Body Corporate 423090 v QBE Insurance (International) Limited
[2019] NZHC 2697
•21 October 2019
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2016-409-836
[2019] NZHC 2697
BETWEEN BODY CORPORATE 423090
Plaintiff
AND
QBE INSURANCE (INTERNATIONAL) LIMITED
First Defendant
AND
QBE INSURANCE (AUSTRALIA) LIMITED
Second Defendant
AND
FORTIS CONSTRUCTION NZ LIMITED
Third Defendant
AND
STRUCTEX HARVARD LIMITED
Fourth Defendant
AND
CALIBRE CONSULTING LIMITED
Fifth Defendant
AND
G1 GLOUCESTER STREET LIMITED
Sixth Defendant
AND
ERNEST FREDERICK MICHAEL MR DUVAL
Seventh Defendant
AND
STUDIO2 LIMITED
Eighth Defendant
Hearing: 15 October 2019 Appearances:
A Murray for Plaintiff
C R Langstone for First and Second Defendants
Interim Judgment:
21 October 2019
BODY CORPORATE 423090 v QBE INSURANCE (INTERNATIONAL) LIMITED [2019] NZHC 2697
[21 October 2019]
INTERIM JUDGMENT OF ASSOCIATE JUDGE LESTER
(on application for discovery by the plaintiff)
This interim judgment was delivered by me on 21 October 2019 at 4.00pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar 21 October 2019
[1]Two discovery applications are before the Court for determination.
[2] This interim judgment concerns the plaintiff’s application for further and better discovery against the first and second defendants (“QBE”).
[3] There will be a separate judgment concerning QBE’s application for further and better discovery against the plaintiff.
Plaintiff’s application
[4] The plaintiff’s application was originally filed in March 2019 and while met with a notice of opposition, it was (in terms of the further documents sought) satisfied by a supplementary list of documents filed in May 2019.
[5] The remaining issue in respect of the plaintiff’s application is whether the disclosure given by QBE in its original list from July 2018 and its supplementary list from May 2019 complies with the listing and exchange obligations in pt 2 of sch 9 of the High Court Rules 2016.
[6] Clause 6 of pt 2 of sch 9 requires a party, when listing documents, to identify in respect of each document the identity of the document, its date, the document type, its author and recipient and parent document if relevant.
[7] The plaintiff’s complaint is that in QBE’s first list of documents there are 960 documents that do not include any information about authors or recipients. Some of these documents also do not include a document date. There are file notes, schedules and diagrams about which no information is provided beyond that which can be gleaned from the document itself.
[8] In QBE’s second affidavit of documents there are 332 documents that do not include information about the author, recipient, or date.
[9] The plaintiff is seeking an order that QBE file and serve a list of documents which contains the omitted information in respect of all 1,292 documents.
[10] QBE submits that it would be out of proportion and oppressive to require it to provide all the information referred to in the listing protocol in relation to all 1,292 documents. The missing information is not obvious on the face of the documents. The documents are hard copy files so there is no meta data to allow additional information or date estimates to be provided from examining the computer systems on which the document was created. There is no issue with the plaintiff having access to the documents - they have all been provided to the plaintiff - the issue is how they have been listed.
[11]QBE makes the following submission:
The Court has a duty to consider the concepts of proportionality and oppression in relation to discovery. The question of oppression involves balancing considerations of cost and time against the potential value of discovery. The cost/benefit analysis is not limited to financial cost but includes the wider assessment of the degree of effort required to meet a party’s discovery obligations.
(footnotes omitted)
[12] Counsel for QBE has offered (and the offer remains open) to carry out targeted enquiries in respect of any specific documents that counsel for the plaintiff wishes to identify. QBE says this is a more proportionate approach in terms of time and effort, rather than granting an order for additional enquiries to be made of 1,292 documents. QBE’s expectation is the bulk of those documents will be (to use its expression) “benign to the relevant issues in the case.”
Proportionality
[13]Proportionality is an important aspect of the discovery exercise.1
The Court must consider whether it is in the interests of justice to order the particular discovery in light of the matters at issue and in particular the proportionality of the cost of the particular discovery.
1 McGechan on Procedure (online ed, Thomson Reuters) at [HR8.19.03(4)].
[14] However, the starting point is to determine what information the protocol requires be included in the list. Clause 7 of pt 2 of the listing and exchange protocol deals with the format of the list of documents. Clause 7(3) provides:
Other than document ID, if information cannot be determined for a description it must be left blank.
