Keir v Simms
[2024] NZHC 1996
•19 July 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2022-404-000458
[2024] NZHC 1996
BETWEEN RACHAEL KEIR and JOHN RICHARD KEIR
PlaintiffsAND
ROBERT SIMMS and LYNETTE JEAN SIMMS
Defendants
Hearing: 9 May 2024 Appearances:
N Woods for the Plaintiffs
D Bigio KC / D T Horton / P K J Roycroft for the Defendants D MacKenzie for the Non-Party
Judgment:
19 July 2024
JUDGMENT OF ASSOCIATE JUDGE GARDINER
This judgment was delivered by me on 19 July 2024 at 3.30 p.m. pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date.......................................
Solicitors:
Rice Craig, Auckland
Thomas Gibbons Law, Auckland D Bigio KC, Auckland
KEIR v SIMMS [2024] NZHC 1996 [19 July 2024]
Introduction
[1] This proceeding concerns a dairy farm owned by Robert and Lynette Simms (the Simms) situated on Glenbrook Beach Road. The farm comprises a large 76.8 ha block and a smaller 11.69 ha block connected by an underpass under Glenbrook Beach Road. The larger block (the Home Dairy Farm) contains the farm infrastructure and the Simms’ home.
[2] The Simms’ son, Bruce Simms (Bruce),1 owns a 12.7 ha block next to his parents’ smaller lot. He leases that land to his parents for their farming operation. The Simms’ daughter and her husband, Rachael and John Keir (the Keirs), own lots next to the one owned by Bruce. Although the Keirs’ lots were previously leased to the Simms, that is no longer the case. The Keirs’ family home is situated on the Home Dairy Farm, next door to the Simms.
[3] In this proceeding, the Keirs advance an equitable claim (in the form of either a common intention/resulting trust, constructive trust, or equitable estoppel/unjust enrichment) for a share of the Simms’ farm. Their claim is based on an alleged common intention that the Keirs would succeed the Simms in owning and operating the Home Dairy Farm, and/or contributions purportedly made towards the farm from 2011 to around July 2019. At this point, the relationship between the Keirs and Simms deteriorated, and the Keirs ended their involvement in farm operations.
[4] The interest claimed by the Keirs amounts to 54.2 per cent of the Home Dairy Farm, or, more specifically, the house the Keirs have built on the Home Dairy Farm and the 15 acres around that house, plus an additional 44.5 per cent of the Home Dairy Farm.
[5] This judgment determines two interlocutory applications. The first is an application by the Simms for orders relating to Mrs Keir’s medical records and the passwords for the Simms’ email account and/or laptop. The second is an application
1 No disrespect is intended by referring to Bruce Simms by his first name. Rather, it is merely to distinguish between him and his father, Robert Simms (Mr Simms).
by the Keirs for a non-party discovery order against Bruce for documents and classes of documents relating to the farm. Both interlocutory applications are opposed.
SIMMS’ APPLICATION FOR ORDERS RELATING TO DISCOVERY
The application
[6]The Simms apply for orders:
(a)Setting aside the Keirs’ claims to confidentiality in documents stated in Part 3 of the schedule to Mrs Keir’s further affidavit of documents dated 17 April 2023. These documents are:
1. Medical records other than the letter dated 13 October 2022 from Dr [Redacted] (functional medicine doctor) all of which can be specified if required.
2. Supplement lists from [Redacted] (Integrative Dental and Natural Health Care) all of which can be specified if required.
(b)Providing the Simms with the usernames and passwords to the Simms’ laptop computer, returned to them in 2022, and the email account sim******@live.com (the “sim…” email account).
[7] In relation to the former, the Simms seek that confidentiality is set aside for the limited purpose (in the first instance) of inspection by their counsel and expert under their proposed undertaking as to confidentiality. A draft undertaking is attached to their interlocutory application.
[8] The Simms’ pleaded case is that Mrs Keir did not and cannot have made the claimed contributions (in full or in substantial part) to the farm because her [Redacted] ill health affected her ability to perform the claimed work and/or the extent of the claimed work. They submit that the medical and supplement records are directly relevant to this defence.
[9] The Simms argue that the public interest in disclosure of the information is high, as the alleged medical issues go to the core of the Keirs’ claim for a substantial proprietary interest in the Simms’ valuable dairy farm. They maintain that any harm
to Mrs Keir and/or the doctor-patient relationship from an order setting aside the confidentiality claims is low given the strict controls proposed by the Simms’ counsel over inspection. They emphasise that there are no other means of obtaining the medical information in advance of the trial.
[10] Further, the Simms point out that the Keirs required them to uplift and produce their own medical records for discovery, dating back as early as 1999.
The opposition
[11] The Keirs oppose an order because Mrs Keir’s medical and supplement records are private, confidential, irrelevant, and the disclosure will potentially cause Mrs Keir significant harm without contributing any real probative value (in the public interest) to the fair conduct of the proceeding.
[12][Redacted].
[13][Redacted].
