Roebuck v Liddle
[2023] NZHC 1479
•15 June 2023
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CIV-2021-441-74
[2023] NZHC 1479
BETWEEN JASON GREGORY ROEBUCK and VICTORIA ANN ROEBUCK
PlaintiffsJASON GREGORY ROEBUCK, VICTORIA ANN ROEBUCK and
PETER ROEBUCK as trustees of the Tahi Trust
Second Plaintiffs
AND
ROBERT JAMES LIDDLE
First Defendant
AMANDA ELIZABETH LIDDLE
Second DefendantHASTINGS DISTRICT COUNCIL
Third DefendantSIGMA CONSULTING ENGINEERS LIMITED
Fourth DefendantREDHEAD ARCHITECTURE LIMITED
Fifth DefendantFORMWORKS HB LIMITED
Sixth DefendantHARDCORE CONCRETE LIMITED
Seventh DefendantM J FOGARTY PAINTING & DECORATING LIMITED
Eighth Defendant
WYNANDS MASONRY LIMITED
Ninth Defendant
ROEBUCK v LIDDLE [2023] NZHC 1479 [15 June 2023]
REALDEAL ROOFING LIMITED
Tenth Defendant
HAWKES BAY MEMBRANE SOLUTIONS LIMITED
Eleventh Defendant
MITCHELL LEITZ
Twelfth Defendant
WYNANDS MASONARY (2015) LIMITED
Thirteenth Defendant
ANTHONY JOHN MICHAEL WYNANDS
Fourteenth Defendant
G A SCARFE BUILDER LIMITED
Fifteenth Defendant
GRAHAM ALAN SCARFE
Sixteenth Defendant
Hearing: 6 June 2023 Appearances:
J L Bates for Plaintiffs
J K Goodall KC and S P Farnell for Third Defendant No appearance by or for First, Second or Fourth to Sixteenth Defendants
Judgment:
15 June 2023
JUDGMENT OF ASSOCIATE JUDGE SKELTON
Introduction
[1] The plaintiffs have applied for orders that the third defendant’s statement of defence be struck out, or alternatively for leave to apply for summary judgment against the third defendant. The application has been set down for hearing on 22 June 2023. The grounds for the application to strike out include that the third defendant failed to comply with a discovery order for standard discovery in the proceeding made on 15 July 2022, and the third defendant, as a local authority, is under a duty to act as a model litigant which it has failed to do.
[2] The plaintiffs have now applied for an order that the third defendant’s deponents in respect of the application for strike out, Gerardus van Veen and John O’Shaughnessy, appear for cross-examination at the hearing of the plaintiffs’ application on 22 June 2023 to answer questions about the reasons documents were not disclosed in the third defendant’s original affidavit of documents affirmed 12 September 2022.
[3] The plaintiffs have also made an application challenging the third defendant’s claims to litigation privilege over certain documents. However, that application has been adjourned (following a telephone conference on 6 June 2023) pending the outcome of the third defendant’s further review of its documents and claims to litigation privilege.
Context
[4] The plaintiffs’ substantive claim against the third defendant relates to the terms of a building consent issued by the third defendant which included a requirement that a residential building to be built at 36 West Street, Havelock North was to be located by survey to confirm a certain floor height. The plaintiffs say that this condition was to protect the building from flooding due to the property being in a flood zone. The surveyor’s certificate confirming the siting was to be made available to the third defendant prior to the first inspection or to the inspecting officer at the time of the first inspection.
[5] The plaintiffs say that the concrete floor was poured below the level required, and in the absence of any surveyor’s certificate having been obtained.
[6] The plaintiffs say that the third defendant undertook inspections even though a surveyor certificate was not made available and therefore breached a duty to exercise reasonable care and skill when carrying out inspections of the building work.
Legal principles
[7] The plaintiffs’ application for cross-examination is made under r 7.28 of the High Court Rules 2016. It provides:
7.28 Cross-examination of maker of affidavit
A Judge may in special circumstances, on the application of a party, order the attendance for cross-examination of a person who has made an affidavit in support of, or in opposition to, an interlocutory application.
[8] The phrase “special circumstances” is not defined. In Kidd v Van Herren, the Court of Appeal held that the circumstances are wide, comprehensive and flexible but indicate something abnormal, uncommon or out of the ordinary but less than extraordinary or unique.1 Conflicts between deponents do not of themselves create special circumstances justifying cross-examination.2
[9] These factors need to be balanced against the detriment that may result in terms of conducting the proceedings speedily and inexpensively.3
[10] The fundamental test has been being expressed as whether injustice will arise or is likely to arise unless cross-examination is permitted.4
Plaintiffs’ case for cross-examination
[11] The focus of the plaintiffs’ application for cross-examination are a “Timeline” document and a “File Note” document created by Mr van Veen, a Building Consents Project Officer for the third defendant. These documents were not discovered by the third defendant in its affidavit of documents affirmed by Mr van Veen on 12 September 2022. However, the documents were subsequently disclosed in December 2022 and January 2023 in response to the plaintiffs’ requests under the Local Government Official Information and Meetings Act 1987 (LGOIMA).
