Huljich v Huljich
[2018] NZHC 3029
•21 November 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2014-404-2631
[2018] NZHC 3029
BETWEEN ELIZABETH HULJICH
Plaintiff
AND
CHRISTOPHER PETER HULJICH
First Defendant
PETER KARL CHRISTOPHER HULJICH
Second DefendantMICHAEL STEPHEN HULJICH
Third Defendant
Hearing: 13 November 2018 Counsel:
RJ Hollyman and SPH Elliott for plaintiff
DH McLellan QC and HMZ Ford for defendants
Judgment:
21 November 2018
Reissued:
5 December 2018
JUDGMENT OF FITZGERALD J
[As to admissibility of evidence]
This judgment was delivered by me on 21 November 2018 at 4 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar……………………………. Date……………………..…
Solicitors: Nicholls Law Ltd, Auckland (A Nicholls)
Harmos Horton Lusk, Auckland (G Horton)
Andto: GF Little SC, Auckland DB Beard, Auckland
Huljich v Huljich [2018] NZHC 3029 [21 November 2018]
Introduction
[1] The plaintiff, Mrs Huljich, sues two of her sons (who I will refer to in this judgment as Christopher and Michael) as well as her grandson (who I will refer to as Peter).1 The dispute relates mainly, but not exclusively, to recovery of money Mrs Huljich says she loaned the defendants several years ago that has not been repaid in full. The defendants accept Mrs Huljich provided a loan to her three sons, including Christopher and Michael (but not her grandson Peter), but say the amounts they received have been fully repaid.
[2] The proceedings have been on foot since 2014 and have had a long and difficult history.2 A substantive hearing scheduled for earlier this year had to be vacated. As matters stand, the proceeding is set down for a five-day substantive fixture commencing on 3 December 2018.
[3] Mrs Huljich and the defendants have served their briefs of evidence. The defendants object to aspects of the evidence to be called by Mrs Huljich, saying it is irrelevant and therefore inadmissible3 or, if relevant, its probative value is outweighed by the risk it will needlessly prolong the proceedings.4 This judgment determines the admissibility objections.
[4] Admissibility of evidence in civil proceedings is very often dealt with at the outset of trial or during the course of the trial itself. Alternatively, the evidence can be received on a provisional basis,5 and, after having heard all the evidence at trial, the court may make rulings as to admissibility in its substantive judgment.
[5] In this case, however, given these proceedings’ difficult history, and that the fixture is now scheduled for five days only, Moore J directed the admissibility issues be heard and determined prior to trial. This was necessary particularly because the admissibility of two entire (expert) briefs of evidence is challenged.
1 I will refer to Christopher, Michael and Peter collectively as “the defendants”.
2 For example, in a judgment dated 17 October 2018, Moore J described the proceedings as having “been plagued by chronic failure on the part of the plaintiff to comply with timetabling directions and other Court orders”: Huljich v Huljich [2018] NZHC 2682 at [2].
3 Evidence Act 2006, s 7.
4 Section 8(1)(b).
5 Section 14.
[6] To set the scene for the admissibility dispute, I first provide a brief summary of Mrs Huljich’s claims and the issues likely to arise at trial.
Summary of claims and issues
[7]Mrs Huljich’s proceedings broadly canvas three key matters:
(a)First, Mrs Huljich’s claim for repayment of a loan made by her to the defendants, of which she says $264,000 remains outstanding. That claim is advanced against all three defendants.
(b)Second, recovery of the sum of $150,000 paid by Mrs Huljich to her three sons. The sons say that sum was repayment of a loan they gave Mrs Huljich. Mrs Huljich, however, says the payment was in fact an overpayment of sums paid for renovations to her home which were being managed by Christopher. This claim is advanced against Christopher and Peter.
(c)Third, Mrs Huljich’s claim for damages for breach of an alleged oral agreement between her and Christopher pursuant to which Christopher was to pay his aunt’s rent due to Mrs Huljich (as landlord) for the balance of his aunt’s lifetime. This claim is advanced solely against Christopher.
[8] In their written submissions filed in advance of the hearing, Mr McLellan QC and Ms Ford, counsel for the defendants, set out the following issues arising from these three overarching matters:
(a)Whether Christopher and Michael, and their brother Paul,6 were parties to an oral agreement entered into with Mrs Huljich in 1986 under which they agreed to provide her (and her husband, who has since died) with lifetime financial support.
