America's Cup Event Limited v Mayo & Calder Limited
[2023] NZHC 3378
•1 December 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2020-404-001204
[2023] NZHC 3378
BETWEEN AMERICA’S CUP EVENT LIMITED
First Plaintiff
TEAM NEW ZEALAND LIMITED
Second PlaintiffAND
MAYO & CALDER LIMITED
First Defendant
GRANT CALDER (now deceased) Second Defendant
THOMAS MAYO
Third Defendant
MICHAEL CHOY
Fourth Defendant
Hearing: 10 November 2023 Appearances:
D Bullock for Plaintiff/Applicant
A Lloyd and J Spring for Defendants/Respondents
Judgment:
1 December 2023
JUDGMENT OF VENNING J
ON INTERLOCUTORY APPLICATIONS
This judgment was delivered by me on 1 December 2023 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors/Counsel:
LeeSalmonLong, Auckland
MinterEllisonRuddWatts, Auckland D Salmon KC, Auckland
AMERICA’S CUP EVENT LTD v MAYO & CALDER LTD [2023] NZHC 3378 [1 December 2023]
Introduction
[1] America’s Cup Event Limited (ACE) and Team New Zealand Limited (ETNZ), together the plaintiffs, sue Mayo & Calder Limited (MCL), the directors of MCL, Grant Calder and Thomas Mayo, and Michael Choy, an accountant engaged by MCL.
[2] The plaintiffs allege that through MCL and Mr Choy’s negligence, they lost approximately $2.814 million to a Hungarian bank fraud. They next allege that MCL, Mr Mayo, and Mr Choy, breached the Fair Trading Act 1986. The defendants mischaracterised costs of a lunch as office expenses, and claimed $1,240.49. In a third cause of action related to the same loss of $1,240.49 they claim breach of duties owed as an agent. In a fourth cause of action they allege the defendants breached their obligations and released the plaintiffs’ confidential information to third parties. They seek permanent injunctions against the defendants.
[3] In the amended statement of defence and counterclaim the defendants deny the plaintiffs’ claims. They counterclaim. They say ACE wrongfully and unlawfully terminated the agreement appointing MCL as the event delivery partner for the 36th America’s Cup match. In the alternative they allege failure to give good cause and/or reasonable notice. They seek a declaration the agreement was unlawfully terminated and an inquiry into damages.
[4] Since the proceedings were commenced Mr Calder, the second defendant, has died. No executor has yet been appointed.
[5] The claims and counterclaim are scheduled for a substantive fixture commencing 24 March 2025 (three weeks allocated). The matter before the Court at present is the plaintiffs’ application for discovery and interrogatories.
Discovery
[6]The plaintiffs seek orders:
(a)requiring the defendants to provide affidavits complying with the orders made by the Court on 19 October 2022;
(b)requiring the defendants to provide a list of documents which complies with Schedule 9 of the High Court Rules (the metadata issue); and
(c)requiring the defendants to provide further particular discovery.
Interrogatories
[7] The plaintiffs also seek orders requiring the defendants to answer interrogatories issued on 19 December 2022.
[8] The defendants (MCL, Mr Mayo and Mr Choy) oppose the applications. They say:
(a)the defendants have already provided affidavits in compliance with the orders made by the Court on 19 October 2022;
(b)the second order sought is not required as the defendants consent to providing an updated list, which will include further metadata and resolve that aspect of the application; and
(c)the order for particular discovery is not required as the defendants have no further relevant documents. Several of the documents sought are legally privileged or are irrelevant. Alternatively the costs of compliance would be disproportionate as the categories of documents sought are overly broad or vague.
[9] As to the application for an order the defendants answer interrogatories, the defendants say MCL has, through Mr Mayo provided answers to the interrogatories to the extent the interrogatories are valid.
[10] The defendants say generally that the applications are a fishing expedition for information about alleged wrongdoing based on an inherent distrust of the defendants by the plaintiffs, with only tangential relevance to the litigation.
Background
[11] Auckland was appointed as the host city for the 36th America’s Cup and associated events under a Host Venue Agreement between ACE and ETNZ on the one hand, and the Ministry of Business, Innovation and Employment (MBIE) and Auckland Council (Hosts) on the other. ACE engaged MCL, an event management firm, to assist it to deliver the 36th America’s Cup match and associated events in Auckland.
