AUC Properties Limited v Rotorua District Council

[2013] NZHC 2395

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CIV 2012-463-000022 [2013] NZHC 2395

BETWEEN  AUC PROPERTIES LIMITED Plaintiff

ANDROTORUA DISTRICT COUNCIL Defendant

Hearing:                   19 June 2013; and

On the papers

Appearances:           D M O'Neill for the Plaintiff

FCK Wood for the Defendant

Judgment:                13 September 2013

JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSEN

This judgment was delivered by me on

13.09.13 at 4:30pm, pursuant to

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

AUC PROPERTIES LIMITED v ROTORUA DISTRICT COUNCIL [2013] NZHC 2395 [13 September 2013]

[1]      This judgment concerns AUC’s application for further and better discovery. That application was called for hearing before me on 19 June 2013.  My minute of that date recorded that after an hour and a half of discussions with counsel I invited AUC to give thought to defining the search criteria in support of its discovery expectations.    I then directed that  those  details  were  to  be delivered  to  RDC’s counsel by 28 June and for RDC’s reply to be delivered to AUC’s counsel by 8 July

2013.  The Court file notes that copies of supplementary submissions from counsel were received on 12 July 2013.  Unfortunately they were not then forwarded on to me until 23 August and it was in the following week that I received the Rotorua Registry’s file.

[2]      I have not before now had an opportunity to address the matters raised upon the application. Moreover, a trial of five days has been scheduled to begin on 14

October 2013.  It is the intention of the list Judge to confirm a firm trial date of five days beginning 7 October 2013.

[3]      In my minute dated 19 June 2013 I noted RDC’s concerns about the rather broad and somewhat undefined nature of AUC’s requests for additional discovery.  It appeared  that  much of  what  was  sought  was  publicly available  and  able to  be accessed by a website search.  Each party considered it was the responsibility of the other to undertake any search.   Also, AUC expects discovery of information not publicly available.

[4]      I also noted concerns that a lot of effort and expense may be incurred by RDC in providing discovery to AUC’s expectations.    I commented that considerations of proportionality and cost would apply.  Also I noted that not many of the documents involved were not publicly available and that those which were available could with care be accessed.

[5]      By joint memorandum dated 12 July 2013 counsel advised that they could not agree on a solution.

[6]      Counsel  agree  on  the  search  criteria  to  be  used.    These  do  not  require repetition by me.

[7]      The RDC use Outlook for email. There is a separate server for emails.

[8]      It appears emails are stored on the server unless they have been deleted previously from  Outlook.   Also  RDC’s  IT  Department  does  not  have  an  email archival system which enables search and recovery of emails.

[9]      It appears that searching the archival system would be difficult but it would be possible to do a Meta data search of all documents over a particular date range using the particular search criteria but only those documents with the search criteria wording in the title will be captured.

[10]     The plaintiff indicates now that the period of its search can be confined to

April 2011 to September 2011.

[11]     The  minutes  of  meetings  and  even  those,  from  which  the  public  was apparently excluded, are on the website and there is a search function available to identify relevant documents.  If the public was excluded from any sessions it would be recorded in the minutes.

Decision

[12]     It is the Court’s view that RDC’s obligations to discovery do not extend to undertaking that search which AUC will have access to by virtue of the search criteria agreed upon.   It is therefore for AUC to search the RDC’s website and to obtain the documents it requires.  This is so even though it appears that the ability to undertake an electronic search using AUC’s “search criteria” is not easy to do and is potentially quite complex and time consuming.

[13]     In that frame of things considerations of proportionality apply and it is for AUC to search from publicly available information to obtain that which it considers best suits its purpose.

[14]     The RDC’s position is that there are no other documents relevant that have not already been discovered.

[15]     Regarding AUC’s  concerns about access to documents referred to in the minutes of RDC if it went into committee and excluded the public, it appears the fact of public exclusion is recorded in the minutes.  Mr Wood believes that there are no minutes of that kind which are relevant to the present proceeding.   However it is available to AUC to check this position by reference to its search criteria.

[16]     The Court considers no further orders for discovery ought to be made.  This position can be reviewed if in the minutes of a meeting, from which the public has been excluded, there is reason to believe there are documents which may be relevant to this proceeding.

Costs

[17]     In the particular circumstances of this case the Court considers that costs should lie where they fall.

Associate Judge Christiansen