Bei v Wang

[2019] NZHC 2860

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-1164

[2019] NZHC 2860

BETWEEN

DUOYU BEI

Plaintiff

AND

CHAO WANG

First Defendant

AND

WILSON MCKAY TRUSTEE COMPANY (228904-10) LIMITED

Second Defendant

AND

MYST TRUSTEE LIMITED

First Third Party

AND

WEI KONG

Second Third Party

Date of hearing:	4 November 2019
Appearances:	DPH Jones QC for the plaintiff D J Clark for the defendants No appearance for third parties
Date of judgment:	4 November 2019

JUDGMENT OF JAGOSE J

The judgment was delivered by me on 4 November 2019 at 4.45pm.

Pursuant to Rule 11.5 of the High Court Rules

……………………………… Registrar/Deputy Registrar

Solicitors/Counsel:

David P H Jones QC, Auckland Wilson McKay, Auckland

BEI v WANG [2019] NZHC 2860 [4 November 2019]

[1]                 As duty judge, I am to decide the plaintiff’s application for non-party discovery from Immigration New Zealand, which abides my decision.

Background

[2]                 In this proceeding, the plaintiff (“Mr  Bei”)  alleges  the  first  defendant  (“Mr Wang”) is liable to him for misrepresentations, in deceit, and for breach of fiduciary duty, for damages in the amount of $1.285 million. The allegations arise out of the parties’ entry in 2016 into a shareholding and loan agreement in relation to a nightclub business.

[3]                 The matter was set down for trial commencing 12 August 2019 before  Walker J, at which Mr Wang was expected to attend to give evidence. In the event, Mr Wang could not attend, because he lacked the necessary visa to (re-)enter New Zealand. Trial was adjourned,1 for reasons including to accommodate Mr Wang’s application to give evidence in an alternative way.2

[4]                 Mr Bei subsequently brought a ‘wasted costs’ application: an application for increased or indemnity costs in relation to the adjournment for Mr Wang’s non- attendance in person. In opposition, Mr Wang asserted he had sought the required visa by application in June 2019 “at a visa office in Athens”. On that office’s later advice the application was declined, he “physically filed an application in the Shanghai visa office on 1 August 2019”. He was advised on 9 August 2019 it also was declined.  Mr Wang says he has no records of those interactions.

[5]Mr Bei therefore brought the present application, seeking:

(a)     All records held by, or in the control of, Immigration New Zealand relating to the immigration status of Chao Wang in New Zealand in 2019;

(b)    All records (electronic, hard copy or otherwise), of or relating to any applications made in 2019 for any visa by Chao Wang to enter New Zealand and the processing of any such application(s); [and]

(c)     What records (electronic, hard copy or otherwise), Immigration New Zealand would hold and/or have control of or access to if a visa application had been made by Chao Wang during 2019, a first such

1      Minute (no 4) of Walker J, 13 August 2019.

2      Evidence Act 2006, s 103.

application ostensibly being made in Athens in June/July and a second application subsequently in Shanghai, China on or about 1 August 2019, including the application itself, any fees payable and/or paid, receipts issued and correspondence issued. …

Mr Bei relies on the evidence of Peter Robin O’Neill, who deposes to familiarity with Immigration New Zealand’s record-keeping, and his certainty it would have records of Mr Wang’s visa applications.

[6]                 Immigration New Zealand abides my decision on the application. Mr Wang opposes the application, reasserting the truth of his account and doubting Immigration New Zealand would have “anything else … because the application was not processed at my request”. He casts doubt on Mr O’Neil’s independence, and expresses concern about Mr Bei’s motivations to obtain details of his immigration record.

Applicable law

1. Rule 8.21 of the High Court Rules 2016 provides:

Order for particular discovery against non-party after proceeding commenced

(1)    This rule applies if it appears to a Judge that a person who is not a party to a proceeding may be or may have been in the control of 1 or more documents or a group of documents that the person would have had to discover if the person were a party to the proceeding.

