Lee v Composite Cladding & Signage Manufacture and Installations Limited HC Whangarei CIV 2009-488-828

[2010] NZHC 2281

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV-2009-488-828

BETWEEN  OLIVIA LEE Appellant

ANDCOMPOSITE CLADDING & SIGNAGE MANUFACTURE AND INSTALLATIONS LIMITED

Respondent

Hearing:         12 July 2010

Counsel:         GJ Beresford for the Appellant

RG Espie for the Respondent

Judgment:      16 December 2010 at 4.00 p.m.

JUDGMENT OF RODNEY HANSEN J

This judgment was delivered by me on 16 December 2010 at 4.00 p.m., pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors:           Grimshaw & Co, P O Box 6646, Auckland for Plaintiff

Robin Espie, P O Box 546, Whangaparaoa for Defendant

LEE V COMPOSITE CLADDING & SIGNAGE MANUFACTURE AND INSTALLATIONS LIMITED HC WHA CIV-2009-488-828  16 December 2010

Introduction

[1]      The appellant (Ms Lee) engaged the respondent (CCS) to supply and fix aluminium cladding to a house she was building at Ruakaka.  There were defects in the work done.  However, Ms Lee refused to allow CCS to carry out remedial work. She also refused to pay the balance of the contract price.

[2]      In the District Court Judge David Harvey ordered Ms Lee to pay $53,979.40, the balance of the contract price.  He dismissed her counterclaim for damages arising out of the defective work.

[3]      Ms Lee appeals against Judge Harvey’s decision.  A number of his findings were challenged but I find that the fate of the appeal ultimately turns on two issues:

a)        The way in which the Judge applied the Consumer Guarantees Act

1993; and

b)His refusal to allow Ms Lee to rely on expert evidence adduced by way of reports included in the common bundle of documents.

Further background

[4]      The house is a substantial residence built on an elevated site with sweeping views of the sea.  It is situated in the highest category wind zone.

[5]      Ms Lee took much of the responsibility for managing the construction of the building.    Indeed,  Judge  Harvey found  that  she  assumed  the  responsibilities  of project manager.   She engaged a builder on a labour-only basis.   She took responsibility for obtaining the necessary consents.  She employed sub-contractors directly.   Of relevance to this appeal, she imported the aluminium cladding which then underwent a folding process before it could be fixed.   The folding method

finally  adopted  was  suggested  by  CCS  in  order  to  reduce  manufacture  and production time.   The Judge rejected Ms Lee’s evidence that she did not agree to this.

[6]      It was originally envisaged that the job of fixing the cladding would be completed in eight weeks.   It turned out to take many months.   Adverse weather conditions, particularly high winds, were a factor.  Another was Ms Lee’s decision to remove permanent scaffolding and utilise temporary scaffolding which was unstable and sometimes not high enough.

[7]      CCS accepted that there were defects in the works, some of which became apparent as work proceeded.   However, Ms Lee wanted remedial work deferred because of the risk that it would slow down completion.

[8]      The works were completed by February 2008.  At that time CCS and Ms Lee agreed upon the remedial works required.  Ms Lee did not want the work done until a code compliance certificate had been obtained.  A list of the remedial works which CCS agreed to and which remained outstanding was enclosed with a letter to Ms Lee dated 23 April 2008.  The letter recorded that the faults had been caused by Ms Lee’s “haste and pressure during construction”.  Ms Lee’s response was that she required more remedial works than were listed in the letter.

Consumer Guarantees Act 1993

[9]      Judge Harvey accepted a submission on behalf of CCS that the Consumer Guarantee’s Act 1993 required Ms Lee to give CCS an opportunity to carry out the remedial work before employing another contractor and making a claim for the cost of the works.

[10]     The Judge’s critical findings were as follows:

[137]    It  is  my  view  that  Ms  Lee’s  failure  to  cancel  the  contract  in accordance with the Consumer Guarantees Act, in light of the very clear understanding in December that remedial works would be carried out once the  installation  had  been  completed  and  the  reiteration  by  Mr  Coffman

throughout that he was prepared to remedy defects, does not entitle her to go elsewhere to have the remedial works done.