6 Who is not a party to these proceedings.
(b)Who were the parties and what were the terms of the alleged oral agreement entered into in 2009 (First Oral Agreement) which led to Mrs Huljich borrowing $750,000 from Kiwibank (the Kiwibank Facility) and making those funds available to Christopher and Peter (as she alleges) and/or all three of her sons (as the defendants say)?
(c)Who were the parties and what were the terms of the second alleged oral agreement entered into in 2012 (Second Oral Agreement) which led to Mrs Huljich borrowing $750,000 from Sovereign (the Sovereign Facility) to repay the Kiwibank Facility and continuing to make those funds available to Christopher and Peter and/or all three of her sons?
(d)Did the terms of the First or Second Oral Agreement require the defendants to repay funds from the Kiwibank or Sovereign Facility which had been advanced to and received by Paul?
(e)Did the terms of the Second Oral Agreement require the defendants to invest the borrowed funds on behalf of Mrs Huljich? If so, when should those investments have been made, what were the investments that should have been made, and what loss has Mrs Huljich suffered as a consequence?
(f)Did Christopher and Peter, by the spreadsheet provided to Mrs Huljich on 24 May 2012, or Christopher in his letter of 3 March 2014, mislead Mrs Huljich as to whether Paul had received the benefit of the funds from the Kiwibank Facility? If so, did they do so fraudulently and did Mrs Huljich suffer any loss or prejudice as a consequence?
(g)Did Christopher and Peter send correspondence to Kiwibank in Mrs Huljich’s name, or transfer funds from the Kiwibank Facility, without her authority to do so? If so, did Mrs Huljich suffer any loss as a consequence?
(h)Did Mrs Huljich owe her sons $150,000 in July 2008 at the time she paid that sum into their joint bank accounts?
(i)Did Christopher owe any legal obligation to Mrs Huljich to continue to pay Christopher’s aunt’s rent after it is said Mrs Huljich told him on 17 May 2012 to stop doing so? If so, did Mrs Huljich suffer any loss as a result of his not doing so?
[9] Mr Hollyman and Mr Elliott appeared at the hearing for Mrs Huljich. Mr Hollyman advised that he had only just been briefed in this matter.7 Without wishing to bind any future counsel for Mrs Huljich, Mr Hollyman was content to proceed on the basis the above issues are likely to be those requiring determination at trial. Mr Hollyman and Mr Elliott also quite responsibly acknowledged aspects of the challenged evidence which is not admissible and therefore will not be led.
Legal principles
[10] The defendants’ admissibility objections call into play three key sections of the Evidence Act 2006 (the Act): ss 7, 8 and 25.
[11] Pursuant to s 7, unless made inadmissible or excluded by an enactment, all relevant evidence is admissible. Evidence is relevant “if it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding”.8 The test for relevance under s 7 is a relatively low threshold.9
[12] As the learned authors of Mahoney on Evidence observe, “[t]he test in s 7(3) necessitates clearly identifying ‘what is in issue’ in the proceeding”.10 If evidence has
7 Mr Hollyman and Mr Elliot also noted that at the time of the hearing, their instructions extended only to appearing on the admissibility dispute, and not to appearing for Mrs Huljich at the substantive hearing.
8 Evidence Act 2006, s 7(3).
9 R v Bain [2009] NZSC 16, [2010] 1 NZLR 1 at [91] per Wilson J; Wi v R [2009] NZSC 121, [2010]
2 NZLR 11 at [8].
10 Elisabeth McDonald and Scott Optican (eds) Mahoney on Evidence: Act and Analysis (4th ed, Thomson Reuters, Wellington, 2018) at 54, with reference to those authorities referred to at fn 271. For a more recent endorsement of the need to clearly identify the matters in issue, see Kós J’s judgment in O v R (CA736/2017) [2018] NZCA 434 at [11].
no tendency to prove or disprove anything about a material issue in the proceeding, it will be irrelevant and inadmissible.11
[13] Assuming the evidence passes the threshold of relevance under s 7, the evidence may still be excluded if its probative value is outweighed by the risk it will needlessly prolong the proceeding.12 Carrying out an assessment under s 8 requires identification of the probative value of the evidence, followed by determining whether there is a risk that evidence will needlessly prolong the proceeding. The authors of Mahoney on Evidence state that the concept of “needlessly prolonging the proceeding” includes:13
material that unnecessarily delays the end of a trial, or mires the Court in the presentation of repetitive, trivial or superfluous proof.
