Toe-to-toe as developer fends off statements from the bar
The way the cross-examination in the Chisholm Sludgegate case runs, grunts in response would suffice, fuller explanations are not wanted.
It’s a curious use of the law, frequently used wrongly in this High Court trial.
Property developer Adrian Chisholm (left) wanted to develop an eco-tourism resort beside the nine-hole Waiheke Island golf course, using some of his land to enlarge the course to 18 holes which would remain a public course.
In the first few days of January 1998, as his applications for the project’s resource consents were close to decision, he learned the Auckland City Council, as the local body in control of the island, had decided to dump septic tank waste and sludge from commercial businesses on the golf course land, across the fence from the proposed resort.
Within months, Mr Chisholm’s investors had turned sour on the project. The land was subsequently sold. Mr Chisholm alleges misfeasance by the council for concocting a sewage emergency, wrongly deciding to use the golfcourse site when others were available, all of which proved highly detrimental to his project. And he has named nine people as maliciously contriving to defeat his project through the sewage emergency dump decision. He has claimed losses of earnings, expenses and profit totalling $5 million.
Malice claim ridiculed, project feasibility doubted
In cross-examination today (I wasn’t present for the whole of it), counsel for the city council, David Heaney, focused on two issues, the absurdity of Mr Chisholm’s allegations of malice by a large number of otherwise upright citizens going about their jobs, and the difficulty Mr Chisholm would still have faced in getting project up.
For Mr Heaney, the job was to tick off the yes/no answers and move on. For Mr Chisholm, as is so often the case with witnesses, the job was to explain himself more fully.
Often that means a rambling expanse of meaningless words. In Mr Chisholm’s case the words were not rambling, not meaningless, he knew his dates and times precisely, mostly knew precisely who was present and what was said, but he was cut back.
Frequently Mr Heaney would tell Mr Chisholm the rest of his answer wasn’t wanted, and the judge, Justice Robert Chambers, often agreed. Qualification of an answer is allowed, as the judge explained, but Justice Chambers mostly found Mr Chisholm’s expanded answers were not qualifications.
That typically leaves a witness frustrated, as it left Mr Chisholm on many occasions. But there were many occasions when Mr Chisholm did fit in a longer response, and for a time it was toe-to-toe between the two protagonists. You could see the venom crossing the courtroom, both directions.
Now for an example of the impropriety in cross-examination. Mr Heaney was asking Mr Chisholm about a feasibility study for the project.
Mr Heaney: “Did you engage Ernst & Young to complete the assignment?”
Mr Chisholm: “Not at all. But I will qualify that.”
Mr Heaney: “No, you don’t need a qualification.”
Judge: “What is the qualification?”
Mr Chisholm: “The investors had argued that until we got it approvedâ€¦”
Mr Heaney: “It’s hearsay, that’s why I didn’t wantâ€¦”
Mr Chisholm, after some discussion all round, resumed: “No, but until we had the resource consent and knew what we had and what we were allowed to do, there was a decision by the investors not to do that work or some other consulting work.”
Judge: “The answer was simply â€˜No,’ and that’s not a misleading answer.”
A sideline view
I can see from Mr Chisholm’s answer that he was saying the feasibility was not canned but deferred until a more sensible moment, that the consultants had not been dismissed but would return to do the work. Except, when the project fell over, that didn’t happen.
If the longer answer is as I suspect, then â€˜No’ is a misleading answer. The other aspect to this piece of cross-examination is that the cross-examining counsel was allowed to interrupt an answer with what I sense was an entirely incorrect assumption of â€˜hearsay’.
Hearsay is second-hand or beyond. Mr Chisholm was in contact directly with his investors, not through intermediaries as a big corporation might be. So a decision of the investors could be communicated directly to him, and that is hardly hearsay. But we don’t know, because of the cut-off, and too little opportunity allowed to show documentary evidence.
As I say, this is an example of cross-examination going astray, although in a running battle the line between what should or should not be admitted can be blurred.
