Strathboss Kiwifruit Limited v Attorney-General

[2017] NZHC 2200

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE

CIV 2014-485-11493 [2017] NZHC 2200

BETWEEN

STRATHBOSS KIWIFRUIT LIMITED

First Plaintiff

SEEKA LIMITED Second Plaintiff

AND

THE ATTORNEY-GENERAL Defendant

Hearing:	8 August 2017
Counsel:	D Salmon, M Heard, J Cundy and M Chew for Plaintiffs J Hodder QC, S McKechnie, P Higbee, J Catran for Defendant
Ruling:	9 August 2017
Reasons:	10 August 2017

RULING OF MALLON J (KIWI POLLEN WITNESSES)

[1]      The  plaintiffs  wish  to  call  evidence  from  witnesses  for  whom  briefs  of evidence have been filed late or who have refused to provide a brief of evidence. They also wish to call supplementary evidence from one of their witnesses for which the supplementary brief has also been filed late.  The defendants oppose the Court granting leave to the plaintiffs to adduce this evidence.

[2]      The context is a claim for negligence brought against the Crown arising from loss caused to kiwifruit growers and post harvest operators from Psa-V, a bacteria that causes damage to  kiwifruit vines.   The plaintiffs say the Psa entered New Zealand via a shipment of kiwifruit anthers imported by Kiwi Pollen from China.

They say the Ministry of Fisheries and Agriculture (MAF), which later became the

STRATHBOSS KIWIFRUIT LIMITED v THE ATTORNEY-GENERAL [2017] NZHC 2200 [9 August 2017]

Ministry of Primary Industries (MPI), was negligent in granting a permit for that shipment and also when it arrived at the New Zealand border for inspection.

[3]      The witnesses for consideration are:

(a)      First, witnesses who were employed by Kiwi Pollen.   The Crown consents to the plaintiff calling the two principals of that business for whom late briefs of evidence have been filed.  It does not consent to the plaintiff calling evidence from three former employees of Kiwi Pollen.

(b)Secondly, witnesses who were employed or engaged by MAF at the relevant time and who were involved in a review of import requirements for pollen prior to Kiwi Pollen’s permit application, or were  involved  in  Kiwi  Pollen’s  applications  for permits  and  their approval.

(c)       Thirdly, Murray Judd regarding his supplementary brief.

[4]      This ruling deals with the Kiwi Pollen witnesses.  The date for serving the plaintiffs’ briefs of evidence was 3 March 2017.  The date for serving the defendant’s briefs was 1 May 2017.  The date for serving the plaintiffs’ reply evidence was 16

June 2017.  The date for any reply to reply evidence from the defendant was 14 July

2017.   The plaintiffs have filed evidence explaining the difficulty in obtaining evidence from the Kiwi Pollen witnesses by these dates.

[5]      Kiwi Pollen’s directors are Jill Hamlyn and Graeme Crawshaw.   They are also the owners of Kairanga Orchard, which was the second kiwifruit orchard to be identified with Psa.   The plaintiffs first contacted them in mid February 2016 at which time they were unwilling to speak to the plaintiffs.  Between November 2016 and  May  2017  the  plaintiffs’ solicitors  corresponded  with  Ms  Hamlyn  and  Mr Crawshaw’s solicitors to seek to obtain their cooperation.   They declined to be interviewed or to release their current and former staff members from asserted confidentiality obligations.

[6]      The plaintiffs served subpoenas on Ms Hamlyn and Mr Crawshaw on 24

April 2017.  On 1 May 2017 they agreed to be interviewed and to provide briefs of evidence and to allow their staff to do the same.  The plaintiffs interviewed them that day.  The next day Ms Hamlyn and Mr Crawshaw left for an overseas trip and did not return until 1 July 2017.  They were unavailable while they were away and also immediately upon their return because they were sick.  Once they were available for a further interview, draft briefs were promptly prepared but Kiwi Pollen’s solicitors did not return them until Friday 21 July 2017 explaining that Ms Hamlyn had been sick.  The briefs were filed on Monday 24 July 2017.  The Crown does not object to leave being granted for the filing and service of these briefs out of time.   I grant leave accordingly.

