Ng�ti Wh�tua �r�kei Trust v Attorney-General

[2021] NZHC 383

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2015-404-2033

[2021] NZHC 383

UNDER

the Judicature Amendment Act 1972 and Part 30 of the High Court Rules

BETWEEN

NGĀTI WHĀTUA ŌRĀKEI TRUST

Plaintiff

AND

ATTORNEY-GENERAL

First Defendant

MARUTŪĀHU RŌPŪ LIMITED PARTNERSHIP

Second Defendant

Hearing:

2 March 2021 and supplementary memoranda on 2 and 3 March

2021

Appearances:

J E Hodder QC, J W J Graham and R M A Jones for the plaintiff and for Te Runanga o Ngāti Whātua and Ngāti Whātua o

Kaipara, interested parties

D A Ward and G H Allan for the first defendant P F Majurey for the second defendant

N R Coates for Te Ākitai Waiōhua Settlement Trust A H C Warren for Ngāi Tai ki Tāmaki Trust

M K Mahuika and T N Hauraki for Ngāti Paoa Iwi Trust

Judgment:

5 March 2021

JUDGMENT NO 3 OF PALMER J

(Procedural issues)

This judgment was delivered by me on Friday 5 March 2021 at 2.00 pm.

Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

NGĀTI WHĀTUA ŌRĀKEI TRUST v ATTORNEY-GENERAL [2021] NZHC 383 [5 March 2021]

Summary

[1]    The trial of these proceedings is underway in the Auckland High  Court. Ngāti Whātua Ōrākei has opened its case and its fourth witness is currently under cross-examination. We are currently in a state of suspended animation due to Auckland being in COVID-19 Alert Level 3. This judgment records decisions regarding two procedural issues raised by counsel in the meantime. I do not make orders excluding witnesses from hearing each others’ testimony. I do not prohibit cross-examination of witnesses about documents which have not recently been brought to their attention.

Issue 1: Should witnesses be excluded?

The issue

[2]    On 12 February 2021, counsel for Ngāti Whātua Ōrākei requested an order excluding witnesses who do not agree to comply with the expert witness Code of Conduct from attending Court, viewing the VMR stream, or discussing earlier factual witnesses’ evidence. This proposed exclusion would apply until they have completed their evidence. On 22 February 2021, I indicated my inclination was to exclude witnesses of fact regarding the application of the Crown’s policies but not to exclude expert witnesses. I suggested counsel confer about what that means for each witness and whether disagreements remain. They have. Disagreements remain.

[3]    Ngāti  Whātua  Ōrākei  seeks  the  exclusion  of  three  Crown  witnesses (Mrs Anderson, Ms Campbell and Mr Dreaver), three Marutūāhu Rōpu witnesses (Mr Ngamane, Mr Ngapo and Mr Rawiri), and one witness for each of Ngāti Paoa (Mr Tupuhi), Te Ākitai Waiōhua (Ms Wilson) and Ngāi Tai ki Tāmaki (Mr Brown). The other parties, apart from Ngāti Paoa, oppose the request.

Law of exclusion of witnesses

[4]    The purpose of a witness exclusion order is usually to prevent contamination, or tailoring, of a witness’s testimony where credibility is in issue. Cross on Evidence observes such risks are reduced where signed briefs have been exchanged and the

issues are primarily legal.1 In Body Corporate 325261 v McDonough, Muir J distilled the following principles relevant to excluding witnesses:2

1.There is jurisdiction to exclude parties. Whether to do so is discretionary, with the discretion exercised on a principled basis.

2.Attendance by parties is a fundamental right which should only be interfered with for good and sufficient reason. There is an onus on the party applying and it is not one that is lightly discharged.

3.Although the test may not be appropriately cast in terms of a requirement for an “exceptional” or “extraordinary” case the discretion should be sparingly exercised.

4.Cases involving deceit, misrepresentation and concealment will often, but not always, justify an order.

5.Other than in such cases the weight of authority favours the right of a party to attendance.

Submissions

[5]    Mr Hodder QC, for Ngāti Whātua Ōrākei, submits there are important issues about the scope, purpose and impact on iwi of the Crown’s policy on overlapping claims. The Crown’s witnesses are likely to be subject to common patterns of cross- examination and, if not excluded, would have the advantage of preparing their responses ahead of time. Mr Hodder proposes the exclusion order should apply to all tikanga witnesses who have not cited the Code of Conduct for Expert Witnesses in their proposed evidence, who attended the tikanga conference but were not agreed attendees or participants and whose evidence overlaps substantially with witnesses from the same party. He submits some further specific justification than the fact this proceeding has tikanga as a central element is required to resist an orthodox order for exclusion. In reply to the submissions of other counsel, he submits the witnesses are not the parties and the Crown’s statement of defence disputes the force and scope of the Crown’s overlapping claims policy.