[138]    Indeed, in cross-examination, she conceded that no remedial works have been done in respect of which she was making a claim.

[139]    That being the case, I am satisfied that the plaintiff has made out its claim for liquidated damages of $53,979.40.  Plaintiff is entitled to interest on the Judgment amount, at the Judicature Act rate from the date of filing these proceedings until the date of Judgment.  Plaintiff is entitled to costs in respect of its claim in accordance with Schedule B, together with disbursements as approved by the Registrar.

[11]     It is accepted that the Consumer Guarantees Act applies.   The supply and installation of cladding comes within the definition of “services” in s 2 which relevantly includes:

(b)... the rights, benefits, privileges, or facilities that are, or are to be, provided, granted, or conferred by a supplier under any of the following classes of contract:

(i)A contract for, or in relation to, the performance of work (including work of a professional nature), whether with or without the supply of goods:

[12]     The faulty installation of cladding is prima facie a breach of the guarantee that the service or any resulting product will be reasonably fit for any particular purpose or to achieve any particular result which the consumer makes known to the supplier before or at the time of making the contract for the supply of the service.[1]

Arguably, there may also be a breach of the supplier’s guarantee that the service will be carried out with reasonable care and skill.[2]

[1] Consumer Guarantees Act 1993, s 29.

[2] Ibid, s 28.

[13]     The right of cancellation which the Judge obviously had in mind is that provided by s 32(a) of the Act, as he quoted only subs (a) of s 32 and did not refer to the remedies available to a consumer under subs (b) and (c).  Section 32 reads in full:

32Options  of  consumers  where  services  do  not  comply  with guarantees

Where a service supplied to a consumer fails to comply with a guarantee set out in any of sections 28 to 30 the consumer may,—

(a)       where the failure can be remedied,—

(i)       require the supplier to remedy it within a reasonable time:

(ii)      where a supplier who has been required to remedy a failure refuses or neglects to do so, or does not succeed in doing so within a reasonable time,—

(A)      have  the  failure  remedied  elsewhere  and  recover from the  supplier  all  reasonable  costs  incurred  in having the failure remedied; or

(B)subject  to  section  35,  cancel  the  contract  for  the supply of the service in accordance with section 37:

(b)       where the failure cannot be remedied or is of a substantial character within the meaning of section 36,—

(i)        subject to section 35, if there is a contract between the supplier and the consumer for the supply of the service, cancel that contract in accordance with section 37; or.

(ii)      obtain from the supplier damages in compensation for any reduction in value of the product of a service below the charge paid or payable by the consumer for the service:

(c)in addition to the remedies set out in paragraphs (a) and (b), obtain from the supplier damages for any loss or damage to the consumer resulting from the failure (other than loss or damage through reduction in value of the product of the service) which was reasonably foreseeable as liable to result from the failure.

[14]     It seems unlikely that para (a) was intended to give a right to cancel where, as the Judge acknowledged, the supplier was ready, willing and able to remedy the failure and has been prevented from doing so by the actions of the consumer.  There has been no default by CCS, at least in relation to the defects it acknowledges.  It was not asked to remedy the default within a reasonable time; on the contrary, it was enjoined not to do so.  As Ms Lee had no right to cancel the contract under s 32(a), her failure to do so could not have affected her ability to have remedial works carried out by others.

[15]     The Judge did not go on to consider the possible application of s 32(b) which applies where the failure is of a “substantial character”.  If it was, Ms Lee may have had the right to cancel or to recover damages under paras (b)(ii) and (c).

[16]     On Ms Lee’s case, the failure could have been of a substantial character as defined in s 36 which provides:

Failure of substantial character

For the purposes of section 32(b), a failure to comply with a guarantee is of a substantial character in any case where—

(a)the services would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure; or

(b)the product of the service is substantially unfit for a purpose for which services of the type in question are commonly supplied and the product cannot easily and within a reasonable time be remedied to make it fit for the purpose; or

(c)where section 29 applies, the product of the service is unfit for a particular purpose, or is of such a nature and quality that the product of the service cannot be expected to achieve any particular result, made known to the supplier and the product cannot easily and within a  reasonable  time  be  remedied  to  make  it  fit  for  the  particular purpose or to achieve the particular result; or

(d)      the product of the service is unsafe.