[12] The plaintiffs contend that these documents contain unequivocal admissions of the third defendant’s fault in inspecting the floor in the absence of a surveyor’s certificate. The plaintiffs contend that the documents were deliberately not disclosed in the original affidavit of documents.
1 Kidd v Van Heeren (1997) 11 PRNZ 422 (CA) at 424.
2 At 425.
3 Smith v Smith [2016] NZHC 1197 at [32].
4 Sleeman v ANZ Banking Group (NZ) Ltd (1994) 7 PRNZ 508 (HC) at 510.
[13] Mr van Veen has responded to the allegations with regard to non-disclosure in an affidavit affirmed on 19 April 2023. In summary he states that:
(a)the documents were not intentionally withheld in the proceeding and, after they were disclosed in response to the LGOIMA requests, they were discovered in the third defendant’s supplementary affidavit of documents affirmed on 8 March 2023;
(b)the Timeline document was created to enable Mr van Veen to understand what had happened in respect of the building consent granted for the subject residential building, and also as part of his review of the third defendant’s natural hazards guidance policy as part of continuous improvement of the third defendant’s policies and procedures;
(c)the Timeline document was Mr van Veen’s working document which he updated and saved to record his personal views as he continued his review;
(d)the Timeline document was used to assist in formulating his views recorded in the File Note document, in which Mr van Veen gave an overview of the history of the third defendant’s natural hazard guidance and what could be learnt from the processing of the subject building consent;
(e)he says that when it came to affirm the discovery affidavit in this proceeding in September 2022 on behalf of the third defendant, he did not turn his mind to these documents, it did not occur to him that the Timeline document or the natural hazards File Note were documents that needed to be discovered and he did not raise these documents with the third defendant’s solicitors;
(f)he says that the documents were marked “privileged and confidential” simply because it is his general practice to mark these types of documents in this manner; and
(g)the Timeline and File Note do not represent the official or formal views of the third defendant, and the Timeline was created purely to assist Mr van Veen with his review of the events occurring at the subject property and to formulate views on recommendations to improve the way in which building consent applications are processed by the third defendant.
[14] In a further affidavit affirmed on 30 May 2023, Mr van Veen states that the Timeline document was not saved in the third defendant’s property file for the subject property and was not therefore originally reviewed as part of the third defendant’s discovery. However, after receiving the LGOIMA request a further review was undertaken and the document was located and released.
[15] Mr van Veen also states that it has now come to his attention that his Timeline document was sent to the third party’s solicitors but was mistakenly not listed in the affidavit of documents. Mr van Veen says that he was not aware that his Timeline document had been provided previously.
[16] Mr O’Shaughnessy is the Planning and Regulatory Group Manager for the third defendant. He has provided an affidavit in which he states that he accepts Mr van Veen’s explanations and is confident that Mr van Veen did not intentionally withhold documents in this proceeding. Mr O’Shaughnessy also confirms that the third defendant is currently undertaking a further review of its documents to assess whether there are any additional documents that should be disclosed.
[17] The plaintiffs say that they were aware of an internal investigation into the circumstances of the pouring of the concrete floor slab undertaken on behalf of the third defendant by Tony Manunui (Compliance Manager). However, they say they were not aware of the review undertaken by Mr van Veen until the documents were disclosed in response to the LGOIMA request.
[18] The plaintiffs do not accept Mr van Veen’s explanation that the creation of the document was personal to him or that it is credible that he did not consider the documents to be discoverable documents in this proceeding. Mr Bates submits that there are good reasons, including as set out in the affidavit of Jason Roebuck dated 19 May 2023,5 why Mr van Veen’s claims of inadvertence should be disbelieved, and this should be put to Mr van Veen and Mr O’Shaughnessy in cross-examination.
[19] Mr Bates says that there should also be a full explanation given of Mr van Veen’s recent statement that his Timeline was actually provided to the third defendant’s solicitors but mistakenly not included in the affidavit of documents.
