NGĀTI WHĀTUA ŌRĀKEI TRUST v ATTORNEY-GENERAL [2021] NZHC 383

NGĀTI WHĀTUA ŌRĀKEI TRUST v ATTORNEY-GENERAL [2021] NZHC 383 [5 March 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2015-404-2033[2021] NZHC 383UNDER the Judicature Amendment Act 1972 andPart 30 of the High Court RulesBETWEEN NGĀTI WHĀTUA ŌRĀKEI TRUSTPlaintiffAND ATTORNEY-GENERALFirst DefendantMARUTŪĀHU RŌPŪ LIMITEDPARTNERSHIPSecond DefendantHearing: 2 March 2021 and supplementary memoranda on 2 and 3 March2021Appearances: J E Hodder QC, J W J Graham and R M A Jones for the plaintiffand for Te Runanga o Ngāti Whātua and Ngāti Whātua oKaipara, interested partiesD A Ward and G H Allan for the first defendantP F Majurey for the second defendantN R Coates for Te Ākitai Waiōhua Settlement TrustA H C Warren for Ngāi Tai ki Tāmaki TrustM K Mahuika and T N Hauraki for Ngāti Paoa Iwi TrustJudgment: 5 March 2021JUDGMENT NO 3 OF PALMER J(Procedural issues)This judgment was delivered by me on Friday 5 March 2021 at 2.00 pm.Pursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy RegistrarSummary[1] The trial of these proceedings is underway in the Auckland High Court.Ngāti Whātua Ōrākei has opened its case and its fourth witness is currently undercross-examination. We are currently in a state of suspended animation due toAuckland being in COVID-19 Alert Level 3. This judgment records decisionsregarding two procedural issues raised by counsel in the meantime. I do not makeorders excluding witnesses from hearing each others' testimony. I do not prohibitcross-examination of witnesses about documents which have not recently beenbrought to their attention.Issue 1: Should witnesses be excluded?The issue[2] On 12 February 2021, counsel for Ngāti Whātua Ōrākei requested an orderexcluding witnesses who do not agree to comply with the expert witness Code ofConduct from attending Court, viewing the VMR stream, or discussing earlier factualwitnesses' evidence. This proposed exclusion would apply until they have completedtheir evidence. On 22 February 2021, I indicated my inclination was to excludewitnesses of fact regarding the application of the Crown's policies but not to excludeexpert witnesses. I suggested counsel confer about what that means for each witnessand whether disagreements remain. They have. Disagreements remain.[3] Ngāti Whātua Ōrākei seeks the exclusion of three Crown witnesses(Mrs Anderson, Ms Campbell and Mr Dreaver), three Marutūāhu Rōpu witnesses(Mr Ngamane, Mr Ngapo and Mr Rawiri), and one witness for each of Ngāti Paoa(Mr Tupuhi), Te Ākitai Waiōhua (Ms Wilson) and Ngāi Tai ki Tāmaki (Mr Brown).The other parties, apart from Ngāti Paoa, oppose the request.Law of exclusion of witnesses[4] The purpose of a witness exclusion order is usually to prevent contamination,or tailoring, of a witness's testimony where credibility is in issue. Cross on Evidenceobserves such risks are reduced where signed briefs have been exchanged and theissues are primarily legal.1 In Body Corporate 325261 v McDonough, Muir J distilledthe following principles relevant to excluding witnesses:21. There is jurisdiction to exclude parties. Whether to do so isdiscretionary, with the discretion exercised on a principled basis.2. Attendance by parties is a fundamental right which should only beinterfered with for good and sufficient reason. There is an onus on theparty applying and it is not one that is lightly discharged.3. Although the test may not be appropriately cast in terms of arequirement for an "exceptional" or "extraordinary" case thediscretion should be sparingly exercised.4. Cases involving deceit, misrepresentation and concealment will often,but not always, justify an order.5. Other than in such cases the weight of authority favours the right of aparty to attendance.Submissions[5] Mr Hodder QC, for Ngāti Whātua Ōrākei, submits there are important issuesabout the scope, purpose and impact on iwi of the Crown's policy on overlappingclaims. The Crown's witnesses are likely to be subject to common patterns of cross-examination and, if not excluded, would have the advantage of preparing theirresponses ahead of time. Mr Hodder proposes the exclusion order should apply to alltikanga witnesses who have not cited the Code of Conduct for Expert Witnesses intheir proposed evidence, who attended the tikanga conference but were not agreedattendees or participants and whose evidence overlaps substantially with witnessesfrom the same party. He submits some further specific justification than the fact thisproceeding has tikanga as a central element is required to resist an orthodox order forexclusion. In reply to the submissions of other counsel, he submits the witnesses arenot the parties and the Crown's statement of defence disputes the force and scope ofthe Crown's overlapping claims policy.[6] Ngāti Paoa abides the Court's decision on this issue.1 Mathew Downs (ed) Cross on Evidence (online ed, LexisAdvance) at [EVAPart3Subpart4.1(e)].2 Body Corporate 325261 v McDonough [2015] NZHC 1700 at [11].