Lewis v JP Morgan Chase Bank N.A. (1996894)
[2019] NZHC 832
•16 April 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2016-404-244
[2019] NZHC 832
BETWEEN ROBERT WADE LEWIS
Plaintiff
AND
JP MORGAN CHASE BANK N.A. (1996894)
Defendant
Hearing: 5 and 9 April 2019 Appearances:
Plaintiff in person
J G Miles QC and S Lapthorne for the Defendant (5 April) S Lapthorne for the Defendant (9 April)
Judgment:
16 April 2019
JUDGMENT OF MUIR J
This judgment was delivered by me on Tuesday 16 April 2019 at 10.30 am pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date:…………………………
Counsel:
J G Miles QC, Barrister, Auckland.
Solicitors:
S Lapthorne, Kiely Thompson Caisley, Auckland
Copy to: The Plaintiff
LEWIS v JP MORGAN CHASE BANK N.A. (1996894) [2019] NZHC 832 [16 April 2019]
Background
[1] The defendant challenges the admissibility of significant portions of the plaintiff’s proposed brief of evidence which he submits in respect of a five day trial scheduled to commence on 29 April 2019.
[2] Such challenge is based on multiple objections, including relevancy, opinion evidence, submission and hearsay.
[3] The plaintiff was formerly represented by Kensington Swan, Lawyers, but on 14 February 2019 they were given leave to withdraw.
[4] Two weeks earlier, on 28 January 2019, the plaintiff had filed (on his own account) a document entitled “Memorandum of Applicant Critical Context which is Relevant to the Case”. This substituted for the brief of evidence due from him that day.
[5] Subsequently, on 28 February 2019, he served a detailed (403 paragraph) brief of evidence together with a chronology. In apparent response to the defendant’s evidential challenges, he filed a further iteration of the brief on 31 March 2019.
[6] The defendant’s application was first called before me on 5 April 2019, at which time Mr Miles QC made comprehensive submissions on the admissibility of the 31 March 2019 brief. In respect of many of these challenges I expressed broad provisional agreement, and Mr Lewis himself acknowledged that there were a number of admissibility issues with the proposed evidence. I decided, therefore, to adjourn the application to 9 April 2019, to give Mr Lewis the opportunity to redraft the brief in a way which was compliant with both the High Court Rules and the Evidence Act 2006 (the Act). I expressed that conclusion in para [9] of my Minute dated 5 April 2019 in the following terms:
I consider that the interests of justice are best met by giving Mr Lewis the opportunity to advance a coherent and redrafted brief of evidence and not one which has been so significantly edited by me on admissibility grounds as to lose that essential quality.
[7] In response, Mr Lewis filed and served a further iteration of his proposed brief on 8 April 2019.1 It does not, however, meet the substance of the defendant’s objections.
[8] The principal issue between the parties relates to Mr Lewis’ desire to include extensive evidence about the disagreements which occurred between himself and JP Morgan employees Mr O’Neill, Ms Simpson, Mr Corea and Mr Fitzgibbon during the course of his approximately 18 month employment with the Bank. It is clear that even 10 years later he harbours a deep sense of grievance about the way he was treated. He says that “the only way to restore his reputation in the banking sector”2 is by allowing all this history to be fully ventilated.
[9] The difficulty with this approach is that, after several months of dispute with his former employers (particularly relating to the extent of his authority, vis a vis Sydney-based Mr O’Neill), the parties entered into a comprehensive settlement agreement which provided, among other things, that:
(a)Mr Lewis’ employment with the defendant would end by way of agreed resignation on 5 March 2010.
(b)He would receive outplacement support and a significant cash settlement.
(c)The Bank would make an agreed announcement “positioning” Mr Lewis’ departure to the Bank’s decision to move its principal New Zealand office to Wellington and thanking him for serving as its “CEO in New Zealand since August 2008”.
(d)The parties mutually agreed not to make any disparaging comments about the other.
1 The document retains the date 31 March 2019.
2 Refer Application to Amend/Correct Pleadings dated 6 April 2019 at [13]. Similar submissions were made during the course of oral argument on the current application.
