Judge flails rulebook at Chisholm and his new lawyer
Adrian Chisholm’s “Sludgegate” case in the High Court was, until he got to deliver his briefs of evidence this afternoon, more about the rules of the game than about his claims of malicious conduct, misfeasance, the council destroying his proposed eco-tourism resort on Waiheke Island by dumping sewage over the fence.
It is an unusual case. Mr Chisholm has fought a highly public battle against Auckland City Council since the sewage dumping was suggested in January 1998. He has camped overnight outside the mayor’s office on the 15th floor of the council building, he has been into 37 court cases, he has had to chase the council to pay court-ordered costs, and he has gone broke because of his losses in not developing the resort and for the costs in relentlessly pursuing a public body.
He has done most of the preparation for his High Court claim himself, wandered the courtrooms to see how things are done, put together documents, outlines and finally gathered briefs of evidence.
Over time his legal representation has changed. For most of this year he was represented by a firm well versed in dealing with the murkier affairs of commerce such as the Winebox tax-dodge affair, and the horse and film partnerships (also tax-based) â€” Russell McVeagh McKenzie Bartleet.
Russell McVeagh represented him when Justice John Hansen considered timetable issues for the trial on 14 September. Reduced to a legal aid-supported case, Mr Chisholm hired lawyer Chris LaHatte from November 1 to take up the cudgels.
Judge lashes out at timetable breaches
When the case opened on Monday, Justice Robert Chambers criticised the plaintiffs (Mr Chisholm and his companies, Waiheke Island Country Club Ltd and Gulf Properties Ltd) for failing to comply with orders on the provision of documents, briefs of evidence, numbering of pages in a common bundle of documents, and failing to get papers to the judge and defence counsel by the appointed times.
Mr LaHatte’s answers have been on the one theme: he had little time, did the best he could to marshal Mr Chisholm’s case in a more coherent manner, didn’t get it all done, sorry, but if Mr Chisholm had been left to his own devices it would have been more of a muddle.
In court today, Justice Chambers used the orders of another judge, addressed to another counsel, and his own earlier dealings with other counsel as he recorded his minute freeing a subpoenaed islander from the witness box.
In short, according to Justice Hansen’s requirements, Mr Chisholm was to supply four more briefs of evidence within the fortnight to 28 September. “If briefs were not filed within that period, he ruled that the witnesses may not be relied on at trial,” Justice Chambers said.
Lecture on pedantry and compliance
“It is clear that that direction has also not been complied with. Timetables are not mere pedantry and mere case management as Mr LaHatte submitted.
“The exchange of evidence is intended to ensure that justice be done. Justice requires that each party knows the guts of the claim the other side is advancing. It is particularly important in cases such as the present, where the pleadings have been notoriously inadequate in terms of the rules.
“Even now the statement of claim, the sixth amended statement of claim, is not the plaintiff’s final word.”
The Equiticorp statutory managers would not have got far with Justice Chambers â€” they filed lots of documents during the proceedings, including a hefty revised statement of claim. It has been accepted practice in the High Court that if refinement makes the claim easier to follow, then it will most likely be allowed, whereas apparently frivolous alterations, or major alterations that radically change the nature of the pleadings, will be rejected.
Or perhaps those statutory managers would have got on okay, because they were represented by senior counsel who would not easily be browbeaten (Justice and Law Commission president David Baragwanath in charge, Chief Justice Sian Elias one of his assistants â€” both were then merely QCs).
Try this for evenness
Justice Chambers showed his different handling of people with different strengths in his first case this week, the application by Arrigato Investments for leave to appeal against his judgment rejecting a subdivision proposal at Pakiri.
A local, Taumata B chairman Greg McDonald, turned up halfway through Environment Court proceedings claiming notification of the development proposal had been inadequate all along. When it came to the application for leave, Mr McDonald said he had again not been notified.
None of his protests have stopped the courts from continuing with the business before them. During the Arrigato hearing, Justice Chambers fairly squashed the submissions of Mr McDonald and his counsel, Russell Lawn. When it came to notice of the application for leave, Arrigato counsel Richard Brabant thought all parties had been served then told the court, after checking, Mr McDonald appeared not to have been served.
With service not carried out in the statutory timeframe, Justice Chambers said Mr McDonald’s position would be that the original judgment must â€” not should â€” stand. However, the judge said, there was provision for him to grant an extension of time.
“By some means or other,” the persistent ordinary bloke turned up
In ruling how to proceed towards an appeal, Justice Chambers said: “By error it would seem that Arrigato’s application for leave to appeal was not served on Mr McDonald. By some means or other, however, Mr McDonald did find out about today’s hearing.”