[14] Mrs Keir has provided the Court with the medical records and supplement lists and invites the Court to inspect the documents [Redacted].
Legal principles
Party obliged to list/identify relevant documents
[15] Standard discovery requires each party to disclose documents that are or have been in that party’s control and that are relied on by that party or adversely affect that party’s case, or that support or adversely affect another party’s case.2
[16] Rule 8.15(1) of the High Court Rules 2016 (HCR) provides that each party must file and serve an affidavit that complies with that rule, subject to any modifications or directions contained in a discovery order. Rule 8.15(2)(e) requires the affidavit to list or otherwise identify the documents required to be discovered under
2 High Court Rules 2016, r 8.7 [HCR].
the discovery order in a schedule that complies with r 8.16 and pt 2 of sch 9 (the listing and exchange protocol). Thus, if the Court has made a standard discovery order, a party must list or otherwise identify all relevant documents in the schedule to their affidavit.
Confidential documents
[17] The confidentiality of information is not a ground for opposing discovery, the sole test being relevance in the usual way.3 If a party claims that relevant documents are privileged or confidential, they must nevertheless list or otherwise identify them in the schedule to their affidavit of documents. They may, however, seek to restrict inspection of the documents. This position is reflected in the following rules.
[18] Rule 8.16 requires the schedule to an affidavit to separately list or otherwise identify all discoverable documents over which no claim to privilege or confidentiality is made, and those over which privilege or confidentiality is claimed. The grounds for claims of privilege or confidentiality should be identified.
[19] Rule 8.15(2)(f) permits a discovering party to propose restrictions on inspection to protect the claimed confidentiality of a document. Furthermore, r 8.28(3) (concerned with inspection) provides that a party may limit inspection of confidential documents to the person specified in the affidavit of documents, subject to the restrictions imposed in the affidavit.
[20] If a party challenges a claim to confidentiality made in an affidavit of documents, that party may apply to the Court for an order setting aside or modifying the claim under r 8.25(1). Under r 8.25(3), the Judge has a discretion to set aside or modify the claim for confidentiality, dismiss the application or make any other order they think just.
Application to this case
[21] The Simms’ application is framed as an application under r 8.25 to set aside a claim to confidentiality. That is because Mrs Keir identified medical records and
3 Port Nelson Ltd v Commerce Commission (1994) 7 PRNZ 344 (CA) at [347]–[348].
supplement lists in Part 3 of the schedule to her further affidavit of documents sworn on 17 April 2023 and claimed that they were confidential.
[22] However, in opposing the Simms’ application to set aside her claim to confidentiality in these documents, Mrs Keir has disputed their relevance and therefore her obligation to list/identify the documents in the first place.
[23] Consequently, before deciding whether inspection of the documents should be restricted or prevented because of confidentiality concerns, it is necessary to determine whether the documents are relevant and discoverable.
[24] Furthermore, the Simms raise a concern that Mrs Keir has not searched for and identified medical records from other practitioners beyond those she refers to in her evidence.
[25] Therefore, it is necessary to consider the Simms’ application in two parts. First, as an application for particular discovery under r 8.19. That will determine whether the medical and supplement records identified by Mrs Keir are relevant and discoverable, and whether Mrs Keir is obliged to obtain and list other medical records.
[26] Second, as an application to set aside the claim to confidentiality. Here, the issue is not so much whether the records are confidential (they clearly are) but whether, weighing the public interest in disclosure against the potential harm, inspection should occur on a restricted basis or can be resisted entirely.
Application for particular discovery
[27] Under r 8.19, a Court may make an order for particular discovery after the proceeding has commenced, where:
…it appears to a Judge, from evidence or from the nature or circumstances of the case or from any document filed in the proceeding, that there are grounds for believing that a party has not discovered 1 or more documents or a group of documents that should have been discovered…
[28] The Court usually follows a four-stage approach in considering applications under r 8.19.4 First, are the documents sought relevant to issues before the Court and, if so, how important will they be? Second, are there grounds for belief that the documents sought exist? This will often be a matter of inference. Third, would the time and cost of discovery be proportionate to its potential value? Fourth, weighing and balancing these matters, and in the Court’s discretion, is an order appropriate?
[29] Relevance is to be assessed according to the pleadings.5 In determining relevance, it is the case of the party seeking discovery that must be assumed to be true, not the party from whom discovery is sought.6 Further, there must be prima facie evidence that the documents sought exist, and are in the control of the party from whom they are sought (although the party seeking discovery does not have to prove that the documents actually exist).7
[30] The threshold embodied in “grounds for belief that the documents exist” is not high; all that is necessary is to show that there is some credible evidence which, assessed objectively, indicates that the documents that are sought exist.8
[31] A party must make a reasonable search for documents within the scope of the discovery order.9 What amounts to a reasonable search depends on the circumstances, including:10
(a)the nature and complexity of the proceeding;
(b)the number of documents involved;
(c)the ease and cost of retrieving the documents;
4 Assa Abloy New Zealand Ltd v Allegion (New Zealand) Ltd [2015] NZHC 2760, [2018] NZAR 600 at [14]; and Jason Bull (ed) McGechan on Procedure (online ed, Thomson Reuters) at [HR8.19.03].