(e)The parties agreed the settlement was to be in full and final settlement of any claims which Mr Lewis had or may have relating to his employment with the Bank.
(f)The parties agreed that the settlement could be pleaded as a bar to any action arising out of or in connection with the subject matter of the agreement.
[10] Both parties plead the settlement agreement as if set out in full. Indeed, the plaintiff relies on it to found his first cause of action. He says that, in breach of the agreement, the defendant’s human resource (HR) systems did not identify him as its former CEO, with the result that, when inquiry was made by a new prospective employer (Westpac Bank), there was a disjunction between what he had told Westpac about his former role and what his former employer confirmed. He says that, as a result, he was seen as “a CV Cheat” and was not offered the job. He claims significant compensatory damages as a result. He also brings alternative causes of action in injurious falsehood and negligent misstatement with the same compensatory claims.
[11] Both the contractual and injurious falsehood causes of action also include a prayer for exemplary damages in the amount of $25,000 “as a result of the defendant’s breach of the settlement agreement”. In both cases it is said that the “actions of the defendant” (namely failure to align its HR records with confirmation of the CEO role, as per the settlement agreement) were undertaken with “contumelious disregard to Mr Lewis’ contractual rights under the settlement agreement”.
[12] In the injurious falsehood cause of action “malice” or “at the least recklessness” is alleged with the following particulars:3
(a)The false statement [being a statement allegedly made by agents of the defendant on 29 March in which they allegedly failed to confirm that Mr Lewis was the defendant’s former CEO] was made to Westpac, being a third party, and possibly to other prospective employers.
3 First Amended Statement of Claim dated 1 July 2016 at [52].
(b)The defendant was aware that Mr Lewis was seeking employment at the time that this statement was made.
(c)The defendant was aware that it would be contacted by companies for the purpose of providing a reference check for Mr Lewis and were put on notice of the situation, as detailed in paras 27–35.
(d)The defendant was aware that, if asked by a potential employer, it would fail to confirm that Mr Lewis was a CEO because the defendant knew Mr Lewis’ role as CEO had been removed from its computer systems by Mr O’Neill as set out in paragraph 17 above.
(e)The defendant was aware of the harm this false statement would cause to Mr Lewis’ job prospects and reputation.
(f)Despite representation to the contrary to Mr Lewis, the defendant was aware that it had not corrected the false statement on its system.
(g)The defendant failed to ensure that Mr Lewis’ position as CEO was recorded despite assuring him that it was.
[13] Significantly, these particulars focus on events after the settlement agreement was entered into, albeit that in particular (d), the defendant’s alleged knowledge that incorrect information would be given is said to be supported by an allegation that it knew Mr O’Neill had, during the period of Mr Lewis’ employment, removed the description of CEO from the defendant’s computer systems. In limiting the particulars in this way, the claim was presumably designed to avoid the defendant pleading the bar in the settlement agreement.
[14] At the hearing on 5 April 2019, Mr Lewis endeavoured to justify the extensive proposed evidence relating to his employment disputes by reference to the malice allegation in his second cause of action. When I raised with him whether such material fell outside the pleaded particulars of malice, he stated that it had always been intended
that this litigation be a vehicle for his personal exoneration and that “he was not aware that wording of the pleadings did not represent these issues”.4
[15] On 8 April 2019, he therefore filed a document styled “Application to Amend/Correct the Pleadings” (but which is in fact a mixture of application, opinion evidence and submission). In essence, it is an application for leave to amend after setting down. No draft amended statement of claim was filed with the application. It is, however, reasonably clear from the document that he now wishes to support his claim of malice by reference to approximately 30 events which occurred during the course of his employment.
[16] The application was premised on the assumption that I would deal with it at the resumed hearing on 9 April 2019. By Minute dated 8 April, I questioned that assumption and suggested that the more appropriate course may be to set the application down for hearing on the first day of trial.5 I further suggested that if the application was declined, the trial could then proceed, but that, if allowed, consideration would need to be given to the impact this had on the scope of potential evidence. My Minute invited submission on those proposals at the resumed hearing on 9 April 2019. After hearing from the parties, I made directions in respect of that application for the purpose of it being determined on 29 April 2019.