[6]Ngāti Paoa abides the Court’s decision on this issue.

1      Mathew Downs (ed) Cross on Evidence (online ed, LexisAdvance) at [EVAPart3Subpart4.1(e)].

2      Body Corporate 325261 v McDonough [2015] NZHC 1700 at [11].

[7]    Mr Ward, for the Crown, opposes the orders sought in relation to the Crown witnesses who will give evidence of the application of Crown policy for illustrative purposes. He submits there is no real risk that Crown witnesses will tailor their evidence in light of the evidence of preceding witnesses. They have prepared written evidence, two of them speak to the documentary record, they do not have interests at stake, they give evidence of different matters, and the issues are primarily legal. The plaintiff’s witnesses have not been so far prevented from observing each other’s evidence. He submits the reason for the orders sought is the plaintiff’s own tactical preference to adopt the same pattern of cross-examination for each witness.

[8]    Counsel for Marutūāhu Rōpu, Te Ākitai Waiōhua and Ngāi Tai ki Tāmaki (collectively Te Toru), submit the plaintiff’s reasons for exclusion are frail. Affidavits and briefs have been exchanged, VMR links have been sent out, transcripts are being circulated, and the same request has not been made in relation to Ngāti Whātua Ōrākei’s witnesses. They submit the proceedings have been advanced in a tikanga- guided manner and excluding witnesses is not tika. They submit the principles of kānohi ki te kānohi, manaakitanga, and whanaungatanga are paramount and extend to the participation and attendance of the parties.

Should witnesses be excluded?

[9]    I accept that the witnesses sought to be excluded are not, individually, parties to the proceeding. But several of them may have very direct identification with a collective party and, therefore, interests in attending the hearing.

[10]   I also accept that the issues involved in this hearing do not revolve around issues of credibility of one witness as against another. Rather, the issues concern principles of law and tikanga.3 That reflects the nature of the  proceedings:  the  Ngāti Whātua Ōrākei seeks declarations of general rights rather than review of specifically challenged decisions.4 As I said in another judgment in these proceedings, “as Mr Hodder submits, the focus of the proceedings is now not on challenging a particular decision but on declarations of rights and obligations”.5 The inclusion of

3      Ngāti Whātua Ōrākei Trust v Attorney-General [2020] NZHC 3120 at [8].

4      At [2]–[3] and [19]–[21].

5 At [21].

evidence of specific instances of Crown decisions is illustrative only.6 I allowed cross- examination in order to test and complete the evidence to assist the Court, because the illustrative facts are complex and nuanced, with likely gaps between witnesses’ understandings of the facts.7

[11]   Accordingly, I do not consider witnesses need to be excluded from hearing each other’s testimony, as they have not been to date. Counsel may choose to deploy common patterns of cross-examination. But, on reflection, I do not consider there is a material risk that will contaminate or lead to the tailoring of the evidence of the witnesses of illustrative fact, let alone the expert witnesses. Even if it were to do so, given the nature of the issues, I do not consider that is likely to matter much to the outcome of the case.

[12]   Although it does not determine my view of this case, I accept that it is consistent with tikanga not to exclude witnesses from hearing each other’s testimony. That is a relevant consideration here, where matters of tikanga are central to the issues in the proceedings.

Issue 2: The common bundle and cross-examination

Context and issue

[13]   On 12 February 2021, Counsel for Ngāti Whātua Ōrākei sought a direction that any further documents that counsel intend to nominate for inclusion in a supplementary bundle are to be provided to them with 48 hours’ notice. The reason was in order to be consistent “with its experience in other lengthy and complex civil trials, and to ensure that the Court and counsel have the most up to date set of documents to hand (and to discourage ambush by documents)”.8 Counsel for the Attorney-General supported that, unless documents were provided in response to a question from me or the Court gave leave otherwise. Te Toru opposed the request. On 22 February 2021, I indicated I would support documents being given with 48 hours’ notice if possible, but that there may be exceptions.