[12] In early 2020, allegations were made about the plaintiffs to the Hosts. The Hosts exercised their contractual right to audit the plaintiffs under the Host Venue Agreement. On 22 June 2020 the Hosts sent a contractual escalation notice to the plaintiffs, together with a copy of an interim report prepared by auditors, Beattie Varley (Beattie Interim Report). The correspondence was copied to Mr Calder.
[13] The Beattie Interim Report disclosed to the plaintiffs that a number of serious allegations had been made against them by a whistleblower. The plaintiffs say the whistleblower was one or more of the defendants. They consider that the whistleblower provided confidential and propriety information of the plaintiffs to the Hosts and to Beattie Varley, including recordings of the plaintiffs’ Board and other internal meetings.
[14] Ultimately the Final Beattie Varley Report found none of the serious allegations were made out and confirmed there had been no financial impropriety.
[15] In the meantime a dispute had arisen between the plaintiffs and the defendants. On 29 June 2020 ACE terminated its arrangements with MLC. On 2 July 2020 the plaintiffs were advised that NZME journalists had seen the Beattie Interim Report and had received copies of recordings and transcripts of ACE’s internal meetings. This led to an application for an injunction to restrain publication of those materials by NZME. The application was granted by Moore J.1 On 27 November 2020 Wylie J made orders
1 America’s Cup Event Ltd v NZME Publishing Ltd [2020] NZHC 1756.
by consent enjoining the defendants from publishing or causing to be published the confidential or proprietary information of the plaintiffs.2
[16] In response to the current application the defendants accept that they have documents relating to the AC 36th event which are properly the plaintiffs’ documents. They acknowledge the plaintiffs are entitled to them. They also accept they are not entitled to use those documents other than for limited purposes. They say they have provided copies of all such documents to the plaintiffs, both informally and as part of the formal discovery process. The defendants say they have ensured the documents have only been used for legitimate purposes, namely the reporting of suspected serious wrongdoing to government agencies and in defence of the allegations against them, including instructing and taking advice from professional advisers. They have agreed to orders preserving confidentiality pending further consideration of matters at trial.
Compliance with the 19 October 2022 order
[17] On 19 October 2022 Wylie J made orders by consent to resolve a discovery application that had been brought by the plaintiffs. The order was:
(a)within 15 working days each of the defendants will provide further affidavits detailing:
(i)the inquiries made of their contractors and agents regarding documents in their control (including identifying from which contractors and agents documents were sought);
(ii)the responses to those inquiries including how those persons searched for potentially relevant documents;
(iii)what documents were provided by those persons to defendants;
(iv)a list of the documents over which the defendants claim litigation privilege in the format provided for in cl 7(1) of Schedule 9 of the High Court Rules 2016.
[18] The defendants say they have complied with that order in substance. Mr Calder made an affidavit on 1 December 2022 in which he deposed that:
2 Minute of Wylie J, dated 27 November 2020.
4.In my July 2022 affidavit, I advised that the Mayo & Calder Defendants had searched for all potentially relevant documents from our contractors and agents.
5.I have read the affidavit of Thomas Mayo which records the steps taken to inquire about documents held by our contractors and agents and confirm that they are correct. There are only two agents … or contractors that would hold potentially relevant documents which are in my control. Those are COR 36, Challenger of Record and Sherson Willis, a public relations firm that the Mayo & Calder has retained since 2015 to provide advice. Both Mr Mayo and I knew the principals of Sherson Willis socially and from other projects before we engaged them in 2020.
6.I worked closely with Mr Mayo when we were undertaking discovery. I was present with Mr Mayo when he made inquiries of COR 36 on a phone call about whether they held any potentially relevant documents. I also reviewed my email accounts and electronic files for any documents sent to me by COR 36 which were potentially relevant to this proceeding. I confirm that as a result of those steps that COR 36 did not hold any further documents which the Mayo & Calder Defendants would not already retain.
7.For Sherson Willis, I confirm that I did not provide any documents to this firm which related to this proceeding or which are the confidential information of the plaintiffs. I confirm that the details in Mr Mayo’s affidavit of paragraph 7 about our engagement with Sherson Willis are true and correct.