[17] For present purposes, I therefore intend to assess the defendant’s application relating to admissibility against the current pleadings comprising the First Amended Statement of Claim dated 1 July 2016 and the Amended Statement of Defence to Amended Statement of Claim dated 29 August 2016. Significantly, although I am asked to undertake that exercise by reference to the latest version of the brief (8 April), the cover sheet of that document identifies it as a brief “Based upon the pleading being corrected as per the April 8 Application”. In so doing it implicitly recognises its non- alignment with the current pleading.
4 A submission repeated in his application to Amend/Correct the Pleadings dated 6 April 2019 at [48].
5 So as to allow for the filing of a draft proposed amended statement of claim, notice of opposition, affidavits (in support and opposition) and submissions.
Relevance
Position under the Act and Rules
[18] The defendant challenges in excess of 100 paragraphs of the plaintiff’s proposed brief of evidence on the grounds of relevance.
[19] Section 7 of the Act enshrines what is identified as the “fundamental principle that relevant evidence [is] admissible”.6 It provides:
(1)All relevant evidence is admissible in a proceeding except evidence that is—
(a)inadmissible under this Act or any other Act; or
(b)excluded under this Act or any other Act.
(2)Evidence that is not relevant is not admissible in a proceeding.
(3)Evidence is relevant in a proceeding if it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding.
[20] In the context of this proceeding, the critical question is whether the challenged parts of the brief of evidence tend to prove or disprove anything which is of consequence to the determination of the proceeding.
[21]Section 8 of the Act in turn provides:
8 General exclusion
(1)In any proceeding, the Judge must exclude evidence if its probative value is outweighed by the risk that the evidence will—
(a)have an unfairly prejudicial effect on the proceeding; or
(b)needlessly prolong the proceeding.
(2)In determining whether the probative value of evidence is outweighed by the risk that the evidence will have an unfairly prejudicial effect on a criminal proceeding, the Judge must take into account the right of the defendant to offer an effective defence.
6 Refer to heading of s 7 Evidence Act 2006.
[22] I must be mindful, therefore, of whether intended evidence has a probative value that is outweighed by the risk it will needlessly prolong the proceeding.
[23] Briefs of evidence must also comply with Rule 9.7(4) of the High Court Rules, which provides:
Every brief –
(a)must be signed by the witness by whom the brief is provided:
(b)must be in the words of the witness and not in the words of the lawyer involved in drafting the brief:
(c). must not contain evidence that is inadmissible in the proceeding:
(d)must not contain any material in the nature of a submission:
(e)must avoid repetition:
(f)must avoid the recital of the contents or a summary of documents that are to be produced in any event:
(g)must be confined to the matters in issue.
[24] Of these requirements subparagraphs (c) and (a) are the most relevant to this part of the application.
What are the relevant issues on the current pleadings?
[25] These have already been accurately identified by Associate Judge Doogue in his interlocutory judgment relating to discovery:7
[17] The key matters which the plaintiff seeks to prove as part of its claim are the following. First, he needs to establish that he was the CEO of the defendant. This is relevant to the contractual claim because an inaccurate misstatement of what his position was with the defendant could amount to disparagement of them. If it was stated that he occupied a position inferior to that which he actually occupied, then that relevantly could be regarded as disparagement in terms of the termination contract that the parties entered into. As well, if he was the CEO, any description of the defendant as having held a role which was different from that of CEO could amount to the statement of an injurious falsehood. Secondly, he needs to establish that the defendant did in fact fail to portray to interested enquirers that the plaintiff had been the CEO of the defendant.
7 Lewis v JP Morgan Chase Bank NA [2017] NZHC 1780.
[18] The plaintiff seeks to establish the last matter by showing that there are arrangements which the defendant had in place by which, as an organisation, its responses to reference-type enquiries about the plaintiff were flawed. The particular flaws that the plaintiff alleges existed were that the records which the HR personnel were equipped with failed to state that he had been the CEO.
[19] The next matter that he needs to prove is that, as a result of the flawed records, the defendant had responded to an enquiry from Westpac as a potential employer in a way that did not support, or even contradicted, claims which the plaintiff had made to that organisation that he had been the CEO of the defendant.
