Metlifecare Retirement Villages Limited

[2022] NZHC 1646

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-1127

[2022] NZHC 1646

UNDER

The Evidence Act 2006

AND THE

HIGH COURT RULES 2016

IN THE MATTER OF

An application by METLIFECARE

RETIREMENT VILLAGES LIMITED for

leave to serve a New Zealand subpoena in Australia

APPLICANT

On the papers:	At Auckland
Judgment:	13 July 2022

JUDGMENT OF POWELL J

This judgment was delivered by me on 13 July 2022 at 11.30 am pursuant to R 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors:

MinterEllisionRuddWatts (J Miles QC / J Cooper QC), Auckland

Metlifecare Retirement Villages Limited (Originating Application) [2022] NZHC 1646 [13 July 2022]

[1]                 The applicant, Metlifecare Retirement Villages Limited (“MLC”), seeks leave to issue subpoenas for six witnesses based in Australia.

[2]                 MLC is the plaintiff in proceedings against James Hardie New Zealand Ltd, Studorp Ltd (formerly known as James Hardie & Coy Pty Ltd/James Hardie Building Products Ltd) and James Hardie NZ Holdings Ltd (CIV-2015-404-3080) in relation to alleged defective building products provided by the defendants.

[3]                 According to the evidence provided by MLC the significance of each of the witnesses for whom a subpoena is sought is as follows:

David Kenrick WORLEY

Mr Worley was general manager of James Hardie New Zealand during the relevant period from 1997 to 2001. Documents indicate that Mr Worley had oversight of the New Zealand business and issues relevant to the claim such as production, product issues and sales. Two defendants, who between them undertook the New Zealand business (and thus were overseen by Mr Worley), were responsible for manufacturing, promoting (including supporting the installation of) and selling Harditex and Monotek to the market.

Mr Worley will also be able to give evidence as to the operation the New Zealand business including whether it was run autonomously or managed offshore. This is relevant to the issue of duties owed by the James Hardie defendants located overseas. MLC's claim includes a pleading that the role played by these overseas defendants in the operation of the New Zealand business meant that they owed a duty of care in relation to the supply of the relevant product to MLC's retirement villages by the New Zealand business.

James GLEESON

MLC believe Mr Gleeson held various senior roles within James Hardie including as product development manager in Australia and later as the Asia Pacific research and development manager. Mr Gleeson had a key role in research and development within the James Hardie Group, particularly in relation to the testing and development of Harditex and Monotek.

Mr Gleeson will also be able to give evidence about how, as a matter of fact, product design and development for the James Hardie Group was managed given his involvement with the fibre cement technology network team (a management team responsible for research and development). This will include whether technical support and/or technical information was provided to the New Zealand business unit. This is relevant to the issue of duties owed by the overseas James Hardie defendants. In addition, Mr Gleeson was a member of the Australia New Zealand Management Team from 2003 – 2004. He will be able to give evidence as to the operation the New Zealand business including whether it was run autonomously or managed offshore. This is again relevant to the issue of duties owed by the overseas James Hardie defendants.

John Leonard MOLLER

Mr Moller was the executive vice president of Asia Pacific from 2000 to 2002. In this role, he was responsible for the management of the fibre cement businesses in Australia, New Zealand and the Philippines. He had general oversight of the New Zealand business. Mr Moller will also be able to give evidence as the operation of the New Zealand business including whether it was run autonomously or managed offshore. Mr Moller was also a member on the James Hardie Group's senior leadership team (termed the group management team). Mr Moller was appointed to manage key areas of New Zealand's weather tightness issues. This occurred in December 2002. This is relevant to the issue of duties owed by the overseas James Hardie defendants, who had operational control, and the James Hardie defendants' knowledge about product performance.

Noel E. THOMPSON

Mr Thompson was the head of research and development from 1994 to 2001 and accordingly, played a key role within that team. This included in relation to the testing and development of Harditex and Monotek – the two products at issue in this claim. MLC understands that nearly all of James Hardie's research and development, until at least 2001, was carried out at Rosehill located in Sydney, Australia. This was led by Mr Thompson. The technical performance of Harditex and Monotek (and the testing or lack thereof) are important to MLC's case.

Mr Thompson will also be able to give evidence about how, as a matter of fact, product design and development for the James Hardie Group was managed, particularly given his involvement with the fibre cement global management team and the global fibre cement network team. This will include whether technical support was provided to the New Zealand business unit. This is relevant to the issue of duties owed by the overseas James Hardie defendants and the entities which MLC believe held 'superior knowledge' in relation to the product supplied to MLC's retirement villages by the New Zealand business (which is relevant to establishing that a duty of care was owed to MLC by the overseas James Hardie defendants in relation to the supply of that product).

…

Robert (Bob) Houltby MARKHAM

Mr Markham was general manager of the James Hardie New Zealand business during the relevant period from 1997 to 2001. As a result, Mr Markham had oversight of the New Zealand business and issues relevant to MLC's claim such as – production, product issues and sales. Two defendants, who between them undertook the New Zealand business, were responsible for manufacturing, promoting (including supporting the installation of) and selling Harditex and Monotek to the market. Mr Markham will also be able to give evidence about the operation of the New Zealand business including whether it was run autonomously or managed offshore. This is relevant to the issue of duties owed by the overseas James Hardie defendants.

Timothy DABBS

Mr Dabbs has participated in initial correspondence with [MLC’s solicitors] regarding his employment with James Hardie during the relevant time period of 1995 to 2000. This involved a detailed discussion of testing carried out by Mr Dabbs during his employment, which demonstrated durability failures in the fibre cement products that are the subject of MLC's case. This corroborates MLC's understanding of the James Hardie defendants' knowledge about product performance. Mr Dabbs is also able to give evidence as to the communication and operation of the various James Hardie entities, which is relevant to the issue of duties owed by the overseas James Hardie defendants. His evidence is therefore significant to MLC's case.

For the reasons above, MLC considers it is essential to MLC's case in the Proceeding that the Witnesses give evidence at the trial.

[4]                 Having considered the application and the draft subpoenas provided I am satisfied that leave should be granted to enable service in Australia. In particular, the application and supporting evidence addresses all relevant matters set out in s 154 of the Evidence Act 2006 and r 9.60 of the High Court Rules 2016, including the requirement that the application is made without notice. The roles at relevant times of each of the proposed witnesses, each of whom is over 18, means that their evidence is likely to be significant in the context of the substantive proceedings, while, and consistent with other litigation,1 the nature of the proceedings and the number of documents means that giving evidence remotely is likely to be problematic.

[5]                 Leave is accordingly granted to serve New Zealand subpoenas on the following witnesses in Australia:

(a)David Kenrick Worley;

(b)James Gleeson;

(c)John Leonard Moller;

(d)Noel E. Thompson;

(e)Robert (Bob) Houltby Markham; and

1      See Fickling Ltd v Currie HC Auckland CIV-2011-404-3355, 23 June 2011 at [17]–[18], where Whata J indicated that in proceedings of both procedural and substantive complexity, oral testimony in person may be ordered rather than by way of video link.

(f)  Timothy Dabbs.

Powell J