5 Robert (as trustees of the Ross Robert Family Trust) v Foxton Equities Ltd [2014] NZHC 726, [2015] NZAR 1351 at [8](b).
6 Kawarau Village Holdings Ltd v Yuen [2015] NZHC 1379 at [38].
7 Robert (as trustees of the Ross Robert Family Trust) v Foxton Equities Ltd, above n 5, at [8](c).
8 Assa Abloy New Zealand Ltd v Allegion (New Zealand) Ltd, above n 4, at [12].
9 HCR, r 8.14(1).
10 HCR, r 8.14(2).
(d)the significance of any document likely to be found; and
(e)the need for discovery to be proportionate to the subject matter of the proceeding.
Are Mrs Keir’s medical records and supplement lists relevant?
[32] The Keirs’ equitable claim for a share in the farm is based on alleged contributions they say they made to the Simms’ farm between 2011 and 2019. These contributions constitute “labour contributions”, particularised at paras 51 and 52 of the statement of claim, and other “direct and indirect” contributions, particularised at para 53 of the statement of claim. The labour contributions are what are relevant here.
[33] The Keirs claim that at all material times Mrs Keir worked on the Home Dairy Farm as a professional, skilled and trained dairy farm specialist. They say that Mrs Keir performed 13,437 hours of farm work between 2011–2019 (equivalent to approximately $866,000 at $90,000 per annum).11 They claim that this work included general farm work, maintenance, trucking, grazing, calf rearing, breakdowns as well as project management, financial and legal planning, technical support, IT support, human resource management, information technology and regulatory compliance and administration.
[34]In their statement of defence, the Simms say that:12
(a)Mrs Keir was paid for the work she did for their farming operations over three specific periods (particularised at para 51(a)(i)–(iii) of their statement of defence);
(b)during those periods Mrs Keir did not assist them on a full-time basis;
(c)the payments made to Mrs Keir were to provide her with funds rather than to reflect the value of her work to the farm’s operations; and
11 The Keirs also claim that Mr Keir did around 1,630 hours of work between 2011 and 2019, equivalent to approximately $107,000 at $90,000 per annum.
12 Statement of defence, dated 17 May 2022, at [51].
(d)outside of those specific timeframes, Mrs Keir provided limited assistance to them on an irregular basis (in ways particularised at para 51(e)(i)–(iv) of their statement of defence).
[35]The critical part of their defence is at para 51(f):
[The Simms say] further that Rachael’s health has prevented her from working:
[Redacted]
[36] Plainly, whether Mrs Keir undertook the labour claimed in her statement of claim is an issue in the proceeding. The Simms dispute that she undertook the extent of work claimed; including because she was incapable of doing so [Redacted]. It follows that Mrs Keir’s capability to do the claimed work is an issue in the proceeding.
[37] Consequently, I find that any medical records relating to medical conditions [Redacted] that affected Mrs Keir’s ability to work on the farm between 2011–2019 are relevant.
[38] However, I do not accept that lists of natural supplements Mrs Keir took over this period are sufficiently relevant. The probative value of this information in relation to the issue of her capability to perform farm work is low. It is reasonable to expect that her medical records (including those held by her natural health provider) will show if Mrs Keir was suffering from [Redacted] conditions that affected her ability to work.
Reason to believe such documents exist.
[39][Redacted].13
[40][Redacted].
[41][Redacted].
[42][Redacted].
13 Email from Neville Woods at Rice Craig dated 26 September 2023; see also the Keir Affidavit, above n 13, at [9].
[43] Therefore, I find that there are grounds to believe that there are medical records over the period relevant to the claim (2011–2019) [Redacted].
Time and cost proportionate?
[44] The Keirs claim $3,118,000 from the Simms for alleged “contributions” they say they made to the Simms’ farm. The time and cost involved in the Keirs listing and providing discovery of Mrs Keir’s medical records [Redacted] is not disproportionate to the value of the claim, bearing in mind the potential relevance of the information.
Overall, is an order appropriate?
[45] Overall, I consider that it is appropriate that Mrs Keir is required to obtain and list/identify any medical records from medical professionals, including natural health providers, [Redacted] (if any) over the relevant period of 2011–2019 (inclusive).
[46] Mrs Keir is not required to give discovery of medical records that do not relate to either of these issues as they are not relevant to the Simms’ pleaded defence.
Claim of confidentiality
[47] The next issue is whether the Keirs’ claim to confidentiality over these relevant documents should be set aside. As noted, the issue is not so much whether the documents are confidential — clearly, they are — the issue is whether limited inspection must be permitted by the Simms’ counsel and expert under suitable undertakings.
