Messenger v Goodman HC Auckland CIV 2009-404-003974

[2011] NZHC 841

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2009-404-003974

BETWEEN  JAMES MESSENGER AND JUNE MARY MESSENGER

Plaintiffs

ANDJOHN MARTIN GOODMAN AND DEBORAH LEE RATTRAY Defendants

Hearing:         30 June 2011

Appearances: B M Stewart and P Hall for the Plaintiffs

J Goodman in person

Judgment:      30 June 2011

ORAL JUDGMENT OF WOOLFORD J

Solicitors/Counsel:

B Stewart, Simpson Western, Auckland

Copy to:

J Goodman

MESSENGER V GOODMAN & RATTRAY HC AK CIV 2009-404-003974 30 June 2011

[1]      This is an application by the plaintiffs for an order permitting evidence to be given by video link.  The application was initially opposed by the defendants on the basis of the lack of any medical evidence to support such an application.

[2]      This morning I have been supplied with a copy of an affidavit from the plaintiff sworn 27 June 2011 in which he states that he has been diagnosed with cancer and has began an intensive course of treatment, tests and consultations.  He also states that his medical consultant has advised him that he should not travel long distances until his treatment has been completed and, accordingly, he is unable to travel to New Zealand to give evidence at the trial.  He refers to a report which has been prepared by his consultant but states that the contents of the report are intensely personal and he does not wish to disclose the contents to the defendants.  He states, however, that he was happy for the Judge to review the report and has authorised counsel to provide a copy of the report to be viewed by the Judge.

[3]      I have been provided with a copy of a report from Dr Stephen Morris, a consultant clinical oncologist, with a private practice in Harley Street and in a NHS Practice in St Thomas’ Hospital in London.  He confirms the diagnosis of cancer and gives details of the current treatment Mr Messenger is undergoing.  He refers to the effects of the treatment and concludes that it is not advisable for him to travel to New Zealand for the trial.

[4]      Section 103 Evidence Act enables a Court to give directions about alternative ways  of  giving  evidence.    Subsection  (3)  sets  out  the  grounds  on  which  an application for directions may be made.  These include the age of the witness, the physical impairment of the witness, the nature of the proceedings, the nature of the evidence that a witness  is expected to give and the witness’s absence or likely absence from New Zealand.

[5]      Subsection (4) obliges a Court to have regard to the need  to ensure the fairness of the proceeding and to have regard to the views of the witness and the need to minimise the stress on the witness.

[6]      There is no specific standard of proof for ordering the use of an alternative way of giving evidence nor is there any presumption in favour of the ordinary way of giving evidence or an express balancing exercise required.

[7]      The plaintiffs have also filed a memorandum as to facts and issues.   I am advised that the proceeding concerns the construction and meaning of a concluded agreement for sale and purchase of real estate reached between the plaintiffs as vendors and the defendants as purchasers on 1 December 2006.  Broadly stated the dispute  in  the  proceedings  surrounds  whether  the  settlement  date  under  the agreement for sale and purchase was 18 December 2006 or 18 December 2008. Further the disputes surrounds what consequences would follow from the  Court finding that the settlement date was either 18 December 2006 or 18 December 2008.

[8]      One of the major issues at trial will, therefore, be a contractual interpretation

issue on which Mr Messenger’s evidence will be important.

[9]      In  those  circumstances  I  discussed  the  matter  with  Mr  Goodman,  who appears in person today, and explained the process by which such evidence could be given.  Now that he has received the affidavit from Mr Messenger and my advice about the report from Dr Morris, he has withdrawn his opposition to the application.

[10]     In those circumstances, I order that the evidence of Mr Messenger is to be given from an appropriate place outside the Courtroom in Guernsey, in particular, from St Peter Port in Guernsey.

[11]     Finally, I record that although Mr Goodman has withdrawn his opposition, I

have also formed the view that it is entirely proper for such an application to be granted.

Woolford J