11.02].
not entertained by the Court? Parties should therefore be vigilant in complying with the notice requirement.
[24] In MacDonald v Tower Insurance Ltd, the defendant notified the plaintiff within 20 working days of objections to aspects of the proposed evidence.8 The parties were unable to resolve the issues by consent and so a formal application for orders as to the admissibility of the plaintiff ’s evidence was filed.9 A day before the hearing on the admissibility issue, the plaintiff raised issues in relation to the defendant’s evidence. This was outside of the 20 working day timeframe. However, Dunningham J took a pragmatic approach and dealt with all of the admissibility issues at the same time.10
[25] I note that r 1.5 requires that non-compliance with the requirements of the rules should be treated as an irregularity and does not nullify the step taken in the proceeding.
[26] As the plaintiff has not offered any reasons as to why the challenge was not brought within the required time, it appears likely that this is a tactical decision by the plaintiff who initially intended to challenge the contents of the brief in his own evidence. However, as the plaintiff opted not to give evidence, this opportunity to challenge the evidence was no longer available.
[27] I record my displeasure at the way that compliance with the rules has been avoided in this matter. This has prevented the parties from coming to a consensus amongst themselves without the need for my intervention. I believe that it would be open to me to dismiss the challenge to the brief of evidence as being out of time. However, if I am wrong, I now consider whether the admissibility challenges have merit.
Hearsay
[28] The definition of a hearsay in the Act provides:11
8 MacDonald v Tower Insurance Ltd [2014] NZHC 2876, (2014) 22 PRNZ 490 at [3].
9 At [5].
10 At [6].
hearsay statement means a statement that–
(a) was made by a person other than a witness; and
(b) is offered in evidence at the proceeding to prove the truth of its contents.
[29] Hearsay is governed by ss 17 and 18 of the Act. Section 17 provides:
A hearsay statement is not admissible except—
(a) as provided by this subpart or by the provisions of any other Act; or
(b) in cases where—
(i) this Act provides that this subpart does not apply; and
(ii) the hearsay statement is relevant and not otherwise inadmissible under this Act.
[30] In the classic hearsay case of Subramaniam v Public Prosecutor the Privy
Council stated:12
Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made. The fact that the statement was made, quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or of some other person in whose presence the statement was made.
[31] The issue in respect of each of the statements which are alleged to be hearsay is whether the statement is intended to prove the truth of its contents.
Opinion
[32] The Act defines opinion as “…a statement of opinion that tends to prove or disprove a fact.”13 The opinion rule contained in s 23 provides that a statement of opinion is not generally admissible in a proceeding.
[33] Sections 24 and 25 provide the exceptions to the opinion rule. Section 25 relates to expert opinion and is not relevant here. Section 24 provides:
12 Subramaniam v Public Prosecutor [1956] 1 WLR 965 (PC) at 970.
A witness may state an opinion in evidence in a proceeding if that opinion is necessary to enable the witness to communicate, or the fact-finder to understand, what the witness saw, heard, or otherwise perceived.
[34] The Supreme Court summarised the effect of the opinion rule as
[a]n opinion that a fact or circumstance is true or exists is not generally capable of establishing that the fact or circumstance is indeed true or does actually exist.14
[35] Mahoney notes that the classification of evidence as opinion evidence depends on the purpose for which it is adduced:15
In the commentary to the draft Evidence Code, the Law Commission, in defining opinion evidence as “an opinion offered in evidence tending to prove or disprove any fact”, sought to exclude from the definition evidence offered to prove that a person held a particular opinion… Although the fine distinction between fact and opinion could make this intention difficult to achieve, s 23 should only be applied where a statement of opinion is offered in evidence in order to prove a fact other than that the person who made the statement held a particular opinion.
[36] Evidence of a witness’s own feelings are not opinion evidence when described by that witness as a matter of fact.16
Submission
[37] The plaintiff also raises objection to some aspects of the brief on the basis that it is submission. Rule 9.7(4)(d) of the High Court Rules provides that a brief must not contain any material in the nature of a submission.
The particular objections
[38] I now set out the statements made by Mr Wallace in his brief of evidence which are objected to and consider whether they are admissible.
[39] The plaintiff objects to the following statements on the basis that they are opinion and submission:
14 APN New Zealand Ltd v Simunovich Fisheries [2009] NZSC 93, [2010] 1 NZLR 315 at [23].
15 Richard Mahoney and others The Evidence Act 2006: Act and Analysis (3rd ed, Brookers, Wellington, 2014) at [EV23.02] (footnotes omitted).
16 R v Gooch [2009] NZCA 163 at [15].
11. … [Mr Herron] was trying to use my need for CAPL’s assets as a lever to extract a fee.
12.Mr Herron also had leverage over me because of his threatened claim against both me and Lombard for earlier misuse of the Georgian facility funds.
28.He used it as leverage to extract a further $300,000 fee from me for the April 2007 extension.