6 At [21].

7 At [22].

8 Memorandum of counsel for the plaintiff regarding trial logistics, 12 February 2021 at [8].

[14]   On 2 March 2021, Mr Hodder, for Ngāti Whātua Ōrākei, filed a further memorandum requesting my clarification that, unless there are exceptional circumstances to the contrary and departure would be just, all parties must comply with “the 48-hour rule” such that:

(a)the solicitors for Ngāti Whātua Ōrākei (who are operating the electronic court) will promptly label documents with common bundle numbers regularly (but not more than daily) and provide updates to the Court and counsel accordingly; but

(b)documents nominated for the supplementary common bundle may not be referred to a witness until 48 hours after they are provided to all counsel (during which the common bundle will be updated with those documents): and

(c)new documents provided outside of business hours (i.e. after 5 pm and on weekends) are taken to be nominated as of the next business day.

[15]   This was occasioned by another counsel providing over 900 pages of documents for the common bundle on the morning of Saturday 27 February 2021. This included a determination under the Resource Management Act 1991, legal submissions, a report by and summary of intended evidence of Mr Te Warena Taua, and some 50 pages of evidence given by Mr Ngarimu Blair. I understand the documents are on a publicly available website and are available to Ngāti Whātua Ōrākei, though they were not the subject of discovery. Mr Blair is a Ngāti Whātua Ōrākei witness who was then and is still under (a suspended state of) cross- examination (pending lifting of the Alert Level 3 in Auckland). Some of his statements are intended to be put to him in cross-examination.

Law of cross-examination and the common bundle

[16]   Under r 8.18 of the High Court Rules 2016 (the Rules) parties to litigation have a continuing obligation to give discovery and offer inspection of relevant documents. Sub-part 1 of pt 9 of the Rules deals with common bundles among  other things.  Rule 9.1(1) provides that in applying “the court and the parties must pursue the just,

speedy, and inexpensive determination” of the proceeding. Under r 9.1(2), the common bundle must be “commensurate with the goal of keeping the cost of the proceeding proportionate to the subject matter” and r 9.1(3) requires “the documents to be produced at the trial” to be “prepared, produced, and led” in accordance with the subpart.

[17]Rule 9.2 provides:

9.2Exchange of documents and index

(1)In this rule, documents to be relied upon means—

(a)documents referred to in a brief or to be referred to by a witness; and

(b)documents intended to be put to witnesses called by another party; and

(c)documents to be referred to in opening.

(2)When a party discloses documents to be relied upon at the trial or hearing, that party must supply a list of those documents incorporating any list previously supplied, so that the other parties always have an up-to-date list of the documents that party intends to rely upon. The list may be in any format and is to be labelled and referred to as that party's index.

(3)Documents to be relied upon at the trial or hearing but additional to those already disclosed may be disclosed at any time, but not later than a date fixed by the court at a case management, issues, or pre-trial conference.

(4)Subclause (3) does not affect a party's ongoing obligations in relation to discovery.

[18]   Rule 9.4 requires the parties to co-operate in the preparation of the common bundle. Under r 9.5(4), a document in the common bundle is automatically received into evidence when referred to by a witness in evidence or by counsel in submissions. Under r 9.6, a document not incorporated in the common bundle may be produced at trial only with the leave of the court, which it may grant unless its production would cause injustice and which it may refuse if its production might cause injustice.

[19]   The purpose of the Evidence Act 2006 (the Act), under s 6, is to help secure the just determination of proceedings in specified ways, including providing for facts to be established by the application of logical rules and promoting fairness to parties

and witnesses. Irrelevant evidence is not admissible under s 7. Under s 8, the Judge is required to exclude evidence if its probative value is outweighed by the risk that it will have an unfairly prejudicial effect on the proceeding or needlessly prolong it.

[20]   Section 90(3) of the Act requires a party who proposes to use a document in questioning a witness to show the document to every other party to the proceeding. This was to discourage witnesses being asked silently to read documents others have not seen, and then answer questions.9 That does not affect its admissibility. There is no general prohibition on the use of inadmissible documents in questioning witnesses in civil proceedings.10

[21]   Section 96(1) of the Act allows cross-examination of a witness about their previous statements without the statement or its contents being disclosed to the witness “if the time, place, and other circumstances concerning the making of the statement are adequately identified to the witness”. If the witness does not expressly admit making the statement and the cross-examining party wishes to prove the witness did make it, s 96(2) requires the statement to be shown to the witness who must be given an opportunity to deny making it or to explain any inconsistency.

