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Hoyle v Hoyle

Hoyle v Hoyle

Case [2015] NZHC 3001 30 November 2015

Discovery & Disclosure

Litigation Privilege

Admissibility of Evidence

Reasonable Search

Intellectual Property Law

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2011-454-910 [2015] NZHC 3001

UNDER the Copyright Act 1994

IN THE MATTER OF

Copyright infringement

BETWEEN

DAVID STANLEY HOYLE First Plaintiff

AND

TRANSPREAD INTERNATIONAL LIMITED

Second Plaintiff

AND

PAUL DAVID HOYLE Defendant

Hearing: 23 November 2015

Counsel:

N Scampion and P Johns for First and Second Plaintiffs
P Dengate Thrush and W Aldred for Defendant

Judgment:

30 November 2015

JUDGMENT OF CLARK J (Discovery)

I direct that the delivery time of this judgment is
2.00 pm on the 30th day of November 2015

HOYLE v TRANSPREAD INTERNATIONAL LIMITED [2015] NZHC 3001 [30 November 2015]

[1] The ten-day hearing of this claim for copyright infringement commenced on

Monday 23 November 2015. It was set down in March 2015.

[2] On Friday 20 November 2015 the plaintiffs filed an application for orders:

(a) for particular discovery of documents under r 8.19 of the High Court

Rules; and

(b) setting aside the defendant’s claim to privilege under r 8.15.

[3] The plaintiffs say the defendant’s discovery is inadequate and that failure to discover documents relevant to the dispute between the parties may lead to an unfair trial. They require the defendant to file an affidavit that complies with the requirements of the High Court Rules. In particular the plaintiffs seek compliance with the defendant’s obligation to itemise documents that once were, but are no longer, in the defendant’s control.

[4] The plaintiffs challenge the claims of litigation privilege made in the

defendant’s Sixth Affidavit of Documents.1

[5] The defendant says he has complied with his discovery obligations.

The substantive proceeding and course of discovery

[6] The first plaintiff is the designer of various agricultural machines. Under an exclusive license from the first plaintiff the second plaintiff manufactures and sells machines and fertiliser handling equipment. The plaintiffs commenced these proceedings in December 2011. Broadly, they allege infringement of the plaintiffs’ copyright in drawings and designs of agricultural machinery. The defendant
counterclaims.

1 This affidavit was served unsworn on the plaintiffs on 11 November 2013. The sworn affidavit dated 13 November 2015 was not served on the plaintiffs until 20 November 2015 following service of this r 8.19 application.

[7] Discovery by the parties has been continuous. Eleven affidavits of documents have been filed most recently on 23 November 2015, the day the hearing commenced.

[8] The plaintiffs have maintained throughout that they need the laser cutting and shape files or drawings or documents that the defendant provided to laser cutters since 2004.

[9] In his Third Affidavit of Documents filed 28 May 2015 the defendant discovered a number of laser cutting and shape files but not the documents sought by the plaintiffs. The defendant deposed there were categories of documents which he had not been able to locate and which he concluded were lost. These categories included:

(a) laser cutting invoices dated earlier than March 2005; and

(b) his invoices to customers prior to August 2005.

[10] On 2 November 2015 the plaintiffs served…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hoyle v Hoyle

Details

AGLC: Hoyle v Hoyle [2015] NZHC 3001
Case: [2015] NZHC 3001
Decision Date: 30 November 2015

CaseChat Overview and Summary

The plaintiffs, David Stanley Hoyle and Transpread International Limited, commenced proceedings against Paul David Hoyle for copyright infringement. The plaintiffs sought an order for particular discovery of documents from the defendant. The plaintiffs claimed that the defendant had not adequately discovered the relevant documents and that he had claimed privilege over certain documents without justification. The plaintiffs argued that the documents were necessary for the fairness of the trial and that the defendant had not taken reasonable steps to preserve the documents. The defendant argued that he had complied with his discovery obligations and that the plaintiffs had not provided sufficient evidence to show that the documents existed.

The Court considered the principles applicable to an application under r 8.19 of the High Court Rules. The Court held that the presumption of the conclusiveness of the defendant's affidavits of documents applied, and the plaintiffs had not established a basis for believing the documents existed and that an order should be made for their discovery. The Court also held that the defendant had not breached the obligation to preserve documents as soon as a proceeding was reasonably contemplated. However, the Court held that the defendant must meet the obligation on him to file an affidavit that complies with r 8.15 by particularising what steps were taken in fulfilment of his obligation to make a reasonable search for all correspondence with North Shore Laser Cutters/One Stop Cutting Shop, relevant to the discovery or production of any laser cutting, shape files, drawings or other documents in the possession of the laser cutter.

The plaintiffs' application for particular discovery was granted in part, and an order for particular discovery was made in the terms outlined above. The plaintiffs' challenge to the claims of privilege was dismissed. The plaintiffs have been partially successful, and so too has the defendant. In those circumstances, there will be no order for costs.

Orders