Wakefield v Network Waitaki Limited - [2024] NZHC 97

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE

CIV-2023-476-009

[2024] NZHC 97

BETWEEN
GARRY WAKEFIELD and FIONA WAKEFIELD

First Plaintiffs

OTHER PLAINTIFFS

Second to One Hundred and First Plaintiffs (detailed in Schedule A)

AND

NETWORK WAITAKI LIMITED

Defendant

Hearing: 5 February 2024

Appearances:

C M Stevens and B R D Cuff for Plaintiffs W J Hamilton and S C Riley for Defendant

Judgment:

8 February 2024

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

(on application to cross-examine)

This judgment was delivered by me on 8 February 2024 at 4.15 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:

WAKEFIELD v NETWORK WAITAKI LIMITED [2023] NZHC 97 [8 February 2024]

[1] On 4 October 2020 the Lake Ōhau Village was devasted by fire. The defendant owns and operates electrical lines and associated infrastructure that provides power to and in the vicinity of the Lake Ōhau Village. In this proceeding the plaintiffs allege that the defendant is responsible for the fires and resulting loss of their property.

[2] The plaintiffs believe there were in fact two fires which subsequently merged, and that the causes of the fires (which are disputed by the defendant) were that:

(a)the first fire was caused by the partial disconnection of a wooden cross- arm on the defendant’s power pole known as Pole 35693, which caused subsequent electrical short-circuit events and generated molten material that fell to earth igniting dry vegetation; and

(b)the second fire was caused by the full rotation of the wooden cross-arm on Pole 35693, causing the high-voltage wire lines between Pole 35693 and Pole 870452 to twist and clash, generating molten material along with burning aluminium particles that fell to earth igniting dry vegetation.

[3] The plaintiffs further allege the defendant failed to take reasonable steps to prevent the detachment and failure of the cross-arm on Pole 35693 or to maintain its lines in certain pleaded respects.

[4] The defendant has brought an application for orders requiring the plaintiffs to provide further particulars of their claim and initial disclosure. Importantly for present purposes, that application is supported by an affidavit of Geoffrey Douch, formerly the Chief Executive of the defendant. The defendant’s application is opposed and is set down for hearing later this month.

[5] The plaintiffs require Mr Douch to attend for cross-examination and have applied for an order accordingly under r 7.28 of the High Court Rules 2016. The defendant opposes that application. This judgment is concerned only with the application that Mr Douch attend for cross-examination.

[6]The issues that arise can be stated as:

(a)do special circumstances exist for the making of an order that Mr Douch attend for cross-examination; and

(b)if so, should I exercise my discretion to make such an order having regard to the interests of justice in the circumstances of this case.

The relevant law

[7]Rule 7.28 of the High Court Rules 2016 provides as follows:

7.28 Cross-examination of maker of affidavit

A Judge may…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wakefield v Network Waitaki Limited

Details

AGLC: Wakefield v Network Waitaki Limited [2024] NZHC 97
Case: [2024] NZHC 97
Decision Date: 8 February 2024

CaseChat Overview and Summary

The case of Wakefield v Network Waitaki Limited involves multiple plaintiffs who claim that Network Waitaki Limited, the owner and operator of electrical lines and infrastructure in the Lake Ōhau Village, is responsible for fires that devastated the village on 4 October 2020. The plaintiffs assert that the fires were caused by electrical short-circuit events and wire clashes on a power pole operated by the defendant. They further allege that the defendant failed to take reasonable steps to maintain the infrastructure. The defendant has applied for orders requiring the plaintiffs to provide further particulars of their claims and initial disclosure, and the plaintiffs seek to cross-examine Geoffrey Douch, the former Chief Executive of the defendant, who has provided an affidavit in support of the defendant's application. The primary legal issues before the court were whether special circumstances existed to justify ordering Mr Douch to attend for cross-examination and, if so, whether the interests of justice required the court to exercise its discretion to make such an order.

The court found that the existence of a conflict on the evidence did not constitute special circumstances warranting cross-examination. The authorities cited by the plaintiffs did not support the proposition that a deponent's veracity could justify such an order. The court held that it could determine the application for further particulars without cross-examination, as the plaintiffs had already presented extensive evidence to challenge Mr Douch's affidavit. The court dismissed the application for leave to cross-examine Mr Douch, finding that there were no special circumstances present and that the interests of justice did not require the making of the order sought. Consequently, the defendant was awarded costs on the application on a 2B basis plus disbursements.

Orders