[17]     The findings of the Judge on Ms Lee’s counterclaim suggest that, had he addressed  the  issue,  he  may  not  have  found  the  failure  to  be  of  a  substantial character.   That cannot, however, be assumed and I proceed to consider the counterclaim on the basis that Ms Lee may have had a right to recover damages under the Consumer Guarantees Act.

Counterclaim

[18]     The counterclaim suffered from drafting defects commonly encountered in a layperson’s pleading.  However, it was not suggested that it failed to give notice of the basis of Ms Lee’s counterclaim.  It was described by the Judge as based primarily upon a combination of the guarantee as to reasonable care and skill contained in the Consumer Guarantees Act (which he said was an element of the contract between the

parties), coupled with a breach of the tortious duty of care owed by the plaintiff.[3]

[3] Composite Cladding & Signage Manufacture and Installations Ltd v Lee DC Whangarei

CIV-2008-088-000562, 27 October 2009 at [40].

[19]     Whether or not Ms Lee had a right to relief under the Consumer Guarantees Act, the Judge proceeded on the basis that she could recover damages for breach of contract or duty of care.  He was thereby giving effect to the principle recognised in such cases as Hoenig v Isaacs,[4] Dakin & Co Limited v Lee[5] and Bolton v Mahadevai[6] that permits recovery of the price, subject to a counterclaim for damages in respect of defects, when a contract has been substantially performed.

[4] Hoenig v Isaacs [1952] 2 All ER 176.

[5] Dakin & Co Ltd v Lee [1916] 1 KB 566.

[6] Bolton v Mahadeva [1972] 2 All ER 1322.

[20]     The counterclaim was in four parts:

a)        $60,328.12  for  remedial  work  relating to  damage  alleged  to  have taken place to a membrane over a balcony.

b)        $14,023.12 for removing, repairing and reinstalling aluminium panels. c)           $229,441.06 for the replacement of 660 panels.

d)       $2,531.25 for damage caused by CCS’s scaffolding.

[21]     None  of  the  remedial  work  had  been  done.     For  proof  of  defective workmanship and the quantum of damages Ms Lee relied heavily on the contents of two reports.  The first in time, dated 30 April 2008, was by a building consultant, Ian Beattie, trading as Kaimamaku Consultancy Limited (Kaimamaku).  The other was an assessor’s report dated 20 October 2008 prepared under the Weathertight Homes Resolution Services Act 2006.   Judge Harvey’s ruling that the two reports were inadmissible is explained at [95] of the judgment:

Another concern that I have regarding Ms Lee’s evidence is that some of her evidence is of a technical nature.   She attempted to introduce two reports. One was a Weather-tight Homes assessor’s report and the other was a report from a building consultant.  I have already made reference to the fact that the calculation of remedial works are, in part, based upon the assessor’s report. Ms Lee was clearly of the view that once these documents had been the subject of discovery, they were automatically admissible in evidence.  That is clearly not the case.   The person who prepared the building assessor’s report was not called to give evidence.   The person who prepared the Weather-tight Homes assessment report was not called to give evidence.

The contents of those reports would, in my view, be highly contentious and it  would  be  necessary  for  the  witnesses  to  be  available  for  cross- examination.  Not even a most generous interpretation of the provisions of the Evidence Act 2006, regarding the admissibility of hearsay evidence or documentary evidence, could justify the admissibility of those reports.  Yet it is clear from Ms Lee’s statement of evidence that some of the contents of her brief had been sourced from those reports.  Either that, or she has a greater knowledge  of  building matters than she  was  prepared to concede  under cross-examination.

[22]     The exclusion of the reports was fatal to Ms Lee’s counterclaim, although there were other obstacles to success discussed by the Judge.   In relation to the second head of damages (subpara (b) above) which appears to cover some of the work CCS was itself prepared to carry out, the Judge said:[7]

... I must remind myself that the plaintiff was and has been prepared to undertake certain remedial works and, in that respect, it could well be said that there has been a failure to mitigate.

[7] At [144].

