CASE v THE CHRISTCHURCH CITY COUNCIL [2015] NZHC 1559

CASE v THE CHRISTCHURCH CITY COUNCIL [2015] NZHC 1559 [6 July 2015]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCIV-2009-409-003030[2015] NZHC 1559BETWEEN GAVIN FREDERICK CASE,MARGARET MARY CASE ANDMICHAEL GAVIN MAURICE CASEPlaintiffsAND THE CHRISTCHURCH CITY COUNCILDefendantHearing: 3 July 2015 (by way of telephone conference)Appearances: D Webb for PlaintiffsK B Dillon for DefendantReasons: 6 July 2015REASONS FOR JUDGMENT OF GENDALL J[1] Before the Court is an opposed application by the defendant seeking an adjournment of the 10 day trial allocated in this proceeding to commence on 24 August 2015. This 10 day trial was allocated after discussion with counsel for both parties on 21 October 2014.[2] The grounds advanced by the defendant in support of this application for an adjournment are that:(a) The plaintiffs have failed to serve their evidence in accordance with trial directions; and(b) A key witness for the defendant council is unavailable either physically or by video link due to overseas work commitments.[3] In support of this application, an affidavit of Thomas Clifford Wood (Mr Wood) has been filed. Mr Wood, is a solicitor employed by the firm of solicitors instructed to act on behalf of the defendant here, and in his affidavit he merelyannexes a range of email messages between counsel for the parties and with the independent expert involved.[4] The plaintiffs here strongly oppose any adjournment being granted. They put forward the following grounds in opposition to the present application:(a) There has been no unreasonable delay on the part of the plaintiffs.In respect of the dates for the filing of the plaintiff's briefs ofevidence, due to ongoing attempts to settle this matter through mediation, counsel for both parties agreed to the plaintiffs' briefsbeing filed on 24 July 2015;(b) The prejudice to the plaintiffs which would result from an adjournment of the hearing scheduled to occur on 24 August 2015 is disproportionate to any benefit gained by doing so; and(c) The defendant should reasonably have ensured their expert witness was available for the hearing as scheduled.[5] When I heard this application by telephone link on 3 July 2015, I gave my decision dismissing the application and confirmed that the trial of this matter was to take place commencing on 24 August 2015. In doing so I indicated that my reasons for this decision would follow. I now set out those reasons.[6] I turn now to the first ground in support of the defendant's application. Thisis that the plaintiffs failed to serve their evidence in accordance with earlier trial directions. In my view this argument is quickly disposed of.[7] From the email evidence which is before the Court, I am satisfied here that counsel for the plaintiffs and counsel for the defendant did reach a measure of agreement to vary the originally scheduled timetable dates in light of the mediation between the parties which was originally held on 30 June 2014 and resumed on 26 May 2015. Given that counsel for the defendant had clearly indicated in response to earlier discussions that the defendant wanted until 7 August 2015 to serve its briefs of evidence, the agreed timetable dates as amended are:(a) 24 July 2015 for service of the plaintiffs' briefs of evidence;(b) 7 August 2015 for service of the defendant's briefs of evidence;(c) 19 August 2015 for the plaintiffs to serve reply briefs of evidence and to file the agreed bundle of documents; and(d) 24 August 2015 for commencement of the 10 day trial.[8] For these reasons I find there is nothing in the defendant's first ground insupport of this application as outlined at para [2](a) above.[9] I turn now to the second ground advanced by the defendant in support of this application. This is one of its key witnesses, Mr Keith Thompson (Mr Thompson) an independent soil expert, is unavailable either physically or by video link for the hearing date commencing 24 August 2015. Again I find that this ground is not sufficient to justify any postponement of the hearing date in this matter.[10] According to the defendant, Mr Thompson has stated that he will not be available for a three month period from 20 June 2015 through to 8 September 2015as he will be overseas during that period on a "partly private and partly business" trip. According to Mr Wood at para 3 of his 25 June 2015 affidavit, "We have endeavoured to have his (Mr Thompson's) evidence heard by skype but it is proving difficult".[11] On these matters, the evidence before the Court in support of this ground is simply a range of emails attached to the affidavit of Mr Wood.