[7]      The additional proposed Kiwi Pollen witnesses, to which the Crown does object, are:

(a)      Anthony Moore:  He owned premises that Kiwi Pollen rented and did some contract work for it.   His brief of evidence discusses the movement of the machines used by Kiwi Pollen for artificial pollination between the two orchards where Psa was first discovered and Kiwi Pollen’s processes in its pollen room.   He was contacted earlier by the plaintiffs but  was  not willing to provide a brief of evidence without Kiwi Pollen’s agreement.  He signed a 17 paragraph brief of evidence on 14 June 2017 which was served on 20 June 2017 (close to the date the plaintiffs’ reply briefs were due).

(b)Janice Mitchell: she is a former manager of Kiwi Pollen’s pollen room (prior to Kiwi Pollen importing the anthers from China).  Her role was to test the viability of pollen and to prepare pollen for distribution to customers.  She refused to provide a brief of evidence when contacted in January 2017 and over the ensuing months.  She eventually agreed to an interview which occurred on 17 May 2017.   A draft brief of evidence was sent to her on 9 June 2017 (that is prior to the date the plaintiffs’ reply briefs were due).   Her signed 31 paragraph brief of

evidence was not returned until mid July 2017.  It was promptly filed and served thereafter on 24 July 2017.

(c)      Amanda Lyons:   She was employed by Kiwi Pollen as the pollen manager from August or September 2009 until after the outbreak of Psa occurred.   Like Ms Mitchell she initially declined an interview with the plaintiffs, but subsequently agreed to one on 17 May 2017. After that she stopped engaging with the plaintiffs.   She was later served with a subpoena and on 24 July 2017 a will say statement of 38 paragraphs was filed and served based on the earlier interview.  This covers Kiwi Pollen’s processes in its pollen room, how Kiwi Pollen dealt with its imported pollen and what she did with some imported pollen from China.

[8]      The  plaintiffs’ difficulties  with  obtaining  evidence  from  the  Kiwi  Pollen witnesses were raised at a case management conference before me on 9 June 2017. In view of the difficulties no date was set for filing briefs of evidence from these witnesses and the question of leave was left for consideration at trial.  My direction noted that the time at which they were filed would be a relevant consideration to whether leave was granted.  Late in the afternoon on Friday 4 August 2017, before the trial commenced on the following Monday, the Crown filed its opposition to the proposed evidence.

[9]      The Crown’s opposition is based on the starting proposition that the High Court Rules contemplate that evidence in chief in civil trials is by way of briefs of evidence filed pre-trial in accordance with timetabling directions.  It should not have to respond to evidence from a raft of witnesses of which it receives notice on the eve of trial.  Exceptionally this might be permitted by the Court, but the party seeking to adduce such evidence should have to provide a detailed explanation of the unsuccessful efforts to secure briefs of evidence at an earlier time and to demonstrate why that evidence is necessary.  It relies on NZX Ltd v Ralec Commodities Pty Ltd

(Ralec) in support of this submission.1   It says the evidence falls short of a fulsome

explanation of the plaintiffs’ efforts, the plaintiffs ought to have given much earlier

1      NZX Ltd v Ralec Commodities Pty Ltd [2016] NZHC 799 at [12]-[13].

notice to the Crown that it would be calling evidence from these witnesses if it was able to secure their cooperation or by subpoena if not, and the evidence is not necessary because the two principals from Kiwi Pollen will be giving evidence.  It says there is prejudice because this is effectively trial by ambush contrary to the rules and it has not had the opportunity to investigate the proposed evidence and prepare for cross examination in the timely way the High Court Rules envisage.

[10]     Ralec concerns calling oral evidence from subpoenaed witnesses.  It did not concern the late filing of briefs of evidence.  It is therefore potentially of assistance in relation to Ms Lyons’ evidence but not to the proposed evidence from Mr Moore and Ms Mitchell.  As to their evidence, r 9.7(2) requires that briefs of evidence must be filed by the date determined by the court.   Rule 9.8 requires that a party who wishes to offer a supplementary brief must serve it as soon as possible and its acceptance and use is at the Court’s discretion.  This rule was treated as applying to briefs of evidence filed from new witnesses, as well as supplementary evidence from

existing witnesses, in Signal v Berry.2     In any case, r 1.19 permits the Court to

extend, in its discretion, the date for taking any step in the proceeding on any terms as it thinks just and it can do so although the time for taking the step has passed. Whether under r 9.8 or r 1.19 the discretion is a wide one and involves a balancing of the competing interests to determine where the overall justice lies.