[23]     The Judge was particularly critical of the claim for panel replacement which, as pleaded, referred to 60 panels.   As formulated at trial, it related to 660 panels. This claim appears largely to have been based on the change to the method of folding  the  panels  which  the  Judge  found  Ms  Lee  herself  had  authorised. Accordingly, he said, “she is the author of her own misfortune”.[8]

[8] At [146].

[24]     Similarly, in relation to the fourth head of claim, the Judge referred to his finding that, by removing the fixed scaffolding, Ms Lee had made it necessary for CCS to obtain its own scaffolding.[9]     He said there was an absence of proof of damage or evidence to support the costs of reinstatement, adding that this could well have been work that could have been attended to by CCS as part of the remedial works which it was prepared to undertake.[10]

[9] At [147].

[10] At [148].

[25]     After referring to what he described as “an abysmal lack of evidence to support the allegations against CCS”[11]  and Ms Lee’s propensity to “construct her own reality”,[12] Judge Harvey concluded:[13]

... Coupled with that, there is no evidence whatsoever of any causative link between any damage that might have been suffered if, indeed, damage there was and any wrong-doing, if indeed there was any wrong-doing on the part of the plaintiff.  Finally, there is a total lack of evidence to justify the level of any remedial works that may have been required, if they were required, and the cost thereof.

[11] At [150].

[12] Ibid.

[13] Ibid.

[26]     It is clear that Ms Lee’s counterclaim was ambitious, to put it mildly, and that in some important respects it failed on the Judge’s findings of fact.  But there were clearly matters in the reports relied on by Ms Lee that could have founded a claim for damages.  At the very least, she could have expected to succeed on a claim for the cost of the remedial work for which CCS had admitted responsibility.   The Judge’s doubts as to whether there was any wrongdoing on the part of CCS are not easily  reconcilable  with  the  concession  of  a  director  of  CCS,  recorded  in  the

judgment, that “there had been some errors made that required remedial work”.[14]

[14] At [87].

[27]     For Ms Lee, it was submitted that the Judge was wrong to rule the reports inadmissible.   In order to determine this part of the appeal, it is necessary to say something more about how the reports came to be before the Court and the use that was made of them.

[28]     The reports were included by the solicitors for CCS in the agreed bundle of documents prepared for the purpose of trial.  I was told that they did so because of a concern that they might otherwise be “ambushed” by Ms Lee.  The assessor’s report was extensively referred to in the evidence in chief of CCS’s witnesses for the purpose of refuting the counterclaim.  The report of Kaimamaku appears to have first been  referred  to  in  the  course  of  Ms  Lee’s  evidence  in  chief.    When  it  was mentioned,  the  Judge  immediately  intervened  and  the  following  exchange  took place:

Q.Just a moment please.  You are reading from a report that has been prepared by Kaimamaku Consulting?

A.        Yes.

Q.Okay.   And you are telling me what Kaimamaku Consulting had said, yes?

A.       Yes.

Q.       That  is  hearsay.    Are  you  calling  anybody  from  Kaimamaku

Consulting Limited to talk to me about this? A.     No, but that report has been –

Q.       Very well, thank you, okay – A.   - discovered as a document.

Q.I know it’s been discovered as a document but it doesn’t make it admissible as evidence.

A.       I only have one witness sir.

Q.       Yeah  I  know.    So  I’m  not  prepared  to  hear  what  Kaimamaku

Consulting have said.

A.       Thank you sir.

Q.All right?  Carry on.  It’s hearsay, it’s inadmissible evidence under the Evidence Act, Ms Lee.

A.       I understand that sir.

Q.Thank you.   And I would say that probably in the nature of it, it would be a matter that if I were to hear it, Mr Espie would want to cross-examine and that’s why the witness would have to get ready, and so I’m afraid I can’t hear it.  So would you carry on please with your evidence in chief.

[29]     A little later when Ms Lee referred to the assessor’s report, the Judge again intervened and the following exchange took place:

Q.       Yes that’s all right.  Now we’ve got a problem again with this report

Ms Lee – A.       Yes.