[48] The HCR do not contain any criteria by which a claim to confidentiality, or a challenge to that claim, may be assessed. In Intercity Group (NZ) Ltd v Naked Bus NZ Ltd, Asher J considered that s 69 of the Evidence Act 2006 applied to the discovery process. Although, he noted that s 69 was “not entirely apposite to the considerations that arise on discovery in civil proceedings” and the common law approach would remain relevant where not inconsistent with the considerations set out in s 69.14 Asher J went on to quote from the leading authority on issues of confidentiality arising in the
14 Intercity Group (NZ) Ltd v NakedBus NZ Ltd [2013] NZHC 2261 at [18] and [20].
process of discovery and inspection, Port Nelson Ltd v Commerce Commission, as follows:15
Relevant documents should generally be made available for inspection. The fact that they are regarded as being confidential, and would not be made available were it not for the requirements of the litigation, is immaterial. An order for non-disclosure can only be made when the Court is satisfied in terms of rule 312 that such an order is “necessary”. It must be either apparent from the document in question or shown by other evidence that disclosure would be likely to prejudice the party in some significant way. Even the possibility of prejudice may be sufficient, but that will depend on the seriousness of the possible prejudice and on the significance of the document to the issues in the proceeding, and the extent to which limited disclosure may enable the concerns of both parties to be accommodated.
[49] In NZX Ltd v Ralec Commodities Pty Ltd, Dobson J also held that it is appropriate to use the considerations in s 69(3) as a touchstone in the context of restricting inspection of documents by an opposing party.16 In Warner Lambert Co v Glaxo Laboratories Ltd, the English Court of Appeal limited discovery to selected individuals on terms ensuring that there should be neither use nor further disclosure of the confidential information to the prejudice of the disclosing party but enabling the inspecting party to have sufficient disclosure to pursue protection of its rights.17 This was followed by New Zealand courts in Krone (NZ) Technique Ltd v Connector Systems Ltd,18 and more recently in Hager v Attorney-General.19
[50] There is a public interest in enabling the Simms to have sufficient disclosure to defend the Keirs’ claim. There is also a public interest in the Court having all relevant evidence before it to determine the key issue of whether Mrs Keir made the contributions she claims to have made.
[51] Balanced against this interest is the need to prevent harm to Mrs Keir through the disclosure of her most personal information, and potential harm to her doctor/patient relationship and the doctor/patient relationship more generally.
15 Intercity Group (NZ) Ltd v NakedBus NZ Ltd, above n 17, at [21], quoting Port Nelson Ltd v Commerce Commission, above n 3, at 347–348.
16 NZX Ltd v Ralec Commodities Pty Ltd [2015] NZHC 241 at [8].
17 Warner Lambert Co v Glaxo Laboratories Ltd [1975] RPC 354 (CA).
18 Krone (NZ) Technique Ltd v Connector Systems Ltd (1988) 2 PRNZ 627 (HC).
19 Hager v Attorney-General [2014] NZHC 3293 at [32]–[34].
[52] I can appreciate that discovery of medical records even on the restricted basis proposed may cause Mrs Keir embarrassment and distress. However, if there are medical records concerning [Redacted] over the period she claims to have made the labour contributions, they are directly relevant to the Simms’ defence that she was incapable of making these contributions. In these circumstances, I do not consider that Mrs Keir can resist making the records available for restricted inspection by the Simms’ counsel and expert pursuant to a suitable undertaking as to confidentiality to be agreed by her counsel.
Access to email account and/or laptop
[53] The Simms seek an order requiring the Keirs to provide the necessary usernames and passwords, or other login credentials, for a laptop and the web-based “sim…” email account. The Simms say that the laptop is theirs and was returned to them by Mrs Keir in late 2022. They say that the email account is the farm email account and is similarly owned by them. They say that the Keirs have refused to provide them with the usernames and passwords.
[54] The Simms rely on r 8.29, which empowers a Judge to make any order they think appropriate “to facilitate the efficient inspection of documents” and r 9.34, which allows the Court to make an order for the inspection of any property to enable “the proper determination of any matter in question in the proceeding”.
[55] The Courts have treated these two rules as operating in tandem in cases where discovery has been inadequate and inspection of electronic documents is required.20 Parties have been ordered to provide usernames and passwords under r 9.34.21 Such orders are sometimes treated as “extended discovery orders”, so the party seeking inspection must satisfy the Court that there is good reason for the additional form of discovery, such as where the other party’s discovery is inadequate, where there is reason to believe that further documents may exist,22 or where there are doubts as to authenticity.23
20 Bull, above n 4, at [HR8.25.17].
21 For example, in Patel v Indiago Ltd [2021] NZHC 3156.
22 Gillespie v Guest (No 1) [2013] NZHC 668 at [65].
23 Banks v Farmer [2019] NZHC 3415 at [25]–[26].
[56] The Simms say that the farm email account contains native files which they must access to complete their discovery obligations. They also say that they have concerns as to the adequacy of the Keirs’ discovery. Mr Simms suggests that there must be many more emails than the 84 emails from the farm account discovered by the Keirs.