[20] Finally, he must establish that, as a result of the foregoing matters, the plaintiff suffered loss.
[26] To that exposition of the key issues I would add that, if the plaintiff is to make out the claim for exemplary damages in his first and second causes of action, he must establish the “malice”, “recklessness”, or “contumelious disregard” of his rights which he variously pleads. In respect of malice or recklessness, he must do so by reference to his pleaded particulars which I have already identified.
Discussion
[27] As to the first issue – whether Mr Lewis was indeed the CEO of the defendant, Associate Judge Doogue noted that:
[21] … this is not an issue in the case which he needs to prove because the defendant has admitted that he did in fact occupy the position of CEO.
[28] In relation to admitted allegations, this Court held in Parihoa Farms Ltd v Rodney District Council:8
[11] … no evidence should be led of facts that have been admitted already.
… Evidence to prove admitted facts is unnecessary and excessive. Pioneer Plastic Containers Ltd v Commissioner of Customs and Excise [1967] Ch 597 is authority for the principle that no evidence is admissible if it does no more than to prove admitted facts. Once admitted facts are no longer in issue, there is no need to prove them by evidence. … The admission of evidence to prove admitted facts is no more than a doubling up of proof, which in turn can only needlessly prolong a trial. It is hard to see how there could ever be a reason for proving something twice.
8 Parihoa Farms Ltd v Rodney District Council (2010) PRNZ 8.
[29] There is accordingly no requirement for Mr Lewis to adduce evidence relating to his appointment as CEO, the scope of the CEO role or the implementation of infrastructure to support the defendant’s capabilities in New Zealand.
[30] Mr Lewis says that although the defendant admits he was its CEO in the relevant period, it also pleads that:9
1….
(a)On 1 August 2008, the plaintiff commenced employment with the defendant. The plaintiff’s corporate title was Vice President of Treasury Services (TS), and his position was referred to as TS Sales Executive New Zealand;
(b)Throughout the time the plaintiff was Chief Executive Officer (CEO) of the defendant, the plaintiff continued to hold the position of TS Sales Executive New Zealand.
[31] Mr Lewis says he did not continue to hold such position, but the allegations in his statement of claim are not premised on the defendant having advised Westpac or any other prospective employer that Mr Lewis was both the CEO and TS Sales Executive New Zealand. Rather, they are based on the allegation that the defendant’s HR systems never recorded him as CEO and that he was accordingly “discredited” to Westpac.
[32] Nevertheless, in response to the plaintiff’s assertion that the defendant failed to update its records when alerted to the fact that Mr Lewis was not identified as CEO, the defendant pleads:
33(a) The defendant added notes to AccessHR to record that the plaintiff held the roles of CEO of New Zealand and TS Sales Executive New Zealand.
[33] Against that background, whether Mr Lewis continued to retain the role of TS Sales Executive New Zealand may have some peripheral relevance to matters in issue in the proceeding and I therefore do not rule it inadmissible.
[34] However, because his CEO role is admitted, I consider all of the evidence which he intends to give relating to the way in which Mr O’Neill challenged his CEO
9 Amended Statement of Defence to amended Statement of Claim dated 29 August 2016.
role, the transactions which brought this to a head,10 the ways in which Mr Lewis then chose to escalate the dispute to the audit department, and the outcome of the multiple meetings and reports that followed, is irrelevant, save to the extent that it is engaged by the allegation of malice/recklessness in para 52(d) of the statement of claim.11
[35] Mr Lewis says that the “crux” of his evidence is to demonstrate that malice was present in the interactions of Mr O’Neill with Ms Simpson, Mr Corea and Mr Fitzgibbon, and that those who were responsible for Mr Lewis’ HR records “took on Mr O’Neill’s malice”. He says that once Mr O’Neill was aware that Mr Lewis had reported him to the audit department for his various alleged attempts to undermine Mr Lewis’ authority, Mr O’Neill “submitted a proposal to terminate my employment which was adopted by other executives and fully predicated on the assumption I was not CEO”.12
[36] However, all such evidence steps well outside the existing particulars of malice. It essentially involves a complete relitigation of the lead up to Mr Lewis’ resignation and the full and final settlement subsequently reached with his former employer. Mr Lewis may consider that necessary to “restore his reputation”, but the issue I must decide is whether the evidence is of consequence to the determination of the proceeding. And that analysis is underpinned and governed by the pleadings. In my view, much of the proposed evidence is simply irrelevant in that context.
