Young v Tower Insurance Limited

[2016] NZHC 2176

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2015-409-000222 [2016] NZHC 2176

BETWEEN

GREGORY PETER YOUNG AS

TRUSTEE OF MCARA YOUNG TRUST

& MALLEY & CO TRUSTEES LIMITED AS TRUSTEE OF MCARA YOUNG TRUST

Plaintiffs

AND

TOWER INSURANCE LIMITED Defendant

Hearing:	8 September 2016 (Day 9)
Appearances:	P F Whiteside QC and H T Shaw for Plaintiffs M C Harris and ATB Joseph for Defendant
Judgment:	14 September 2016

REASONS FOR DECISION OF GENDALL J

[1]      Late on Thursday 8 September 2016 (the second to last day allocated for the two week trial of this matter), Mr Harris, counsel for the defendant Tower Insurance Limited (Tower) made an oral application to the Court.   This application was to recall Sean McCormack (Mr McCormack), an earlier Tower witness who gave evidence at length the previous day and was substantially cross-examined.

[2]      The application was opposed by the plaintiffs.

[3]      Mr McCormack is the Operations Manager at  the Christchurch office of Symetri (formerly called Stream Group) which, during and after the Canterbury earthquake  sequence,  was  engaged  by  Tower  to  assist  in  the  assessment  of earthquake damage to its customers’ properties, to carry out loss adjusting and to

project manage repairs and rebuilds.

YOUNG v TOWER INSURANCE LIMITED [2016] NZHC 2176 [14 September 2016]

[4]      On, 8 September 2016, after hearing argument  from counsel,  I gave my decision dismissing the application.  In doing so, I indicated that my reasons for the decision would follow.  I now set out those reasons.

[5]      In support of his application to recall Mr McCormack, Mr Harris said that the recall  related  to  evidence  Mr  McCormack  had  given  earlier  in  this  trial.    This evidence concerned a June 2011 sub-floor assessment report given by a Mr Birch which, it seems, was not provided to the first-named plaintiff, Mr Young, until some three and a half years after the report was issued.  The plaintiffs have made issues first, of this delay in providing the report and, secondly, the fact that the report itself it seems was only supplied to Mr Young from Stream over a Christmas period by a Ms Stammers, possibly “by mistake”.

[6]      Mr Harris referred to earlier evidence given by Mr David Ashe, the Tower Claims Manager, to the effect that Tower had not received a copy of this report from Stream Group at the time.  Mr Harris went on to say that Mr McCormack’s earlier evidence given before this Court was that, as a matter of policy, reports received by Stream Group were provided to Tower but the release of those reports was a matter for Tower.

[7]      As I understand the position from Mr Harris, he contends that, since giving his evidence, Mr McCormack has decided he has something further to add regarding this particular matter which it is said is relevant.  Mr Harris maintains that it is in the interests of justice for the defendant Tower to have this particular matter clarified. This is particularly so as he argues that possible allegations are being mounted against Tower by the plaintiffs regarding the alleged withholding of this report.  He says too that these allegations are serious and that Mr McCormack should be able to be recalled here to clarify matters.

[8]      In response, Mr Whiteside QC, counsel for the plaintiffs, contended that these matters involved classic questions that should have been put to Mr McCormack when he gave his evidence originally, either in examination-in-chief or certainly in re-examination, but it seems they were not.  He maintained that it is quite wrong and unfair to allow re-examination twice and it is far too late to endeavour to “patch up

matters” now.   These issues it seems were signalled at a very early stage of this proceeding according to Mr Whiteside QC, and they could and should have been fully investigated and explained earlier.

[9]      The provisions of the Evidence Act 2006, and in particular ss 97, 98 and 99 make it clear that in a proceeding a party is not to offer further evidence after closing that party’s case except with the permission of the Judge.  In particular this is also to bear in mind any unfairness that may be caused to another party by the granting of that permission.  A witness who has given evidence may be recalled by the Judge if that Judge considers that it is in the interests of justice to do so (s 99) and re- examination of a witness is to be limited to matters arising from cross-examination unless the Judge permits otherwise.

[10]     The tests clearly, in a case such as the present case (where it is the defendant which wishes to recall one of its witnesses), are trial fairness and the interests of justice – R v Sikulei.1   From the authorities it is clear also that this is a high standard. It is suggested that further evidence from a witness will be required in a situation where this is necessary to:

(a)       ensure trial fairness;

(b)      prevent a miscarriage of justice; and/or

(c)      allow a Judge to provide a reasoned and appropriate decision – see Mahoney McDonald & Ors: The Evidence Act 2006 – Act and Analysis.2

[11]     Possible examples where a Judge could exercise their discretion to recall a witness in the interests of justice are where there has been an unexpected turn of evidence offered  at trial, or a development suggesting that a witness should be recalled  to  deal  with  what  are  described  as  newly  revealed  issues  or  facts  of

importance to the proceeding – see for example R v Ellis (No. 15)3 and Woodhouse v

Police.4   None of this, in my view, has occurred in the present case.

[12]     And, in my view, the interests of justice in this case do not require the recall of Mr McCormack on the basis outlined before me by Mr Harris.   I accept the submissions of Mr Whiteside QC that the points at issue were before the parties long before this hearing. Any investigation by Mr McCormack on matters involved could and should have been completed long before now.   And, to his credit, before me Mr Harris did, to some extent, acknowledge too that there was some force generally in the submissions advanced in opposition here by Mr Whiteside QC.

[13]     Further delay in this long-running proceeding, as I see it, is also an issue here. As I have noted above, 8 September 2016, was day 9 of a scheduled 10 day hearing of this matter.  This two week hearing was set some time ago strictly on the basis of counsel’s indication as to the length of hearing time required for this trial.  Counsel then advised that this 10 day allocation would not be sufficient and we would only possibly conclude the evidence on day 10, Friday 9 September 2016.  Indeed, that is what occurred and an additional day for hearing of submissions from counsel had already been allocated, this day to be in October 2016.

[14]     For all the reasons outlined above, I am satisfied that there are no real trial fairness issues arising here, and the interests of justice do not require the recall of Mr McCormack.

[15]     The application  by Mr  Harris  to  recall  the witness  Mr McCormack  was dismissed on 8 September 2016 for these reasons.

...................................................

Gendall J

Solicitors:

Wynn Williams, Christchurch

Gilbert Walker, Auckland

Copy to:

Peter Whiteside QC, Christchurch