[19] As to privilege he listed the following documents as the only documents for which legal and litigation privilege was claimed:
Docid Doctype Docdate Author Recip Parentid Privilege/ Confidential MAY .02.001 8 July 2020 MERW ThomasMayo/ Grant Calder n/a Litigation privilege MAY .02.002 20 July 2020 Thomas Mayo MERW n/a Litigation privilege
[20] Mr Mayo also made a further affidavit on 30 November 2022 in which he deposed:
2.I confirm that the only two agents or contractors that would hold potentially relevant documents which are in my control are:
(a)COR 36, Challenger of Record; and
(e)Sherson Willis, a public relations firm that Mayo & Calder has retained from time to time.
3.For COR 36, I reviewed my email accounts and electronic files for any documents sent to me by COR 36 which were potentially relevant to this proceeding. The email address was an America’s Cup email account that was provided to me by the first plaintiff, and the majority of relevant documents will be emails from this email account address and with Russell Green copied in.
4.Prior to the termination of our contract with COR 36 in October 2020, I contacted Alessandra Pandarese via a phone call to ensure that any further documentation and files were returned to us, so that the contract was wound up appropriately. The phone call would have occurred in early October 2020. Alessandra Pandarese confirmed to me on behalf of COR 36, that from a search of its hard copy and electronic files, it held no further documents beyond what the Mayo & Calder Defendants would already hold.
5.For Sherson Willis, I confirm that I did not provide any documents to this firm which related to this proceeding or which are the confidential information of the plaintiffs. Mayo & Calder has engaged Sherson Willis from 2015 on an ad hoc basis to manage The Volvo Ocean Race(s) and other projects. Those engagements were on an oral basis, through a phone call to the owner of the firm, Trish Sherson, for the purpose of providing discrete advice about issues as they arose during projects that Mayo & Calder was involved. All subsequent contact with Sherson Willis occurred through phone calls and meetings which would not have produced any documents relevant to this litigation. Mayo & Calder stopped working with Sherson Willis in December 2021 and has not engaged Sherson Willis since then on any project.
6.I understand that Sherson Willis has written to representatives of the plaintiffs advising that it does not hold any relevant documents in this proceeding other than a copy of the High Court pleadings and an interim report prepared by MBIE and that it had not provided any of those documents to any third parties. I understand that the correspondence from Sherson Willis has been discovered.
[21] In relation to litigation privilege Mr Mayo’s affidavit repeated what Mr Calder had said.
[22] Mr Choy also made an affidavit on 30 November 2022. He confirmed that he did not have a relationship with any contractors or agents and did not hold any relevant documents.
[23]The plaintiffs say the defendants’ affidavits are inadequate as:
(a)they do not detail any inquiries made of MinterEllisonRuddWatts (MERW) as agent of the defendants;
(b)they do not detail any inquiries of Sherson Willis, and instead focus on the deponents’ views as to why there have been no discoverable documents held by that party, and
(c)in both cases if the answer is that no inquiries were made, that should have been stated.
[24] There is no dispute that Sherson Willis was an agent of MLC throughout the relevant period. In a related but separate application, Sherson Willis has agreed to provide non-party discovery. Mr Bullock made the point that MERW was corresponding with MBIE and the plaintiffs had become aware of such correspondence through the Official Information Act 1982 despite it not having been discovered in the proceeding. The plaintiffs seek orders that the defendants be directed to search for discoverable documents in the possession of Sherson Willis, MERW and any other contractor, or agent who might possess discoverable documents.
[25] The defendants’ response is that the affidavits provided are adequate and it is not appropriate in the course of an interlocutory application such as this to challenge the credibility of affidavit evidence which is effectively what the plaintiffs are seeking to do.
Analysis
[26] The orders made were consent orders. The defendants consented to an order which required them to make affidavits in a particular form and, in particular, detailing the inquiries made of their contractors and agents. Mr Mayo’s affidavit confirms the inquiries he made of COR 36 in October 2020, but the consent orders made in October 2022 must have contemplated a further inquiry given that at the time the defendants consented to the orders, Mr Mayo’s previous affidavit was a matter of record.
[27] There is no evidence in Mr Mayo’s (or Mr Calder’s) affidavits of 30 November and 1 December of any inquiry regarding Sherson Willis or for that matter any other contractor or agent after the orders were made on 19 October 2022.