[7] Mr Ward, for the Crown, opposes the orders sought in relation to the Crownwitnesses who will give evidence of the application of Crown policy for illustrativepurposes. He submits there is no real risk that Crown witnesses will tailor theirevidence in light of the evidence of preceding witnesses. They have prepared writtenevidence, two of them speak to the documentary record, they do not have interests atstake, they give evidence of different matters, and the issues are primarily legal. Theplaintiff's witnesses have not been so far prevented from observing each other'sevidence. He submits the reason for the orders sought is the plaintiff's own tacticalpreference to adopt the same pattern of cross-examination for each witness.[8] Counsel for Marutūāhu Rōpu, Te Ākitai Waiōhua and Ngāi Tai ki Tāmaki(collectively Te Toru), submit the plaintiff's reasons for exclusion are frail. Affidavitsand briefs have been exchanged, VMR links have been sent out, transcripts are beingcirculated, and the same request has not been made in relation to Ngāti WhātuaŌrākei's witnesses. They submit the proceedings have been advanced in a tikanga-guided manner and excluding witnesses is not tika. They submit the principles ofkānohi ki te kānohi, manaakitanga, and whanaungatanga are paramount and extend tothe participation and attendance of the parties.Should witnesses be excluded?[9] I accept that the witnesses sought to be excluded are not, individually, partiesto the proceeding. But several of them may have very direct identification with acollective party and, therefore, interests in attending the hearing.[10] I also accept that the issues involved in this hearing do not revolve aroundissues of credibility of one witness as against another. Rather, the issues concernprinciples of law and tikanga.3 That reflects the nature of the proceedings: theNgāti Whātua Ōrākei seeks declarations of general rights rather than review ofspecifically challenged decisions.4 As I said in another judgment in these proceedings,"as Mr Hodder submits, the focus of the proceedings is now not on challenging aparticular decision but on declarations of rights and obligations".5 The inclusion of3 Ngāti Whātua Ōrākei Trust v Attorney-General [2020] NZHC 3120 at [8].4 At [2]–[3] and [19]–[21].5 At [21].evidence of specific instances of Crown decisions is illustrative only.6 I allowed cross-examination in order to test and complete the evidence to assist the Court, because theillustrative facts are complex and nuanced, with likely gaps between witnesses'understandings of the facts.7[11] Accordingly, I do not consider witnesses need to be excluded from hearingeach other's testimony, as they have not been to date. Counsel may choose to deploycommon patterns of cross-examination. But, on reflection, I do not consider there isa material risk that will contaminate or lead to the tailoring of the evidence of thewitnesses of illustrative fact, let alone the expert witnesses. Even if it were to do so,given the nature of the issues, I do not consider that is likely to matter much to theoutcome of the case.[12] Although it does not determine my view of this case, I accept that it isconsistent with tikanga not to exclude witnesses from hearing each other's testimony.That is a relevant consideration here, where matters of tikanga are central to the issuesin the proceedings.Issue 2: The common bundle and cross-examinationContext and issue[13] On 12 February 2021, Counsel for Ngāti Whātua Ōrākei sought a direction thatany further documents that counsel intend to nominate for inclusion in asupplementary bundle are to be provided to them with 48 hours' notice. The reasonwas in order to be consistent "with its experience in other lengthy and complex civiltrials, and to ensure that the Court and counsel have the most up to date set ofdocuments to hand (and to discourage ambush by documents)".8 Counsel for theAttorney-General supported that, unless documents were provided in response to aquestion from me or the Court gave leave otherwise. Te Toru opposed the request. On22 February 2021, I indicated I would support documents being given with 48 hours'notice if possible, but that there may be exceptions.6 At [21].7 At [22].8 Memorandum of counsel for the plaintiff regarding trial logistics, 12 February 2021 at [8].[14] On 2 March 2021, Mr Hodder, for Ngāti Whātua Ōrākei, filed a furthermemorandum requesting my clarification that, unless there are exceptionalcircumstances to the contrary and departure would be just, all parties must complywith "the 48-hour rule" such that:(a) the solicitors for Ngāti Whātua Ōrākei (who are operating the electroniccourt) will promptly label documents with common bundle numbersregularly (but not more than daily) and provide updates to the Courtand counsel accordingly; but(b) documents nominated for the supplementary common bundle may notbe referred to a witness until 48 hours after they are provided to allcounsel (during which the common bundle will be updated with thosedocuments): and(c) new documents provided outside of business hours (i.e. after 5 pm andon weekends) are taken to be nominated as of the next business day.