Hojsgaard v Chief Executive of Land Information New Zealand

[2017] NZHC 1695

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2016-488-12 [2017] NZHC 1695

BETWEEN

PETER HOJSGAARD

Plaintiff

AND

THE CHIEF EXECUTIVE OF LAND INFORMATION NEW ZEALAND First Defendant

BARRY BRILL Second Defendant

Hearing:	20 July 2017
Counsel:	P H Thorp and M Singh for Plaintiff M Bryant for First Defendant M Harris and S McMullen for Second Defendant D Bates QC, amicus curiae
Judgment:	21 July 2017

JUDGMENT OF HEATH J

This judgment was delivered by me on 21 July 2017 at 9.30am pursuant to

Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:

Glaister Ennor, Auckland Crown Law, Wellington Gilbert Walker, Auckland Counsel:

P H Thorp, Auckland

HOJSGAARD v THE CHIEF EXECUTIVE OF LAND INFORMATION NEW ZEALAND [2017] NZHC 1695 [21 July 2017]

Introduction

[1]      This   proceeding   has   been   set   down   for   hearing   over   three   weeks, commencing on 14 August 2017.  No trial Judge has yet been identified.  Currently, I am overseeing case management processes.

[2]      The substantive issue in the proceeding concerns the boundary of a property at Omapere, Northland.   Mr Peter Hojsgaard is the registered proprietor of that property.  He is seeking a declaration from this Court as to its boundary.

[3]      The central question is whether a cadastral survey undertaken some years ago by Mr Denis Thomson correctly identified the location and area of a hydro-parcel on the land.  Declarations are sought to that effect, together with one that requires any “cadastral survey dataset that identifies the southern and eastern boundary of Omapere B as corresponding with the right bank of the hydro-parcel in the Thomson survey, and excludes Omapere A” in substitution for an earlier survey, known as ML 437558.

[4]      The proceeding has been treated to date as if brought as a judicial review application.   Directions were made on 27 June 2017 to enable a further case management conference to be held so that trial directions could be finalised.  Two critical issues were whether a meeting of experts should be convened before trial and the basis on which cross-examination would take place.  The latter issue arose out of the apparent status of the proceeding as a judicial review application, on which leave

to cross-examine is required.1

[5]      As contemplated, prior to the conference, Ms Bates QC (as amicus curiae) prepared a helpful memorandum in which she set out the positions of each party with regard to those two issues, and other trial points.  I thank her for her assistance.  I

now deal with the issues that arise for decision.

1      Roussel Uclaf Australia Pty Ltd v Pharmaceutical Management Agency Ltd [1997] 1 NZLR 650 (CA).

Expert witness conference

[6]      The Court’s power to direct a conference of expert witnesses springs from

r 9.44 of the High Court Rules:

9.44     Court may direct conference of expert witnesses

(1) The court may, on its own initiative or on the application of a party to a proceeding, direct expert witnesses to—

(a)      confer on specified matters:

(b)      confer in the absence of the legal advisers of the parties:

(c)      try to reach agreement on matters in issue in the proceeding: (d)     prepare and sign a joint witness statement stating the matters

on  which  the  expert  witnesses  agree  and  the  matters  on which they do not agree, including the reasons for their disagreement:

(e)      prepare the joint witness statement without the assistance of the legal advisers of the parties.

(2) The court must not give a direction under subclause (1)(b) or (e) unless the parties agree.

(3) The court may, on its own initiative or on the application of a party to the proceeding,—

(a)      appoint an independent expert to convene and conduct the conference of expert witnesses:

(b)      give  any  directions  for  convening  and  conducting  the conference the court thinks just.

(4) The court may not appoint an independent expert or give a direction under subclause (3) unless the parties agree.

(5) Subject to any subsequent order of the court as to costs, the court may determine the remuneration of an independent expert and the party by whom it must be paid.

(6) The matters discussed at the conference of the expert witnesses must not be referred to at the hearing unless the parties by whom the expert witnesses have been engaged agree.

(7) An  independent  expert  appointed  under  subclause  (3)  may  not  give evidence at the hearing unless the parties agree.

[7]      Two jurisdictional points arise:

(a)      Unless all parties agree, the Court cannot give a direction requiring the conference to be held in the absence of legal advisers of the parties or for the experts to prepare a joint witness statement without the assistance of such advisers.2

(b)Unless all parties agree, the Court  cannot  appoint an independent expert to convene and conduct the conference, or give any directions in that regard.3

[8]      The purpose of a conference of experts is to narrow issues for determination by the Court and to identify those points on which the experts do not agree, with the reasons for those disagreements being identified.  A report of that nature provides a focus for cross-examination, and allows the hearing of a proceeding to proceed more

efficiently. A joint witness statement is the intended outcome of the conference.4

[9]      The status of a joint witness statement is governed by r 9.45 of the Rules:

9.45     Status of joint witness statement by expert witnesses

(1) A joint witness statement prepared by expert witnesses under rule 9.44—

(a)       must be circulated by the parties to the proceeding by whom the expert witnesses have been engaged to every other party who has given an address for service; and

(b)       may be produced in evidence by any expert witness who signed the statement; and

(c)       may, if the parties to the proceeding agree, be produced in evidence without the need to call any of the expert witnesses who signed the statement.

(2) Rules 9.4   to   9.11 apply, with all necessary modifications, to a joint witness statement as if the statement were a written statement under rule 9.2 or 9.3.