[28] Given the nature of the allegations in the fourth cause of action (and the counterclaim), strict compliance with the consent orders was required. The short point is that the recent affidavits do not comply with the orders that the defendants consented to.
[29] The defendants are to file and serve further affidavits expressly addressing the requirements of the orders. Obviously the order can no longer apply to Mr Calder.
Compliance with schedule 9
[30] I understand the position to be that the defendants have agreed to file a further affidavit complying with sch 9 and providing the metadata. Again, given the background to this proceeding a formal, further updating affidavit complying with that requirement is to be filed and served.
Further particular discovery
[31] In Assa Abloy New Zealand Ltd v Allegion (New Zealand) Ltd the Court confirmed that the Court adopts a four-staged approach in relation to an application for further and better discovery:3
(a)Are the documents sought relevant, and if so how important will they be?
(b)Are there grounds for belief that the documents sought exist? This will often be a matter of inference. How strong is that evidence?
(c)Is discovery proportionate, assessing proportionality in accordance with Part 1 of the Discovery Checklist in the High Court Rules?
(d)Weighing and balancing these matters, in the Court's discretion applying r 8.19, is an order appropriate?
[32] Particular discovery proceeds on the basis of an adverse documents test which requires actual and direct relevance on the pleadings, unlike the former Peruvian Guano test.4
3 Assa Abloy New Zealand Ltd v Allegion (New Zealand) Ltd [2015] NZHC 2760 at [14].
4 The Compagnie Financiere et Commerciale Du Pacifique v The Peruvian Guano Co (1882) 11 QBD 55 (CA); and Chatfield & Co Ltd v Commissioner of Inland Revenue [2016] NZCA 614, (2016) 27 NZTC 22-084.
[33] The plaintiffs seek further discovery of documents in relation to the following general categories:
(a)correspondence between the defendants and MBIE;
(b)correspondence between the defendants and any journalists;
(c)correspondence between the defendants/MERW and Sherson Willis;
(d)correspondence/documents concerning ACE contractors.
[34] Mr Mayo has filed a further affidavit sworn on 7 November 2023 in which he confirms that he has reviewed the plaintiffs’ request for further and better discovery and, having undertaken a further and thorough search for potentially relevant documents, confirms that he has no further relevant documents to provide beyond those already discovered.
[35] The defendants also say that the only possible basis upon which documents held by third parties could be relevant is because of the plaintiffs’ suspicion that their confidential documents were leaked to the media and their view the defendants must have been one of the parties responsible for that. The defendants say that issue is of diminishing relevance.
Correspondence between the defendants, MERW and MBIE
[36] Russell Green is ETNZ’s in-house legal counsel. In his affidavit in support of the application he refers to:
(a)information obtained under the Official Information Act which discloses emails between MERW and MBIE dated 17 June 2020;
(b)a 30 June 2020 letter from MERW to MBIE which refers to other material;
(c)26 August 2020 correspondence between MERW and lawyers acting for MBIE;
(d)an email chain in March 2020 between Mr Beattie and Mr Calder which refers to documents which apparently have not been discovered;
(e)correspondence between MERW and Mr Beattie of 14 August 2020, which refers to “two further recordings”;
(f)an email between Mr Beattie and a person who appears to be Mr Calder on 27 March 2020 which suggests other documents may exist;
(g)an email chain which appears to be Mr Calder forwarding to Mr Beattie an email from MERW attaching a transcript of a 19 December 2019 meeting.
[37] Mr Green also refers to text messages sent between Mr Calder and Mr Cosser of MBIE.
[38] While the plaintiffs have obtained some of these documents through the Official Information Act process, they are not satisfied they have all the documents and some of the information is redacted. MBIE has withheld the redacted material on the basis its release would unreasonably prejudice the commercial position of the defendants or affect the privacy of natural persons. The plaintiffs seek unredacted copies of the documents.
[39] The defendants’ response is that the correspondence between MERW and MBIE is privileged and does not need to be disclosed. The plaintiffs have had full disclosure of counsels’ letters to MBIE setting out the full ambit of disclosure. The further documents sought will not be relevant to or assist the determination of the principal issue in the proceeding which is whether the defendants had a reasonable good faith basis for making disclosure to MBIE.