But on numerous occasions Mr Heaney proposed a point â€” not a question â€” and Mr Chisholm argued back, only to be stopped by Mr Heaney with statements such as “I’ll ask the questions” when Mr Chisholm had been challenging an assertion, or “That’ll be a matter for his Honour.”
Just doing their job? Records say not, says Chisholm
Mr Heaney tried to put down the allegations of malice by referring to “officers, just doing their job”.
Mr Chisholm: “The record shows otherwise, your own discovery [of documents] shows otherwise.”
Mr Heaney: “You don’t think you’re getting a bit paranoid about all of this, do you Mr Chisholm?”
Mr Chisholm: “The events speak for themselves.”
Mr Heaney: “Isn’t the reality of all of this Mr Chisholm, that what you thought was going to be an easy track to get through resource consent, became something harder?”
Mr Chisholm: “I never envisaged an easy project.”
Mr Heaney: “Because there were always going to be people on Waiheke Island, be it members of the community board or members of the public, who were going to object to what you were proposing.”
Mr Chisholm: “And there’s a mechanism for dealing with those objections, called the Resource Management Act.”
I’ll badger you with this one until you give inâ€¦
Towards the end of the morning session, Mr Heaney tried to convince Mr Chisholm that he wanted to create another Millbrook, the Arrowtown resort which has a high-class golfcourse designed by Bob Charles.
Mr Chisholm carefully explained that his resort was to have features seen at several resorts â€” Millbrook, Puka Lodge, Hotel du Vin.
Mr Heaney: “Of the standard of Millbrook?”
Mr Chisholm: “No. We’re talking of earthy villas set in a vineyard. How could that possibly be Millbrook?”
When Mr Heaney said Mr Chisholm was going to get Bob Charles to design the course, Mr Chisholm said consultants Boffa Miskell had suggested he be the consultant in terms of layout. “On city land, we could only recommend to the city what the layout should beâ€¦ I don’t think it would ever get to a Millbrook, being a public course owned by the city.”
Who was going to pay for upgrades, roading?
While Mr Chisholm played down the greatness of his proposed resort â€” perhaps surprisingly, for someone seeking $5 million â€” Mr Heaney set about casting doubt on the likelihood of the project ever proceeding, with or without sludge next door.
Mr Heaney: “There was never any agreement for the city council to pay for development of the golfcourse, was there?”
Mr Chisholm: “Not at that point, no.”
Mr Heaney: “Not ever, Mr Chisholm.” With no intention of a question in sight, that became a statement from the bar. The judge allowed it.
Mr Heaney continued: “The city council never agreed with you, Mr Chisholm, to extend funds to develop the golfcourse.” Again, a statement from the bar.
Mr Chisholm: “No.”
The possibility of access through the golfcourse was discussed, with Mr Chisholm saying his company would have paid for the roading and put the power lines underground at the same time. There were also two other access options, he said.
Mr Heaney: “You think the community board’s got its hands on the access issueâ€¦ It’s all part of the conspiracy issue, isn’t it, Mr Chisholm?”
Mr Chisholm: “The events speak for themselves. That will be for the judge to decide if it’s a conspiracy. I’m just putting in a timeline and the documents.”
Mr Heaney: “Oh, no, Mr Chisholm, you’re doing more than that. You’re saying otherwise upstanding citizens are maliciously conspiring against youâ€¦ And as it happens, you didn’t get access to the golfcourse land, did you?”
Mr Chisholm: “No.”
Mr Heaney: “The community board considered your application, didn’t make a decision on it. It went back and advised there would need to be an application under the Reserves Act or the Public Works Act.’
Mr Chisholm: “Yes.”
Mr Heaney: “And in fact, Mr Chisholm you never made such an application.”
Mr Chisholm: “I can’t answer that. That was for my consultants.”
Mr Heaney: “You didn’t have the money locked up at any stage to do the development.”
Mr Chisholm: “We didn’t need the money. We needed the resource consents and the money would look after itself.”
The hearing continues in the High Court at Auckland.