(3) An expert witness is not precluded from giving evidence on any matter at the hearing simply because the expert witness has participated in the preparation  of  a  joint  witness  statement  under  rule  9.44  or  because  the witness statement is evidence at the hearing under rule 9.6.

2      High Court Rules, r 9.44(1)(b) and (e) and (2).

3      Ibid, r 9.44(3) and (4).

4      Ibid, r 9.44(1)(d).

[10]     The r 9.44(3) jurisdiction to make directions about the way in which the conference is convened and conducted can be exercised in this case, to a limited extent.  The parties all agree that Ms Bates should chair any meetings of experts and facilitate  discussion  on  relevant  issues,  and  preparation  of  the  joint  witness statement.  However, there is no agreement that legal advisers can be excluded from the conference.

[11]     The parties do agree that no more than one legal adviser for each party should be present, and that the role of that legal adviser is to be limited to facilitating the preparation and finalisation of a joint witness statement.   In the absence of any jurisdiction to make directions that are wider in scope, I propose to make orders to that effect.

[12]     The joint memorandum prepared by Ms Bates contains a helpful analysis undertaken by Mr Harris, for Mr Brill, of the expert witnesses whom the parties intend to call. They are:

(a)       Mr Hojsgaard intends to call: (i)          Four surveyors

(ii)      One geotechnical engineer

(iii)     Two engineering geologists

(iv)     One radio carbon-dating expert; and

(v)      One arborist

(b)      The Chief Executive intends to call Mr Telfer, an Assistant Surveyor

General who will give evidence on survey methodology

(c)       Mr Brill intends to call one surveyor, one witness dealing with radio carbon-dating  and  another  who  addresses  coastal  processes.  In

addition, Mr Brill is, himself, a surveyor.  It is agreed that he ought to attend the meeting of experts.

[13]    Ms Bates proposes that meetings of experts should be divided into two categories; those dealing with survey and those of a geological or other scientific nature.   While counsel other than Mr Thorp suggest that the number of experts attending a conference should be limited, I am not prepared to make an order to that effect in the absence of agreement of all parties.   I consider that, even though participation of all experts may be cumbersome, an ability to seek agreement among them before the trial would be profitable.  I have confidence in Ms Bates’ ability to chair and facilitate the meetings to achieve those goals.

[14]     Accordingly, I direct that two separate meetings of experts take place, one for the surveyors and the other for geological and other scientific experts.  The meeting shall be convened by Ms Bates at a venue to be determined by her in conjunction with other counsel.  The meetings shall be held no later than 4 August 2017, with signed joint statements being provided to each counsel no later than 8 August 2017.

[15]     Ms  Bates  shall  facilitate  discussion  among  the  experts  with  a  view  to preparation of a joint witness statement which will set out those matters that are agreed and those on which disputes remain.   So far as the latter is concerned, the position of each expert on issues in dispute shall be stated as succinctly as possible. The  legal  advisers  who  will  attend  the  meeting  shall  be  responsible  for  the preparation of the joint witness statement.   The joint statement shall be subject to r 9.45 of the Rules.

Cross-examination

[16]     In my view, whether or not this proceeding should be characterised as one involving judicial review in respect of which leave to cross-examine is required, counsel should be entitled to cross-examine on all issues in dispute.  Those issues will be narrowed by the joint witness statement to be prepared for the experts.

[17]     After counsel have considered the joint statements, they shall file a joint memorandum (in respect of which Ms Bates shall take the lead in preparation) which

identifies the scope of cross-examination for which each contends.  Any disputes on that may be referred to the trial Judge at the final case management conference.

Other trial directions

[18]     Mr Thorp shall take responsibility for the preparation of an electronic case record and the provision of appropriate screens.   I suggest that he liaise with the Registry in relation to technological issues that might require consideration.

[19]     Mr Thorp shall file and serve a written opening on or before 10 August 2017.

[20]     Any further affidavit evidence from Mr Telfer shall be filed and served on or before 25 July 2017.

[21]     Subject to any direction from the trial Judge to the contrary, Ms Bates, as amicus, may question any witness after re-examination has been completed.  Other counsel may ask questions arising.   Any questions from the Judge are likely to follow.

[22]     The Registrar shall allocate a case management conference at 9am on 11

August 2017 before the trial Judge.  At that time, questions relating to the scope of cross-examination shall be discussed, together with the question whether any “hot tubbing” of experts should be undertaken during trial.  In addition, consideration can be given to whether the trial should commence at a date after 14 August 2017 to allow  the  Judge  to  have  time  to  read  all  pleadings,  affidavits  and  Mr  Thorp’s opening, before the hearing begins.  Whether that can be done will depend on the likelihood  of  the  expected  duration  of  the  trial  being  shortened  by the  process involving the conference of experts.

[23]     I have already given directions entitling counsel for all parties to inspect an archived Court file, Pennell v District Land Registrar.5     I direct the Registrar to allow that Court file to be uplifted by Ms Bates, to be held in her chambers until no

later than the first day of the trial, 14 August 2017.  The purpose of that direction is

5      Pennell v District Land Registrar HC Auckland M 1871/97.

to enable counsel for all parties to inspect that file in a more convenient fashion. Ms Bates has undertaken to return the file once that exercise has been completed.

[24]     Ms Bates has leave to file a further memorandum dealing with any issues arising from her discussions with lawyers acting for Maori interests in the surrounding lands.

[25]     All questions of costs are reserved.

[26]     I thank counsel for their assistance.

P R Heath J

Delivered at 9.30am on 21 July 2017