[40] Next, to the extent that the application is directed at text messages and emails from Mr Calder to MBIE the defendants make the point they are no longer able to be provided, given Mr Calder is deceased.
Analysis
[41] I accept that on the basis of the material attached to Mr Green’s affidavit documents of the type he refers to may well exist. The principal issues are whether the documents are relevant and if so, are they of sufficient importance to the matters in issue so as to make an order for discovery appropriate.
[42] As an example, while the email of 17 June 2020 at Exhibit ‘B’ to Mr Green’s affidavit is in relation to the matters in issue, it is of no relevance to any issue in the proceeding. It would not meet the adverse documents test. The plaintiffs obviously now have a copy of it in any event. The Court would not order or direct discovery of documents of that nature.
[43] The letter from MERW to MBIE of 30 June 2020 confirms the disclosure by MLC to MBIE which is in issue. To the extent that the documents referring to disclosure at 2.4, 3.6 and 3.9 of that letter have not been disclosed they are to be disclosed.
[44] On the other hand, the general references to contact from the media and “overnight communications” between MLC and the Challenger of Record (COR), do not of themselves support the conclusion that documents were created.5 In any event, it appears from cl 6.4 of MERW’s letter that nothing of any substance arose out of that communication. Next, in terms of the overnight communication with COR it again does not appear to be directly related to the issue of disclosure. It is not sufficiently relevant to require further discovery.
[45] The correspondence between MERW and MBIE and lawyers acting for MBIE regarding the disclosure by MLC to MBIE is relevant to both the plaintiffs’ claim and the defendants’ counterclaim.6 To the extent it has not been discovered it ought to be
5 At 18(b) of Mr Green’s affidavit.
6 At 18(c) of Mr Green’s affidavit.
discovered. If it is subject to a claim of privilege the grounds for that privilege should be set out in full in relation to each document or category of documents.
[46] Similarly, the documents referred to in the email chain attached to Mr Green’s affidavit at Exhibit ‘E’ are potentially relevant as evidence of the disclosure in issue. They should be discovered. Again, if privilege is claimed, the basis for that privilege should be specifically identified.7
[47] The recordings referred to in Exhibit F meet the definition of document and the test of relevance. They should be disclosed.8
[48] Similarly, in relation to the recordings of Board meetings and the transcript of those, to the extent they have not been disclosed they ought to be.9
[49] Finally, the transcript referred to in the email of MERW attaching the file described as a transcript, should be disclosed if it has not been already. Whether it has already been disclosed may be clarified with the provision of the further metadata.
[50] The email exchange between Mr Calder and MBIE does not appear to be of sufficient relevance to the issues to require discovery. To the extent the dates of contact are relevant they are now a matter of record. And, in any event, no order can be made against Mr Calder.
Correspondence between the defendants and any journalist
[51] The plaintiffs say a number of documents were leaked to the media that could only have come from the defendants. However no correspondence between the plaintiffs or their agents with members of the media have been discovered. The plaintiffs consider such documents must exist.
7 At 18(d) of Mr Green’s affidavit.
8 At 18(e) of Mr Green’s affidavit.
9 At 18(f) of Mr Green’s affidavit.
[52] The plaintiffs refer, for an example, to an extensive interview with Mr Rutherford of the New Zealand Herald on 28 November 2020. Mr Rutherford also authored many other articles relating to the plaintiffs’ confidential information.
[53] The defendants oppose this aspect of the application. They suggest that, to the extent the request seeks documents of calendar invitations rather than administrative material it is not discoverable as it is not disputed the interviews took place. Otherwise this aspect of the application is fishing and speculative.
[54] I agree with the defendants’ submission that communications relating to setting up meetings are insufficiently relevant to be discoverable.
[55]However, Mr Green’s previous affidavit sworn on 10 November 2020 (at 34 to
83) does provide a basis for the plaintiffs’ submission that detailed information was provided by the defendants to the media. To that extent, the plaintiffs’ argument that there will be relevant documentation concerning disclosure to journalists is not speculative. The defendants are to provide discovery of relevant documents between the defendants and any journalist directly related to the disclosure or provision of information concerning the allegations made by the defendants, arising out of the MBIE audit and the termination of the contract between ACE and MCL. If there are none, that should be expressly stated.