[11]     The rules are silent about when it is permissible to adduce oral evidence from subpoenaed witnesses who have not cooperated by providing a brief of evidence in advance of a trial.3   The issue in Ralec was about when it was appropriate to allow oral evidence to be led under subpoena rather than by way of brief of evidence.  The Judge’s approach sought to balance the competing considerations of trial by ambush which may cause prejudice to a party and the interests of justice served by a party being permitted to call oral evidence material to their case.  He considered that if all

reasonable steps had not been taken to obtain a brief of evidence it was unlikely to be appropriate to allow evidence to be called under subpoena.  I consider however,

absent  any  prescribed  criteria  in  the  rules,  this  must  always  be  subject  to  an

2      Signal v Berry [2016] NZHC 1126.

3      Dobson J, the judge in Ralec above n 1 at [112], commended this to the Rules Committee for consideration.

assessment of where the overall justice lies.  Moreover, where a Judge considers a party has not made all reasonable efforts to obtain a brief of evidence, that party might still be able to make further efforts to obtain a brief of evidence and seek leave to serve the brief out of time.  In that event the Judge’s discretion would be exercised by determining where the overall justice lies.   In short, in the end the question of whether late evidence (by way of brief or orally) can be adduced is always to determine where the overall justice lies.

[12]     I am satisfied the overall justice lies in granting leave to the plaintiffs to file and serve the briefs of evidence from Mr Moore and Ms Mitchell out of time and to call evidence from Ms Lyons.   The plaintiffs have explained the difficulties they faced with these witnesses.   In this they have gone further than the witnesses in Ralec who had received a warning letter from their employer not to breach their confidentiality obligations – which the Judge treated as prima facie justification for a subpoena and focussed on whether their evidence would be relevant.

[13]     It is understandable that the plaintiffs concentrated their efforts in securing the cooperation of Ms Hamlyn and Mr Crawshaw first. They were the principals and they had some control over whether their former employees might cooperate.  They moved promptly to interview the others once they had the initial interview with Ms Hamlyn and Mr Crawshaw.   Thereafter Mr Moore cooperated and a brief, whilst possibly not strictly a reply brief, was provided close to the time set for filing reply briefs.   The further difficulties the plaintiffs faced with obtaining briefs from Ms Mitchell and Ms Lyons were not of their making.   The will say statement from Ms Lyons is detailed and is comparable to a brief of evidence.  The defendant has notice from the briefs and the will say statement of the intended evidence.

[14]     To  some  extent  the  evidence  from  these  three  witnesses  is  or  could  be covered by Ms Hamlyn and Mr Crawshaw’s evidence.  However I am not able to say that the evidence from the three others will not add to the overall picture of Kiwi Pollen’s processes.  Those processes are material to the plaintiffs’ case.  It is in the interests of justice to allow the plaintiffs to call evidence that is relevant to a material issue unless there is any material prejudice to the Crown which ought to outweigh this.

[15]     I am not satisfied there is any such prejudice.  Following the Psa incursion MPI carried out extensive interviews with Kiwi Pollen staff.   Ms Hamlyn and Mr Crawshaw met with the Crown immediately after their briefs were served.  They had knowledge that the plaintiffs wished to call evidence from the other three Kiwi Pollen witnesses at least since it was raised at the 9 June 2017 meeting.  Their legal team is capable and well resourced to make any necessary enquiries and to be ready to  cross  examine the witnesses  in  the course of this  lengthy trial.    If  they are surprised by some aspect of their evidence, they may seek a adjournment of the cross examination for a period if that is necessary as a matter of fairness.

[16]     For these reasons I advised the parties yesterday that I was granting leave for the briefs of evidence of Anthony Moore and Janice Mitchell to be provided out of time and for the plaintiffs to call oral evidence from Amanda Lyons.

Mallon J