Q.- and it’s the same as the problem with the Kaimamaku Consulting report.  It’s hearsay.  It isn’t evidence.  You need experts to come along and tell me about the stuff that’s set out in there.  Okay?  So shall we continue please with paragraph 80.

A.       Yes sir.

[30]     In an affidavit sworn in support of the appeal, Ms Lee said she did not know that she needed to call the authors of the reports as witnesses.   She said this was because of a direction given after an unsuccessful settlement conference, as a result of which she believed she was allowed to call only one or two witnesses.  That is

rejected by Mr Espie who referred to the settlement conference record which simply recorded, “Plaintiff has 4 – 5 witnesses. Defendant has 1 – 2 witnesses”. He referred also to the Judge’s observation in [95] (quoted at [21] above) that Ms Lee was clearly of the view that once the reports had been discovered, they were automatically admissible in evidence.

[31]     Judge   Harvey   was   undoubtedly   right   to   rule   that   the   reports   were inadmissible.  Their inclusion in the common bundle did not make them admissible. That is clear from the standard pre-trial direction which governed the use of the bundle and reflects r 336 of the District Court Rules 1992.[15]    The direction read as follows:[16]

[15] As the hearing took place in October 2009, this proceeding was governed by the 1992 Rules.

[16] PN1 Practice Note – Civil Case Management in the District Court, Appendix B.

(iii)      Subject  to  admissibility  objections  by  either  side,  plaintiff  to incorporate all documents into one bundle in chronological order, consecutively page numbered throughout, the main bundle to be the exhibit used by the witnesses, one copy for Judge and requisite copies for defence.   The bundle is to commence with an index indicating the date and nature of each document, by whom produced and its page number in the bundle.   Full costs of preparation to be treated as disbursement in the proceedings.

(iv)      The  parties  agree  that  unless  expressly  stated  otherwise  on  the bundle,  each  document  in  the  bundle  (1)  was  signed  by  any purported signatory shown on its face; (2) was sent by any purported author to and was received by any purported addressee shown on its face; (3) was produced from the custody of the party indicated in the index; (4) is accurately described and dated in the index; and (5) is admissible evidence in the proceedings.   However, only those documents specifically identified by witnesses or by counsel for the purpose will form part of the evidence.

(Emphasis in original).

[32]     As the discussion of Clifford J in Burrell Demolition Limited v Wellington City Council[17]  in relation to the then equivalent High Court Rule 441O shows, the rule is directed to authenticity not admissibility.  As Clifford J points out, this is also consistent with s 132(4) of the Evidence Act 2006.  After considering the rule and s 132 of the Evidence Act which provides for a document in a common bundle to be

[17] Burrell Demolition Limited v Wellington City Council HC Wellington CIV-2006-485-1274, 12 March 2008

received in evidence when the relevant conditions set out in court rules have been complied with, Clifford J said:[18]

[18] At [126].

In my judgment, these are essentially presumptions as to the authenticity of the document, and do not go to the admissibility of its contents as a hearsay statement, or in other words, as to the admissibility of the document as evidence of the truth of the contents of that document.  Admissibility for that purpose would therefore appear to depend on the availability of the admissibility pathways provided by either of ss 18 or 19 of the Evidence Act.

I respectfully agree with that conclusion.

[33]    Mr Beresford submitted that if the evidence was inadmissible, it should nevertheless be admitted on appeal.  I am not prepared to accede to that submission. The evidence is plainly not fresh; it could with reasonable diligence have been called at trial.   But even if there were exceptional circumstances which might justify its admission, that would achieve nothing.  The evidence is contentious and, unless the makers of the statements give evidence, it remains inadmissible.

[34]     The only solution which would offer an effective remedy to Ms Lee is for her to be given another chance to do what she failed to do at the hearing – call the report writers to give evidence.  That would be an available remedy only if Ms Lee’s right to  a  fair  hearing  had  been  breached  in  a  manner  that  warranted  appellate intervention.  This puts squarely in issue the question of when (if at all) an obligation arises for a Judge to assist an unrepresented litigant.

