WHAKATANE DISTRICT COUNCIL V BAY OF PLENTY REGIONAL COUNCIL HC ROT CIV-2007-463-000606

WHAKATANE DISTRICT COUNCIL V BAY OF PLENTY REGIONAL COUNCIL HC ROT CIV-2007-463- 000606 14 March 2008IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY CIV-2007-463-000606UNDER the Judicature Amendment Act 1972 IN THE MATTER OF of the Local Government Act 2002 BETWEEN WHAKATANE DISTRICT COUNCIL Applicant AND THE BAY OF PLENTY REGIONAL COUNCIL Respondent Hearing: 11 March 2008 (Heard at Auckland) Appearances: D J Neutze and V T Bruton for the Applicant J G Miles QC for the Respondent Judgment: 14 March 2008JUDGMENT OF DUFFY J [Re Application to Amend Statement of Claim and for Leave to Cross-examine]This judgment was delivered by Justice Duffy on 14 March 2008 at 12.30 pm, pursuant to r 540(4) of the High Court Rules Registrar/Deputy Registrar Date:Counsel: J G Miles QC P O Box 4338 Auckland for the Respondent Solicitors: Brookfields P O Box 240 Auckland for the Applicant Cooney Lees Morgan (K J Catran) P O Box 143 Tauranga for the Respondent[1] The applicant has applied for leave to amend its statement of claim and to cross-examine certain identified witnesses of the respondent. The application is opposed. Because the amendments to the pleading may affect the scope of the proposed cross-examination, I propose to deal with the amendment to the pleading first. [2] The applicant's application to amend its pleading needs to be seen in the context of what has eventuated so far. The proceeding is one that has been treated as requiring an urgent hearing. Timetable directions were made last year by Baragwanath J with a view to having the proceeding ready for hearing at the earliest possible opportunity. A hearing at the end of last year was initially envisaged. Both parties have accepted the proceeding is to be treated as a proceeding that requires urgency. On 15 October 2007, the parties in a consent memorandum sought a variation of the timetable orders made by Baragwanath J. That variation pushed out the dates in the timetable initially imposed by Baragwanath J. It was agreed that there would be a possible hearing date in the week commencing 17 March 2008. Since the parties signed a consent memorandum in relation to the timetable directions, they must both be treated as having been fully prepared to ensure their case was ready for trial within the timeframe set out in the consent memorandum. [3] The proceeding has now been given a trial date of three days commencing on 17 March 2008. On 20 December 2007 the respondent applied for an adjournment as its senior counsel could not appear on 17 March 2008 owing to a fixture clash. The next available fixture date was some time in August 2008. Had the fixture been adjourned, there would have been ample time for any further fine-tuning of each party's case. However, the applicant strongly opposed the adjournment and it was refused. It follows that at all times until this application, the applicant has conducted itself as if it was prepared and ready to go to trial on 17 March 2008. [4] Now, one week before the trial date, the applicant wants to take steps that, if permitted, might jeopardise the hearing proceeding on 17 March 2008. Given the background of this proceeding, I think that this is a case where particular care needs to be taken to ensure the hearing on 17 March is not jeopardised.[5] The applicant's application to amend its pleading is premised on the amendments being no more than the additional further particulars to other "inclusive but not limited" particulars and to ensure the real controversy between the parties, as reflected in the evidence already filed, can be determined. The applicant submits that in the rush to meet timetable directions intended to have the proceeding ready for hearing on an urgent basis, a disconnect has occurred between the affidavit evidence the applicant has filed and the particulars pleaded. The applicant contends that the amendments it seeks will not cause the respondent any prejudice. It submits that if the respondent has no evidence or is light on evidence to meet one of the new allegations, the respondent can file further evidence. The applicant relies on r 11 of the High Court Rules and the Court's inherent jurisdiction. [6] The respondent opposes the amendments on the ground that both parties have had to work under urgency and with the hearing date of next week it is now simply too late for the applicant to amend its pleading. I was advised that the respondent has structured its case and the evidence it has filed in reliance on the applicant's case as currently pleaded. The respondent submits that the amendments go beyond clarification of the current pleading and, therefore, the respondent will suffer prejudice if the amendments are allowed. The respondent is reluctant to meet any problems the amendments may create for it by adding new evidence to its case. I have some sympathy for the respondent in this regard. It has prepared its case to answer the allegations in the current pleading. If it has to answer new