James Hardie New Zealand Ltd v White

In James Hardie New Zealand Ltd v White, the plaintiffs brought an action against several defendants, including James Hardie New Zealand Ltd and others, for damages arising from the alleged defective manufacture of cement products. The dispute centred around the discovery of documents required by the defendants to be produced as part of the litigation process. Specifically, the plaintiffs sought an order that each defendant swear an affidavit of documents in their control in accordance with rules 8.15 and 8.24 of the relevant court rules. The defendants argued that they had collectively complied with the discovery rules by producing an affidavit of documents in the collective control of all defendants, rather than separate affidavits for each defendant.

The court was required to determine whether the defendants could satisfy their discovery obligations through a collective affidavit of documents or whether each defendant was required to swear a separate affidavit. The key legal issues were the interpretation of rules 8.15 and 8.24, and the extent to which a collective affidavit could be sufficient when the possession of documentation was directly relevant to a key issue in dispute. The court also considered the principle of avoiding unnecessary duplication and cost in the litigation process.

The court held that the rules must be interpreted in a way that ensures transparent and clear discovery of relevant documents. The court found that the defendants' argument that collective discovery was sufficient was discordant with the evident object of the rules, which is to secure discovery by "each" party. The court emphasised that the integrity and efficacy of the discovery process would be damaged if collective discovery were allowed in this case, given the specific issues raised in the pleadings and the extensive litigation history. The court concluded that the defendants needed to provide separate affidavits for each defendant, as required by the rules, and that a bare assertion of impossibility was insufficient to avoid this obligation. The court also noted that better evidence was needed to substantiate the claim of impossibility, such as evidence showing how the documents were catalogued or an expert opinion on the ability to identify the source of the documents.

The court ordered each defendant to swear an affidavit of documents in their control, in accordance with rules 8.15 and 8.24, and directed that each defendant provide an affidavit of documents in their control within a specified timeframe.