[57] The Simms point to printouts of emails dated 15 December 2020 and 20 June 2021 where Mrs Keir has forwarded email messages from the “sim…” email account to Mrs Keir’s personal email address. From this, they infer that Mrs Keir must have had the login and password to the email account on those dates. Additionally, they refer to Mrs Keir’s third affidavit of documents dated 17 April 2023 in which she deposes that she has searched the “sim…” email account and the laptop.
[58] The Simms also require the Keirs to list relevant documents contained on an external hard drive described for the first time at para 39 of Mrs Keir’s affidavit dated 15 March 2024.
[59] Mrs Keir addresses the farm laptop and external hard drive at paras 30 – 60 of her affidavit. She states that the laptop was purchased in 2013 as a farm asset, that her parents never used the laptop, and in 2015 or 2016 the Simms provided her with the farm laptop for her use. She says that in December 2018 she purchased a new laptop and began using this for farm work, transferring files from the farm laptop to an external hard drive. She states that in mid-2019, Bruce asked her to remove all her work from the farm laptop so he could use it and that she did so. She states that she returned the farm laptop to the Simms in 2022, after their solicitors requested it.
[60] There was some confusion at the hearing over whether the Keirs knew the laptop password and were refusing to provide it; or had forgotten/misplaced the laptop password. After taking instructions, Mr Woods confirmed that the Keirs had forgotten the laptop password as they had not used this laptop since 2019.
[61] I note however that Mrs Keir does not explicitly say this in her affidavit. At para 48 she refers to her solicitor’s email to the Simms’ solicitors stating “Our clients have not used the laptop for many years, and they do not have the password”. She
then refers to this email at para 53. She clarifies that her reference to searching the farm laptop at para 4(f) of her affidavit of documents was a reference to searching the documents on the hard drive extracted from the laptop.
[62] As for the “sim…” email account, the Keirs dispute that this email account is owned by the Simms. In her affidavit in opposition, Mrs Keir says that the email account was set up as the farm email account in 2013 and used by her for that purpose. She states that the Simms did not ever use the email account themselves, aside from Mrs Simms attempting to send some emails in the early days. Mrs Keir refers to a letter from their solicitors to the Simms’ solicitors dated 17 October 2022 which states that the Simms were not aware of the email account before finding printed copies of emails from that account in their hard copy records. In that same letter the solicitors state that the Simms do not know how to access the email account, have never accessed it, and are unable to discover any documents from the email account beyond the hard copy printed emails in their possession and control.
[63] Mrs Keir states that, as confirmed in her discovery affidavit dated 4 November 2022, she has searched the “sim…” email account and discovered all relevant documents. She repeats this confirmation in her affidavit dated 17 April 2023.
[64] The Keirs submit that there must be grounds to believe that their discovery has been inadequate to justify an extended discovery order. They say that the grounds advanced by the Simms, that the Keirs have only discovered 84 emails from the email account, is flawed. Mrs Keir deposes that they have listed 84 emails sent from the email account, but 1,288 emails received by the email account. Further, the Keirs have disclosed 8,273 emails in total, including 3,098 emails from the farm, other farm- related or general categories of their disclosure.
[65] As noted earlier, a party is required to search for and list all relevant documents and information within their possession and control. It is not disputed that the email account was established to be the farm email account and was used by Mrs Keir for that purpose. Mrs Keir states at para 62 of her affidavit dated 15 March 2024 that she “used this email as owner/operator of the farm”. It is not disputed that the Simms did not ever access or use the email account themselves.
[66] I accept that Mrs Keir is the person who is and has always been in control of this email account. However, on her own evidence it is the email account of the farm and was used and controlled by her for farm purposes. The farm is owned by the Simms. Mrs Keir can only have been using and controlling the email account as an agent for the Simms. Applying standard agency principles, the contents of the email account, as they concern the farm, are in the control of the Simms, and the discovery obligation is theirs. Mrs Keir is required to provide the Simms with the password to this email account.
[67] In relation to the laptop, if Mrs Keir’s position is that she cannot recall or identify the laptop password, she is required to swear an affidavit to that effect.
KEIRS’ APPLICATION FOR NON-PARTY DISCOVERY
The application
[68] The Keirs seek from Bruce 28 categories of documents set out in schedule A of their interlocutory application, replicated in the schedule to this judgment. The categories of documents relate to employment and/or farm management matters from 2019–2022.
[69] Putting aside categories 1, 15, 16 and 28, which I will address separately, the documents and information sought fall into four broad groups.
[70] Categories 2–11, 25 and 27 relate to the recruitment of farm employees over 2019 and 2021. The Keirs submit that evidence of the roles required on the farm after they ceased to be involved could tend to prove the extent of their contribution to farm operations beforehand. They also submit that these documents may prove Bruce’s involvement in the Simms’ retreat from the (alleged) common understanding that the Keirs would take over the farm.
[71] Categories 12–14 relate to a farm restructure in March 2020 and recruitment of a farm manager and other roles in 2020. Again, the Keirs submit that these documents may tend to prove the nature and extent of their involvement in farm operations between 2011–2019.