allegations, that will require further evidence and additional work in the preparation of its legal submissions. I consider that it is appropriate for me to take notice of the fact that the respondent is based in Whakatane. Its solicitors are located in Tauranga and its senior counsel is in Auckland. Even though some of the respondent's members are located elsewhere in the Bay of Plenty, I can see that in the time now available it will be a logistical nightmare for the respondent to prepare additional affidavit evidence. [7] The respondent also opposes the amendments on the ground they are not necessary to do justice between the parties; this being the test under r 187. Rule 187 deals specifically with amendments to pleadings pre-trial. Rule 11, which the applicant relies on for its proposed amendments, is usually only relied on once a hearing has commenced: see Elders Pastoral Ltd v Marr (1987) 2 PRNZ 383 (CA).[8] I consider the appropriate rule to deal with the application for amendment of the pleading is r 187. This rule is specifically framed to deal with pre-trial amendments to pleadings. Rule 11 is usually used for amendments to pleadings when no other procedural rule is available. [9] The test to be applied under r 187 is whether or not the amendment is necessary in order to do justice between the applicant and the opposite party. It was noted in Paps v Mahon [1966] NZLR 288 (which deals with r 144 of the Code of Civil Procedure, the predecessor to r 187(2)) that the primary purpose of control is to enable the Court to prevent amendments which render the setting down rules nugatory and that amendments should not be allowed if their probable effect would be a postponement of the trial. However, in Thornton Hall Manufacturing Ltd v Shanton Apparel Ltd (1989) 3 TCLR 249 the Court of Appeal stated that:The parties should have every opportunity to ensure that the real controversy goes to trial so as to secure the just determination of the proceedings.In Grey & Anor v Elders Pastoral Holdings Ltd HC AK CP417/95 1 May 1997 Smellie J, lateness (a fortnight before adjourned trial date), incompleteness in proposed additional pleading of consequential losses without factual basis for them and the weakness of the allegations were seen as decisive against permitting an amendment. [10] It is clear from these cases that an application for leave to permit late amendments to a pleading requires the Courts to conduct a balancing exercise between the general concern that parties to litigation comply properly with procedural requirements and the particular interest in each case of ensuring that the case is justly determined. [11] I will now deal with the proposed amendments. The applicant has very helpfully provided a draft copy of its proposed second amended statement of claim with the additions underscored. [12] The first amendment sought is an addition to paragraph 19(c)(v) and (vii). The allegation in paragraph 19 is that in breach of s 77(1)(a) of theLocal Government Act 2002, the respondent failed to identify all reasonably practicable options for fulfilling its functions and locating its head office. A series of particulars of what the applicant alleges are reasonably practicable options that were not considered are set out at paragraph (c). The applicant now wants to add others to the series of reasonably practicable options that were not considered by the respondent:v) 70 rather than 130 positions being relocated to Tauranga; and vi) 100 rather than 130 positions being relocated to Tauranga.[13] It had seemed to me that these two particulars were simply a more specific statement of an existing particular pleaded at paragraph 19(c)(ii):increasing the EBOP's staff and presence in Tauranga whilst retaining the head office in Whakatane.In the context of increasing the respondent's staff and presence in Tauranga whilst retaining the head office in Whakatane, a subset of that allegation could well be the possibility of relocating fewer than 130 positions to Tauranga. However, in the course of the argument it became clear that the applicant's additional particulars (19(c)(v) and (vi)) are premised on circumstances where the respondent's head office is relocated in Tauranga, but with fewer positions being relocated there than is presently intended by the respondent. [14] As matters stand, the proposed particular is not properly pleaded in that all of the detail necessary for it to achieve the applicant's aim is not spelt out in the proposed amendment. The particular the applicant wants to include as part of paragraph 19(c) is one which alleges that 70 rather than 130 positions being relocated in Tauranga, with the head office relocating to Tauranga, is a reasonably practicable consideration which the respondent failed to consider. The same goes for the proposed (vi). [15] The applicant has very helpfully set out in the draft proposed amendment references to where evidence which relates to the proposed particular can be found. Where there is no evidence which relates to a proposed particular, that also is recorded. I