RACHAEL KEIR and JOHN RICHARD KEIR s AND ROBERT SIMMS and LYNETTE JEAN SIMMS s

[2024] NZHC 3535

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-458

[2024] NZHC 3535

BETWEEN

RACHAEL KEIR and JOHN RICHARD KEIR
Plaintiffs

AND

ROBERT SIMMS and LYNETTE JEAN SIMMS

Defendants

Hearing:

22 November 2024

Appearances:

N W Woods for the Plaintiffs

D R Bigio KC and D T Horton for the Defendants

Judgment:

25 November 2024

JUDGMENT OF GAULT J

This judgment was delivered by me on 25 November 2024 at 3:00 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………………

Solicitors / Counsel:

Mr N W Woods, Rice Craig, Papakura

Mr D R Bigio KC and Ms D T Horton, Barristers, Auckland

Mr T Gibbons (plaintiffs’ instructing solicitor), Thomas Gibbons Law, Hamilton

KEIR v SIMMS [2024] NZHC 3535 [25 November 2024]

[1]                 The defendants apply for orders to take the evidence of the first-named defendant, Mr Robert Simms, by deposition in advance of the trial in this proceeding scheduled to commence on 12 May 2025. The application is made on ill health grounds.

[2]                 The application is opposed, albeit Mr Woods, for the plaintiffs, advised that the plaintiffs are neutral in relation to whether Mr Simms’ health is sufficiently grave to warrant the order. The focus of the opposition is on the prejudice to the plaintiffs as a result of having to cross-examine Mr Simms early.

Applicable principles

[3]Rule 9.17 of the High Court Rules 2016 provides:

(1)When, in a proceeding or on an interlocutory application, a party desires to have the evidence of a person or persons taken otherwise than at the trial or the hearing of that interlocutory application, the court may, on application by that party, make orders on any terms the court thinks just—

(a)for the examination of a person on oath before a Judge, Registrar, or Deputy Registrar or before a person that the court appoints (in rules 9.18 to 9.23 referred to as the examiner) at any place whether in or out of New Zealand; …

[4]                 It is common ground that the test for exercising this judicial discretion is whether an order is in the interests of justice. As this Court has said, the assessment of whether justice requires an order to be made is to be guided by broad principles established from the authorities along the following lines:1

(a)there is no hard and fast rule: the discretion must be exercised in the circumstances of the particular case;

(b)the prejudice to the applicant in not having the order granted needs to be weighed against any prejudice to the other parties if the order is granted;

1      P v Crown Health Financing Agency HC Wellington CIV-2003-485-1625, 5 May 2006 at [6] (citations omitted).

(c)the proposed evidence must be material to the issues in the litigation;

(d)safeguards can be put in place to ameliorate any prejudice to the other parties, for example, reserving rights to seek further cross-examination of a witness; and

(e)the discretion is unlikely to be exercised in an applicant’s favour where the Court considers that the application is made other than in good faith, for example to delay proceedings or to embarrass another party.

Discussion

[5]                 Mr Woods initially characterised grave ill health as a threshold requirement, suggesting previous cases where orders have been made all involved a high likelihood that the witness would not be alive at the time of the trial. However, he accepted that the witness’s prognosis is more appropriately regarded as a relevant factor in the interests of justice assessment.

[6]                 Mr Simms has recently been diagnosed with stage 4 melanoma that has metastasized to his lungs. His diagnosis is life-threatening. Dr Rivalland, an oncologist, states that Mr Simms’ treatment involves a course of immunotherapy, which has commenced, but it is too early to say whether Mr Simms is responding to therapy. Approximately 40 to 50 per cent of patients have a significant response with improved survival. For those who do not respond well, the disease may progress, and survival could be measured in weeks to months.

[7]                 In a supplementary affidavit responding to questions from the plaintiffs’ counsel, Dr Rivalland said that, based on clinical trials, 70 to 75 per cent of patients are alive at six months from the initiation of therapy. However, this does not reference their state of health.

[8]                 Although the statistics indicate there is a prospect that Mr Simms will be well enough to give evidence in May 2025 – and I acknowledge Mr Woods’ reference to a general risk of unavailability, especially with elderly witnesses – I am satisfied that

Mr Simms’ medical condition is sufficiently grave that there is a very real risk he will be unable to give his evidence at trial in May 2025.

[9]                 The proceeding concerns an equitable claim by the defendants’ daughter and son-in-law for a part of the defendants’ farm. The claim alleges oral understandings giving rise to a common intention reached between the parties, and contributions made by the plaintiffs on the defendants’ farm. The defendants not only deny these allegations, but also challenge their daughter’s ability to have made the alleged contributions. Suffice to say that credibility is very much in issue in this unfortunate family dispute, Mr Simms’ evidence is  very  material,  and  cross-examination  of Mr Simms will be essential.

[10]              Turning to prejudice, the prejudice to the defendants if an order is not made is obvious. If Mr Simms is unable to give evidence at trial, his brief of evidence could only be admitted under s 18 of the Evidence Act 2006 if it is considered to be reliable, which the plaintiffs may well dispute. In any event, its weight would be very difficult to assess in the absence of cross-examination.

