White v Wilson

[2003] NZCA 201

IN THE COURT OF APPEAL OF NEW ZEALAND

CA125/03

BETWEENJANIS MARY WHITE

First Appellant

ANDWAIKATO DISTRICT HEALTH BOARD

Second Appellant

ANDJOHN DOUTHWAITE MOLLETT

Third Appellant

ANDASKAR ALI KUKKADY

Fourth Appellant

ANDTONI-MAREE WILSON

Respondent

Hearing:20 August 2003

Coram:Anderson J
Glazebrook J
Paterson J

Appearances:  P R Jagose and N S Wood for Appellants

C R Carruthers QC, G D S Taylor and R P Harley for Respondent

Judgment:21 August 2003     

JUDGMENT OF THE COURT DELIVERED BY ANDERSON J

Nature of the appeal

[1]       This appeal against an interlocutory decision of the High Court is concerned with procedures relating to the cross-examination of deponents who have sworn affidavits in proceedings for extraordinary remedies under Part VII of the High Court Rules.

[2]       The respondent is a specialist paediatric surgeon who unsuccessfully sought appointment to a position in her speciality with the second appellant, which is a District Health Board.  The first appellant is the Chief Executive of the Health Board and the third appellant is its Chief Operating Officer.  They were concerned with the particular appointment process which resulted in the appointment of the fourth appellant.

[3]       In proceedings which seek to invalidate the appointment of the fourth appellant and to require the District Health Board either to appoint her or make an appointment from those qualified for the position, which would include her, the respondent seeks substantive relief confined to the extraordinary remedies under Part VII.  A reference in the current Statement of Claim to the appointment being the exercise of a statutory power in terms of s3 of the Judicature Amendment Act 1972, has now been specifically eschewed by the respondent.

[4]       The special cases procedure provided by Part IV of the High Court Rules applies to the substantive proceeding by virtue of Rule 449(a) which provides:

449 Application of this part to other proceedings -

This Part applies to –

(a)  Proceedings in which the only relief claimed is one or more of the extraordinary remedies under Part VII.

[5]   Evidence in the trial is to be presented by way of affidavits pursuant to R455(1) which provides:

455     Evidence

(1)     Subject to any direction by the Court in any particular case, evidence in any proceeding to which this Part applies shall be given—

(a)     By means of an agreed statement of facts in accordance with rule 502; or

(b)     By affidavit in accordance with rules 507 to 519.

[6]       The respondent wishes to cross-examine certain of the deponents who have sworn affidavits on behalf of the appellants.  She accordingly instructed her solicitors to file a notice pursuant to R508 which provides:

508     Cross-examination of deponent

(1)     Any party desiring to cross-examine a deponent who has sworn an affidavit on behalf of an opposite party may serve on that opposite party a notice in writing (which may be by letter addressed to the opposite party's solicitor) requiring the production of the deponent for cross-examination before the Court at the trial.

(2)     The notice shall be served, and copies thereof filed in the Court and delivered to all other parties who have taken any step in the proceeding, not less than 3 clear days before the day fixed for the trial.

(3)     Unless the deponent is produced accordingly, his affidavit shall not be used as evidence except by the special leave of the Court.

(4)     The party to whom the notice is given shall be entitled to compel the attendance of the deponent for cross-examination in the same way as he might compel the attendance of a witness to be examined

[7]       The appellants seek to resist the cross-examination of their deponents and they instructed their solicitors to apply to the High Court for an order setting aside the notice requiring production of deponents.  Their stated grounds were that “the proceedings being a judicial review proceeding, cross-examination is not available to the plaintiff as of right”. 

The High Court hearing

[8]       The appellants argued before Ronald Young J that the proceedings were in the broadest sense judicial review of administrative action, a process which encapsulated both applications for review under the Judicature Amendment Act 1972 and claims for the prerogative writs and equitable remedies under Part VII of the High Court Rules.  They accordingly invoked the principle recognised in Roussell UCLAF Australia Pty Ltd v Pharmaceutical Management Agency Ltd [1997] 1NZLR 650 at 656 line 36, that “It is well settled as a desirable practice that cross-examination is not permitted as of right in judicial review proceedings.”

[9]       The argument for the respondent, in brief, was that where evidence is given by affidavit, R508 applies and that Rule entitles a party, subject to the giving of notice, to have a deponent of the opposing side available for cross-examination.

[10]     Ronald Young J considered that the Rules “seem plain that where the proceedings are exclusively for prerogative relief under Part VII of the High Court Rules there is, subject to notice, an entitlement to cross-examine deponents.”  He considered that the issue had never been dealt with directly by the Courts in respect of proceedings for Part VII remedies and held that Roussell was a case concerned exclusively with cross-examination in judicial review proceedings brought under the Judicature Amendment Act, without consideration of the position of the prerogative writs.  In the Judge’s view there was no suggestion of any settled rule or practice with regard to proceedings exclusively under Part VII of the Rules which could or should implicitly overrule a clear direction contained in the Rules.  He held:

…where proceedings are exclusively brought under Part VII of the High Court Rules for prerogative relief then Part IV of the High Court Rules applies and parties are entitled to cross-examine deponents as of right subject to notice.