note that in relation to particular 19(c)(v), the relocation of 70 rather than130 positions to Tauranga, there is no evidence in response from the respondent. It seems that the respondent has responded in the evidence to the suggestion that 100 rather than 130 positions (19(c)(vi)) could have been relocated to Tauranga. [16] I have to be satisfied that the proposed amendment meets the test under r 187. The key point here is that the respondent in breach of s 77 failed to identify all reasonably practicable options and instead confined itself to only two options which it thought warranted serious consideration. [17] The problem for the applicant with the proposed 19(c)(v) and (vi) is that in order for it to advance its case that there has been a breach of s 77, it needs to establish that 19(c)(v) and (vi) are in fact reasonably practicable options for the respondent to have considered when making the decision to relocate. The evidence the applicant has drawn to my attention, through the evidence references noted on the draft second amended statement of claim, filed goes to prove that little thought was given to the possibility of moving 70 rather than 130 positions to Tauranga, or moving 100 rather than 130 positions to Tauranga. There is little point in having evidence to establish the failure to consider something without first establishing that it was a reasonably practicable option. Since the applicant has failed to direct me to any evidence which could establish that 19(c)(v) and (vi) are reasonably practicable options that the respondent should have considered, I consider the proposed particulars to be weak. They fail to achieve the purpose for which the applicant seeks to introduce them. [18] There is little point in putting the respondent to the trouble of having to file additional evidence, as it would need to do in the case of the allegation relating to the relocation of 70 rather than 130 positions to Tauranga, when the allegations are weak and there is no factual basis in evidence to prove them fully. This circumstance is analogous to that facing the Court in Grey & Anor v Elders Pastoral Holdings Ltd. The only way any argument regarding these proposed amended particulars could properly be pursued is if the applicant were granted leave to file further evidence in order to prove that the proposed particulars were reasonably practicable options. It is simply too late in the day for that to occur. Accordingly, I decline leave to amend the statement of claim in the way proposed in paragraph 19(c)(v) and (vi).[19] The applicant had intended amending paragraph 21 but abandoned those amendments at the hearing. That paragraph remains in its current form. [20] The proposed particular in paragraph 23 (being particular (a)) has been abandoned and, therefore, paragraph 23 remains in its present form. [21] The proposed particulars in paragraph 24 include references to s 83, as well as the currently pleaded s 82 of the Local Government Act 2002. This is a matter of law which does not need to be specifically pleaded in paragraph 24. Indeed, I cannot see why the pleading could not simply allege there had been a breach of the principles of consultation required by the Local Government Act. There is no need to go further and to stipulate the statutory provisions giving rise to consultation. However, there is no prejudice to the respondent in permitting this amendment and it is, therefore, permitted. [22] The amendment to paragraph 24(i) was abandoned so that paragraph 24(i) remains in its present form. It was agreed at the hearing that the proposed particular in paragraph 24(iii) was simply a statement of law which was not required in the pleading and that was abandoned. [23] The remaining two proposed amendments to the particulars of paragraph 24 are (ii) and (iv). The proposed particular in paragraph 24(iv) simply draws in to this paragraph the particulars set out at paragraph 33 of the pleading. The particulars in paragraph 33 relate to bias and pre-determination. Paragraph 24(ii) is more specific. It pleads that:The views presented to the local authority should be received by the local authority with an open mind and should be given by the local authority in making a decision due consideration in breach of s 82(1)(e). EBOP did not maintain an open mind and give the views presented due consideration to the extent that Councillors Eru, Sherry and von Dadelszen were absent for significant parts of the deliberation and/or hearing process.