GHP Piling Limited v Leighton Contractors Pty Limited
[2012] NZHC 983
•10 May 2012
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2010-404-003231 [2012] NZHC 983
BETWEEN GHP PILING LIMITED Plaintiff
ANDLEIGHTON CONTRACTORS PTY LIMITED
First Defendant
ANDDOWNER EDI WORKS LIMITED Second Defendant
Hearing: 4 May 2012
Appearances: Ms S J O'Brien for Plaintiff
Mr T Cooley for Defendants
Judgment: 10 May 2012
JUDGMENT OF ASSOCIATE JUDGE DOOGUE [on Interrogatories]
This judgment was delivered by me on
10.05.12 at 4.30 pm, pursuant to
Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Counsel:
Fortune Manning, P O Box 4138, Auckland – sarah.o’[email protected] /
Kensington Swan, Private Bag 92101, Auckland – [email protected] /
GHP PILING LIMITED V LEIGHTON CONTRACTORS PTY LIMITED HC AK CIV-2010-404-003231 [10
May 2012]
[1] The plaintiff has sought leave to administer interrogatories to the defendants. The defendants oppose leave being granted. Leave is required because the proceedings have been set down for trial on 11 June 2012.
[2] Given that the proceeding has now been set down, a clear explanation for the delay might be expected. The reasons that the plaintiff puts forward has to do with the discovery of documents by the defendants.
[3] The bulk of the interrogatories ask questions about documents disclosed in an affidavit of documents from September 2010. The explanation apparently is that there were delays on the part of the defendants in providing the further and better discovery ordered in November 2011. The thrust of the affidavit filed in support of the application for leave to take further steps (sworn on 10 April 2012 by Ms Mendez) is that there were mistakes on the part of the defendants’ solicitors in dealing with provision of the additional discovery. From the affidavit, it appears that most of the documents had been filed by 22 December 2011, though I acknowledge that there was still an omission from the documents supplied by that date.
[4] The notice of interrogatories that the plaintiff now seeks to administer was served on 23 March — that is, about three months after the defendants served the affidavit of documents ordered by way of further and better discovery.
[5] It is necessary to mention other aspects of the chronology as well. In a minute dated September 2011, the Court directed that a five-day trial was to be allocated for the proceeding, and that counsel should confer on the pre-trial program for exchange of briefs, setting down, and so forth. On 14 October 2011, the Registrar advised the parties that a five-day trial was to commence on 11 June 2012. The parties agree that the setting down date in this case is actually 14 March 2012. This seems to be as a result of applying the default arrangements in the High Court Rules 2008 that the setting down date is to be 60 working days before the
commencement of trial.1 I regarded as significant, then, that in October last year, the plaintiff knew that with the pending trial date some eight months distant, and because of the requirement of r 7.18 that no steps are to be taken after setting down, there was a well-defined window within which they had to attend to any further interlocutory steps. It cannot be said that they were left short of time to carry out the interrogatories they now propose to administer. There is no clear explanation in the evidence as to why the interrogatories were left so long. On the face of it, the chronology that I have set out in this judgment would indicate that the plaintiff did not correctly appreciate its position and let matters drift.
[6] The defendants have provided sworn evidence from a solicitor that the bulk of the interrogatories relate to documents provided by the defendants as part of discovery. Only two of the interrogatories relate to the second round of discovery that the defendants provided, following the making of an order for further and better discovery (dated 22 November 2011). This evidence does not appear to be contested. If that is so, it would seem that the correct conclusion is that most of the interrogatories now served relate to affidavits of documents that were filed, and presumably served, in September 2010.
[7] The further discovery order was made 22 November 2011. This order required a further affidavit of documents to be filed. This further affidavit was filed, and presumably served, at the beginning of December 2011.
[8] One of the reasons why r 7.18 (and its predecessors ) was promulgated is that it is of considerable importance that there be a defined cut-off point at which the case is taken to be in in settled form ready for trial so that the parties, knowing the shape of the case that will be advanced at trial, can begin the task of briefing evidence, compiling bundles of documents for trial and preparing submissions. In general terms, it is assumed that the investigative phase of the case, during which the parties collect information about the case from each other by means of discovery, will have been concluded by the setting down date. The parties are then free to turn their energies to trial preparation. If further substantial amendments to the case are
allowed, there is a risk that the trial date will be lost, and the matter will have to be
1 Rule 7.13(5)(a).
adjourned for many months. Not all interlocutory steps after the setting down date place the trial date at risk, though. A request for minor additional discovery following the setting down date, for example, is not in that category.
[9] In the end, the Court has to make a decision that is just. Though the interests of the parties are the primary consideration, there is also the need to maintain an orderly case management structure.
[10] In this case, the defendants point to the delays in the making of the application and the extent of the interrogatories. Mr Cooley submitted that there are
39 separate interrogatories that the plaintiff is attempting to administer requests for information. He submitted that it is oppressive that the interrogatories should be imposed upon the defendants at the time when they are attempting to prepare for trial. The defendants will have to serve their briefs of evidence in approximately two weeks time. No doubt that work on the briefs has been going on for some months already, and that process is well advanced. Given that I have declined leave for the plaintiffs to file and serve an amended statement of claim in a judgment I issued on 8
May, the defendants will not be required to undergo substantial last-minute briefing in a new area of evidence that they had not been able to anticipate would be at issue at trial. The trial is approximately one month off at the present time.
[11] On balance, I consider that the plaintiffs ought to be permitted to administer interrogatories. The bulk of the briefing work will have been done by now and some of the issues that are the subject of the interrogatories may well have been covered already. As well, once the briefing is finished there should be some reduction in the pressure on defendant’s counsel which will make it less of a hardship to carry out the response to the interrogatories. The defendants will be required to respond to the interrogatories in the form of the notice of interrogatories, subject to the exception that the defendants will not be required to answer any interrogatories that are only relevant to the claim for damages in relation to the Roscommon and Remuera contracts (the subject of the amended statement of claim the plaintiff sought, and was declined, leave to file). Leave is reserved to either party to apply to a further directions concerning the interrogatories.
[12] The parties have not addressed me on the matter of costs relating to the application to amend the statement of claim and to administer interrogatories. There is no reason why costs should not now be fixed. The parties, if they wish to be heard on the matter, should file memoranda not exceeding five pages on each side within
the next 14 days.
J.P. Doogue
Associate Judge
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