[35] The Judge found in the passage quoted at [21] above that Ms Lee believed that she could rely on the reports without calling the authors. That is understandable in the circumstances. The reports had been included in the bundle at the plaintiff’s request and referred to by the plaintiff’s witnesses. A lay person could not be expected to appreciate the way in which the report could be used for some purposes but not for others. Ms Lee was obviously taken by surprise by the Judge’s advice that she could not rely on the reports and it seems most unlikely that she would have appreciated the ramifications of his ruling. Effectively, it doomed her counterclaim to failure.

[36]     The question is whether, in these circumstances, something more should have been done to give Ms Lee an opportunity to retrieve the situation.  That would have required the Judge to first explain the implications of his decision and secondly, to canvass possible solutions.   The obvious solution is that frequently resorted to whenever a litigant is embarrassed by an oversight or omission which time could cure, and that is to grant an adjournment.  Provided that prejudice to the other side can be compensated by an award of costs, it is a solution which courts frequently adopt in the interests of justice.

[37]   The question of when a Judge should intervene in order to assist an unrepresented litigant is a difficult one which depends very much on the facts of the case.  The balancing of interests involved is discussed in the following passage of a submission by the Australian Human Rights Law Resource Centre:[19]

[19] Maryann Minai, Helen Conrad and Philip Lynch “The Right to a Fair Hearing and Access to

(e)       Duties to Self-Represented Litigants

67.      The right to procedural fairness takes on particular importance when an unrepresented litigant is involved.  The right to a fair hearing dictates that there will be circumstances where the court or tribunal will have to assist an unrepresented litigant, depending on the facts of the situation.  The Victorian Civil and Administrative Tribunal noted in Seachange Management Pty Ltd v Bevnol Constructions & Developments Pty Ltd & Ors (Domestic Building) that this obligation imposes a positive duty on a court or tribunal to give such assistance as is necessary to ensure the proceedings are fair.   The application of the duty will depend on the litigant (including the litigant’s intelligence and understanding of the case), the nature of the case and the institutional framework governing the relevant court or tribunal.  Further, the duty to assist may extend to issues of law as well as procedure.  However, the judge or tribunal member must be careful not to become advocate of a self-represented litigant and must keep in mind the need to afford procedural fairness to other parties.   [Seachange Management Pty Ltd v Bevnol Constructions & Developments Pty Ltd & Ors (Domestic Building [2008] VCAT 1479].

In  the  Tomasevic  case,  Bell  J  said  of  a  court’s  obligation  to  provide assistance to unrepresented litigants:

127      Every  judge  in  every  trial,  both  criminal  and  civil,  has  an overriding duty to ensure the trial is fair. A fair trial is the only trial a judge can judicially conduct.   The duty is inherent in the rule of law and the judicial process.   Equality before the law and equal access to justice are fundamental human rights specified in the ICCPR. The proper performance of the duty to ensure a fair trial would also ensure those rights are promoted and respected.

128      Most self-represented persons lack two qualities that competent lawyers possess – legal skill and ability, and objectivity.  Self-represented litigants therefore usually stand in a position of grave disadvantage in legal proceedings of all kinds.  Consequently, a judge has a duty to ensure a fair trial by giving self-represented litigants due assistance.  Doing so helps to ensure the litigant is treated equally before the law and has equal access to justice.

129      The  matters  regarding  which  the  judge  must  assist  a  self- represented litigant are not limited, for the judge must give such assistance as is necessary to ensure a fair trial.   The proper scope of the assistance depends  on  the  particular  litigant  and  the  nature  of  the  case.    The touchstones are fairness and balance.  The assistance may extend to issues concerning substantive legal rights as  well as to  issues concerning the procedure that will be followed.  (Tomasevic v Travaglini & Anor [2007] VSC 337.)

[38]     The need to ensure that an unrepresented litigant is not denied basic fair trial rights is well recognised in New Zealand.   In the criminal jurisdiction there is a statutory obligation to advise an unrepresented accused of his or her basic rights.[20]

Written  materials  explaining  trial  procedures  and  the  rights  of  an  accused  are routinely provided to an unrepresented accused and are supplemented by oral advice in the course of the trial.[21]    In the civil jurisdiction judges afford assistance to lay litigants  in  a  range  of  ways  –  by  ensuring  that  an  available  legal  point  is considered;[22] adopting a more lenient approach to pleadings (as indeed the Judge did in this case);[23]  relaxing procedural requirements;[24]  and in sparing the litigant the

consequences of hasty, ill-considered, intemperate actions.[25]     Interventions of this

nature ensure that a lay litigant’s basic rights are not compromised without unfairly disadvantaging other parties.