[24] At the hearing Mr Miles QC for the respondent submitted that the amendment for particular 24(ii) was wrong in principle but he conceded that therespondent would not be materially prejudiced by its conclusion. This is a responsible concession for Mr Miles to have made. [25] The allegation that the respondent did not maintain an open mind and give the views presented due consideration, to the extent that Councillors Eru, Sherry and von Dadelszen were absent for significant parts of the deliberation and/or hearing process, is already present in the pleading in relation to paragraph 31(a). Paragraph 31 forms part of the allegations in the claim which allege that there has been a breach of the duty of procedural fairness and there has been procedural impropriety through the respondent failing to listen with an open mind to all the submissions made in relation to the proposed decision. As a particular of the allegation, in paragraph 31 it is pleaded that the respondent breached its obligation to listen with an open mind to all submissions before making its decision in the absence of Councillors Eru, Sherry, Bennett and von Dadelszen. [26] Willingness to listen with an open mind is one of the legal requirements of the duty to consult. The breach of consultation allegation in paragraph 24 pleads that the same Councillors as in paragraph 31, through not being present for the full period of the deliberation and hearing process, failed to receive the views provided in consultation with an open mind. The proposed amendment (24(ii)) to paragraph 24 simply seems to me to be re-fashioning under the heading "Breach of principles of consultation", the same type of allegations that appear under the heading "Unfairness/procedural impropriety" in relation to paragraph 31. [27] It makes little sense to consider the impact of the absence of certain members of the respondent in terms of unfairness and procedural impropriety but not to take the same matters into account when it comes to determining the alleged breach of the statutory duty of consultation. This is an amendment which adds nothing substantially new to pleading. The grounds of judicial review can overlap and are often no more than different analyses of the same set of facts. Accordingly, I propose to permit the proposed amendment in paragraph 24(ii) of the draft second amended statement of claim.[28] Much the same reasoning applies in relation to the proposed particular 24(iv). Under the heading of failure to consult, the applicant seeks to draw particulars which are spelt out at paragraph 33, which relates to the pre-determination bias allegations. In all respects the issue is much the same, namely that the Councillors could not properly and lawfully have formed a conclusion on the decision they contributed to in circumstances where they were not present for the entire submission and deliberation process. I, therefore, propose to permit the insertion of paragraph 24(iv). [29] The proposed amendment to paragraph 26(d) is abandoned and that paragraph will remain in its present form. [30] The proposed amendment to paragraph 26(h) has also been abandoned and that paragraph will remain in its present form. [31] Paragraph 27(c)(v) repeats the allegations that the applicant attempted to insert as paragraph 19(c)(v) and (vi). With paragraph 27(c)(v), the allegations that appeared at paragraph 19(v) and (vi) have been compressed into the one allegation of failure to consider relocating head office but relocating less than 130 staff positions. For the same reason that I gave in relation to the proposed amendment to paragraph 19, there is no evidence to establish that relocating head office and relocating fewer than 130 staff positions was a reasonably practicable option that the respondent should have considered. Without that evidence, I am not able to conclude whether or not this particular sets out a reasonably practicable option that was available to the respondent. The allegation in this circumstance is weak. For the same reasons as given in relation to paragraph 19(v) and (vi), the amendment is not allowed. [32] The allegation in paragraph 27(d) in terms of the proposed addition is abandoned and, accordingly, paragraph 27(d) is to remain the same. [33] I now turn to the more substantial proposed amended particulars which arise in the context of paragraph 33, the pre-determination and bias allegations. It is presently alleged in paragraph 33(c) that Councillor Raewyn Bennett, in a meetingwith Ngati Awa in February 2007, made it clear that she supported the move and that it was the turn of Western Bay of Plenty Mäori to have head office located in their district. The proposed addition to 33(c) would add she also made it clear to Bryan Riesterer that for this reason she supported the relocation. At present, the proposed amendment is not supported by the evidence that has been filed by the applicant and the respondent has not dealt with the issue at all. The respondent has responded in relation to the allegation of what Councillor Raewyn Bennett said to Ngati Awa. The allegation as proposed is not supported by the evidence. The applicant would either need to re-fashion the allegation, or file further evidence. [34] In any event, I do not think the proposed particular is necessary. It is not so much how many times Councillor Raewyn Bennett indicated an alleged pre- determinational bias but whether she had such a pre-determination or bias. Insofar as there may be present evidence from the applicant that suggests that Councillor Bennett may have indicated a bias or pre-determination when communicating with Bryan Riesterer, I