[72] Categories 17–24 relate to health and safety processes and compliance during 2022. These are said to be likely to be consistent with Mrs Keir’s “narrative” that she was insistent about regulatory compliances, that her parents did not value such compliance and that this strained the relationship.
[73] Category 26 is all emails from or to Bruce’s personal or work email accounts concerning farm management, operations, staffing, compliance, and other farm matters. The Keirs submit that these emails will show the level of Bruce’s involvement in the farm after the Keirs’ exclusion and the Simms’ dependence on him. They say that this information is relevant to their claimed contribution to farm operations and to their allegation that Bruce influenced his parents to exclude Mrs Keir from the farm.
Bruce’s opposition
[74] Bruce says that the categories of documents are not relevant to the matters at issue in the proceeding, namely the establishment of a constructive trust. He submits that the Keirs’ claim is based on a constructive trust that supposedly existed in mid-2019 due to contributions made by them well before then. He says that the operation of the farm since then, including employment matters, is irrelevant to that claim. Alternatively, he submits that if it is relevant, it is of marginal relevance only.
[75] Further, he submits that the catch-all categories 26 and 28 are broad, sweeping and disproportionate, requiring him to review more than 15,000 emails. He submits that discovery is not ordered when it is sought for the purpose of attacking a witness’ credibility.24 He claims that the Keirs are on a fishing expedition.
[76] Further, Bruce submits that even if the discovery meets the test for standard discovery, it is not necessary. In large part the information sought has already been requested from the Simms, and documents provided where they exist.
24 Robert Jones Holdings Ltd v McCullagh [2016] NZHC 2529 at [55].
Legal principles
[77] The law applying to applications for discovery against a non-party under r 8.21 is well established. The leading case is Vector Gas Contracts Ltd v Contact Energy Ltd, which articulates the following principles:25
(a)The power to make an order under r 8.21 is discretionary. This contrasts with the mandatory nature of ordinary party-party discovery under r 8.5.
(b)The test for standard discovery under r 8.7 is relevant. In other words, the application must only seek documents that would be discoverable by the non-party if he or she were a party to the proceeding. However, “excursions on the train of inquiry are not to be encouraged in the case of non-party discovery.”26
(c)Non-party discovery must be necessary:27
That is to say, without limitation, other sources of evidence [must be] unlikely to be sufficient because they are materially incomplete or unreliable. And that the documents sought may make a real difference, and are not merely marginal.
[78]As explained in Talley's Group Ltd v Biomex Trustees Ltd,28 the requirement at
(b) above introduces orthodox principles of proportionality and adopts the classic definition of “fishing” from AMP Society v Architectural Windows Ltd:29
… an applicant is fishing when he seeks to obtain information or documents by interrogatories or discovery in order to discover a cause of action different from that pleaded or in order to discover circumstances which may or may not support a baseless or speculative cause of action.
Assessment
[79]Before addressing each category, some general points.
25 Vector Gas Contracts Ltd v Contact Energy Ltd [2014] NZHC 3171, [2015] 2 NZLR 670 at [28]–[30] and [58]–[59].
26 At [29].
27 At [30].
28 Talley’s Group Ltd v Biomex Trustees Ltd [2022] NZHC 860 at [59]–[60].
29 AMP Society v Architectural Windows Ltd [1986] 2 NZLR 190 at 196.
[80] The Keirs’ claim is not solely for a constructive trust based on their contributions to the farm and a reasonable expectation of acquiring an interest therein (the kind of constructive trust recognised in Lankow v Rose).30 Their first cause of action is for a common intention/resulting trust based on pleaded “understandings” between them and the Simms, including that they would succeed the ownership and operation of the farm. Documents relevant to the existence of such an understanding are relevant and discoverable.
[81] However, in some cases, the Keirs’ case for relevance is based on the documents or information being relevant to, or potentially consistent with, Mrs Keir’s “narrative”. That is not the correct way to view relevance. As noted earlier, the issue is whether the documents sought are relevant to the matters at issue before the Court, which are defined by the pleadings.
[82] A theme to Mrs Keir’s “narrative” is that Bruce has influenced the Simms to retreat from their prior mutual understanding and to exclude her from farming operations and succession. In places, her case for discovery rests on the proposition that the documents will show the extent and nature of his influence. Yet Bruce’s role (if any) in the Simms’ position on succession is not an issue before the Court.
[83] The central issue before the Court in the first cause of action is whether the pleaded common understanding between the Keirs and the Simms existed. The issues in the second cause of action include whether the Keirs made the alleged contributions to farm operations and whether they did so with a reasonable expectation of obtaining an interest in the property. The relevance of the information sought by the Keirs must be assessed against these issues.
[84]Turning then to the specific categories sought.
Categories 2–11, 25 and 27 — recruitment of farm employees over 2019 and 2021
[85] I consider that in principle, information about farm managers and workers hired after the Keirs ceased their involvement in farm operations could be relevant to
30 Lankow v Rose [1995] 1 NZLR 277.
showing the extent of the Keirs’ prior contributions to the farm. However, the information requested goes beyond what is necessary. All that is necessary is information that shows the roles and functions of the workers the Simms considered necessary, advertised, and hired.