[20] In this regard, in response to directions made at the telephone conference on 6 June 2023, the third defendant has now filed and served a further affidavit of Nathan Spier affirmed on 9 June 2023. Mr Spier is the director of Rice Spier, the third defendant’s solicitors. Mr Spier states that the Timeline was emailed to Rice Spier by Mr Manunui on 13 April 2021. He states that the document was not saved to the document management system. During the discovery process, over a year later, inadvertently neither the email nor the attachment, being Mr van Veen’s Timeline, were picked up.
[21] Mr Bates notes that Mr Manunui’s email of 13 April 2021 was also copied to Mr O’Shaughnessy. He submits that it crossed the third defendant’s “institutional mind” to share the Timeline with relevant staff and the third defendant’s solicitors and it is implausible to maintain that the third defendant did not consider the Timeline to be discoverable. He submits that the third defendant has still not given a fulsome account of its “institutional knowledge” of the existence of this document when the original list of documents was completed which justifies leave to cross-examine Mr van Veen and Mr O’Shaugnessy.
[22] Mr Bates submits that the third defendant as a public authority is required to be a model litigant and has a duty of candour and ought to make the witnesses available for cross-examination given the circumstances.
5 Mr Roebuck is one of the owners of the subject property.
[23] Mr Bates submits that, in the circumstances, injustice might arise if cross-examination is refused. He refers to Sleeman v ANZ Banking Group (NZ) Ltd.6 In that case, cross-examination of a deponent was allowed in relation to contested discovery issues in the interests of justice. Master Thomson found that cross-examination would “clear the air and be beneficial to all parties including the Court”.7
[24] With regard to the sanction of strike out sought by the plaintiffs, Mr Bates submits that the proper assessment of that application depends on the seriousness and significance of the breach, why default occurred and an evaluation of the circumstances of the case with the ultimate issue being whether the plaintiffs’ fair trial rights have been put in jeopardy. Therefore, he says the Court ought to hear directly from the witnesses.
Discussion
[25] The application for cross-examination should be considered in the context of the plaintiffs’ application to strike out the third defendant’s statement of defence for failure to comply with a discovery order.
[26] In this regard, the plaintiffs appear to be relying primarily on r 7.48 of the High Court Rules which provides:
7.48 Enforcement of interlocutory order
(1)If a party (the party in default) fails to comply with an interlocutory order or any requirement imposed by or under subpart 1 of Part 7 (case management), a Judge may, subject to any express provision of these rules, make any order that the Judge thinks just.
(2)The Judge may, for example, order—
(a)that any pleading of the party in default be struck out in whole or in part;
(b)that judgment be sealed;
(c)that the proceeding be stayed in whole or in part;
6 Sleeman v ANZ Banking Group (NZ) Ltd, above n 4.
7 At 511.
(d)that the party in default be fined, ordered to do community work, or committed to prison under section 16 of the Contempt of Court Act 2019;
(e)if any property in dispute is in the possession or control of the party in default, that the property be sequestered;
(f)that any fund in dispute be paid into court;
(g)the appointment of a receiver of any property or of any fund in dispute.
(3)An interlocutory order may only be enforced by the following (in accordance with subpart 4 of Part 2 of the Contempt of Court Act 2019):
(a)an order imposing a fine or community work;
(b)a warrant committing the person to prison;
(c)a sequestration order.
[27] The principles to consider in relation to an application under r 7.48 were summarised in Energy Securities LP v Vector Ltd:8
[5] … Under r 7.48 of the High Court Rules 2016 (the Rules), I may make any order I think just, including strike-out in whole or part and including staying the proceeding in whole or part, where a party fails to comply with an interlocutory order. But doing so is a serious step. It should only be taken when necessary to do justice to the other interests at stake. As Courtney J stated in Jaques v Main, the strike-out jurisdiction highlights the tension between timely and efficient disposition of proceedings and the seriousness of depriving the litigant from having the merits of the claim substantively determined. In Smith v Antons Trawling Co Ltd, which also concerned failure to pay security for costs as ordered, Fisher J stated cases should not lightly be dismissed on technical or procedural grounds. He suggested the following aspects of the default would “usually be critical”:
(a)Its duration.
(b)Its impact upon the progress of the proceedings as a whole.
(c)Whether there appears to be any excuse or explanation.
(d)Whether it continued after reasonable opportunities and reminders, particularly where the Court has already made a fresh order, or given a warning, due to earlier non-compliance.
(e)Whether it has substantially prejudiced the innocent party, whether procedurally or due to some wider impact upon the innocent party’s interests and affairs.
8 Energy Securities LP v Vector Ltd [2018] NZHC 2271 at [5].
(f)Whether there is any realistic expectation that it will be rectified following further opportunities for compliance.
[Footnotes omitted.]