can see no reason why that evidence cannot be put forward simply to prove the existence of bias and pre-determination. It is unhelpful and wrong to put forward in a pleading, as a particular, what is no more than a piece of evidence to prove the allegations made in the statement of claim. Accordingly, the proposed amendment to paragraph 33(c) is declined. [35] The proposed amendments to paragraph 33(e) and (f) relate to what a member of the respondent, John Cronin, is alleged to have said to two persons after the 2004 elections. I fail to see how statements such as this can be particulars of allegations of bias and pre-determination in relation to a decision made in 2007. Statements of this type made in 2004 may indicate a pre-disposition towards relocation. As such, if they are already in evidence, they can be referred to in submission as establishing the pre-disposition. The applicant can then submit that a pre-disposition shown in 2004 has since become bias and pre-determination. What Mr Cronin might have thought in 2004 on the relocation issue can amount to no more than a piece of circumstantial evidence which may be used in proving bias and pre-determination in 2007. His thoughts in 2004 have no place in the particulars being pleaded in paragraph 33. Again, for the same reason that 33(c) was notpermitted, namely it amounts to pleading evidence rather than particulars of allegations, the proposed 33(e) and (f) amendments are not allowed. [36] Paragraph 33(g) is another proposed amended particular. It states:after the first day of deliberations (31 May 2007) Councillor Cronin said to Councillor Opat while they were passing the Whakatane headquarters, If they had sold us the land the headquarters would be staying in Whakatane:I cannot see how this is relevant to an allegation of pre-determination or bias. What would have happened had circumstances been different, who knows? The fact is it seems the respondent did not own the land on which its Whakatane headquarters were based and had made a decision in the context of that factual situation. Once again, this seems to me to be a matter of circumstantial evidence that the applicant would seek to rely on as a springboard to establish bias or pre-determination, rather than as a particular of the bias and pre-determination allegation. There is no purpose in amending the pleading at this late stage simply to include matters of evidence being pleaded. Leave to amend is refused. [37] The same reason applies to paragraph 33(h) and leave to amend is refused. [38] In the course of discussions at the hearing, it became clear that it is difficult to make sense of paragraph 33(l). It was said that this was pleaded, in a sense, to forestall any attempt on the part of the respondent to justify its decision by saying it had listened to community views. It strikes me as nonsensical to plead allegations that are designed to forestall attempts the respondent might make in its submissions to justify its decision. This paragraph has no place in a statement of claim. The applicant can attempt to counter any justification the respondent might make for its decision by way of legal submission. Leave to amend is refused. [39] It follows that the only amendments for which leave to amend is granted are the amendments in paragraphs 24 insofar as a reference to s 83 is to be inserted as one of the statutory requirements for consultation and 24(ii) and (iv) as set out in the second amended draft statement of claim.[40] I now turn to the application for leave to cross-examine. In its submissions, the applicant accepted that cross-examination is not permitted as of right in judicial review proceedings and that the Court's willingness to permit cross-examination is constrained to those circumstances where cross-examination is "clearly necessary to enable the case to be disposed of fairly": Roussel Uclaf Australia Pty Ltd v Pharmaceutical Management Agency Ltd [1997] 1 NZLR 650 at 656. [41] The applicant submits that the limited cross-examination it seeks leave to conduct meets the Roussel test. The proposed cross-examination is in relation to the allegations of pre-determination and bias in s 33 of the amended statement of claim. [42] Apart from being said to be necessary to determine the bias and predetermination allegations the application is also brought to avoid the type of comment that was made in Friends of Turitea Reserve Society Incorporated v Palmerston North City Council HC PMN CIV-2006-454-879 25 July 2007. InFriends of Turitea Reserve Society Incorporated v Palmerston North City Council(at [109]), Baragwanath J noted that no attempt had been made to challenge the denial of closed minds by Council members by cross-examination on their affidavits. This circumstance coupled with others was enough to cause the bias allegation in this case to fail. The applicant in this proceeding no doubt wants to avoid such an outcome and, therefore, has taken the precaution of applying to cross-examine the respondent's witnesses. [43] A similar approach was followed by McGechan J in New Zealand Federation of Commercial Fishermen and Others v Minister of Fisheries and Others HC WN CP237/95 24 April 1997. In relation to an allegation that the Minister had breached the duty to consult by not having an open mind, McGechan J said:I have rather more concern at the possibility of a very human mixture of ministerial irritation and stubbornness; but in the absence of cross- examination must exercise restraint. It is unsatisfactory that the Minister has not answered certain contentions put forward; but it would likewise be unsatisfactory to make at least one seriously critical finding without benefit of proper exploration, including at least an attempt at cross-examination.