[86] So, advertisements, applications and CVs of the successful candidates, assessments of applications and any resulting employment contracts including position descriptions (categories 2, 5, 8, 25 and 27) are likely to contain relevant information. So too are category 9, concerning walkover interviews, and category 10, concerning the visa application for the farm manager. Applications and CVs from unsuccessful applicants and summaries of all applications (categories 3, 4, 6 and 7) are unlikely to contain relevant information.
[87] This information is defined, and it is not disproportionate to require its discovery in the context of the value of the Keirs’ claim and the expected relevance of the information.
[88] Bruce says that he would have expected his parents to have discovered these documents. However, they have deposed that they do not have any documents in these categories, saying that they had not yet set up their new email account, rl******@gmail.com (the “rl…” email account).
[89] Bruce confirms in his affidavit that he helped his parents with this recruitment. He says that he does not have access to the Seek/Farm Source accounts any longer, was not involved with walkover interviews, has searched for but not identified any documents within category 10, and does have documents within categories 11 and 25 but considers these should be discovered by the Simms as they contain private information about their employees. I return to this response after discussing the next category.
Categories 12–14 — farm restructure and recruitment during 2020
[90] For the same reasons, I consider that documents concerning the farm restructure and resultant recruitment of a farm manager and/or other farm workers are
likely to contain information relevant to the nature and extent of the Keirs’ involvement in farm operations between 2011–2019.
[91] Bruce acknowledges that he possesses documents in these categories but resists discovery because he says it will duplicate discovery already provided by the Simms or that should be provided by the Simms. He notes that the Simms have not been asked to respond to categories 12 and 14.
[92] The documents sought by the Keirs relate to Bruce’s involvement in farm operations for and on behalf of the Simms. Strictly speaking, they ought to have been discovered by the Simms as they are documents that are within their control. However, the Simms have not taken any steps to obtain and discover relevant documents held by Bruce. Mr Simms has identified “documents held by Bruce Simms regarding matters raised on the pleadings” in Part 5 of his second affidavit of documents, dated 13 July 2023, as documents that have never been in the Simms’ control.
[93] Bruce claims that it is not necessary for him to provide discovery because any emails or documents will be duplicated in the Simms’ discovery. But the Simms are not digitally proficient and did not have an email address until September 2019. Bruce says that he stepped in to assist the Simms with administrative tasks, such as recruitment and preparing documents, when the relationship with the Keirs broke down in June 2019. Bruce asks the plaintiffs and the Court to infer that the Simms will have a complete record of all farm-related emails he sent or received and documents he created or acquired from that date onwards. With respect, that seems doubtful in the circumstances.
[94] Because the Simms have elected not to obtain and discover farm-related documents from Bruce, and because it seems unlikely that the Simms themselves will have a complete record, I consider that Bruce should provide discovery of any documents in his possession in these and the prior categories.
Categories 17–24 — health and safety processes and compliance during 2022
[95] I consider that documents relating to health and safety, compliance, and other policies through 2022 are of tangential relevance to the issues in the case. I make no order in relation to these categories.
Category 26 — Bruce’s personal or work email accounts
[96] It will be apparent that I consider that emails sent or received by Bruce from June 2019 relating to farming operations potentially hold information relevant to the issue of the nature and extent of the Keirs’ role on the farm prior to then. However, category 26 is too broad and undefined. Bruce says that it would involve him searching 15,000 emails. Clearly that is disproportionate. Furthermore, I question the necessity of requiring discovery of emails to/from the second email account from Bruce when Mr Simms has deposed that he has, with the assistance of his lawyers, already searched this account.
[97] The Keirs are directed to confer with Bruce to refine category 26 to capture only documents relevant to the issues in the case, and to exclude duplication of emails or documents already discovered by the Simms. If agreement cannot be reached, they have leave to approach the Court for further directions/orders.
[98] I note that, in their submissions, the Keirs identify another email account, bob*********@gmail.com, which they say the Simms have not searched. That would seem to be an issue with the Simms’ discovery and should be addressed with them.
Categories 1, 15 and 16
[99] These categories have been addressed through correspondence between the parties’ lawyers. Bruce accepts that these documents are relevant but deposes that he does not have any documents in these categories.
Category 28
[100] This category of “any other document related to the subject matter of category 26, or any other matter related to the proceeding during the period 2019 (inclusive) onwards” is again unacceptably broad and sweeping. I make no order in relation to this category.
Orders
[101]I order Mr and Mrs Keir to:
(a)swear/affirm an affidavit listing any confidential medical records from medical professionals, including natural health providers, [Redacted] (if any) over the relevant period of 2011–2019 (inclusive);
(b)file and serve the affidavit on the Simms;
(c)make the documents available for inspection by the Simms’ counsel and appointed expert on the terms of an undertaking as to confidentiality to be agreed between counsel; and
(d)provide the Simms with the necessary usernames and passwords, or other login credentials for the farm laptop and the web-based “sim…” email account, or if they no longer know the username or passwords, to confirm that in the above-mentioned affidavit.