[15] This was occasioned by another counsel providing over 900 pages ofdocuments for the common bundle on the morning of Saturday 27 February 2021.This included a determination under the Resource Management Act 1991, legalsubmissions, a report by and summary of intended evidence of Mr Te Warena Taua,and some 50 pages of evidence given by Mr Ngarimu Blair. I understand thedocuments are on a publicly available website and are available to Ngāti WhātuaŌrākei, though they were not the subject of discovery. Mr Blair is a Ngāti WhātuaŌrākei witness who was then and is still under (a suspended state of) cross-examination (pending lifting of the Alert Level 3 in Auckland). Some of his statementsare intended to be put to him in cross-examination.Law of cross-examination and the common bundle[16] Under r 8.18 of the High Court Rules 2016 (the Rules) parties to litigation havea continuing obligation to give discovery and offer inspection of relevant documents.Sub-part 1 of pt 9 of the Rules deals with common bundles among other things.Rule 9.1(1) provides that in applying "the court and the parties must pursue the just,speedy, and inexpensive determination" of the proceeding. Under r 9.1(2), thecommon bundle must be "commensurate with the goal of keeping the cost of theproceeding proportionate to the subject matter" and r 9.1(3) requires "the documentsto be produced at the trial" to be "prepared, produced, and led" in accordance with thesubpart.[17] Rule 9.2 provides:9.2 Exchange of documents and index(1) In this rule, documents to be relied upon means—(a) documents referred to in a brief or to be referred to bya witness; and(b) documents intended to be put to witnesses called byanother party; and(c) documents to be referred to in opening.(2) When a party discloses documents to be relied upon at the trialor hearing, that party must supply a list of those documentsincorporating any list previously supplied, so that the otherparties always have an up-to-date list of the documents thatparty intends to rely upon. The list may be in any format andis to be labelled and referred to as that party's index.(3) Documents to be relied upon at the trial or hearing butadditional to those already disclosed may be disclosed at anytime, but not later than a date fixed by the court at a casemanagement, issues, or pre-trial conference.(4) Subclause (3) does not affect a party's ongoing obligations inrelation to discovery.[18] Rule 9.4 requires the parties to co-operate in the preparation of the commonbundle. Under r 9.5(4), a document in the common bundle is automatically receivedinto evidence when referred to by a witness in evidence or by counsel in submissions.Under r 9.6, a document not incorporated in the common bundle may be produced attrial only with the leave of the court, which it may grant unless its production wouldcause injustice and which it may refuse if its production might cause injustice.[19] The purpose of the Evidence Act 2006 (the Act), under s 6, is to help securethe just determination of proceedings in specified ways, including providing for factsto be established by the application of logical rules and promoting fairness to partiesand witnesses. Irrelevant evidence is not admissible under s 7. Under s 8, the Judgeis required to exclude evidence if its probative value is outweighed by the risk that itwill have an unfairly prejudicial effect on the proceeding or needlessly prolong it.[20] Section 90(3) of the Act requires a party who proposes to use a document inquestioning a witness to show the document to every other party to the proceeding.This was to discourage witnesses being asked silently to read documents others havenot seen, and then answer questions.9 That does not affect its admissibility. There isno general prohibition on the use of inadmissible documents in questioning witnessesin civil proceedings.10[21] Section 96(1) of the Act allows cross-examination of a witness about theirprevious statements without the statement or its contents being disclosed to the witness"if the time, place, and other circumstances concerning the making of the statementare adequately identified to the witness". If the witness does not expressly admitmaking the statement and the cross-examining party wishes to prove the witness didmake it, s 96(2) requires the statement to be shown to the witness who must be givenan opportunity to deny making it or to explain any inconsistency.Submissions[22] Mr Hodder, for Ngāti Whātua Ōrākei, submits that, if considered relevant,almost all documents should have been disclosed in 2020 or earlier. He requested theybe disclosed under r 9.2 of the Rules. That has now occurred and the documents havebeen placed in the common bundle. Mr Hodder rejects the assertion Ngāti WhātuaŌrākei was under an obligation to disclose every statement its witness may havepreviously