New Zealand China Clays Ltd v Tasman Orient Line C.V. HC Auckland CIV 2002 404 3215

[2007] NZHC 1730

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2002 404 3215

BETWEEN  NEW ZEALAND CHINA CLAYS LIMITED

First Plaintiff

ANDIMERYS MINERALS JAPAN KK Second Plaintiff

AND  TASMAN ORIENT LINE C.V.

Defendant

CIV 2002 404 3216

AND BETWEEN            NEW ZEALAND DAIRY BOARD First Plaintiff

ANDNESTLE KOREA LIMITED Second Plaintiff

ANDCHONG KUN PHARMACEUTICALS Third Plaintiff

ANDNIPPON NZMP LIMITED Fourth Plaintiff

ANDMAEIL NEW ZEALAND CHEESE COMPANY LIMITED

Fifth Plaintiff

ANDDONG SUH FOODS CORP Sixth Plaintiff

AND  CHOHEUNG CHEMICAL IND. CO.

LIMITED Seventh Plaintiff

NZ CHINA CLAYS LTD V TASMAN ORIENT HC AK CIV 2002 404 3215  10 May 2007

AND  TASMAN ORIENT LINE C.V.

Defendant

CIV 2002 404 3217

AND BETWEEN             ALLIANCE GROUP LIMITED First Plaintiff

AND  ZHEJIANG FUBANG GROUP CO.

LIMITED Second Plaintiff

ANDSHIN YANG LEATHER CO. LIMITED Third Plaintiff

ANDSHIN OH CO. LIMITED Fourth Plaintiff

ANDDSI COMPANY LIMITED Fifth Plaintiff

ANDKWANG SUNG HIGH-TECH CO LIMITED

Sixth Plaintiff

ANDONG SEO TRADING CO LIMITED Seventh Plaintiff

ANDNEW ASIA TRADING CO. LIMITED Eighth Plaintiff

AND  TASMAN ORIENT LINE C.V.

Defendant

CIV 2002 404 3218

AND BETWEEN            PPCS LIMITED First Plaintiff

AND  SUNGRIM ENTERPRISE CO.

Second Plaintiff

ANDKWANG SUNG HIGH-TECH CO LIMITED

Third Plaintiff

ANDSHINYANG LEATHER CO LIMITED Fourth Plaintiff

ANDSHIN OH CO LIMITED Fifth Plaintiff

ANDSUNG JIN NEO TECHNO LIMITED Sixth Plaintiff

AND  TASMAN ORIENT LINE C.V.

Defendant

Hearing:         9, 10 May 2007

Counsel:Philip Rzepecky with Matthew Flynn and Vanessa Orange for plaintiffs

B D Gray QC with Neil Beadle and Mary-Anne Lowe for defendant

Judgment:      10 May 2007

[ORAL] JUDGMENT OF WILLIAMS J

Solicitors:

McElroys, P O Box 835 Auckland, for plaintiffs

Phillips Fox, P O Box 160 Auckland, for defendant

Copy for:

Philip R Rzepecky, P O Box 105 521 Auckland, for plaintiffs

Bruce D Gray QC, P O Box 4338 Shortland Street, Auckland, for defendant
Mary-Anne Lowe, P O Box 37 971 Parnell, Auckland, for defendant
Stewart Scorgie, Case Officer, Auckland High Court

[1]      The  evidential  objection  is  maintained  to  the  following  passage  from para 42.2 of Mr Hoskison’s brief:

"I was told by the Nippon Salvage people that the distance from Moji is approximately 200 km and the driving time around 3.4 to 4 hours. They could have been there by 0700 hours."

[2]      Mr  Gray  makes  clear  that  he  does  not  object  to  Mr  Hoskison’s evidence that he personally made a calculation of the approximate  distance from Moji to the suggested preferred anchorage in Sukumo Wan using his Encyclopaedia Britannica coupled with his own knowledge as the basis of that calculation.

[3]      The nub of the defendant’s objection is the time estimate for the making of that journey, Mr Gray making the observation that the time taken for that (or the journey actually undertaken)  being likely to  have  been  affected  by local  traffic conditions.  Accordingly, Mr Gray submits, the passage objected to which is clearly based on a statement by Nippon Salvage personnel to Mr Hoskison is inadmissible hearsay.

[4]      The only basis on which the statement might be admissible is pursuant to the Evidence  Amendment  Act  (No.2)  1980  s  7.  Clearly  enough,  were  the  Nippon Salvage personnel here in New Zealand they could give evidence of the likely time to be occupied in the hypothetical journey to Sukumo Wan and that evidence would be admissible because they would have personal knowledge of that.

[5]      Mr Rzepecky makes the point that the only reason direct admissible evidence is not available on the time calculation is, first, because the present objection was only raised for the first time during Mr Hoskison’s evidence and, secondly, that it would be uneconomic to bring a witness from Japan solely for the purpose of giving evidence on a matter which may or may not turn out to be germane to the issues to be decided in the case.

[6]      Mr Rzepecky accordingly submits that the hearsay statement by the  Nippon personnel witnesses is admissible because they are "unavailable to give evidence", within the definition of that term in s.2(2) of the Amendment.

[7]     It is not difficult to conclude that the Nippon personnel witnesses are "unavailable to give evidence" in those circumstances.   The objection arose late, though there is no criticism to be taken from that.  The evidence would be brief.  The cost of bringing the witness to New Zealand would be significant.   The witness would not be compellable.   Accordingly, in my view, the requirements of s 7 are made out and the evidence is ruled admissible.

[8]      That immediately brings into play the question of weight, covered by s 17.

[9]      So far as can currently be seen, the statement made by Nippon Salvage personnel to Mr Hoskison would qualify under the criteria in s 17 but the parties will no doubt recognise that when this aspect of the evidence comes to be evaluated, and its  importance or  otherwise  weighed,  the  outcome  may be  that  the  evidence  is accorded little weight.  However, that remains to be seen as the case proceeds.

[10]     The  objection  is  disallowed  and  the  evidence  ruled  admissible,  for  the reasons set out above.

………………………………..

WILLIAMS J

10 May 2007