[44] Other cases where cross-examination have been permitted in judicial review are Edwards v Toime [2005] NZAR 140; Qiong and Anor v Minister of ImmigrationCIV-2005-404-5202 24 July 2006 Asher J and Alli v The Attorney-General CIV- 2006-404-00435 27 April 2006 Asher J. [45] The respondent relied on the general principles against cross-examination in judicial review proceedings. It submitted that cross-examination was generally discouraged in judicial review proceedings; here cross-examination was unnecessary. It sensibly pointed out that if the applicant were given leave to cross- examine it would require leave to cross-examine those witnesses of fact of the applicant who were in conflict with the persons the applicant had leave to cross- examine. The upshot of this would be to extend the hearing time and, therefore, place the fixture in jeopardy. In relation to cross-examination when actual bias was pleaded the respondent submitted that applicants in judicial review proceeding could circumvent the restriction on cross-examination in judicial review by pleading actual bias. [46] The reason why cross-examination is restricted is because it is usually unnecessary to determine the outcome of a judicial review proceeding. Judicial review by and large focuses on the process that was followed in the making of a decision. There is generally agreement on the relevant facts and the area of controversy is around the legal implications that arise from those facts. The usual questions are not so much about whether or not a party has had an opportunity to be heard or whether or not there has been consultation but rather should there have been an opportunity to be heard and should there have been consultation. In general a non-disputed factual scenario is held up to the light and scrutinised to see if what occurred meets the requirements administrative law imposes on such scenarios. [47] On the occasions when cross-examination has occurred it has not added in any significant way to the length of a hearing. Cases where cross-examination has been permitted include Health Advocates Trust v Director of Health and Disability Services Consumer Advocacy on Behalf of the Crown HC AK CIV-2006-404-6066 29 November 2006. In that case Asher J permitted limited cross-examination inrelation to allegations of bias and pre-determination. In that proceeding, the first respondent had deposed in an affidavit:I did not have a pre-determined view that advocacy services would be delivered by a single entity.Since the plaintiffs asserted that the documents in evidence showed a level of pre- determination, the Court considered that, although in general a denial of pre- determination did not immediately make a deponent susceptible to cross- examination, given the detail of the bias allegations it was fair to allow questions on the point. Those questions were limited to the veracity of the first respondent's statement about pre-determination. Cross-examination was permitted on other topics where there was a direct conflict between two deponents on material facts. [48] As yet there is no appearance of a trend of making allegations of actual bias and predetermination in order to cross-examine. Allegations of actual bias are not easily conjured up. It is difficult to see how such a trend would emerge from or be encouraged by the limited occasions when cross-examination has been permitted. [49] When there are allegations of actual bias, unless an applicant for judicial review can find a whistle-blower, who gives evidence of the decision-maker being actually biased, or, alternatively, a smoking gun which provides evidence of pre- determination and bias, an applicant is in a difficult position when it comes to proving the allegation. All an applicant can do is to point to whatever circumstantial evidence is available and invite the Court to draw the inference that the decision- maker has been biased and pre-determined. But, in those circumstances if the decision-maker denies the bias allegation, and his or her veracity is not challenged, it can be difficult for a Court to determine where the truth lies. [50] An allegation of factual bias is a factual allegation. As is recognised in Wade Administrative Law (8th ed) Oxford OUP 2000 pp 266-268:A system of judicial review which cannot cope with crucial questions of fact, is seriously defective. One purpose of the procedural reforms made in 1997 and described later was to remove this defect by providing for cross- examination, etcetera so that disputed facts could be tried. Lord Wilberforce's above quoted statement comes from an unfortunate and discredited decision of the House of Lords. The correct rule, it is submittedis that stated by Lord Diplock in a later case, that cross-examination should now be allowed whenever the justice of the case so requires and on the same basis as an ordinary proceedings.