[40] The defendants argue that the evidence is adduced only to show Mr Wallace’s perception at the time or is evidence of Mr Wallace’s feelings. In particular, that Mr Wallace’s perception and feelings are relevant to, and necessary for, the oppression defence. When considering whether to reopen a credit contract all the circumstances relating to the making of the arrangement are relevant. These statements show Mr Wallace’s perception of the pressure that he was under and his motivation when entering into the contracts. They are admissible.
[41] The plaintiff objects to the following statement on the ground that it is hearsay:
12.…I also had heard, in around May 2005, that Mr Herron had directly approached Lombard about the Georgian facility issue, saying he suffered a disadvantage and threatening to sue them.
[42] The defendants submit that the evidence is adduced only to establish that Mr Wallace was told it, not that the words are true. The defendants seek to use the fact that Mr Wallace had heard about a possible law suit against Lombard to show that he had a perception that he was under threat by Mr Herron, which goes to the oppression defence. Out of context these words could be taken as hearsay. However, the paragraph begins “Mr Herron also had leverage over me…” I accept that the purpose of the evidence is to show that Mr Wallace believed that Mr Herron had leverage, not to prove the truth of its contents. Accordingly, it does not meet the definition of hearsay and is admissible.
[43] The plaintiff objects to the following statements on the basis that they are hearsay:
18.… I recall Mr Herron told me he wanted the full $3.16m recorded as a debt in SH8 and SH9 in case Lombard called on CAPL for the
value of the apartments. Mr Herron emphasised that the amounts recorded in SH8 and SH9 agreements were just security and he would only ever call on me for the value of CAPL’s virtual apartments if the apartments were built and Lombard enforced its security over the CAP apartments. Mr Herron said to me something like, not to ever worry because that’s all it was.
19.Mr Herron also said he wanted the SH8 and SH9 agreements documented in that way for tax purposes. He told me the reference in those documents to a potential claim for my “misuse of funds” was just there for tax reasons.
[44] The defendants submit that the evidence is adduced to establish that the plaintiff said the statements, not that the statements are true. In particular, that the statements have a tendency to prove Mr Wallace’s understanding of the commercial purpose, and intention of, the structuring of the contracts was to have the CAPL apartments represent a debt or security and that this is relevant to whether the enforcement of the debt is oppressive. These statements are admissible.
[45] The plaintiff objects to the following statements on the basis that they are opinion and submission.
29.… So Mr Herron knew in October 2006 that the Belmont development was on track and he also knew the extension period would expire in 2007 (as he had signed the facility letter).
30. … and he was aware then that the facility was being extended to
30 September 2007.
31.… We both knew that Mr Herron would get the CAPL virtual apartments back when Lombard was fully repaid.
33. … He also knew then that Belmont’s outstanding amount to
Lombard could have been no more than its $2.7m facility limit.
34. … So he knew all about the series of extension periods and when the
Belmont facility would finally expire and was due to be repaid.
[46] The defendants argue that the statements are being used to establish Mr Wallace’s perception at the time, or are evidence as to his feelings. I do not consider that the statements are of the feelings of Mr Wallace; rather they are of his perception of Mr Herron’s knowledge. During the trial, at issue was why Mr Wallace did not inform Mr Herron that the properties were no longer security at the time when the loan was repaid, if the agreements were in fact for the provision of security rather than a loan. The statements above tend to show Mr Wallace’s perception that
he did not need to take any further steps to inform Mr Herron on the status of the Lombard facility as he believed that Mr Herron was fully aware of the state of affairs. These statements are admissible.
[47] The plaintiff objects to the following statement on the basis that it is hearsay:
32. … although I think he jokingly said, what about some more fees.
[48] This statement has not been adduced to prove that Mr Herron asked for more fees or that he wanted more fees. It has not been adduced to establish the truth of its contents. It is not hearsay and is admissible.
[49] The plaintiff objects to the following statement on the basis that it is hearsay, submission, and opinion:
37.We all knew in 2005 that Mark Bryers had no money. He still didn’t have any money in 2007, which is why the Frankton and Brisbane Street apartment development didn’t succeed. Blue Chip had never built anything. But there was nothing we could do about it. Mr Herron had told me back in 2005, our best bet to get paid for our services which myself and Mr Herron provided to Mark Bryers was to take the rights to apartments being developed by Blue Chip. Neither of us believed in 2005 we would ever get those virtual apartments anyway, but it was the best deal we could do.
[50] The defendants submit that the evidence is not hearsay as it is being used to show Mr Wallace’s perception at the time rather than to prove the truth of its contents. The statement made by Mr Herron that the best bet was to take the apartment rights as payment for services is not being used in evidence to prove that this was the ‘best bet’, it is not offered to prove the truth of its contents and therefore, is not a hearsay statement.
[51] The first sentence demonstrates Mr Wallace’s perception that everyone knew that Mark Bryers had no money in 2005. This is admissible. However, the final sentence seems to be being used to prove that Mr Herron never expected to get the apartment. This is an opinion held by Mr Wallace and is not admissible.
[52] The plaintiff objects to the following statement on the basis that it is hearsay or irrelevant:
39. … Mr Herron told me “there is someone running around town with a
syringe full of AIDS for Mark Bryers, as he’s not paying his bills.”
