CRIDGE v STUDORP LIMITED [2023] NZCA 365
The application to adduce further evidence was declined because the proposed evidence was not fresh (appellants had deliberately not called it after obtaining the Allunga Tully documents), the application was unreasonably delayed until late in the appeal hearing, the proposed expert evidence lacked sufficient...
Source-derived case information.
- Citation
- [2023] NZCA 365
- Parties
- Appellant: Tracey Jane Cridge; Appellant: Mark Anthony Unwin; Appellant: Katrina McKellar Fowler; Appellant: Scott Woodhead; Respondent: Studorp Limited; Respondent: James Hardie New Zealand Limited
- Court
- Court of Appeal
- Jurisdiction
- New Zealand
- Judgment Date
- 14 August 2023
- Procedural Posture
- Civil Appeal / Application to Adduce Further Evidence During Appeal Hearing
- Outcome
- Application to adduce further evidence declined; costs reserved until final disposition of substantive appeal
- Legal Topics
- Fresh Evidence on Appeal, Recall of Witness, Discovery Obligations, Delay, Costs
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tracey Jane Cridge
Appellant
Mark Anthony Unwin
Appellant
Katrina McKellar Fowler
Appellant
Scott Woodhead
Appellant
Studorp Limited
Respondent
James Hardie New Zealand Limited
Respondent
Procedural Posture
Civil Appeal / Application to Adduce Further Evidence During Appeal Hearing
Legal Issues
- 1 Whether to admit further evidence on appeal
- 2 Whether the proposed evidence was fresh and the appellants exercised due diligence
- 3 Whether delay justified refusal to admit evidence
Ratio Decidendi
The application to adduce further evidence was declined because the proposed evidence was not fresh (appellants had deliberately not called it after obtaining the Allunga Tully documents), the application was unreasonably delayed until late in the appeal hearing, the proposed expert evidence lacked sufficient specificity and cogency, there had been no earlier breach of discovery obligations, and the judge did not err in refusing to recall the respondent's witness.
Court Disposition
Application to adduce further evidence declined; costs reserved until final disposition of substantive appeal
Orders
- The appellants' application to adduce further evidence is declined.
- Costs relating to the application are reserved until final disposition of the substantive appeal.
Full Case Text
Judgment text and source record
1 paragraphs
CRIDGE v STUDORP LIMITED [2023] NZCA 365 [14 August 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA555/2021[2023] NZCA 365BETWEEN TRACEY JANE CRIDGE ANDMARK ANTHONY UNWINAppellantsAND STUDORP LIMITEDRespondentCA555/2021BETWEEN KATRINA MCKELLAR FOWLER ANDSCOTT WOODHEADAppellantsAND STUDORP LIMITEDFirst RespondentAND JAMES HARDIE NEW ZEALANDLIMITEDSecond RespondentHearing: 27 June 2023Court: French, Brown and Gilbert JJCounsel: J A Farmer KC, E S K Dalzell,J T Wollerman and D A Fry for AppellantsJ E Hodder KC, E S Scorgie and S R Roberts for RespondentsJudgment: 14 August 2023 at 2.30 pmJUDGMENT OF THE COURT(Re application to adduce further evidence)A The appellants' application to adduce further evidence is declined.B Costs relating to the application are reserved until final disposition of thesubstantive appeal.____________________________________________________________________REASONS OF THE COURT(Given by French J)[1] On the penultimate day of the nine day hearing in August last year, theappellants filed an application to adduce further evidence.[2] The application comprised:(a) A request to re-visit an application that had been made but rejected inthe High Court to have one of the respondents' expert witnessesrecalled for further cross-examination; and(b) a new application to adduce further evidence from their own experts forthe purposes of the appeal.[3] All of the proposed further evidence relates to what were called the AllungaTully documents.[4] We have decided to decline the application. The reasons will be detailed in thejudgment that addresses the substantive appeal. However, the key reasons can now bebriefly stated as follows:(a) The proposed evidence from the appellants' experts is not fresh. Afterthe Allunga Tully documents had come into their possession, theappellants made a deliberate decision not to adduce that evidence,despite the trial judge expressly raising that possibility beforedelivering his judgment.(b) The delay in making the application. The application to adduce furtherevidence from their own experts was made over a year after the AllungaTully documents first came into the appellants' possession, and near theend of a nine day appeal hearing during which they had earliersubmitted it would be "hard to discern in terms of the essence of thecase" what the witnesses in question would add.(c) The proposed evidence from the appellants' own experts is notsufficiently cogent in that it lacks the required specificity.(d) Although we consider the Allunga Tully documents were discoverableonce they came into the respondents' possession sometime around April2021, there had not been a breach of its discovery obligations up untilthat point.(e) We are not persuaded the Judge was wrong to decline the applicationto recall the respondents' witness.[5] As regards the costs of the application, we have decided to reserve these untilfinal disposition of the substantive appeal.Solicitors:Dalzell Wollerman, Wellington for AppellantsChapman Tripp, Auckland for Respondents