[37] Mr Lewis relies on observations in the Employment Court decision in Lumsden v Skycity Management Limited that there may be circumstances in which the Court can go behind a settlement agreement as, for example, if it was entered into under
10 One such transaction identified by Doogue AJ as the “Chevron saga” (at [53]) was described by him as a dispute with “no inherent importance in regard to the current claim which the defendant has brought” (at [58]).
11 Particular 52(d) cross references para 17 in the First Amended Statement of Claim. This paragraph pleads that in or about November 2009 the defendant removed Mr Lewis’ title as CEO from its computer system and assigned the title to Mr O’Neill. Eight particulars are given of the allegation. However with the exception of particular 17(d), which alleges Mr O’Neill colluded with Mr Everett for Mr Everett to replace Mr Lewis as CEO in the defendant’s computer systems “in order to allow Mr O’Neill to override Mr Lewis’ hold on customer migration”, the particulars (including in relation to the ‘Chevron saga’) all reference matters peripheral to that essential allegation. Like Doogue AJ, I consider these have no “inherent importance” in regard to the claim. To the extent evidence about these peripheral matters could have been described as relevant within the terms of s 7 of the Act, I would have excluded it under s 8(1).
12 The quoted submissions are from my notes of Mr Lewis’ oral argument which were read back to him to ensure accuracy.
duress or a party had been induced to enter into it on the basis of false assurances.13 But no such allegation is made in the First Amended Statement of Claim. The case is not therefore authority for re-opening the settlement agreement. More fundamentally, however, it is not authority for going beyond the current pleaded particulars of malice/recklessness.
[38] I also reject Mr Lewis’ submission that because various allegations in the introductory part of his statement of claim are denied, evidence is necessarily admissible to establish them. Rule 5.48 requires that a statement of defence must admit or deny the allegations of fact in the statement of claim. The defendant therefore had no option but to deny assertions it did not accept. But that does not mean that evidence in respect of such assertions necessarily has a tendency to prove anything of consequence to the determination of the proceeding. That assessment must be made with primary reference to the causes of action. Otherwise allegations about extraneous matters could be used as a Trojan Horse for the introduction of evidence which is inconsequential to the determination, but which is being vented exclusively for “reputational” reasons.14
[39] On the current pleadings Mr Lewis may lead evidence to establish that the defendant knew his role as CEO had been removed from the computer systems by Mr O’Neill, and that, in the period post resignation, inquiry by prospective new employers would, absent correction of the systems, therefore result in inaccurate information being provided. He can do so as evidence of malice, but that does not require a re-examination of the minutiae of his interactions with Mr O’Neill and others. It would also needlessly prolong a trial which correctly has as its current focus the actions of the defendant in the period post-resignation. Only peripherally does it engage the prior period as a result of the $25,000 claim for exemplary damages which is supported, in part, by reference to what the defendant allegedly knew about the changes Mr O’Neill had made to the records.
[40] That said, I am conscious of the requirement Mr Lewis be permitted to advance a reasonably coherent narrative. There is always the risk that when (as in this case)
13 Lumsden v Skycity Management Limited [2017] NZEmpC 30 at [14-15].
14 And in apparent breach of the settlement agreement.
admissibility issues are dealt with pre-trial and another judge presides at the trial itself, a too rigorous approach to admissibility leaves the narrative disjointed to the point of prejudice. I therefore intend to allow some linking narrative.
Hearsay
[41] The defendant challenges multiple parts of the proposed brief on the basis that they contain statements made by a person other than a witness, proffered in evidence to prove the truth of their contents. Mr Lewis acknowledges the appropriateness of some of these challenges. It appears that he intends to subpoena several of the potential witnesses whose alleged statements appear in the proposed brief. I have not been provided with any draft briefs of evidence or will-say statements from such persons. Nor is there currently any evidence on which to base an analysis under s 18 of the Act in terms of reliability, unavailability, or undue expense or delay.
