TAEFI V WEATHERTIGHT HOMES TRIBUNAL AND ANOR HC AK CIV 2008-404-6709

TAEFI V WEATHERTIGHT HOMES TRIBUNAL AND ANOR HC AK CIV 2008-404-6709 10 October 2008IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2008-404-6709BETWEEN FARZBOD TAEFI AND SONBOL AALAVIA TAEFI Plaintiff AND WEATHERTIGHT HOMES TRIBUNAL FIRST RESPONDENT AND GUI PING GUO AND OTHERS Second And Subsequent Respondents Hearing: 10 October 2008 Appearances: P Barratt and J C Dimock for Plaintiff and First and Eleventh Respondents in the Weathertight Homes Tribunal proceedings C R Goode for the Manukau City Council M Thornton for Second Respondent D W Grove for the Tenth Respondent in Weathertight Homes Tribunal proceedings M R Thornton for Second Claimant in Weathertight Homes Tribunal proceedings In attendance: P A McConnell, Chair, Weathertight Homes Tribunal and Ms Pezaro, Adjudicator Judgment: 10 October 2008(ORAL) JUDGMENT (NO. 2) OF HEATH JSolicitors: Jones Fee, Auckland Michael Thornton, Auckland Gerfuson Law, Auckland McVeagh Fleming, Auckland Young Hunter, Auckland Counsel: D W Grove, Auckland[1] This morning, on an oral ex parte application, I dealt with an application to grant interim relief, in respect of procedural directions made by the Weathertight Homes Tribunal. The background is set out in the judgment I gave earlier today. [2] I adjourned the proceeding until 3pm today to enable Ms Barratt, for the plaintiff, to circulate by email to all parties to the Weathertight Homes Tribunal proceedings and to the Tribunal itself, a copy of the judgment I gave. Those counsel who are listed as appearing attended Court this afternoon to make submissions. Given the limited time available, I heard from Ms McConnell, in her capacity as Chair of the Weathertight Homes Tribunal. I am grateful for her assistance. [3] The issue surrounds procedural orders which had the effect of providing that, unless by a specified date expert reports or witness statements were provided, a party would be excluded from an expert's conference ordered by the Tribunal and would not be permitted to give evidence at the substantive hearing scheduled for December 2008, of a claim for over $1million. In addition, unless the Tribunal granted leave, any party that failed to provide the documentation directed, would be curtailed in its ability to cross-examine at the substantive hearing. [4] I am satisfied that the orders were made (inadvertently) in breach of the principles of natural justice and so contravened s 27 of the New Zealand Bill of Rights Act 1990. [5] In those circumstances, the orders need to be quashed and the Tribunal directed to reconsider the directions made in light of comments made in this judgment. [6] Given the speed with which the proceeding has come before the Court and the inability for full submissions to be made on the extent of the Tribunal's jurisdiction under the Weathertight Homes Resolution Services Act 2006, I do not propose to make any general rulings on the Tribunal's powers. Rather, I confine my remarks to the types of situation that may arise of a similar kind to those which occurred in this case.[7] The first point is that to make an order which has the effect of preventing a party from presenting its case as it thinks fit at trial, is an extreme step. Indeed, this Court exercises its jurisdiction to make "unless" orders as a remedy of last resort": see Ko v Ko [Review] (2000) 14 PRNZ 362 at [18]:[18] An "unless order" is an order of last resort. Case management principles should not in ordinary circumstances override the justice of the situation but in a situation where a judicial officer has felt compelled to make an "unless order", unless it can be established that there were no grounds for making such an order or that reasons beyond the party's control caused non-compliance, the order should be upheld. An "unless order" is a last chance order and counsel must be aware that non-compliance with it will in normal circumstances bring the proceedings to an end. It is only in extreme circumstances, which will normally require evidence that the non- compliance was caused by something beyond the control of the party, that a Court should intervene and set aside the order. This is particularly so in a case such as the present one where counsel, knowing that the order was an "unless order", did not apply before the expiry of that order for an extension of time to comply with it. In the circumstances of this case, such an extension may not have been granted but the failure to apply may arguably in this case be another example of the manner in which the plaintiff has treated Court orders. It would seriously reduce the value of "unless orders" if the defaulting party could without adequate explanation and without evidence of intervening extraneous circumstances have such orders set aside. (my emphasis)While I accept that the Weathertight Homes Tribunal works to strict timetables, there is a need to ensure that the interests of justice are considered before orders are set in concrete. [8] Similarly, if circumstances change and parties willing to resolve their disputes efficiently seek amendments to directions, careful consideration should be given before any decision is made on whether such amendments or variations are required. Ordinarily, this will involve a hearing, if only by telephone. [9] In this case it seems that what was intended to be communicated as a consent position of the parties went through a case officer and did not reach the Adjudicator for consideration. It is important that an Adjudicator deal specifically with issues of this type. The Adjudicator needs to understand the reasons why variations are sought. The overall obligation is to progress the claims promptly, but in accordance with the need to do justice and to comply with the principles of natural justice.[10] I cannot see any basis on which an order preventing a party from leading expert evidence at a hearing because of non-compliance with a direction that a report or witness statement be filed some two months before that, could stand scrutiny if a substantial judgment were issued against that person. [11] It will be necessary for the Tribunal to review the orders it made. That should be done as soon as possible. Those parties who are represented before me have indicated a willingness to deal with those issues expeditiously. [12] A specific problem arises in respect of any report which might be compiled as a result of the expert's meeting today from which a number of parties were excluded. While it is a matter for the Tribunal, I would have thought that any report would need to be provisional in nature and subject to comment from the experts retained by parties who did not attend. Indeed, the desirability of a further expert conference cannot be overstated. [13] For those reasons, I grant substantive relief in terms similar to those sought by Ms Barratt in the Statement of Claim she filed earlier today. I quash the following decisions identified in the Procedural Direction (No. 21): a) Any party who had not filed an expert report, brief or witness statement and a leaks list by 6 October 2008 was not entitled to have an expert participate in a conference of experts to be held on 10 October 2008. b) Only those witnesses whose briefs of evidence were filed by 6 October were entitled to give evidence at the substantive hearing. c) Any party who failed to file a response in accordance with the timetable would not be entitled to cross-examine at the substantive hearing without leave of the Tribunal. [14] The Tribunal is directed to reconsider procedural issues of the type contained in Procedural Order (No. 21). It is for the Tribunal, in consultation with the parties,to arrange a date when the parties can be heard on those issues and to make directions which will enable the claim to be brought to fruition in December as originally contemplated. [15] Ms Barratt, for the plaintiffs, sought costs. I decline to make an order for costs against the Tribunal. I rely on Coroner's Court v Newton [2006] NZAR 312 (CA), reversing Newton v Coroner's Court (No 2) [2005] NZAR 201 (HC). [16] I thank all present for responding promptly to the directions given this morning and leave it to them to make satisfactory arrangements for finalisation of outstanding issues. ____________________________ P R Heath J