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…

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.

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Details

Case: [2003] NZCA 201
Decision Date: 21 August 2003

CaseChat Overview and Summary

In the case of White v Wilson, the Court of Appeal of New Zealand dealt with a dispute over the 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. The respondent, a specialist paediatric surgeon, was seeking to invalidate the appointment of another surgeon and to require the District Health Board to make an appointment from those qualified for the position, including herself. The appellants, who were concerned with the appointment process, sought to resist the respondent's attempt to cross-examine certain deponents who had sworn affidavits on their behalf. The High Court had previously declined the appellants' application to set aside the respondent's notice requiring the production of deponents for cross-examination. The Court of Appeal found that the appellants' application to set aside the notice was misconceived and there was no jurisdiction to make such an order. However, the Court also found that the respondent did not have a right to cross-examine the appellants' deponents, only a presumptive right to have the affidavits excluded as evidence if the deponents were not cross-examined. The appellants were therefore entitled to apply to the High Court for orders pursuant to R438 and R455, which would determine whether 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. The appeal was formally dismissed, but there was no order as to costs.

The legal issues before the Court of Appeal were whether the respondent had a right to cross-examine the appellants' deponents and whether the High Court had jurisdiction to set aside the respondent's notice requiring the production of deponents for cross-examination. The Court found that the respondent did not have a right to cross-examine the appellants' deponents, only a presumptive right to have the affidavits excluded as evidence if the deponents were not cross-examined. The Court also found that there was no jurisdiction to make an order setting aside the respondent's notice requiring the production of deponents for cross-examination. However, the Court found that the appellants were entitled to apply to the High Court for orders pursuant to R438 and R455, which would determine whether 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.

The Court of Appeal's reasoning was based on the provisions of the High Court Rules and the settled practice in judicial review proceedings. The Court found that R508 did not accord a right to cross-examine, but provided 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. The Court found that this was consistent with the accepted practice in judicial review proceedings. The Court also found that Rule 438 and Rule 455 entitled 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. The Court found that in considering any such application, the Court would take into account all matters relevant to the ends of justice, including the practice against cross-examination in proceedings in the nature of judicial review and 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.

The final orders of the Court of Appeal were to formally dismiss the appeal but there would be no order as to costs. The appellants were entitled to apply to the High Court for orders pursuant to R438 and R455, which would determine whether 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. The outcome of such an application would 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 were not produced.

Orders