[14] The third section of the Act in play on this application is s 25. This controls the admissibility of expert opinion evidence. The evidence must first be relevant (in terms of s 7), in that it is reasonably capable of influencing the fact finder’s assessment of a material issue.14 For example, opinion evidence on matters in respect of which the fact finder is capable of carrying out their own assessment (that is, without the need for specialist or expert assistance) will not be relevant.15 And even if relevant, expert opinion evidence will need to meet the heightened relevance threshold of being substantially helpful in understanding other evidence in the proceeding or in ascertaining any fact that is of consequence to the determination of the proceeding.16
[15]With these principles in mind, I turn to the disputed evidence.
11 Parihoa Farms Ltd v Rodney District Council (2010) 20 PRNZ 8 (HC); Williams v R [2017] NZCA 329 at [40].
12 Evidence Act 2006, s 8(1)(b).
13 Elisabeth McDonald and Scott Optican (eds) Mahoney on Evidence: Act and Analysis (4th ed, Thomson Reuters, Wellington, 2018) at 86.
14 Keil v New Zealand Police [2017] NZCA 430 at [20].
15 At [26].
16 Evidence Act 2006, s 25.
Brief of Mrs Huljich
The rationale or explanation for the loans
[16] A common theme of several paragraphs of Mrs Huljich’s brief which are challenged is her stated awareness or knowledge of Christopher and Peter’s financial situation at the time she loaned them money and that therefore being the purpose or rationale of the loan. Observations of that nature are included in paragraphs 24, 37– 38 and 127–129 of Mrs Huljich’s brief.
[17] Mr McLellan submits Mrs Huljich’s stated knowledge in that regard is not relevant to any of the issues set out above. He points to the fact that it is not in dispute Mrs Huljich loaned money to at least some of her sons; rather, the dispute concerns the parties to and terms of the oral loan agreement. Mr Hollyman, on the other hand, submits Mrs Huljich’s awareness or knowledge of her sons’ financial position will assist the trial Judge in understanding why Mrs Huljich did what she did. Mr Hollyman says that given some of the alleged transactions or loans are, at face value, somewhat unusual, the material will be relevant in that context.
[18] The paragraphs are essentially directed to Mrs Huljich’s stated knowledge or understanding of the purpose of the loans — to assist with alleged financial difficulties experienced by Christopher and Peter. Mr Hollyman was not able to point to any direct relevance that matter has to the issues at trial. But Mrs Huljich’s evidence could be said to be of relevance to the surrounding circumstances in which the terms of the loan may have been agreed. As the context of any contractual agreement may be relevant to determining the terms of that agreement, I am not prepared to conclude, at least at a pre-trial stage, that these aspects of Mrs Huljich’s brief have no potential relevance.
[19] As in the case of many admissibility issues arising in civil proceedings, the trial Judge will be in a much better position to determine whether these aspects of Mrs Huljich’s brief are of assistance, in light of all the evidence presented and issues canvassed at trial.
[20] Further, and in any event, it is not clear the proceedings would be needlessly prolonged by the inclusion of these aspects of the brief, even if it were found they were of little or no probative value. It will not take long for Mrs Huljich to read the relevant paragraphs. And given the paragraphs are limited in scope, cross-examination is likely to be similarly confined.
[21] I therefore consider that paragraphs 24, 34, 37–38 and 127–129 of Mrs Huljich’s brief are admissible at least on a provisional basis, with a final view to be taken by the trial Judge.
[22] I now turn to other objections raised to particular paragraphs of Mrs Huljich’s brief of evidence.
Paragraph 21
[23] Paragraph 21 concerns alleged discussions between Mrs Huljich and her son Paul, expressing her views on Christopher and Peter allegedly having received significant funds from Michael and not having invested the funds she had advanced to them in shares. It is alleged Paul told her to ask Christopher and Peter why this had not happened as they had obligations to Mrs Huljich to invest. Mrs Huljich states that the proposed investment of her money is why she mortgaged her townhouses and advanced the loan to her sons.
[24] I do not consider paragraph 21 discloses relevant and therefore admissible evidence. There is no dispute the funds raised by Mrs Huljich through the Kiwibank Facility were advanced to her sons. As noted, a key issue in the proceedings is the terms of the loan, and whether, and if so at what point, any of the defendants were under an obligation to invest the monies on behalf of Mrs Huljich. Mrs Huljich’s subjective (and after the event) views as to any obligation to invest, and those allegedly of Paul, are not relevant to the determination of the terms of the oral loan agreement.