Correspondence between the defendants, MERW and Sherson Willis
[56] The plaintiffs note that the relationship between MLC and Sherson Willis continued to December 2021, at least. They consider there is likely to be ongoing correspondence between MERW and Sherson Willis relevant to the proceeding.
[57] The defendants’ response is that they have no further documents to provide. The documents which record advice between MERW and Sherson Willis as it relates to the defence of the proceeding will be privileged.
[58] Mr Mayo has also deposed that all the communications were by telephone calls and Sherson Willis’ retainer was terminated shortly into the life of the proceeding. The defendants say the plaintiffs are again fishing. Mr Bullock suggested that if the calls
were by telephone there will be call logs and potentially invoices which could relate to the communications.
[59] As noted, the plaintiffs have obtained a third party discovery order against Sherson Willis. That does not, however, address the defendants’ obligations in relation to discovery. I accept that there may be relevant documents held by the defendants regarding their contact with Sherson Willis, and between MERW and Sherson Willis. If privilege is claimed the documents should be listed and the basis of the privilege set out clearly.
Correspondence/documents concerning plaintiffs’ contractors
[60] In their counterclaim the defendants allege the contract was wrongly terminated. Mr Green attaches a recording of a meeting between Messrs Mayo and Calder of MLC, Messrs Lloyd and Well of MERW with persons contracted to ACE seemingly as part of an attempt to convince those ACE staff to continue working but with MLC. I have listened to the recording which is Exhibit ‘A’ to Mr Green’s affidavit. It is of variable sound quality. Mr Green notes, and Mr Bullock submitted, that there will likely be meeting requests and other documents relating to the meeting, including possible draft contracts.
[61] The defendants submit there are no relevant documents to be provided about the meeting. They note that the request seems to be based on an assumption the documents must exist, including draft contracts and administrative documents, but there is no basis for that assumption. Again they say it is speculative.
[62] The defendants also suggest that the recording is privileged because advice was given and there was a discussion regarding the possibility of draft contracts and legal advice. On the information before the Court I am unable to see a basis for the privilege claimed in relation to the recording of the meeting. To the extent there may be any confidentiality in relation to it that would not prevent disclosure and the use of it on certain terms.
[63] But of more relevance, I do accept that administration documents relating to the setting up of the Zoom meeting or of anything of that kind would not be sufficiently
relevant to require disclosure. I am not satisfied that discovery of documents regarding the meeting (which is a matter of record) are sufficiently relevant. The application for discovery in relation to this category of documents is declined.
Interrogatories
[64] The plaintiffs note that the answers to the interrogatories have not been verified by affidavit. Further, no answers have been provided by MLC and both Mr Mayo and Mr Choy have refused to answer the majority of questions. The plaintiffs say the basis for the objections to answer the interrogatories are not sustainable.
[65] The plaintiffs take issue with the general objection to answering the interrogatories on the basis they assume issues of disputed fact. They say if the defendants disagree with the premise of a question that can be stated in the answer but the fact an issue is in dispute is not a reason to object to answering it. I agree.
[66] Mr Bullock also relied on the case of Sellman v Slater.10 In that case the Court confirmed that, in assessing the sufficiency of answers to interrogatories the Court could assess the answers for consistency with the evidence. Mr Bullock submitted the objections to the answers were implausible against the detail of the forensic account of Mr Green as to the documents leaked to the media and how that might have occurred.
[67] However, I note that the principal passages from Sellman v Slater in which Palmer J discussed the issue of the consistency of the answers with other evidence, were in relation to the request that the defendants be required to attend Court to be orally examined.11 That is not in issue in this case.
[68]The defendants maintain their objection to the interrogatories. They say:
(a)many of the questions relate to matters of disputed fact to be determined at trial or involve discovery or otherwise are matters not within the
10 Sellman v Slater [2018] NZHC 3057.
11 At [60]–[61].
knowledge of the defendants as they relate to whether specific documents were provided to any persons;
(b)it is an improper purpose to require answers to questions which replicate the discovery process, particularly when extensive discovery has been provided; and
(c)many of the interrogatories are in the nature of a fishing expedition.
Analysis
[69] I agree that the answers to the interrogatories are required to be verified by affidavit. Next, Mr Mayo, as a director of MLC, can and should answer the interrogatories on behalf of MLC and also in his personal capacity.