[28] The plaintiffs also rely on authority which indicates that it is necessary to consider whether the defaulting party’s conduct has put the fairness of the trial in jeopardy because it amounts to such an abuse of process of the court as to prevent the court from doing justice.9
[29] Without substantively assessing these factors at the risk of pre-judging the merits of the plaintiffs’ strike out application, the question before the Court presently is whether “special circumstances” exist such that cross examination should be allowed on the strike out application to avoid injustice.
[30] It is not abnormal, uncommon or out of the ordinary for issues to arise about disclosure of documents during the discovery stage of litigation, including litigation involving public authorities such as councils. Despite diligent efforts to comply with discovery obligations, documents that fall within the scope of standard discovery may initially be overlooked or not properly assessed and subsequently located or reassessed and disclosed. Disputes in this regard do not generally raise issues requiring cross-examination of deponents of affidavits of documents.
[31] In my view, Sleeman v ANZ Banking Group (NZ) Ltd,10 relied on by the plaintiffs as supporting an order for cross-examination in the context of discovery, can be distinguished from the present case on several bases, including that:
(a)in Sleeman, the underlying application was for further discovery, not strike out. There had been a protracted history of issues with discovery, and discovery had previously been the subject of a hearing before the Court. Given the unsatisfactory history of discovery, the Court was concerned to “put all matters of discovery to bed before trial” and “achieve finality on the discovery issue”.11 In contrast, here, as
9 Arrow Nominees Inc v Blackledge [2000] 2 BCLC 167 (CA) at 194.
10 Sleeman v ANZ Banking Group (NZ) Ltd, above n 4.
11 At 511.
submitted by Mr Goodall KC, this is the first time that any issues as to the adequacy of the third defendant’s discovery have been raised in this proceeding and before the Court. There have been no applications by the plaintiffs to date for further and better discovery. I note that the application to challenge the third defendant’s claims to litigation privilege has only recently been made and has been adjourned because the third defendant has undertaken to review its documents including its claims to litigation privilege.
(b)there was concern raised in Sleeman that the deponent sought to be cross-examined was not employed by the defendant bank at the relevant time and that his comments as to the relevant policy and procedure of the bank were hearsay, and he did not have sufficient knowledge and expertise to make the statements he did regarding the bank’s policy. I do not understand the plaintiffs to be raising such concerns in relation to Mr van Veen and Mr O’Shaughnessy.
[32] Further, it is not clear how injustice will arise, or is likely to arise, if cross-examination is not permitted on the plaintiffs’ application for strike out. As I understand the plaintiffs’ position, they submit that the injustice will be that the Court will not be able to properly assess the seriousness and significance of the default, why the default occurred, and whether on an evaluation of the circumstances of the case, the plaintiffs’ fair trial rights have been put in jeopardy.
[33] However, having reviewed the affidavit evidence filed by the parties in respect of the present application and the application for strike out, including the affidavits of Mr Roebuck, Mr van Veen, Mr O’Shaughnessy and Mr Spier, I am satisfied that the Court will be able to properly assess the relevant factors set out at [27] and [28] above without cross-examination of Mr van Veen or Mr O’Shaughnessy, including assessing the explanations given for non-disclosure of documents and whether the plaintiffs’ fair trial rights have been put in jeopardy.
[34] In Sleeman,12 Master Thomson’s assessment was that, without cross-examination of the bank’s deponent the Court would have “great difficulty” in reaching a decision on the application for further discovery. Without giving any indication as to the outcome of the plaintiffs’ application for strike out, I do not consider that the Court will have great difficulty in properly assessing and determining the plaintiff’s application in the absence of cross examination of Mr van Veen and Mr O’Shaugnessy.
[35] I also take into account the general approach in relation to strike out applications that, although the Court is entitled to receive affidavit evidence, it will not attempt to resolve genuinely disputed issues of fact, except where an essential factual allegation is demonstrably contrary to indisputable fact.13
Result
[36] I conclude that the plaintiffs have not established the special circumstances required to order the attendance of the third defendant’s deponents, Mr van Veen and Mr O’Shaughnessy, for cross-examination in relation to the plaintiffs’ interlocutory application for strike-out or, alternatively, for leave to apply for summary judgment.
[37] Costs are reserved at this stage and can be dealt with at the same time as costs in relation to the plaintiffs’ application for strike-out or alternatively for leave to apply for summary judgment.
Associate Judge Skelton
Solicitors:
Brown & Bates Ltd, Napier for plaintiffs Rice Speir, Auckland for third defendant
12 Sleeman v ANZ Banking Group (NZ) Ltd, above n 4, at 511.
13 McGechan on Procedure (looseleaf ed, Thomson Reuters) at [HR 15.1.06].
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