Paragraphs 26 to 36
[25] This section of Mrs Huljich’s brief covers her interactions with her solicitor in establishing the original Kiwibank Facility and alleges Christopher and Peter told her
to lie to her solicitor about the loan’s purpose (namely to assist with Christopher and Peter’s alleged financial difficulties).
[26] The fact the Kiwibank Facility was established, and its terms (as between Kiwibank and Mrs Huljich), are not in dispute.
[27] Mr Hollyman submits these paragraphs are relevant because they are consistent with Mrs Huljich’s suggestion she was deceived about the purpose of the loan. He also submits they supports Mrs Huljich’s claim there was a degree of vulnerability and trust as between her and her sons, relevant to the fiduciary duties claims. Mr Hollyman argues the evidence would assist the trial Judge, who might otherwise wonder why a solicitor had not raised any concerns with Mrs Huljich about the loan.
[28] Mr McLellan, on the other hand, submits that even if it were accepted the purpose of the loan was to assist with Christopher and Peter’s then financial difficulties (which is not accepted), that has no relevance to the issues arising in the proceedings in any event.
[29] It is apparent from my reasons above that in my view the purpose of the loan may be relevant to the issues at trial. But I do not consider separate evidence of what Mrs Huljich says she was told to say to her solicitor is relevant to the issues arising in the proceedings. I note Mr Hollyman’s (quite proper) concession in his written submissions that the commentary regarding the alleged deception of the family solicitor “is perhaps less relevant”.
[30] The alleged instruction to deceive the family solicitor is a serious allegation. As Mr McLellan submitted, he would not be in a position to let such a serious allegation be made in open court without considerable attention being devoted to it, by way of cross-examination of Mrs Huljich and potentially further evidence-in-chief from the defendants. Accordingly, to the extent the evidence about alleged deception has any probative value (which I consider would be be low), there is a risk it will be outweighed by the evidence needlessly prolonging the proceedings. It will divert the
parties’ and the Court’s attention to a highly contentious matter of little assistance in determining the issues at trial.
[31] I accordingly rule that the relevant parts of paragraphs 26 to 36 alleging deceptive conduct, lying and “subterfuge” are inadmissible. I do not exclude, however, paragraph 34. That contains Mrs Huljich’s recollection that the term of the loan was three years, which she says was fine because she had been told the loan was only for the short-term. That is relevant to the issue concerning the terms on which the loan was made.
Paragraph 70
[32] Paragraph 70 recounts statements allegedly made by Michael (the third defendant) that agreements between the three brothers had always been oral and there had never been problems about following them through until now. Mrs Huljich says that Michael had also stated that he knew of times when Christopher and Peter had broken agreements with him and Paul.
[33] Mr McLellan advanced the defendants’ objection to the first part of this paragraph on the basis of relevance and hearsay. Mr McLellan confirmed Michael will be giving evidence at trial. If that is the case, then the evidence would not be hearsay, given an out of court statement made by a witness is not hearsay.17
[34] However, to the extent the first part of this paragraph is advanced to demonstrate there is a pattern or tendency for agreements between the three brothers to be oral (and not recorded in writing), that it is not relevant to any of the issues arising in the proceedings. The agreements in issue are not between the three brothers, but between Mrs Huljich on the one hand, and at least some of her sons on the other. Further, it is not in dispute those agreements were never recorded in writing.
[35] In terms of Michael’s alleged statement that he was aware of times when Christopher and Peter had broken agreements with him and Paul, Mr Hollyman quite responsibly accepted there were difficulties with the admissibility of this aspect of the
17 Evidence Act 2006, s 4, definition of “hearsay statement”.
paragraph. Any other such oral agreements are not the subject of these proceedings. For that reason, and at best, the evidence might be advanced as some form of propensity evidence.18 But to begin to consider its admissibility on that basis, considerably more detail would be required about the alleged breaches of other oral agreements, why they demonstrate a propensity (in terms of s 40(1) of the Act), and then why that propensity is relevant to matters in issue.
[36]No such material has been advanced. The paragraph is inadmissible.
Brief of evidence of Richard Connell
[37] Mr Connell is a solicitor and proposes to give evidence as to his instructions from Mrs Huljich to establish the original Kiwibank Facility, and mortgages in favour of the Bank over units (then) owned by Mrs Huljich at 42 Tarawera Terrace, St Heliers.