made on mana whenua and ahi kā. Counsel for the plaintiff are concernedthe provision of the documents is designed to frustrate the 48-hour rule, the purposeof which is to prevent ambush by documents. Mr Hodder submits a suggestion of howcounsel for Ngāti Whātua Ōrākei might brief Mr Blair while he is under cross-examination is neither just nor workable. It places counsel in an impossible positionin terms of what issues need to be, or may be, discussed with Mr Blair. He submits9 Elisabeth McDonald and Scott Optican (eds) Mahoney on Evidence: Act & Analysis (4th ed,Thomson Reuters, 2018) at [EV90.05(1)].10 At [EV90.02].s 96 of the Act does not excuse non-compliance with other provisions and is not astatutory right to cross-examine on documents outside the common bundle. Hesubmits the date fixed by the court for disclosure under r 9.2(3) here is the 48-hourrule. There are no circumstances here which justify contravention of that. Section 96has limited relevance and does not preclude the requirement for parties to putdocuments in the common bundle before producing them at trial. It operates withother rules of civil procedure to produce the most helpful evidence possible for theCourt. That is achieved by a "cards on the table" approach where parties and witnesseshave the opportunity to familiarise themselves with documents so they may give themost accurate evidence about them. Accordingly, counsel seeks that the documentsought not to be put to Mr Blair.[23] Counsel for Ngāti Paoa support the 48-hour rule and its intentions to ensurethe fair conduct of the hearing. They submit s 96 is limited to previous statements bya witness and does not cover the large majority of the documents at issue. Ngāti Paoahas taken the view that the numerous other examples of resource managementproceedings in which parties have taken a position on their cultural interests are notstrictly relevant to these proceedings. They seek a direction from the Court if the Courttakes a different view.[24] Counsel for Te Toro submit they intend to cross-examine Mr Blair on a fewparagraphs of his highly relevant previous statements and there is no bar to them doingso. They filed the entire document to avoid any criticism of being selective and toassist the Court with necessary context. They submit they have no obligation todiscover the document and, if there was such an obligation, it would have been on theplaintiff. They submit the document should be shown to Mr Blair if he does notexpressly admit to making it, under s 96. They submit counsel for the plaintiff haveconfused that statutory right with matters of discovery and common bundles. Cross-examination of Mr Blair in respect of his previous statements should not be considered"ambush by documents".The parameters of cross-examination[25] I agree that Ngāti Whātua Ōrākei was not under an obligation to discover thesestatements. The default rule that parties should have 48-hours' advance notice ofdocuments to be added to the common bundle facilitates the efficient and orderlyprogress of these proceedings. It ensures the Court and counsel have the most up todate set of documents to hand, as was the primary part of its stated rationale when itwas proposed. The parties appear to have agreed to add the 900 pages of documentsto the common bundle. Without reviewing the material, it seems likely that, apart fromthe specific passages of Mr Blair's previous testimony, most of them will not bedirectly relevant to these proceedings. If a party wishes to put to a witness of anotherparty previous statements in a document, r 9.2 requires the document to be supplied tothe other parties. That must be in accordance with the rule I made at the beginning ofthe hearing.[26] But the value of the proceedings being orderly and efficient is not a straight-jacket. I do not consider order and efficiency prevent documents being put to a witnesswho has not recently had them brought to their attention. There may be value to theCourt in a witness being asked to explain, without preparation by counsel,inconsistencies between their testimony and their previous statements. Here, I do notconsider, in advance of knowing the particular question being asked, that there is anynecessary unfairness in that. If the witness's response suggests there is, I will considerthat at the time. If the document were not in the common bundle I would approach itsimilarly, under r 9.6, depending on the questions.[27] I do not consider the intention to put to Mr Blair his previous statementscontravenes my previous direction regarding notice of additions to the commonbundle. I decline to revise my formulation of the direction. I decline to prohibit anyquestions based on the previous statements being put to Mr Blair on a blanket basis.Palmer JCounsel/Solicitors:J E Hodder QC, WellingtonG H Allan, Barrister, WellingtonChapman Tripp, AucklandCrown Law, WellingtonAtkins Holm Majurey, AucklandMcCaw Lewis, HamiltonKahui Legal, WellingtonChapman Tripp, WellingtonWalters Law, Auckland