Submissions

[22]   Mr Hodder, for Ngāti Whātua Ōrākei, submits that, if considered relevant, almost all documents should have been disclosed in 2020 or earlier. He requested they be disclosed under r 9.2 of the Rules. That has now occurred and the documents have been placed in the common bundle. Mr Hodder rejects the assertion Ngāti Whātua Ōrākei was under an obligation to disclose every statement its witness may have previously made on mana whenua and ahi kā. Counsel for the plaintiff are concerned the provision of the documents is designed to frustrate the 48-hour rule, the purpose of which is to prevent ambush by documents. Mr Hodder submits a suggestion of how counsel for Ngāti Whātua Ōrākei might brief Mr Blair while he is under cross- examination is neither just nor workable. It places counsel in an impossible position in terms of what issues need to be, or may be, discussed with Mr Blair. He submits

9      Elisabeth McDonald and Scott Optican (eds) Mahoney on Evidence: Act & Analysis (4th ed, Thomson Reuters, 2018) at [EV90.05(1)].

10     At [EV90.02].

s 96 of the Act does not excuse non-compliance with other provisions and is not a statutory right to cross-examine on documents outside the common bundle. He submits the date fixed by the court for disclosure under r 9.2(3) here is the 48-hour rule. There are no circumstances here which justify contravention of that. Section 96 has limited relevance and does not preclude the requirement for parties to put documents in the common bundle before producing them at trial. It operates with other rules of civil procedure to produce the most helpful evidence possible for the Court. That is achieved by a “cards on the table” approach where parties and witnesses have the opportunity to familiarise themselves with documents so they may give the most accurate evidence about them. Accordingly, counsel seeks that the documents ought not to be put to Mr Blair.

[23]   Counsel for Ngāti Paoa support the 48-hour rule and its intentions to ensure the fair conduct of the hearing. They submit s 96 is limited to previous statements by a witness and does not cover the large majority of the documents at issue. Ngāti Paoa has taken the view that the numerous other examples of resource management proceedings in which parties have taken a position on their cultural interests are not strictly relevant to these proceedings. They seek a direction from the Court if the Court takes a different view.

[24]   Counsel for Te Toro submit they intend to cross-examine Mr Blair on a few paragraphs of his highly relevant previous statements and there is no bar to them doing so. They filed the entire document to avoid any criticism of being selective and to assist the Court with necessary context. They submit they have no obligation to discover the document and, if there was such an obligation, it would have been on the plaintiff. They submit the document should be shown to Mr Blair if he does not expressly admit to making it, under s 96. They submit counsel for the plaintiff have confused that statutory right with matters of discovery and common bundles. Cross- examination of Mr Blair in respect of his previous statements should not be considered “ambush by documents”.

The parameters of cross-examination

[25]   I agree that Ngāti Whātua Ōrākei was not under an obligation to discover these statements. The default rule that parties should have 48-hours’ advance notice of documents to be added to the common bundle facilitates the efficient and orderly progress of these proceedings. It ensures the Court and counsel have the most up to date set of documents to hand, as was the primary part of its stated rationale when it was proposed. The parties appear to have agreed to add the 900 pages of documents to the common bundle. Without reviewing the material, it seems likely that, apart from the specific passages of Mr Blair’s previous testimony, most of them will not be directly relevant to these proceedings. If a party wishes to put to a witness of another party previous statements in a document, r 9.2 requires the document to be supplied to the other parties. That must be in accordance with the rule I made at the beginning of the hearing.

[26]   But the value of the proceedings being orderly and efficient is not a straight- jacket. I do not consider order and efficiency prevent documents being put to a witness who has not recently had them brought to their attention. There may be value to the Court in a witness being asked to explain, without preparation by counsel, inconsistencies between their testimony and their previous statements. Here, I do not consider, in advance of knowing the particular question being asked, that there is any necessary unfairness in that. If the witness’s response suggests there is, I will consider that at the time. If the document were not in the common bundle I would approach it similarly, under r 9.6, depending on the questions.

[27]   I do not consider the intention to put to Mr Blair his previous statements contravenes my previous direction regarding notice of additions to the common bundle. I decline to revise my formulation of the direction. I decline to prohibit any questions based on the previous statements being put to Mr Blair on a blanket basis.

Palmer J

Counsel/Solicitors:

J E Hodder QC, Wellington

G H Allan, Barrister, Wellington Chapman Tripp, Auckland Crown Law, Wellington

Atkins Holm Majurey, Auckland McCaw Lewis, Hamilton

Kahui Legal, Wellington Chapman Tripp, Wellington Walters Law, Auckland