GRACE v ORION NEW ZEALAND LIMITED [2020] NZHC 2000

GRACE v ORION NEW ZEALAND LIMITED [2020] NZHC 2000 [6 August 2020]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2017-409-000454[2020] NZHC 2000BETWEEN C GRACE AND OTHERSPlaintiffsAND ORION NEW ZEALAND LIMITEDFirst DefendantLEISURE INVESTMENTS NZ LIMITEDPARTNERSHIPSecond DefendantHearing: 6 August 2020Counsel: C M Stevens and B R D Cuff, S K Battersby and C S M Henleyfor PlaintiffsT C Weston QC and M J Dennett, R J H Scott and S M Crosbiefor First DefendantG N Gallaway, W J Hamilton and L A Merrick for SecondDefendantRuling: 6 August 2020ORAL RULING OF GENDALL JAdmissibility Issues[1] I will give my ruling now with respect to both of those issues which are beforethe Court but my detailed reasons for those decisions will have to follow.[2] There are two matters before the Court. The first relates to a statement fromJanine Bayley of some two and a half pages which Mr Stevens, counsel for theplaintiffs, has requested might be read as evidence by Mrs Bayley's husband,Mr Bayley, who is shortly to give evidence. Mr Weston, counsel for Orion, objects tothat course of action. It appears the statement from Mrs Bayley was provided only atabout 6 p.m. last night and that for genuine health reasons she would be unable to readthe statement as a witness or to provide evidence before this Court personally. It isnoted in her statement, which I have had the opportunity to briefly read, that sheconfirms that she cannot be involved directly with anything to do with this trial at thispoint as a result of these health reasons, for which Mr Stevens indicates a medicalcertificate can be provided if required.[3] A concern from Mr Weston, which hardly needs to go without saying, is thatMrs Bayley would not be available as a witness for cross-examination in the event thather statement was to be read only by Mr Bayley as evidence.[4] Under all the circumstances here, it is unfortunate and regrettable thatMrs Bayley clearly appears to have suffered to a significant degree from the traumaand events relating to the fires and, in particular, the Early Valley Road fire which hadsignificant effect on the Bayley property.[5] Notwithstanding this, however, the provision of this late statement and thecomplete inability of defence counsel to cross-examine Mrs Bayley on the statementshe makes, in my view, mean that this statement cannot be properly admitted asevidence in this matter.[6] I rule, therefore, that it is not to be read by Mr Bayley, nor is it to be taken asevidence in this matter in any sense. Clearly, as counsel appear to acknowledge, thereare matters in Mrs Bayley's statement relating to her family, and Mr Bayley inparticular, that he will be able to provide in his evidence shortly to be given.[7] As to the second matter Mr Weston has raised before the Court, this is a concernthat Mr Bayley, in his evidence shortly to be given, may well endeavour to providequantum evidence relating to losses allegedly suffered by the Bayley family as a resultof the fire. Mr Weston claims this is new and supplementary evidence not previouslyaddressed in Mr Bayley's brief.[8] Whether or not that may be the case, it is my view that Mr Bayley, as a namedplaintiff in this proceeding, should be in a position to put before the Court all mattersof relevance relating to the plaintiffs' broad claim and, of course he will be availablefor cross-examination on these issues.[9] Accordingly, I rule that this quantum evidence, if indeed it is provided and, ifindeed it is regarded as new or supplementary, is admissible and can be provided today....................................................Gendall JPost Script:When I began giving this ruling which was required in some haste on 6 August 2020,I indicated that my detailed reasons for the decisions would have to follow. Now,having given that admissibility ruling, and reviewing matters, I am satisfied thatsufficient reasons are contained in this present ruling. No further reasons will follow.Solicitors:DLA Piper New Zealand, AucklandKennedys, AucklandChapman Tripp, ChristchurchCopy toCraig Stevens Barrister, WellingtonThomas Weston QC, Barrister, Tai Tapu