Norbrook Laboratories v Bomac Laboratories Limited

[2003] NZCA 222

IN THE COURT OF APPEAL OF NEW ZEALAND

CA273/02

BETWEENNORBROOK LABORATORIES LIMITED

Appellant

ANDBOMAC LABORATORIES LIMITED

Respondent

Hearing:15 September 2003

Coram:Tipping J
Anderson J
Glazebrook J

Appearances:  C S Chapman and J K McGrath for Appellant

R A Dobson QC for Respondent

Judgment:23 September 2003 

JUDGMENT OF THE COURT DELIVERED BY TIPPING J

[1]       The appellant, Norbrook Laboratories Ltd (Norbrook) seeks leave to adduce further evidence on appeal from a Dr Hashmi who lives in Melbourne.  The application is opposed by the respondent, Bomac Laboratories Ltd (Bomac).  Norbrook’s application also seeks an order that Dr Hashmi be subpoenaed to attend for oral examination in this Court or, alternatively, that his evidence be adduced by way of depositions taken pursuant to Rules 369 to 376 of the High Court Rules.

[2]       As it transpires we will have no need to consider the subpoena or depositions issues because we do not consider the evidence otherwise qualifies for admission on appeal.  To do so the evidence must be fresh, in the sense that it could not have been obtained with reasonable diligence for production at the trial.  It must also have a sufficient degree of credibility and cogency. 

[3]       It is apparent from Norbrook’s request for the issue of a subpoena that Dr Hashmi is not willing to give evidence voluntarily.  Furthermore, Norbrook is unable to indicate what evidence Dr Hashmi might give.  It is clear, however, that whatever his evidence may be, it relates to events occurring well before trial.  Dr Hashmi is a former member of Bomac’s staff.  He had some involvement in the conduct potentially relevant to Norbrook’s allegations at trial.  Those allegations were essentially of misuse of confidential information.  We consider it must have been apparent to Norbrook before trial or at least during the course of trial that Dr Hashmi might be able to give relevant information.  No steps were, however, taken to subpoena him or otherwise procure his attendance.  It is notable that Norbrook did subpoena another Bomac employee but then decided not to call that person. 

[4]       We accept Mr Dobson’s submission that Dr Hashmi could reasonably have been viewed before trial as a witness of potential relevance.  There was no attempt by Bomac to hide him.  Another member of the relevant work-team was the employee of Bomac subpoenaed by Norbrook but not called.  Even if the potential relevance of Dr Hashmi’s evidence might reasonably not have been appreciated until the cross-examination of Mr Leech, we consider there was still sufficient time to procure his attendance thereafter. 

[5]       It is at least a reasonable inference that the significance of Dr Hashmi as a witness for Norbrook might not have been appreciated until after the judgment of the High Court had been studied; but that does not alter the fact that on any objective view of the circumstances the need for his attendance and availability to give evidence at trial should, with reasonable diligence, have been appreciated at least prior to the completion of the trial.  Thus, in our view, the evidence which Norbrook seeks leave to adduce on appeal is not sufficiently fresh.

[6]       There is also the point made by Mr Dobson that, having not called Dr Hashmi itself, Norbrook sought to make capital at trial out of the fact that Bomac had not called him either.  Whether this can be characterised as an election is of no great moment for present purposes.  At least the point is one which hardly assists Norbrook in the discretionary decision which is involved in an application of the present kind. 

[7]       Norbrook has a further problem in relation to cogency.  It is difficult for a party, who does not know what a witness is able to say, to demonstrate that the evidence of that witness has the necessary cogency for it to be admitted on appeal.  No authorities from New Zealand or elsewhere were cited by Norbrook to help us to deal with this unusual point.  This application does not turn on cogency because of our finding in relation to freshness.  We can indicate, however, that we would have needed further assistance from Norbrook on the cogency aspect had we necessarily reached that point. 

[8]       For the reasons given the application is dismissed with costs to Bomac of $3,000.00 plus disbursements to be fixed, if necessary, by the Registrar.

Solicitors:
Buddle Findlay, Wellington for Appellant
James & Wells, Auckland for Respondent