[53] Clearly the Court is not being asked to find that someone was running around with a syringe full of AIDS. This is not being used to prove the truth of its contents. The defendants argue that it is relevant to the oppression defence as it tends to establish facts including the perceived value of the CAPL apartments and whether Mr Herron considered Mr Bryers solvent. This evidence is not hearsay and is relevant. It is admissible.
[54] The plaintiff objects to the following statement on the basis that it is hearsay:
41. … he had warned me not to go near that development.
[55] The defendants submit that this statement is not adduced to prove the truth of its contents. There is no content to this statement that can be proved to be true independently of proving the fact that it was said. This is not hearsay.
[56] The plaintiff objects to the following statement on the grounds that it is hearsay:
42.… I heard rumours that Mr Herron had struck a deal with Mark Bryers under which Mr Herron swapped his and CAPL’s rights in the unbuilt apartment for Blue Chip shares, or entered into a similar arrangement.
[57] The defendants submit that this statement is adduced to establish only that Mr Wallace was told it, rather than the truth of its contents. I note that there is other evidence which tends to prove much more accurately the contents of this statement. In the context, this evidence has been adduced to show that Mr Wallace heard this information and attempted to verify it but was unable to do so. It is not a hearsay statement.
The exhibits
[58] The exhibits produced during the Mr Wallace’s examination in chief need to
be considered separately as they were not filed in accordance with my direction of
19 November 2015.
[59] The plaintiff opposes the additional exhibits (provisionally numbered 12-27)
under s 98 of the Act and r 9.6.
[60] Rule 9.6 provides:
(1) A document not incorporated in the common bundle may be produced at the trial or hearing only with the leave of the court.
(2) The court may grant leave to produce a discovered document not so incorporated unless its production would cause an injustice.
(3) The court may refuse leave to produce a document not so incorporated and not discovered if its production might cause an injustice.
[61] If a document has not been discovered, the test is more stringent. Rule 8.31 provides:
A document that should have been included in a party's affidavit of documents may be produced in evidence at the hearing only with the consent of the other party or parties or the leave of the court.
[62] Also relevant is s 98 of the Evidence Act, set out above.
[63] However, the underlying concern in both cases is whether allowing the documents to be produced will cause an injustice or unfairness.
[64] The plaintiff argues that the production of the documents provides the defendants with the opportunity to launch “a second credibility attack against Mr Herron.” However, issues of credibility are intertwined with an oppression defence and therefore, in the circumstances, this is not a reason to exclude the documents.
[65] The plaintiff submits that documents 17 to 23 would cause unfairness as they are not relevant. The defendants submit that exhibits 17 to 23 are relevant to the plaintiff’s veracity. Section 37 of the Evidence Act provides:
(1) A party may not offer evidence in a civil or criminal proceeding about a person's veracity unless the evidence is substantially helpful in assessing that person's veracity.
…
(3) In deciding, for the purposes of subsection (1), whether or not evidence proposed to be offered about the veracity of a person is substantially helpful, the Judge may consider, among any other matters, whether the proposed evidence tends to show 1 or more of the following matters:
(a) lack of veracity on the part of the person when under a legal obligation to tell the truth (for example, in an earlier proceeding or in a signed declaration):
[66] Exhibits 17 to 23 are judgments and other court documents which involve statements relating to Mr Herron’s veracity. These exhibits fall within s 37 as they show a lack of veracity in earlier proceedings. The plaintiff cannot challenge these exhibits on the basis they lack relevance.
[67] The plaintiff submits that allowing the exhibits in evidence would unfairly prevent the plaintiff from replying to the evidence. The plaintiff submits that the plaintiff is unfairly prevented from replying to the evidence stating “[h]is Honour Justice Faire did raise the possibility of Mr Herron giving evidence in reply. However, the difficulty with that approach is that Mr Herron would need to seek the leave of the Court first.” This argument, in my view has no substance to it. Counsel for the plaintiff is, in essence, arguing that the plaintiff has not had the opportunity to respond because he did not seek to respond. If leave had been sought, it would likely have been given.
[68] The plaintiff submits that allowing the documents in evidence would require an adjournment to allow the plaintiff to form a reply. Although an adjournment in these proceedings would be inconvenient to all parties, s 98 refers to an injustice that cannot be solved by costs or adjournment. Accordingly, it seems that an adjournment being required would not be fatal.
[69] Accordingly, I find that admitting the preliminary exhibits in evidence will not cause any unfairness or injustice to the plaintiffs. The exhibits are admitted into evidence.
Chronology
[70] I also note Mr Patterson’s comments about amendments to the chronology
and will take them into account when considering the chronology.
Conclusion
[71] In conclusion,
(a) The challenges to Mr Wallace’s second brief of evidence are unsuccessful except that the final sentences in paragraph 37 as discussed at [52] of this judgment.
(b)The additional documents are relevant to the proceedings and will not cause injustice or unfairness. The exhibits are admitted in evidence.
(c) Accordingly, the objections to the examination in chief, cross examination and re-examination of Mr Wallace are also dismissed.
JA Faire J
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