[38] Mr Connell gives relatively brief evidence of the steps he took on Mrs Huljich’s instructions to establish the Kiwibank Facility. He also proposes to produce a filenote of a telephone discussion with Mrs Huljich on 27 May 2009 and a letter to her dated 27 May 2009. He states the letter appears to confirm an earlier telephone conversation with her on 27 May. The content of those discussions and documents is not disclosed in Mr Connell’s brief and the documents have not been produced by Mrs Huljich on discovery. To the extent Mrs Huljich considers the documents are relevant (which presumably she does, given they are to be produced by Mr Connell), then it is plainly unsatisfactory they have not been discovered.
[39] As matters presently stand, I am not satisfied any of Mr Connell’s brief of evidence is relevant. Alternatively, to the extent it has some probative value, that probative value is outweighed by the risk his evidence will needlessly prolong the proceedings.
[40] The fact the Kiwibank Facility was put in place and its terms as between Kiwibank and Mrs Huljich are not in dispute. Mr Connell states in one paragraph of his brief that he was concerned about Mrs Huljich raising $700,000 given her age, that
18 Section 40.
she did not have any existing mortgages on the properties to secure the loan and it was a large sum of money. However, there is no suggestion elsewhere or claim the loan was brought about by inappropriate pressure or was otherwise some form of unconscionable bargain. Mr Connell’s own private concerns in that regard are irrelevant.
[41] Mrs Huljich has a continuing discovery obligation. If the documents to be produced by Mr Connell are considered relevant to her case, they ought to be discovered without further delay. And if they are relevant and need to be produced at trial, then Mrs Huljich can presumably do so, given they are documents reflecting communications with or to her.
[42]I accordingly rule Mr Connell’s brief of evidence inadmissible.
Medical evidence
[43] Mrs Huljich proposes to call two medical experts, Mrs Sabine Visser, a registered clinical and neuropsychologist, and Dr Alexander Srzich, a consultant psychiatrist and physio-geriatrician.
[44] It is necessary to explain the context in which Mrs Visser and Dr Srzich first provided the evidence that is now contained in their briefs.
[45] I was informed at the hearing that the contents of the briefs of evidence replicate earlier affidavit evidence of Mrs Visser and Dr Srzich which was relied on by Mrs Huljich in support of her earlier application for an adjournment of the trial given her then mental state. Moore J granted Mrs Huljich’s application. Given the context in which Mrs Visser’s and Dr Srzich’s evidence was produced, large aspects of it are focussed on an assessment of Mrs Huljich’s (prior) ability adequately to prepare for and present as a plaintiff-party at the trial.
[46] Mr Hollyman submits the evidence is nevertheless still relevant to issues to be determined on the substantive hearing, in particular, the Court’s assessment of Mrs Huljich’s claim for damages for mental and emotional distress. No party addressed me on the ability to award such damages, but in principle at least, there is
no objection to them being awarded in certain circumstances.19 Normal constraints on damages apply, including remoteness.
[47] Turning to each proposed brief of evidence, Mrs Visser’s evidence largely recounts her assessment of Mrs Huljich’s presentation at an initial interview some months ago, and a more recent session held on 29 August 2018. Mrs Visser records what Mrs Huljich told her at those sessions, including her distress at her current situation and that she was unable to cope with the impending court hearing. In this way, paragraphs 9 through to 16 of Mrs Visser’s brief of evidence simply recount what Mrs Huljich has said to Mrs Visser. That is evidence Mrs Huljich can quite easily and properly give herself. Expert evidence is not required.
[48] Similar evidence is given in paragraph 19, where Mrs Visser recounts Mrs Huljich’s statements that she feels great shame and embarrassment about the present dispute with family members and extremely hurt and betrayed by her sons and grandson.
[49] The balance of Mrs Visser’s brief of evidence, at paragraphs 20 through 28, contains her assessment of Mrs Huljich’s cognition and fitness to proceed. I do not consider any of this opinion evidence to be substantially helpful to the Court’s assessment, if required, of whether damages for mental stress ought to be awarded, and if so, in what amount. This aspect of Mrs Visser’s evidence is directed solely to Mrs Huljich’s ability to cope during the trial itself, being a quite different issue.
[50] For these reasons, I also do not consider the summary section of Mrs Visser’s brief of evidence to be substantially helpful to the trial Judge. That section simply represents a summary of the earlier content of her brief on which I have already commented. Again, Mrs Huljich can herself quite easily give evidence as to how she feels as a result of the present dispute.
[51]I accordingly rule Mrs Visser’s brief of evidence inadmissible.