[42] In some instances the proposed evidence involves double hearsay. An example is the proposed paragraph 293 in terms:
On August 26 2010 Ms Wells phoned me again [bundle document# ] and explained the following:
(a)Ms Wells had contacted a Westpac HR representative and asked them if there had been any issues with my application. (Ms Wells did not say which day she had engaged with her Westpac contact).
(b)The Westpac HR representative advised Ms Wells that there had been a “very serious issue with my reference”.
(c)This information was provided to Ms Wells by her contact on the basis that it be kept in the strictest confidence.
(d)At no time did Ms Wells reveal the identity of the person from Westpac who had provided the information regarding my reference to me.
[43] Mr Lewis will have an opportunity to cross-examine the defendant’s Westpac witnesses and any evidence as to what Ms Wells said (advanced for the purposes of establishing the truth of the statement) will need to be called in the usual way.
[44] With respect to some of the challenges, it is not apparent whether the evidence is proposed simply to establish that a statement to the relevant effect was made, or
whether it is being offered to establish the truth of the statement. Nor do I yet know whether the persons allegedly making the statements are being called. An example is in paragraph 152(c), where it is said:
I explained that as CEO, I was responsible for what happened in New Zealand. Both Mr O’Neill and Mr Everett objected to my claim that I was the CEO.
[45] I consider the most appropriate course in that respect is to leave the admissibility issue for the trial judge who can determine it (if ultimately required) within the full context of the trial.
Opinion evidence/submission
[46] There are a number of instances of inadmissible opinion evidence in the draft brief. An example is paragraph 326 in terms:
This means that by answering Ms Caroline Wells’ questions, MaryJane Richards was potentially breaching her obligations of confidentiality to me and to Westpac.
[47]Other statements veer between opinion evidence and submission, for example:
189. This was a clear breach of the 2009 JP Morgan code of conduct s 1.5. 278.
This did not reflect the wording of the settlement agreement.
299.
I felt that the JP Morgan Australian executives had entered into a settlement agreement knowing that they had no intention of keeping
it. I believe that they had knowingly and deliberately damaged my reputation.
[48]Such material breaches the provisions of Rule 9.7(4)(d).
Assessment of individual challenges
[49] In the schedule annexed to this judgment, I identify each paragraph or part paragraph which is challenged and whether that challenge is upheld, dismissed or reserved for the trial judge. I also include a brief statement of my reasons informed by the “big picture” analysis in the previous sections of this judgment. Although at the commencement of the hearing on 9 April Mr Lapthorne provided me with an updated schedule of those paragraphs considered admissible, he conceded during the
course of argument that a number of additional paragraphs could be admitted. I therefore address only those challenges live at the conclusion of the hearing.
Costs
[50] I have not been addressed on costs. If they are in issue, memoranda may be filed. Alternatively, the parties may agree that they be reserved and dealt with in the context of the now proximate trial. Provisionally, I can indicate that I regard the defendant as substantially successful in its application and that a 2B allowance would appear appropriate.
Muir J
Schedule
Paragraph Basis of Challenge Upheld (U) Dismissed (D) Reserved for
Trial Judge (R)
Reasons 6-8 Relevance U Unrelated to anything of consequence to determination. 9-13 Relevance D Marginal relevance but provides linking narrative to evidence. 14-15 Relevance (14
& 15)
Hearsay (14)
D/R -Relevant to defendant’s pleaded position that plaintiff continued to hold position of TS Sales Executive New Zealand.
-Hearsay objection to be determined by trial judge if required.
16-20 Relevance D Marginal relevance but provides linking narrative to evidence. 21-26 Relevance Opinion U Unrelated to anything of consequence to determination. 27 Relevance Hearsay Opinion U -Unrelated to anything of consequence to determination.
-Opinion as to who was aware of unregistered business.
-Alleged statement by Ms Mills advanced to establish truth of proposition.
28-30 Relevance Hearsay (28) U -Unrelated to anything of consequence to determination.
-Alleged statement by Mr Costello advanced to establish truth of proposition. Unknown whether Mr Costello is giving evidence.