[51] The usual way for veracity to be challenged is through cross-examination. An applicant for judicial review bears the burden of proof. The law in relation to burden of proof is that:If when all the evidence by whomsoever introduced is in, the party who has the burden of proof has not discharged it, the decision must be against him. While a judge or tribunal of fact should make findings of fact if they can, in the exceptional case in which they are forced to the conclusion that they do not know which side of the decision ought to be, the principle of the burden of proof determines which party should succeed. (Phipson on Evidence, para 4-03 (15 ed)).To deny the applicant access to the best means of challenging veracity when proof of the applicant's case hinges on the decision-maker's veracity will result in an injustice. In such circumstances cross-examination is clearly necessary for the just determination of the applicant's case. Cross-examination is also necessary for the just determination of the case vis-à-vis the respondent in that it would be equally unjust to disbelieve the respondent's denials of actual bias without the respondent having the benefit of being able to rise to the challenge that is made against his or her veracity. [52] The difficulty of determining cross-examination leave applications at the pre- trial stage is that the shape of a case can alter once the hearing commences. If cross- examination is denied, and then in the course of the hearing it becomes clear that cross-examination was necessary, it will be too late to remedy the situation. On the other hand, if cross-examination is permitted but is subsequently at trial seen to have been unnecessary, less harm will result. It follows that once a need in principle to cross-examine is recognised, a cautious approach will result in leave being granted as that will lead to the less harmful outcome. [53] In this proceeding the evidence suggests that after elections in 2004, the membership of the respondent comprised persons who perhaps had strong views that the head office of the respondent should be relocated to Tauranga. Whether those views ultimately caused the members of the respondent to be biased and pre-determined when it came to a decision on relocation is a key issue for me to decide in this proceeding. Apart from potentially strong views on the topic of relocation being allegedly expressed by certain members of the respondent, there is the fact that not all of its members were present at the hearing and deliberation of the relocation decision. Those members say that they have read all the relevant material attentively so that they were sufficiently informed to make a decision. [54] The applicant has prepared its application for leave to cross-examine with the constraints generally imposed on cross-examination in judicial review very much in mind. It has prepared a schedule (Schedule A) setting out the topics for cross- examination. Looking at the proposed topics for cross-examination, they seem to me to be narrow. Of course, if cross-examination on them is permitted, it will mean that the respondent is entitled to cross-examine relevant witnesses as well. However, the overall narrow scope of the topic in issue should ensure that the hearing is not unduly extended by cross-examination. [55] Prior to 1997, cross-examination in judicial review of deponents who were not Ministers of the Crown occurred more as a matter of cause. Leave was often not sought and cross-examination simply happened. In those proceedings, cross- examination was conducted at the commencement of the proceeding and once it was out of the way, the parties moved to making legal submission. That is also how the cross-examination was conducted in Health Advocates Trust. The schedule for the cross-examination is narrow. Cross-examination on the topics identified in the schedule even when undertaken by counsel for both parties should not add unduly to the hearing time. Indeed, it may allow the bias/predetermination allegation to be dealt with more expeditiously than might occur if the Court is left to resolve it by reliance on documentary evidence. I find, therefore, that cross-examination is necessary on certain matters that have been identified in the applicant's Schedule A. However, some refinement of those matters is required. I will deal with each witness to be cross-examined.a) John Cronini) Questions in (i) Schedule A should be limited to ascertaining if the statements Mr Cronin is alleged to have made in 2004 about relocation were in fact