[11]              In relation to the prejudice to the plaintiffs if an order is made, Mr Woods referred to his restricted ability to cross-examine Mr Simms at a deposition, and the risk of fabrication of evidence by other defence witnesses. In relation to restricted cross-examination, Mr Woods relied on the fact that he would need to cross-examine Mr Simms without the benefit of a defence opening statement and without briefs of evidence from other defence witnesses. In relation to the risk of fabrication, or “tailoring” as Mr Bigio KC, for the defendants, termed it, Mr Woods emphasised that the plaintiffs’ case is that the defendants have made false allegations, and that there is scope for other defence witnesses to change their evidence in light of Mr Simms’ cross-examination.

[12]              I consider the prejudice to the plaintiffs arising from these risks is overstated. Mr Woods must already know the plaintiffs’ case. The plaintiffs’ fact briefs were to be served last Friday, the day of the hearing.2 Cross-examination can be prepared in advance of the defendants’ opening at trial. Mr Bigio accepts that before any

2      They were due on 1 November 2024 but an extension was granted on 31 October 2024.

deposition, Mr Simms’ proposed evidence needs to be served without delay so that Mr Woods is given a proper opportunity to prepare cross-examination.  Accepting  Mr Bigio’s submission that it would not be possible to serve the defendants’ other briefs in advance of a deposition before Christmas,3 and leaving aside the risk of fabrication which I turn to next, I do not consider the unavailability of the defendants’ other briefs will cause material prejudice in terms of restricting the cross-examination of Mr Simms. It is common ground that, if Mr Simms is well enough in May 2025, leave should be reserved to the plaintiffs’ counsel to apply to supplement his cross- examination; for example, to address matters arising from the briefs of evidence of other defence witnesses.

[13]              Turning to the risk of fabrication of evidence, Mr Woods acknowledged that the relevant risk is the increased risk resulting from advance notice of Mr Simms’ cross-examination. He acknowledged that Mrs Lynette Simms, as a co-defendant, would  be  entitled  to  be  in  court  during  Mr  Simms’  evidence  in  any  event.     I acknowledge that the risk is theoretically increased if Mrs Simms has not served her brief before Mr Simms is cross-examined and has more time to tailor her evidence. However, as Mr Bigio submitted,  falsely  tailoring  her  evidence  as  a  result  of  Mr Simms’ cross-examination would involve huge risk. Mr Bigio also acknowledged counsels’ duties to the Court. Further, confidentiality safeguards can be directed.

[14]              Taking into account the nature of the case, the materiality of Mr Simms’ evidence, and his grave ill health, and weighing the competing prejudice, I consider it is in the interests of justice to make an order that Mr Simms’ evidence be taken by deposition.

[15]              As to the conduct of the deposition, given the timing it is not feasible for the deposition to be arranged before the trial Judge, and Mr Bigio was content for it to be taken before a Registrar.

[16]             The application sought that Mr Simms’ brief of evidence be taken as read at the deposition given his ill health. Mr Woods was concerned that the Court lacked power to direct that a brief of evidence be taken as read, citing McGechan on

3      They are due on 14 February 2025.

Procedure.4 However, this happens frequently at trial. In any event, Mr Simms’ evidence is being prepared in affidavit form, which is preferable.

[17]              I do not consider it appropriate to make a direction that, if it transpires that Mr Simms is well enough to give evidence at trial, the deposition should be discarded and he should give his evidence afresh in the ordinary way. That would be duplicative. Leave to supplement cross-examination is sufficient protection for the plaintiffs.

Result

[18]I make orders that:

(a)the evidence of Mr Robert Simms in this proceeding be taken by deposition in advance of the trial scheduled to commence on 12 May 2025;

(b)Mr Simms’ affidavit is to be filed and served within one working day;

(c)the deposition is to be conducted before a Registrar pursuant to the following directions:

(i)a period of 4-5 half-days is to be allocated for the deposition (given the likelihood that Mr Simms’ health will preclude full sitting days);

(ii)the deposition is to take place as soon as reasonably practical and before the Christmas vacation;

(iii)the deposition is to be attended only by the following individuals (aside from the Registrar and any court staff):

(1)   the deponent, Mr Robert Simms;

4      See Jessica Gorman and others McGechan on Procedure (online ed, Thomson Reuters) at [9.12.01].

(2)   his co-defendant and spouse, Mrs Lynette Simms;

(3)   his legal representatives;

(4)   the plaintiffs;

(5)   the plaintiffs’ legal representatives; and

(6)   the video camera operator;

(iv)Mr Simms’ affidavit is to be taken as read at the deposition;

(v)the deposition is to be recorded by video, the costs of which are to be met by the defendants;

(d)the transcript of the examination and the video recording must not be searched or inspected without leave of a Judge;

(e)the contents of the examination must be kept confidential by the attendees and not disclosed to any other witnesses;

(f)should Mr Simms’ health allow him to be available at trial, the plaintiffs have leave to seek to cross-examine Mr Simms on new matters; for example, matters arising from the briefs of evidence served by other defence witnesses; and

(g)leave is reserved for either party to apply for further directions on three days’ notice.

Gault J