19 See, for example, Mouat v Clark Boyce [1992] 2 NZLR 559 (CA) at 569 and 573-574.
[52] Similar concerns arise in relation to Dr Srzich’s brief of evidence. Again, it is largely directed to an assessment of whether Mrs Huljich is under any mental impairment which could affect her ability to participate in these proceedings and, if so, its nature. This involves an assessment of matters such as her ability to provide instructions to lawyers and to prepare for trial. The opinions expressed by Dr Srzich on these issues are not in my view substantially helpful for the purposes of s 25 of the Act.
[53] There is, however, one exception. At paragraph 5 of his brief, Dr Srzich gives evidence that in October 2017, Mrs Huljich presented with symptoms of a major depressive episode that had developed because of the stress related to the present proceedings. Similar evidence is given in paragraph 6, where Dr Srzich states that Mrs Huljich appeared to have been suffering the symptoms of a major depression prior to going on holiday to Mexico in February 2018, of a similar intensity to when he saw her in October 2017. Dr Srzich goes on to recount that Mrs Huljich’s mood appears generally much better.
[54] Mr McLellan takes issue with these aspects of Dr Srzich’s evidence in that they do not demonstrate any linkage between the alleged depressive episodes and the underlying events giving rise to Mrs Huljich’s claims, rather than being linked to the conduct of the proceedings themselves. Mr McLellan states he has not located any authorities which support the proposition that stress or mental health issues associated with the proceedings themselves, rather than the underlying events, can found a claim for mental stress damages.
[55] Given this “linkage” issue was not fully argued before me, it is not appropriate that I embark on detailed examination of it. That will be a matter for the trial Judge, assuming she or he needs to consider the question of damages.
[56] In this context, and at least on a provisional basis, I consider Dr Srzich’s evidence as to Mrs Huljich’s stated depressive episodes in response to these proceedings ought to be admitted. It provides some independent corroboration, and expert opinion, of Mrs Huljich’s own evidence of her stress and anxiety arising from these proceedings. Whether it will be of substantial assistance to the trial Judge is
properly a matter for the trial Judge, once she or he has heard all the other evidence, and, importantly, argument on the legal principles attaching to damages for mental distress.
[57] Accordingly, on the basis Dr Srzich’s brief of evidence is recast to focus on those matters addressed at paragraphs 5 and 6, namely his opinion that Mrs Huljich has suffered major depressive episodes associated with bringing and continuing these proceedings, such evidence may be adduced by Mrs Huljich at trial. To the extent the brief can be recast and served within five working days of this judgment, I do not consider there will be any prejudice to the defendants. They are already on notice of Dr Srzich’s evidence in this regard.
Brief of evidence of Shane Hussey
[58] Mr Hussey is a chartered accountant who proposes to give expert evidence to support Mrs Huljich’s damages claim, namely investment opportunities lost by what Mrs Huljich alleges to be the defendants’ failure to invest monies advanced by her pursuant to the 2012 loan.
[59] The defendants’ objection to the admissibility of aspects of Mr Hussey’s brief has been resolved, in that it is now accepted Mr Hussey’s evidence in relation to lost investment opportunities from 2014 onwards only will be relevant to Mrs Huljich’s case. It was accordingly agreed that counsel for Mrs Huljich will recast Mr Hussey’s brief to focus solely on the scenario relating to losses occurring from October 2014 onwards. Mr Hollyman confirmed this ought to be able to be done within five working days of the hearing, namely on or before 20 November 2018. Again, this will not prejudice the defendants, given they are already aware of Mr Hussey’s evidence in this regard; the recast brief will simply exclude the inadmissible aspects of his evidence.
Result and orders
[60]Paragraphs 24, 34, 37–38 and 127–129 of Mrs Huljich’s brief are admissible.
[61] Paragraphs 21, 26–33, 35–36 and 70 of Mrs Huljich’s brief are inadmissible and are not to be read.
[62]Mr Connell’s brief of evidence is inadmissible.
[63] Counsel for Mrs Huljich also accepted that paragraphs 39-42, 43 (first line and first half of second line), 67, 68, 69, 71, 74, 112 (second sentence), 132, 133 and 155 will not be read.
[64]Mrs Visser’s brief of evidence is inadmissible.
[65] Dr Srzich’s brief may be recast in light of the discussion at [56]–[57] above and served within five working days of the delivery of this judgment.
POSTSCRIPT
[66] This judgment has been re-issued to correct some minor slips identified in the original version.
Fitzgerald J
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