7315 Relevance U Unrelated to anything of consequence to determination. 74-75 Relevance Hearsay (74) U -Unrelated to anything of consequence to determination.
-Statement that plaintiff had “primary responsibility for all operations in New Zealand” not admissible to establish truth of proposition. Otherwise admissible had it been relevant.
15 There are no paragraphs numbered 31-72 in the proposed brief.
Paragraph Basis of Challenge Upheld (U) Dismissed (D)
Reserved for Trial Judge (R)
Reasons 76 Relevance Opinion U -Unrelated to anything of consequence to determination.
-Stating the purpose of an action does not however result in the evidence being objectionable on opinion grounds.
77-78 Relevance U Unrelated to anything of consequence to determination. 89 Relevance Hearsay U -Unrelated to anything of consequence to determination.
-Hearsay objection dismissed. Evidence not advanced to establish truth of proposition.
12016 Relevance U Unrelated to anything of consequence to determination. 121-124 Relevance Hearsay U -Unrelated to anything of consequence to determination.
-Hearsay objection (substantially) dismissed. Evidence not advanced to establish truth of proposition except second sentence of [122].
125 Relevance U Unrelated to anything of consequence to determination. 126 Relevance Hearsay U -Unrelated to anything of consequence to determination.
-Double hearsay involving statements by Reserve Bank Governor.
127-131 Relevance U -Unrelated to anything of consequence to determination. The plaintiff’s status as CEO is not an issue in the proceedings. 132 Relevance Opinion U -Unrelated to anything of consequence to determination.
-Statements about what RBNZ correspondence shows is mixed opinion/submission.
133-147 Relevance U Unrelated to anything of consequence to determination.
16 There are no paragraphs numbered 90-119 in the proposed brief.
Paragraph Basis of Challenge Upheld (U) Dismissed (D)
Reserved for Trial Judge (R)
Reasons 150 Submission U Statement about what should have been captured on a risk register is
mixed opinion/submission.
152(c)17
Second sentence
Hearsay R Uncertain as to whether Messrs O’Neill or Everett are to be called. Admissibility better determined by trial judge. 157 Relevance Opinion U -Unrelated to anything of consequence to determination.
-Whether matters “could not be ignored” is a statement of opinion.
158 Relevance Hearsay U -Unrelated to anything of consequence to determination.
-Evidence relating to Simon Jones advanced to establish truth of proposition.
159-161 Relevance U Unrelated to anything of consequence to determination. 162 Relevance Opinion U -Unrelated to anything of consequence to determination.
-Whether events left anyone “in any doubt” about a requirement to change providers is a statement of opinion.
163-164 Relevance U Unrelated to anything of consequence to determination. 165-167 Relevance Opinion U -Unrelated to anything of consequence to determination.
-Statement about Mr O’Neill becoming “increasingly frustrated with my efforts to resolve New Zealand issues” is, in the context of the proposed evidence, a statement of opinion.
168-173 Relevance U Unrelated to anything of consequence to determination. 174 Relevance Opinion U -Unrelated to anything of consequence to determination.
17 Mr Lapthorne conceded in argument that the section of the brief comprising paragraphs 148-156 was relevant having regard to the particulars of alleged malice in the First Amended Statement of Claim dated 1 July 2016, para 52(d).
Paragraph Basis of Challenge Upheld (U) Dismissed (D)
Reserved for Trial Judge (R)
Reasons -Statement about Ms Simpson being “fully aware” of RBNZ expectations is mixed opinion/submission. 175-176 Relevance U Unrelated to anything of consequence to determination. 177-182 Relevance Hearsay
Opinion (181)
U -Unrelated to anything of consequence to determination.
-If relevant I would have reserved hearsay objections for determination by the trial judge.
-Statement about whether Mr O’Neill could deny misconduct is statement of opinion.
188-194 Relevance Opinion Submission (188-190) U -Unrelated to anything of consequence to determination.
-Reference in [189] to conduct being a breach of Code of Conduct is a statement of opinion.
-Statements of understanding about what Ms Simpson did are, in the context of the proposed evidence, statements of opinion.