[12] Those emails commenced with a message sent on 15 June 2015 from Ms Dillon, counsel for the defendant, to Mr Thompson, asking him:While you are on leave, will you be able to skype your evidence in? I assume you are not in some remote internet free location? If not then could you give us some contact details where we can send an updated brief for signing and organise your evidence to be by skype?[13] Mr Thompson replied to this email on 18 June 2015 stating:I had been keeping fingers crossed that, if the matter did go to Court, thedate would be delayed! My schedule now has me leaving Chicago on 3 or 4 September (I think), arriving back in NZ on 7 September. If only the court dates had been a week later, I could have been in Christchurch on 8th!...[14] Mr Thompson then followed this up with a further email to Ms Dillon on 22 June 2015 which stated:Sorry to be a nuisance! My leave is partly private and partly business. The UK leg is visiting family and friends and there's flexibility there, but theCzech Republic and USA are business and commitments there are more difficult to change. My present tentative schedule suggests that 1 and 2 September could be days in that week that I am available to skype. HoweverI've asked my host where I'll be during the first half of that week.Adjourning the trial would be simpler for me, although it might be rathermore complicated for you, meanwhile I'll keep trying to find out what myavailability is likely to be.[15] On all of this, Ms Dillon for the defendant confirms that all other witnesses for the defendant are available if the trial commences on 24 August 2015. She statesthat as an independent soil expert Mr Thompson's evidence here is important if not critical to the defendant.[16] As to these aspects, Mr Webb for the plaintiff notes that the plaintiffs have waited some considerable time for this matter to reach trial (including having an earlier trial date allocated and then to have this adjourned or altered at the request of the defendant) and thus they strongly oppose any further adjournment here. Mr Webb contends also that Mr Thompson's evidence is likely simply to go toquantum of damage in this case and that there should be plenty of time before trial to organise alternative evidence if, indeed, this is required. In terms of prejudice to the plaintiffs if this adjournment request is granted, Mr Webb refers to the fact that memories fade and in addition he notes from the pleadings that any further delay would continue to put the plaintiffs out of their money for a considerable further period (given that a 10 day trial date would not be easy to accommodate in terms ofthe Court's commitments). He stressed that this matter involved proceedings being issued originally in 2009 and it already has a lengthy and delayed history.[17] So far as the evidence of Mr Thompson is concerned, from the scanty material which is before the Court, I am not satisfied that it is not possible for his evidence to be provided by skype or some similar basis during his absence from New Zealand during the scheduled two week trial period here. Alternatively, a reasonable suggestion was advanced by Mr Webb today that in my view would adequately accommodate matters. This is to the effect that, if all else failed, and forexample no alternative evidence was available, Mr Thompson's evidence could bedeferred and heard on his return to New Zealand soon after 7 September 2015 as part of the hearing process. In this regard I note that Mr Thompson himself, in his 18 June 2015 email to Ms Dillon, has stated specifically that "I could have been inChristchurch on 8th (September 2015)" to provide evidence to the Court then.[18] These are all, of course, matters for the defendant. I am satisfied however that there are truly a range of alternatives open for the evidence of Mr Thompson, if indeed it is important to the defence here, to be properly provided to the Court.[19] For these reasons I also reject this second ground advanced by the defendant in support of the present application as outlined at para [2](b) above.[20] It will be apparent therefore that the defendant's application to adjourn thistrial from its long scheduled commencement date, 24 August 2015, fails. I confirm that the trial is to commence on that date.[21] For the sake of completeness I also confirm that the following amended pre- trial directions are now made as agreed between the parties:(a) By 24 July 2015 the plaintiffs' briefs of evidence are to be served;(b) By 7 August 2015 the defendant's briefs of evidence are to be served;(c) By 19 August 2015 any reply briefs of evidence from the plaintiffs are to be served and the plaintiff is to file and serve the agreed bundle of documents.(d) The trial of this matter is to commence on 24 August 2015....................................................Gendall JSolicitors:Lane Neave, ChristchurchHeaney & Partners, Auckland