Jose v Wellington Regional Chamber of Commerce Limited HC Wellington CIV 2010-485-867

[2010] NZHC 1426

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2010-485-867

BETWEEN  JULIA ELZA NAVARRO JOSE First Appellant

ANDAJ & J'S LIMITED Second Appellant

ANDLIGHT AMJ GROUP LIMITED Third Appellant

ANDWELLINGTON REGIONAL CHAMBER OF COMMERCE LIMITED

Respondent

Hearing:         2 August 2010

Appearances: Mr Gwilliam for appellants

Mr Flinn for respondent

Judgment:      6 August 2010

JUDGMENT OF MALLON J

(on interlocutory application to adduce further evidence)

[1]      The respondent has obtained summary judgment in the District Court in the sum of $50,095.35 against the appellants.   The appellants have appealed to the High Court.  Before me is an application by the appellants for leave to adduce further evidence in the appeal.  The application is opposed by the respondent.

[2]      The summary judgment relates to money paid to the respondent which the first appellant, who was at the relevant time employed by the respondent, diverted to her own accounts.  The defence raised was that she had repaid most of the money that had been diverted.  The District Court Judge rejected this on the basis of reply

evidence  filed  on  behalf  of  the  respondent  that  it  could  not  find  any  of  the

JOSE AND ORS V WELLINGTON REGIONAL CHAMBER OF COMMERCE LIMITED HC WN CIV-2010-

485-867  6 August 2010

repayments in its records and because, in the absence of particulars from the appellants, the claim of repayment lacked any credibility.   The proposed further evidence seeks to address the reply evidence relied on by the District Court Judge and to explain why further particulars of repayments cannot be given without access to the respondent’s records.

[3]      Leave  to  file  further  evidence  can  only  be  granted  “if  there  are  special reasons” (rule 20.16 of the High Court Rules).   The example given in the rules is where the evidence relates to matters that have arisen after the date of the decision appealed  against  and  that  may  be  relevant  to  the  determination  of  the  appeal. However this is just an example and leave can be granted even if the evidence is not “fresh” (ie it is evidence that was available at the time of the decision appealed against) provided there are “special reasons” for doing so.

[4]      In this case the proposed evidence was available at the time of the hearing. However, I am advised that the appellants had sought an adjournment to provide time to respond to the reply evidence.  That reply evidence had been filed the day before the scheduled hearing.  I acknowledge that the reply evidence was filed within the time prescribed by the rules, but it is also the case that it could have been filed earlier.  The summary judgment application and supporting affidavit were filed on

30 October 2009.   The opposition and affidavit in support of the opposition were filed on 14 February 2009.   The reply evidence was filed on 14 April 2009.   The request for an adjournment was declined on 15 April 2009.

[5]      Had the adjournment been granted then I expect that the material parts of the affidavit that the appellants now wish to file would have been before the District Court.   The concern that is sometimes expressed about permitting evidence to be adduced on the appeal that was available at the time of the District Court hearing is that appellants may use the hearing at first instance as a “dummy run” and then seek to bolster their case on the appeal in light of the District Court’s decision.   That concern does not apply to the same extent here where the appellants had sought to introduce the evidence at the District Court hearing (albeit that it ought to have been included in the initial affidavit filed in support of the opposition).

[6]      The real question in these circumstances is whether the proposed evidence is material.  In summary the affidavit explains that the diversions where accidental, that the first appellant was not immediately aware of them, that when she became aware of them she discussed the matter with her immediate supervisor and that she kept her immediate supervisor  informed  of  what  she was  doing by way of repaying the amounts.  She also says that she is not surprised that the respondent had not found amounts that could be attributed to her (as per the reply evidence) because she had only been able to repay the respondent “in dribs and drabs” and because she had coded the repayments to members of the respondent and to NZTE (rather than to her).

[7]      The District Court Judge relied on the reply evidence to the effect that the respondent had not found any evidence of repayment.   The proposed affidavit evidence is relevant to this point.  The District Court Judge also relied on the absence of particulars from the appellants about the repayments.   The proposed evidence seeks to address this point as well.

[8]      The respondent says that the proposed  evidence lacks  any credibility.    I consider that the Judge who hears the appeal is better able to make that assessment and will be able to do so in light of any reply affidavit filed on behalf of the respondent.  I consider it is better that the Judge who hears the appeal have before him or her all the evidence which the appellants wish to have considered (and which they had wished to adduce at the District Court hearing), particularly when a material factual dispute had been raised by the appellants but this had been rejected on the affidavit evidence before the District Court on the basis that it lacked any credibility.

[9]      For  these  reasons  I  consider  that  there  are  special  reasons  to  admit  the proposed affidavit.  I grant leave accordingly.  I also grant leave to the respondent to

file a reply affidavit within 21 days.

Solicitors:

J Gwilliam, J Gwilliam & Co Limited, Upper Hutt, email: [email protected]

S Dyhrberg, Wellington, email: [email protected]

Mallon J