-Reference in [190] to assumptions behind change proposal is mixed opinion/submission.
195 Relevance U Unrelated to anything of consequence to determination. 196 Relevance Hearsay U -Unrelated to anything of consequence to determination.
-Statement attributed to JP Morgan legal counsel advanced to establish truth of proposition that services no longer required and is double hearsay.
197-200 Relevance U Unrelated to anything of consequence to determination. 201-206 Relevance Opinion U Unrelated to anything of consequence to determination.
Statements of opinion at:
(1) [201] 3rd sentence (2) [202]
(3) [203] 4th sentence
(4) [204] 2nd sentence
(5) [205] 5th sentence.
Paragraph Basis of Challenge Upheld (U) Dismissed (D)
Reserved for Trial Judge (R)
Reasons 207 Relevance Hearsay U -Unrelated to anything of consequence to determination.
-If relevant I would have reserved hearsay objections for determination by the trial judge.
.
208-209 Relevance U Unrelated to anything of consequence to determination. 210 Relevance Hearsay U -Unrelated to anything of consequence to determination. The plaintiff’s status as CEO is not a disputed issue in the proceedings.
-If relevant I would have reserved hearsay objections for determination by the trial judge.
211-212 Relevance U -Unrelated to anything of consequence to determination. The plaintiff’s status as CEO is not a disputed issue in the proceedings. 220 Relevance U -Unrelated to anything of consequence to determination. The
plaintiff’s status as CEO is not a disputed issue in the proceedings.
221 Relevance Hearsay U -Unrelated to anything of consequence to determination.
-If relevant I would have reserved hearsay objections for determination by the trial judge.
-Material relating to Mr Corea is in the nature of submission.
222-223 Relevance U Unrelated to anything of consequence to determination. 231 Hearsay D Marginal relevance but provides linking narrative to evidence. 238-239 Hearsay U Double hearsay involving “purported” statements by Mr Atkinson. 257-258 Hearsay Opinion U (in part) -Statement that Mr Letica believed BNZ’s strategy unmatched is hearsay if sought to be admitted to establish
truth of that statement.
Paragraph Basis of Challenge Upheld (U) Dismissed (D)
Reserved for Trial Judge (R)
Reasons -Statement in respect of ANZ in [257(b)] is statement of opinion.
-Statement about Mr Letica’s appreciation or insights [257(c)] may be either statement of fact or opinion. Adopting a generous approach, I do not exclude it.
292
(second sentence)
Hearsay R Reserved for trial judge on basis of
stated indication to subpoena Ms Wells.
293 Hearsay U -Double hearsay in 293(b) and (c).
-Objection to 293(a) and (d) reserved for trial judge on basis of stated indication to subpoena Ms Wells.
313 Opinion D The fact that Mr Lewis did not accept the response and his reasons for not doing so is not opinion evidence. 315-316 Opinion (315) Submission (316)
Relevance (315 and 316)
U (in part) Statement that Mr Lewis “felt the statement of service would indicate there had been an issue”, is a statement of fact (his feelings) and admissible.
Assessment that it undermined his appointment as CEO is substantively in the same category.
Para 315(b) constitutes opinion evidence in respect of the recruitment industry and is inadmissible.
Both [315] and [316] have potential relevance to pleaded claims in that they relate to the post resignation position.326 Opinion Submission U Assumption as to consequences of answering questions is opinion evidence or submission. 327-331 Submission U Statements that certain documents are not reliable and/or have been interfered with as a result of the plaintiff’s claims are submission.
Paragraph Basis of Challenge Upheld (U) Dismissed (D)
Reserved for Trial Judge (R)
Reasons 34418-349 Relevance
Hearsay (345)
D -[345] not advanced to establish truth of proposition and not objectionable on hearsay grounds.
-Mr Lewis argues that the credibility of Westpac witnesses may be open to challenge on the basis that he encouraged former Westpac employees to join a successful team at the BNZ. I allow the evidence on that basis.
18 Paragraph 344 was not included in the challenges in Mr Lapthorne’s written appendix. Neither, however, did the Appendix concede it as admissible. At the hearing, Mr Lapthorne submitted the paragraph was irrelevant.