The judge noted that both Mr McDonald and Mr Lawn had written to the court with submissions before the hearing. Then he made a ruling â€” adverse to Mr McDonald’s position, which is to prevent development â€” without being clear on his ground: “I am not absolutely clear whether the time limit on appeals requires service within the time specified.
“This would seem to be a classic case where leave should be granted to Arrigato to proceed out of time, given that Arrigato’s application for leave was filed within time and the Auckland Regional Council and Rodney District Council [appellant and supporting cast against the Environment Court’s decision] were served within time.
“Mr McDonald has not been prejudiced by that failure. He will from now on receive all documents filed and he will have a full opportunity to participate.”
2 years to get it right
The McDonald and LaHatte positions are similar: those without resources are not accorded adequate time to reflect, to work out their positions, to contest on a remotely equal footing.
It can be argued that Mr Chisholm has had nearly two years to put together his case, but that isn’t the way life works. At the beginning of that period he could not have known he had to present a High Court case, and during the intervening 23 months he has had to fight the council at every turn to get information, and to get proper performance.
Which perhaps explains why Liberterianz has stepped in to support him, with his case, with his website (click on External links/Miscellaneous/Adrian Chisholm’s Sludgegate) and with news releases from the hearing.
Mr LaHatte’s position has been made the more difficult because many of the witnesses Mr Chisholm requires to tell his story are reluctant and have been subpoenaed. The witness who was to give evidence today, Mrs Sylvia Hubbard, was approached on 12 November â€” on a Sunday morning as she was conducting a birthday party, only eight days before the hearing started, and not in accordance with Justice Hansen’s minute, as counsel for the city council, David Heaney, reminded the judge.
Council dismisses evidence as marginal
Mr Heaney found it remarkable that if this evidence was so important â€” it concerned a meeting on 4 December 1997 at which a solution to Waiheke’s sewage problems was discussed which did not involve using the land adjoining Mr Chisholm’s proposed development â€” that the plaintiffs had not got it tied down earlier.
In any case, Mr Heaney said, “I am calling two of the people at the meeting, which quite frankly I’ve never considered an issue at the trial.”
Mr Heaney said he was concerned that this evidence might mean he would have to call more witnesses, and that the whole hearing could become protracted “by marginal evidence.”
Justice Chambers outlined the plaintiffs’ history of default, including the failure to provide statements of evidence back in 1999, which resulted in his reprogramming the trial at the end of last year.
The judge went through what he clearly found a poor attempt at seeking support, found Mr LaHatte had not taken up the opportunity offered to lead evidence on the nature of the evidence Mrs Hubbard would be asked to give, concurred with the defence counsel’s view of that evidence’s worth, and sent Mrs Hubbard on her way.
Take this bit with saltâ€¦
When Mr LaHatte sought an early lunch adjournment (just before 12.30 instead of the usual 1pm), Justice Chambers agreed, but said that to save time the hearing would resume at 2pm instead of 2.15 â€” then took up the judge’s prerogative of arriving a trifle late, at 2.07.
In dismissing the Hubbard evidence, the judge said: “The evidence that Mr LaHatte hopes to get from Mrs Hubbard seems to me to be of marginal relevance in this case. It largely concerns an application for resource consent Mrs Hubbard apparently made on 6 January 1998.
“The point of the evidence, I am told, is to show that the council had an alternative site available to it for sludge-dumping, but elected not to use it.
“Mrs Hubbard is not required for that evidence, of marginal relevance though I presently sensed it to be. That evidence could have come in through a variety of other witnesses who the plaintiffs should have briefed, and for all I know have done so.
“Alternatively, the information is contained in council records. Mr LaHatte intends calling some council officers, I believe. He will also have the opportunity of cross-examining witnesses called for the defence.
“I refuse leave to the plaintiffs to call Mrs Hubbard. I see no good ground for over-ruling Justice Hansen’s ruling. Mrs Hubbard was approached too late, she was approached in an inappropriate manner, her evidence is of marginal relevanceâ€¦ insofar as it is relevant is available through other witnesses to be called.”
Justice Chambers touched on a point which seems central to the whole case, in which Mr Chisholm alleges the council concocted an emergency so it could dump sewage next to his development, on an island where anti-development views are strong, and that this 4 December meeting which Mrs Hubbard attended was part of the decision-making process..
That point is, that the council had an alternative site but elected not to use it. If that is so, it seems to bear strongly on Mr Chisholm’s primary contention, and to leave this evidence to come from defence and reluctant council-only sources â€” with whom Mr LaHatte may strike the same no-brief difficulty â€” seems to defy logic, no matter how poorly the plaintiff has conducted its preparation.
In the afternoon, Mr Chisholm read his briefs of evidence. I’ll look at that in a separate story, to come.