In my view, this is recognition within the protocol that it may not be possible to provide the information that is otherwise required to be listed as set out in pt 2, cl 6(1) of the schedule.
[15] QBE does not say that it is impossible through further research in relation to the 1,292 documents to identify the missing information; all it can say is that it may be possible. That is understandable as, until it attempts the exercise, it does not know what research will disclose. What it does say is that other than the document ID it cannot provide further information or know if it can be obtained without what it says would be a disproportionate amount of work. QBE says it has provided all the information that it can determine from the documents themselves.
Discussion
[16] As noted at [14] above, the discovery protocol contemplates that there may be times when information other than the ID of a document cannot be determined. Document ID is defined in the glossary at pt 3 of sch 9 as having the meaning in cl 7(1) of pt 2 of sch 9. This can be compared with the definition of “document description” in the glossary, which means “the set of data fields used to describe a document under clause 7(1)”.
[17] Accordingly, document ID is narrower than document description and it is only the document ID that must be provided by virtue of cl 7(3).
[18]Clause 7(1) provides:
7 List of documents format
(1) The format of the document descriptions should be as follows:
Field No Field name Description 1 Document ID The document ID must be a unique reference
The format must be alphanumeric, for example, AAA.000001, AAA.01.0001, etc
Parties must agree on Party Codes, for example, -
AAA – Party A BBB – Party B CCC – Party C
2 Date The date appearing on the face of the document
Dates must appear as DD/MMM/YYYY, for example, 01 Jan 2010
If a document is partially dated or only partially legible, this field must contain such date information as can be
determined from the document
If the date is estimated, state that in an additional field titled “Estimated”
3 Document type The type of document being listed, for example, email, letter
Parties may agree to construct a predefined list for all document types
4 Author The name of the author of the document
If only part of either the individual or organisation can be
determined, provide the information available5 Recipient The name of the recipient(s) of a document
If only part of either the individual or organisation can be
determined, provide the information available6 Parent document ID This field will be populated with the document ID of the parent document
This field will be populated only if a document is attached to, or embedded within, another document
7 Privilege category This field is to be populated if the document is subject to a privilege claim
[19] The passages I have underlined, in my view, mean that the information the protocol requires be included in the list is that which can be determined from the document itself. In other words, there is not a requirement on a person compiling a list to search extraneous material in order to complete the fields under cl 7(1).
[20] That a date of a document can be estimated, perhaps from its context in a file, or because of some handwritten notation, is consistent with that view. The compiler of a list, when faced with a document with no date, or a date that can only be estimated, is not required as a matter of course to carry out further investigations to arrive at a firm date or even an estimated date if a document is dateless.
[21] In discussions with Ms Murray for the plaintiff, she accepted that QBE was only obliged to provide the information apparent from the document itself. However, Ms Murray validly made the point that the brevity of some of the document descriptions was emphasised by the list of documents not giving details of the files from which the documents were taken, whose file it was, and what time period the file covered, together with any other information that could be supplied in relation to the source of the documents. In short the descriptions lacked context.
[22] Discussions with counsel showed that some of the documents had been provided to QBE electronically from electronic records maintained by a third party. The records held by the third party are likely to show when the documents were added to its electronic record and potentially by whom. These records may cast light on the dates of undated documents, or at least allow the date of document to be estimated by when the document was added to the electronic record.
[23] Given the position reached that the listing protocol does not require all fields to be completed for all documents, the application as pursued by the plaintiff is not granted. However, I said to counsel that I was prepared to make a direction that QBE provide contextual information relating to the documents in its list. That, as I have said, would involve QBE identifying from the document number identifiers in its lists which file the documents came from and as much information as reasonably possible about the file. Counsel for QBE did not resist this suggestion.
[24] Given counsel for QBE was not familiar with all of the detail as to sources of files that make up the list, counsel requested two weeks to attempt to agree on the information that was to be provided to make up the contextual information.
[25] Accordingly, the application is adjourned in order for counsel to agree on the position. If counsel have not reached agreement within two weeks from the date of this judgment (that is by Monday 4 November 2019), then I will convene a telephone conference to make the directions. If that is necessary, counsel for the plaintiff is to file a memorandum of not more than three pages as to the directions sought and QBE is to reply, again no more than three pages in length.
[26] I expect QBE to provide as much contextual information as is possible. Subject to issues of privilege, if it is possible to provide the plaintiff with a copy of the electronic record from the third party, then in my view that should be done as again that record is likely to permit further information to be obtained from the electronic record itself not available from the printed copies of the documents.
Associate Judge Lester
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