[102]I order Bruce Simms to:
(a)swear/affirm an affidavit stating:
(i)whether the documents/classes of documents in categories 2, 5, 8, 9, 10, 12, 13, 14, 25, 26 (amended following my direction above at [97]) and 27 of schedule A to the Keirs’ interlocutory application for non-party discovery are, or have been, in his control;
(ii)if the documents have been but are no longer in his control, his best knowledge and belief as to when the documents ceased to be in his control and who now has control of them; and
(b)file and serve the affidavit on the Keirs; and
(c)make the documents in his control available for inspection by the Keirs according to r 8.27.
[103] I order the Keirs to pay the Simms’ costs in relation to the Simms’ application on a scale 2B basis and reasonable disbursements to be fixed by the Registrar.
[104] I invite submissions from Bruce and the Keirs on costs in relation to the Keirs’ application. These submissions should not exceed five pages and should be filed within 20 working days.
Associate Judge Gardiner
SCHEDULE A
1.Correspondence with Dr [Redacted] preceding the letter dated 27 May 2019 (SIM.08002).
2.Seek job advertisement in May 2019 for Farm Assistant/ Herd Manager.
3.Applications and CVs from Applicants for Seek job advertisement in May 2019 for Farm Assistant / Herd Manager.
4.Summary of Applicants for Seek job advertisement in May 2019 for Farm Assistant/ Herd Manager, at the application close date, referred in SIM.06913.
5.Assessment of Applicants for Seek job advertisement for Farm Assistant / Herd Manager in May 2019.
6.Applications and CVs from Applicants for Farm Source job advertisement closing 28 May 2019 for Farm Assistant/ Herd Manager (SIM.06910).
7.Summary of Applicants for Farm Source job advertisement for Farm Assistant/ Herd Manager closing 28 May 2019.
8.Assessment of Applicants for Farm Source job advertisement for Farm Assistant/ Herd Manager closing 28 May 2019.
9.Documentation offering walkover interviews to NZ based candidates for Farm Assistant / Herd manager roles referred to in SIM.06913, including dates, times, meeting point etc.
10.Employer supplementary form requested by Bruce Simms from [Redacted] on 24th June 2019 in SIM.05964, and the completed form.
11.Emails, documentation and correspondence in relation to Visa application for [Redacted] between 24th June 2019 and 28th August 2019, from but not
limited to Bruce Simms and [Redacted], and in relation to the claimed Request for Urgent Processing due to [Redacted].
12.Documentation associated with farm restructure in March 2020, including but not limited to planning and decision documents, structure change diagram, letters to [Redacted], assessment of restructure.
13.Job advertisement for Farm Manager role following confirmation of restructure on 6th March 2020; dis-establishment of Assistant Farm Manager role and creation of Farm Manager Role.
14.Documentation related to the recruitment and employment of [Redacted], including but not limited to job advertisements and assessments, immigration forms and attachments, job descriptions, accommodation details, training requirements, email correspondence.
15.Documentation associated with the removal of Rachael’s authority to operate the Simms bank accounts, and access to internet banking.
16.Documentation associated with the removal of Rachael’s access to websites, and authority to operate (written and verbally) on behalf of R & LJ Simms for Fonterra, LIC, NAIT.
17.Documentation regarding farm information, policies or procedures, in accordance with SIM.07651 dated 3rd May 2022.
18.Induction process or plan for new employees, in accordance with SIM.07651 dated 3rd May 2022.
19.Documentation regarding meetings with employees, in accordance with SIM.07651 dated 3rd May 2022.
20.Documentation regarding training of employees, in accordance with SIM.07651 dated 3rd May 2022.
21.Health & Safety Policy, or Health & Safety Plan, in accordance with SIM.07651 dated 3rd May 2022.
22.Incident investigation procedures or investigation reports, in accordance with SIM.07651 dated 3rd May 2022.
23.Procedure for managing poor performance and disciplinary issues, in accordance with SIM.07651 dated 3rd May 2022.
24.Maintenance records for vehicles, in accordance with SIM.07651 dated 3rd May 2022.
25.Signed employment contracts for [Redacted] (2019), [Redacted] (2021), [Redacted] (2021), [Redacted] (2019 onwards, currently employed).
26.Bruce Simms’s email account (personal and/or work) sending correspondences to or receiving correspondences from rl******@gmail.com or any other email whatsoever (including [Redacted]) related to the farm management, operation, staffing, compliance, or any other matter related to the proceeding during the period 2019 (inclusive) onwards.
27.Without limiting the aforesaid, any employer supplementary form (including the form signed by Robert & Lynette on 25/06/2019), and attachments including letters, requirements checklist, contract, position description, and job advertisement relating to [Redacted] and/or any other person.
28.Any other document related to the subject matter of item 26, or any other matter related to the proceeding during the period 2019 (inclusive) onwards.
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