1. The Judge may, on application, order the person—

(a)to file an affidavit stating—

(i)     whether the documents are or have been in the person's control; and

(ii)   if the documents have been but are no longer in the person's control, the person’s best knowledge and belief as to when the documents ceased to be in the person’s control and who now has control of them; and

(b)to serve the affidavit on a party or parties specified in the order; and

(c)if the documents are in the control of the person, to make those documents available for inspection, in accordance with rule 8.27, to the party or parties specified in the order.

(3)    An application for an order under subclause (2) must be made on notice to the person and to every other party who has filed an address for service.

[8]                 Mr O’Neil’s affidavit provides grounds for believing such documents may be or have been in Immigration New Zealand’s control. The usual concerns about the impact of discovery orders against non-parties are vitiated here by Immigration New Zealand abiding my decision. Mr Wang’s concerns as to his personal risk are met by both the prohibition on collateral use of discovered documents, and the parties’ concession any such order here may be made in the first instance for inspection by counsel only.

[9]                 The more significant issue is if these are particular documents Immigration New Zealand would have had to discover if party to the proceeding.3 That is to say, absent any order for relevant particular or tailored discovery, are they documents supporting or adversely affecting another party’s case?4 Such is to be determined by reference to the pleadings.5 That documents may be material to some non-substantive aspect of the proceeding does not qualify them for discovery.6

Discussion

[10]              Alive to that proposition, Mr Bei’s counsel, David Jones QC, says Mr Wang’s credibility clearly is at issue on pleadings of misrepresentation and deceit. But the allegations are not of Mr Wang’s general bad character, such that any documents going to his character may be relevant. Determination of such documents’ qualification for discovery also may call in the veracity rules, which require any such evidence be “substantially helpful in assessing that person’s veracity”.7 That is a higher threshold than documents merely supporting or adversely affecting a party’s case, requiring “heightened probative force”.8

[11]              On the other hand, Mr Wang’s immigration status is at issue on the pleadings, as Mr Wang denies leaving New Zealand to avoid liability to Mr Bei, but admits doing so to abide by the terms of his visa and to avoid deportation. Mr Wang says

3      HCR 8.21(1).

4      HCR 8.7(c) and (d).

5      New Zealand Rail Ltd v Port Marlborough New Zealand Ltd [1993] 2 NZLR 641 (CA) at 644; Chatfield & Co Ltd v Commissioner of Inland Revenue [2016] NZCA 614, (2016) 27 NZTC 22- 084 at [21].

6      Commissioner of Inland Revenue v Cullen Group Ltd [2018] NZCA 166, (2018) 24 PRNZ 71.

7      Evidence Act 2006, s 37(1).

8      Wi v R [2009] NZSC 121, [2010] 2 NZLR 11 at [11].

Immigration New Zealand’s error as to his adherence to those requirements led to his applications’ declinations. The documents sought by Mr Bei under categories (a) and

(b) support or adversely affect the parties’ cases as to the circumstances of Mr Wang’s departure from New Zealand. If party to the proceeding, Immigration New Zealand would have had to discover those documents.

[12]              On that basis, I will allow Mr Bei’s application for such non-party discovery. I am not prepared to allow category (c), which seeks evidence rather than discovery.

Result

[13]              I order Immigration New Zealand within ten working days after the date of service of this judgment to:

(a)file an affidavit stating:

(i)whether the documents described at [5](a) and/or [5](b) above are or have been in its control; and

(ii)if the documents have been but are no longer in its control, its best knowledge and belief as to when the documents ceased to be in its control and who now has control of them; and

(b)serve the affidavit on solicitors for each the plaintiff and first defendant; and

(c)if the documents are in its control, make those documents available for inspection to counsel only for each the plaintiff and first defendant.

Costs

[14]              At Mr Jones’ request, costs are reserved for determination together with those on other interlocutory applications yet to be determined.

—Jagose J