made. ii) Questions in (ii) Schedule A should be limited to ascertaining if Mr Cronin decided to let councillors who had not been present for all of the hearing and deliberation process to vote and if so whether he permitted them to vote because he wanted their support for a relocation of the head office. iii) No questions are permitted in relation to (iii) in Schedule A. The proposed question seeks opinion type answers from Mr Cronin which are not admissible. What may in fact have occurred can be discerned from the records made at the time. There is no suggestion that the record does not provide an honest account of what occurred. The proposed question is no more than fishing. iv) Questions (iv), (v), (vi) and (vii) in Schedule A should be limited to ascertaining if Mr Cronin made the statements he is alleged to have made. While not in themselves admissions of bias they may, if true, provide a foundation in combination with other facts for inferring actual bias. v) Question (viii) in Schedule A – since the applicant contends that Mr Cronin was biased a question to that effect should be put to him. b) Andrew von Dadelszeni) Questions in (i) Schedule A should be limited to ascertaining if the statements Mr von Dadelszen is alleged to have made inDecember 2006 at the Christmas function about relocation were in fact made. ii) No questions are permitted in relation to (ii) in Schedule A. The proposed question seeks opinion type answers from Mr von Dadelszen which are not admissible. What may in fact have occurred can be discerned from the records made at the time. iii) Questions in (iii) in Schedule A should be limited to ascertaining if Mr von Dadelszen was absent from the last day of the deliberation process because he had already made up his mind and if for this reason he had not bothered to read all the summaries of submissions. iv) Questions in (iv) Schedule A – since the applicant contends that Mr von Dadelszen was biased a question to that effect should be put to him. c) Raewyn Bennetti) Questions in (i) Schedule A should be limited to ascertaining if the statements Ms Bennett is alleged to have made at the meeting with Ngati Awa in February 2007 and to Bryan Reisterer about relocation were in fact made. ii) Questions in (ii) in Schedule A are not necessary and the applicant has not pursued leave. iii) Question (iii) in Schedule A - since the applicant contends that Ms Bennett was biased a question to that effect should be put to her.iv) Question (iv) in Schedule A should be limited to ascertaining if the statements Ms Bennett is alleged to have made to Bryan Reisterer about relocation were in fact made. d) Tai Erui) Questions in (i) Schedule A are too general. This is no more than fishing. Leave is refused. ii) Question (ii) in Schedule A should be limited to ascertaining if the statements Mr Eru is alleged to have made to Lorraine Brill were in fact made. iii) Questions (iii) and (iv) in Schedule A should be limited to ascertaining if Mr Eru was absent for three and a half days from the deliberation process, including the two days of submissions, because he had already made up his mind and if for this reason he had not bothered to read all or any of the summaries of submissions. iv) Questions in (iii) Schedule A - since the applicant contends that Mr Eru was biased a question to that effect should be put to him. e) Jim Pringlei) Question (i) in Schedule A should be limited to ascertaining if the letter to the editor of the Whakatane Beacon on 25 April 2006 was written by Mr Pringle and, if it was, whether he wrote it because he had already made up his mind about relocation of the head office. ii) Questions in (ii) Schedule A are too general. This is no more than fishing. Leave is refused.iii) Question (iii) in Schedule A - since the applicant contends that Mr Pringle was biased a question to that effect should be put to him. f) Mr Sherryi) Questions (i) and (iii) in Schedule A should be limited to ascertaining if Mr Sherry was absent for three and a half days from the submission and deliberation process because he had already made up his mind and if for this reason he had not bothered to read all or any of the summaries of submissions. ii) Question (ii) in Schedule A is too general. It is no more than fishing. Leave is refused. iii) Question (iv) in Schedule A – since the applicant contends that Mr Sherry was biased a question to that effect should be put to him. [56] The effect of leave to cross examine on the above issues will mean that the respondent can seek leave to cross-examine the applicant's witnesses where their evidence relates to the issues identified above and is contradicted by the respondent's evidence. [57] In relation to the applications to amend the pleading and to cross-examine the applicant and respondent have both been partially successful. This seems to me to be an appropriate situation for costs to lie where they fall. Should any or all of the parties want to address the question of costs they have 21 days from the issue of this judgment to file memoranda on costs. Duffy J