Mau Whenua Incorporated v Mulligan - [2021] NZHC 558

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2019-485-366

[2021] NZHC 558

BETWEEN
MAU WHENUA INCORPORATED

Plaintiff

WHAREAHURU GILBERT and MARTHA HINEONE GILBERT

Second Plaintiffs

KAREN MARAMA PARATA, MABEL URU TANIRAU and

ROGAN RAWIRI HOHAPE TANIRAU
Third Plaintiffs

AND

WAYNE THOMAS MULLIGAN, JOHN FREDERICK COFFEY,

HOLDEN HOHAIA, TOA WOODBINE POMARE, MAHINA HABEER- PUKETAPU, KIM SKELTON,
PAORA JENKINS-MEPHAM and HUIA PUKETAPU

First Defendants

PETER SAMUEL JACKSON, HANNAH MARY BUCHANAN, HOWARD KEVIN TAMATI, NEVILLE MCCLUTCHIE BAKER, MORRIS TE WHITI LOVE and

IHAKARA JAMES PUKETAPU-DENTICE
Second Defendants

SHELLY BAY INVESTMENTS LIMITED
Third Defendant

SHELLY BAY TAIKURU LIMITED

Four Defendant

On the papers:

MAU WHENUA INCORPORATED v WAYNE THOMAS MULLIGAN, JOHN FREDERICK COFFEY, HOLDEN HOHAIA, TOA WOODBINE POMARE, MAHINA HABEER-PUKETAPU, KIM SKELTON, PAORA JENKINS-MEPHAM and HUIA PUKETAPU [2021] NZHC 558 [18 March 2021]

Counsel:
V L Heine, C J Curran and M W McMenamin for Plaintiffs

T Cooley for First and Second Defendants
L Clark and S Jones for Third and Fourth Defendants

Judgment:

18 March 2021

JUDGMENT OF CHURCHMAN J

Introduction

[1] Following the discontinuance of these proceedings, counsel for the plaintiff filed a memorandum on 3 March 2021 advising the Court that the parties have resolved all issues as to costs. However, in their 3 March 2021 memorandum, counsel for the plaintiff raised an additional issue out of an “abundance of caution”.

[2] Counsel for the plaintiff stated that they have been instructed to transfer information held as counsel in this proceeding to new counsel, and understand that this instruction has been given to enable new counsel to provide the plaintiffs with fresh legal advice in respect of claims they had sought to advance through this proceeding, prior to its discontinuance. They noted their obligation under r 4.4.1 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (Rules of Conduct and Client Care), whereby upon changing lawyers a client has the right either in person or through the new lawyer to uplift all documents, records, funds, or property held on their behalf.

[3] However, counsel have also acknowledged that they are subject to the requirements of r 8.30(4) of the High Court Rules 2016 (the Rules), which is set out below. They therefore seek a direction from the Court that they are released from their undertaking under r 8.30(4) of the Rules for the limited purposes of transferring the information held in their capacity as counsel in the discontinued proceeding to new counsel, so that the plaintiffs can take fresh legal advice.

Position of the parties

[4] Counsel for the defendants jointly oppose the directions sought by counsel for the plaintiffs. In a memorandum dated 12 March 2021, counsel for the first and second defendants submitted that the plaintiffs appear to be seeking to use the documents discovered by the defendants for a collateral purpose, and that it is inappropriate for the Court to resolve this issue by way of exchange of formal memoranda between parties – the…

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.

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Details

Case: [2021] NZHC 558
Decision Date: 18 March 2021

CaseChat Overview and Summary

The High Court of New Zealand considered a matter between Mau Whenua Incorporated and others (plaintiffs) against Wayne Thomas Mulligan and others (defendants). The plaintiffs sought directions from the Court to allow their counsel to transfer information held in the discontinued proceedings to new counsel, to enable the plaintiffs to obtain fresh legal advice. The defendants opposed this application, arguing that the plaintiffs were attempting to use the discovered documents for a collateral purpose, which is prohibited under the High Court Rules. The Court examined the relevant rules and case law concerning the collateral use of discovered documents, finding that while the Court's permission is necessary for a party to use discovered documents for a collateral purpose, the Court should be fully informed of the factual context between the proceedings and the parties before granting leave.

The Court held that the plaintiffs should first attempt to reach a "party agreement" concerning the collateral use of the documents, which could include suggested arrangements for the use and access to confidential information within the documents. If this could not be achieved, the plaintiffs should file an interlocutory application for leave, accompanied by affidavits setting out the factual context of the case, which includes detail of the proposed new proceeding, the new counsel engaged, and the factual connection between the discontinued and current proceedings. The defendants were to file submissions in response, and also detail the current position as to costs.

The Court made the following orders:

1. Counsel were to attempt to make contact between the parties in order to attempt to reach a "party agreement" as described above, and present this to the Court if an agreement was reached by 26 March 2021.
2. If an agreement could not be reached, the plaintiffs were to file an interlocutory application accompanied by affidavits setting out the factual context of the case by 10 April 2021.
3. Counsel for the defendants were to file submissions in response by 24 April 2021, and also detail the current position of the defendants as to costs.

Orders