[20] Crimes Act 1961, s 364.

[21] R v Chatha [2008] NZCA 547 [94] – [102].

[22] Birkenfeld v Yachting New Zealand Inc [2009] 1 NZLR 499 (CA) at [25] – [26].

[23] Sadler v Nes & ors HC Auckland CIV-2003-404-3236, 18 February 2004 at [4]. 

[24] Balich v Commissioner of Inland Revenue HC Auckland CIV-2006-404-306, 4 April 2007 at [17]. 

[25] C v LT [Custody] [2009] NZFLR 1098 at [49].

[39]     In my view, this is a case where the Judge could and should have done more to  assist  the  unrepresented  litigant.    Although,  when  told  that  the  reports  were hearsay and inadmissible, Ms Lee indicated that she understood, it is inconceivable that she would have appreciated the ramifications of the Judge’s ruling.  I consider that the interests of justice required that, as a minimum, he explained that his ruling meant she could not rely on anything in the reports unless she called their authors

and that she could ask for the case to be adjourned to enable the witnesses to be called.  The prejudice to CCS arising out of an adjournment could have been met by an order for costs.

[40]     It is clear from the judgment and the transcript that the Judge’s patience was sorely tested by Ms Lee.  In his judgment he said:

[96]     The conduct of this case was not without its difficulties, primarily arising from the fact that Ms Lee had chosen to represent herself.  The not inconsiderable difficulties that she faced in that undertaking, in what is a very complex field of litigation, was further complicated by the fact that English is her second language.   It rapidly became clear that Ms Lee had little understanding of some of the subtleties of court and trial procedure. Her cross-examination was unstructured and lacked focus and, as a result, it was necessary for me, on a number of occasions – more than with which I was comfortable – to intervene and to try and structure some questions in such a way as to obtain or seek the point that she wished to make.  At one stage of the hearing it was becoming necessary for me to interrupt Ms Lee almost upon a question-by-question basis. ...

[41]     A  little  later,  after  referring  to  other  unsatisfactory  aspects  of  Ms  Lee’s conduct of her case, the Judge said:

[99]     It is with some reluctance that I feel compelled to make these observations.  It was a matter of concern to me that it was necessary for there to be as much judicial intervention in the presentation of Ms Lee’s case as it was clear was necessary.   I was particularly concerned that the level of intervention  could  be  interpreted  as  providing  excessive  assistance  to Ms Lee to the disadvantage of the plaintiff or, alternatively, that it could be perceived as interference with the presentation of the defendant’s case.

[42]     An appellate court must be appreciative of the difficulties faced by a first instance judge in these circumstances.  Judge Harvey obviously went to considerable lengths to make allowances for Ms Lee’s lack of expertise.  His exasperation with her conduct of the case is understandable, as is his reaction when she sought to rely on the reports.  While the potential consequences of his ruling may not have been fully foreseen at the time, it should have been apparent that Ms Lee was heavily reliant on the reports.  In my view, natural justice required the Judge to assist Ms Lee by at least explaining to her the implications of his ruling and advising her of her right to seek an adjournment.

[43]     As I see it, the evidence of the report writers would not have affected the claim of CCS.  Its right to recover the contract price is unassailable.  The remedy then is to allow the appeal in part by quashing the judgment given for CCS on the counterclaim and remitting the matter to the District Court for a rehearing on that aspect of the proceeding.  As I did not hear from counsel on the terms of any such consequential order, I reserve leave to apply for further directions if required.

Result

[44]     The appeal is allowed in part.  The judgment on the counterclaim is quashed. The matter is remitted to the District Court for rehearing.

[45]     Although Ms Lee has succeeded in part on appeal, I consider that costs should lie where they fall.

[46]     Leave is reserved to the parties to apply for further consequential directions if required.

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