[11]     The appellants’ application to set aside the Rule 508 Notice was declined accordingly.

Arguments on appeal

[12]     Counsel for the appellants relied on the settled rule of practice that cross-examination is not permitted as of right in judicial review proceedings and submitted that the practice applied to proceedings having the character of judicial review whether brought under the Judicature Amendment Act or for relief under Part VII of the Rules.  Policy considerations relating to the candour and co-operation of policy makers and law makers, which in his submission gave rise to the practice, applied whether the Judicature Amendment Act or the rules were the vehicle for relief.  He submitted that the practice was not prohibited by any High Court Rule and that Ronald Young J erred in law in holding that where proceedings are brought for relief pursuant to Part VII parties are entitled to cross-examine deponents as of right subject to notice.

[13]     Counsel for the respondent examined the procedural dichotomy in respect of judicial review where, on the one hand, relief confined to the prerogative writs is dealt with under Part IV of the Rules and relief sought pursuant to the Judicature Amendment Act 1972 is governed by s10 of that Act which authorises a Judge to fix a timetable and give incidental directions.  He submitted that the Part IV procedure gives a right of cross-examination and such procedure, which invokes R508, was enacted long after the Judicature Amendment Act became law.  By necessary inference the later Rule was deliberately drafted with knowledge of the practice in relation to the Judicature Amendment Act.

[14]     Counsel for the respondent further submitted that the appellant’s argument was based on policy but it did not address the procedural history of administrative law in the High Courts of New Zealand and England; did not explain why the Rules should provide expressly for cross-examination as of right in Part VII proceedings; and did not address the need for cross-examination in cases where there are conflicts of affidavit evidence. 

[15]     It was submitted that in fact the possibility of cross-examination had been envisaged by the parties and noted in procedural directions given by Master Gendall and by Chisholm J in the course of interlocutory hearings. 

Discussion

[16]     In our view R508 does not accord a right to cross-examine.  It stipulates for a procedure by way of notice for requiring the party served by the notice to elect whether to produce a deponent for cross-examination or suffer the presumptive consequence of the deponent’s affidavit not being used in evidence.  It thereby provides an incentive to the served party to submit to cross-examination of a deponent, but does not provide a right to require production and submission and is accordingly consistent with the accepted practice in judicial review proceedings.  There may be consequential difficulties for each party.  The server of a notice may wish to rely on some parts of an affidavit, even without cross-examination, and accordingly wish to have excluded only those parts which may have been challenged by way of cross-examination.  The party served by a notice may, for practical reasons, need to know in advance of the trial date whether, and if so on what terms, there might be leave to read an affidavit notwithstanding the absence of a deponent the subject of a notice to produce.  Difficulties in this latter respect may be inferred in the present proceeding which has a trial date scheduled for Wednesday 27 August and the deponents the subject of the notice are specialist paediatricians who would, if produced, be required to suspend their medical duties towards children in a hospital many hundreds of kilometres away from the trial venue.

[17]     In our view the appellants’ application to set aside the Notice to Produce was misconceived.  We are unaware of any jurisdiction to make an order in terms of the application.  But there are means by which the matters in issue can be dealt with.  Rule 438(1) permits a party at any time after the pleadings are closed to apply to the Court for an order for directions affecting the trial and, pursuant to R438(3):

(3)     On the hearing of the application, the Court may make such orders and give such directions (whether sought by the party applying or not) as appear best adapted to secure the just, expeditious, and economical disposal of the proceeding

[18]     Further, R455, which prescribes the mode of evidence in terms of an agreed statement of facts or by affidavit in accordance with R507-519 is expressly “subject to any direction by the Court in any particular case.”

[19]     In our view both R438 and R455 entitle a party to apply to the High Court for an order that the evidence of any deponent or part of the evidence of any deponent may be read notwithstanding that such deponent is not produced for cross-examination at the hearing or indeed, that such affidavit or parts of an affidavit shall be read but that the deponent shall not be cross-examined on the affidavit or any parts thereof even if produced.

[20]     In considering any such application the Court would no doubt take into account all matters relevant to the ends of justice including, on the one hand, the practice against cross-examination in proceedings in the nature of judicial review and, on the other hand, the potential prejudice to the party who served a notice should evidence be relied on by the other party without submitting it to the test of cross-examination.

Conclusion

[21]     In that this was an appeal against a refusal to set aside a R508 Notice to Produce and we have found that there was no jurisdiction to make such an order, the appeal fails.  The appellants have, however, succeeded on their argument that the respondent does not have a right to cross-examine the appellants’ deponents, only a presumptive right to have the affidavits excluded as evidence if the deponents are not cross-examined.  The appellants have also succeeded in the sense that this judgment authorises an application by them to the High Court for orders pursuant to R438 and 455, albeit that the outcome of such an application will fall to be decided on its merits, having regard to the conventional practice relating to cross-examination and to the respondent’s presumptive entitlement to have the affidavits excluded if the deponents are not produced.

[22]     For these reasons the appeal is formally dismissed but there will be no order as to costs.

Solicitors:
Chapman Tripp, Wellington for Appellants
Russell McVeagh, Wellington for Respondent