Mau Whenua Incorporated v Mulligan

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.