Southland Indoor Leisure Centre Charitable Trust v Invercargill City

[2015] NZHC 1613

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2010-425-000588 [2015] NZHC 1613

BETWEEN

SOUTHLAND INDOOR LEISURE

CENTRE CHARITABLE TRUST Plaintiff

AND

INVERCARGILL CITY COUNCIL First Defendant

AND

A S MAJOR Second Defendant

AND

OMAHA INVESTMENTS NO. 1
LIMITED
First Third Party

AND

MAURICE JOHN HARRIS Second Third Party

Hearing:	9 July 2015
Appearances:	M G Ring QC, C J Jamieson and D R Weatherleyfor Plaintiff D J Heaney QC and K B Dillion and S J Wethey for First Defendant
Judgment:	10 July 2015

RULING NO. 1 OF DUNNINGHAM J

[1]      This written ruling confirms the oral ruling I made on 9 July 2015 during the hearing of this matter.  Counsel for the plaintiff sought to produce, as evidence, the expert witness brief of Noel Stephen Flay, given in proceedings involving weather tightness defects on a building, and where it was alleged that the council in that case breached a duty of care when undertaking its duties under the Building Act 1991.

[2]      In the present case, at issue is whether, in the period up to the end of 2000,

councils “typically” sought inspection records  and other verifying documents in

SOUTHLAND INDOOR LEISURE CENTRE CHARITABLE TRUST v INVERCARGILL CITY COUNCIL AND ORS [2015] NZHC 1613 [10 July 2015]

support of Producer Statements for Construction review (PS4).  Mr Jordan, an expert witness  for  the  defendant  has  given  evidence  that  this  is  not  the  case  in  his experience, although he has acknowledged, that in an earlier brief of evidence he gave in the same case as Mr Flay, he accepted that a Building Industry Authority report demonstrated that Christchurch City Council did do this at the time.

[3]      The purpose of adducing the brief of Mr Flay was to put to the defendant’s expert witness, Mr Jordan, the statement at paragraph 34 of the brief that “Christchurch City Council’s practices [were] typical of other councils”, and, by analogy, that typically other councils at the time were requiring supporting documentation, such as inspection reports, with a PS4 in the year 2000.

[4]      Mr Heaney objected to the admissibility of Mr Flay’s evidence on the basis that it introduced hearsay evidence of another expert as to the practices of councils in the period, when Mr Flay was not available to be cross-examined on why that was his understanding.  He accepted, however, that the content of what Mr Flay asserted could be put to Mr Jordan as a question in cross-examination.

[5]      My ruling is that the brief of evidence of Mr Flay is inadmissible.  This is because it is hearsay evidence of what the practices were of New Zealand councils in the relevant period of time.  As such, the evidence is prima facie inadmissible under s 17 of the Evidence Act 2006.  I have considered whether any of the exceptions to the rule that hearsay statements are inadmissible should apply in this case.

[6]      In  particular,  I do  not  consider  that  s  18  applies  to  make  the  statement admissible.    While  one  might  consider  that  the  circumstances  relating  to  the statement provide reasonable assurance that the statement is reliable, because the statement is made in the context of giving expert evidence to a Court, the statement is simply too general for it to be used in the way proposed, which is to confirm a particular practice as to the way PS4’s were accepted, when it does not expressly say this and where that has been contested by Mr Jordan and other witnesses in this hearing.  In addition, I have no reason to consider that either of the circumstances in s 18(1)(b) apply.

[7]      Equally,  this  is  not  an  admissible  business  record  under  s  19.    Council records, or BIA audits, which confirmed that practice, would be likely to comprise an admissible hearsay statement under s 19, but a generalised assertion by an expert witness that a particular practice was “typical” does not fall into that category.

[8]      In conclusion, I have allowed Mr Ring to put the assertions contained in the brief of evidence to Mr Jordan, for his response, but have excluded the brief itself as inadmissible hearsay evidence.

Solicitors:

Young Hunter, Christchurch

Heaney & Partners, Christchurch

Eagles Eagles & Redpath, Invercargill

McElroys, Auckland