[70] The overriding consideration is that the interrogatories should be relevant to an issue raised on the pleadings or a fact in dispute for determination.12 The answers should be specific and made to the best of a party’s knowledge, information and belief.13
[71]I deal with the particular interrogatories as follows:
5(a)When you searched for relevant documents as part of preparing discovery in this case etc
[72] I accept the defendants’ objection to answering interrogatory 5(a). The interrogatory is essentially directed at the discovery process. That is not the purpose of interrogatories.
12 Todd Pohokura Ltd v Shell Exploration NZ Ltd [2009] NZCA 561.
13 Crusader Meats New Zealand Ltd v New Zealand Meat Board HC Wellington CIV-2004-485- 2147, 13 May 2008.
5(b)Sherson Willis has advised that it came to possess a copy of the [Interim Beattie Report] through its engagement to MCL
[73] A series of questions then follows. The interrogatories are unobjectionable and should be answered. If issues of privilege/confidentiality arise then they can be referred to in the answer.
5(c) On 2 July 2020 Heather du Plessis Allan of Newstalk ZB/NZME advised [the plaintiffs] that she had “seen chunks” of the Report
[74] A series of questions follow. A number of the questions use the word “likely” which could require speculation. With the deletion of the “likely” aspect, the questions that follow are unobjectionable and should be answered.
5(d) The defendants have discovered in this proceeding a recording of a 13 November 2019 meeting of plaintiffs
[75] 5(d)(i) to (vii) have been answered; 5(d)(viii) to (xxiii) are to be answered. To the extent that the answer may be that the deponent does not know, then that is an appropriate answer. However, there is nothing objectionable to an interrogatory “To the best of your knowledge what purpose was the recording provided to each person etc, for example.” The questions are to be answered.
5(e) For each of the other recordings disclosed in this proceeding, answer the questions in paragraph 5(d) above
[76] 5(e) refers to each of the other recordings and seeks answers. 5(e) as worded is too general. Interrogatories are directed at answers to specific questions. The relevant recordings should have been identified.
5(f) On 24 November 2018 at 12.04 pm Grant Dalton sent an email to Greg Kemp copying Tina Symmans, Tom Mayo, Grant Calder and Michael Choy stating (among other things) “How much money has been ‘brought across’ from ACE to ETNZ”?
[77] The interrogatories at 5(f)(ii), (iii), (iv) and (v) do not require an answer given that the answer to (i) is that Mr Mayo did not provide a copy of the email or any extract of it to any person. The interrogatories at (f)(ii)–(v) follow that answer. However, the interrogatories at 5(f)(vi): “To the best of your knowledge, how did Hamish
Rutherford/the New Zealand Herald come to possess this email?” and the subsequent question at (vii) are to be answered.
5(g)–5(l)
[78] The same response as that to 5(f) applies to the interrogatories at 5(g), 5(h), 5(i), 5(j), 5(k) and 5(l) which are directed at further communications, as applicable. The questions at (i) to (iv) in each case have either been answered or do not require an answer because of the answer to the first question. However the questions at 5(g)(v) “To the best of your knowledge, how did Hamish Rutherford/the New Zealand Herald come to possess this email?” and (vi) are to be answered in each case.
5(m)On 30 September 2020 the defendants filed a document titled “Reply to Statement of Defence to Counterclaim”
[79] The defendants have answered the questions insofar as they relate to Sherson Willis. They have refused to answer (m)(vii) to (xii). Given the timing of this disclosure, I do not consider the remaining questions to be sufficiently related to an issue raised on the pleadings to require an answer. They are a series of questions about whether the NZ Herald was advised about the pleading itself being filed.
Result/orders
[80] The further discovery and answers to interrogatories required as a result of this judgment are to be complied with by affidavits of documents and affidavits confirming the answers to the interrogatories being filed and served by 26 January 2024.
Timetable
[81] Counsel are to file a joint memorandum setting out a timetable to trial by 8 December 2024.
Costs
[82] I reserve the issue of costs. On balance, the plaintiffs have achieved a measure of success. My present inclination is an award of costs on a 2B basis with a 30 per
cent reduction would be appropriate. If counsel are unable to agree, memoranda will need to be filed.
Venning J
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