Minister of Education v IT Architects Ltd

[2014] NZHC 1541

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2012-470-475 [2014] NZHC 1541

IN THE MATTER OF

the ROTOTUNA PRIMARY SCHOOL

BETWEEN

MINISTER OF EDUCATION First Plaintiff

SECRETARY FOR EDUCATION Second Plaintiff

BOARD OF TRUSTEES OF THE ROTOTUNA PRIMARY SCHOOL Third Plaintiff

AND

IT ARCHITECTS LIMITED First Defendant

IAN ANDREW THORN Second Defendant

KUMARA INVESTMENTS LIMITED Third Defendant/ First Fourth Party

CONSTRUCT LIMITED
Fourth Defendant/Sixteenth Fourth Party

AND

CARTER HOLT HARVEY LIMITED First Third Party

HAMILTON CITY COUNCIL Second Third Party

AND

PAUL DAMIAN BARNETT Second Fourth Party

LOBELL CONSTRUCTION LIMITED Third Fourth Party

DENNIS RUSSELL GEORGE SHAW Fourth Fourth Party

LOUIS TASMAN SHAW Fifth Fourth Party

MINISTER OF EDUCATION v IT ARCHITECTS LIMITED & OTHERS [2014] NZHC 1541 [3 July 2014]

OWEN BARLOW ROOFING LIMITED Sixth Fourth Party

OWEN LLOYD BARLOW Seventh Fourth Party

PAUL MAKUCH ROOFING LIMITED Eighth Fourth Party

PAUL ALAN MAKUCH Ninth Fourth Party

WAIKATO WATERPROOFING LIMITED

Tenth Fourth Party

ROBERT GEORGE FURMAGE Eleventh Fourth Party

CHARLES NORRIE GIBBS Twelfth Fourth Party

NATHAN TARANAKI CONSTSRUCTION LIMITED Thirteenth Third Party

NATHAN KYLE TARANAKI Fourteenth Fourth Party

MAURICE ERROL (JOHNNY) AITKEN Fifteenth Fourth Party

Hearing:	30 April 2014
Appearances:	N Whittington and S Navot for plaintiffs J Q Wilson for first and second third parties
Judgment:	3 July 2014

JUDGMENT OF ASSOCIATE JUDGE BELL

This judgment was delivered by me on 3 July 2014 at 5:00pm

Pursuant to Rule 11.5 of the High Court Rules

………………………………………….

Registrar/Deputy Registrar

[1]      The first and second third parties have taken a position of deep suspicion that the plaintiffs cannot discover documents properly.  A useful technique when faced with a suspicious attitude is to openly disclose information and show that there is no cause for concern. The plaintiffs have tried that.  It has not worked.

[2]      The plaintiffs filed an affidavit of documents on 4 March 2013.  The third parties were not satisfied.  In August 2013 the first third party applied for further and better discovery. That application sought disclosure of 22 classes of documents. The second third party filed a similar application on 19 September 2013, seeking disclosure of 19 classes  of documents. The plaintiffs filed a further affidavit  of documents on 15 October 2013.  On 23 October 2013 the first third party filed an amended application seeking disclosure of 34 classes of documents.  The plaintiffs filed  a  third  affidavit  of  documents  on  30  October  2013,  a  fourth  one  on

22 November 2013 and a fifth one on 12 February 2014.

[3]        By the time of the hearing on 30 April 2014 the issues had narrowed.  The third parties focused on four classes of documents in the first third party’s amended application (categories 1, 7, 12 and 34).   For these documents, the third parties challenged the plaintiffs’ claims for litigation privilege and sought identification of particular policies and guidelines of the Ministry of Education on its website.  The third parties sought disclosure of those parts of documents that had been covered up on  the  grounds  of  irrelevance.    The  third  parties  also  challenged  whether  the plaintiffs had been personally aware of their discovery obligations, had carried out adequate diligent searches and had fully complied with their discovery obligations.

[4]      Along the way, the plaintiffs and third parties have lost sight of the limits to discovery.

What the case is about

[5]      This  is  a  leaky  building  claim  for  water-ingress  damage  to  buildings  at Rototuna Primary School, Hamilton.  Between 2002 and 2009 a number of school buildings were constructed, including classroom pods, an administration block, a resource block, a multi-purpose block and specialist classrooms.  In the latter years

additions were made to the staff-room and one of the classroom pods. When damage from water ingress was detected, consultants were appointed to investigate.  After they made reports,  remedial  work  was  carried  out.   The plaintiffs are claiming damages of $3,360,062.06 for the costs of remedial works and consequential losses of $426,347.37.

[6]      The defendants are the architectural practice, IT Architects Ltd; its director, Mr Thorn; a project management company and construction contractors.   The architect has joined Carter Holt Harvey Ltd as first third party and the Hamilton City Council as second third party.  Carter Holt Harvey Ltd is sued as the manufacturer and supplier of exterior wall cladding called “Shadowclad Texture” which is alleged not to be weathertight, durable and compliant with the Building Code.   The City Council is sued for alleged negligence in issuing building consents, inspecting building work and issuing code compliance certificates under the Building Act.  The architects seek contribution from Carter Holt Harvey Ltd and the City Council as concurrent tortfeasors under the Law Reform Act 1936.  Fifteen fourth parties have been added.

[7]      A significant issue in the case goes to the use of Carter Holt’s Shadowclad Texture as an exterior wall cladding. The architect has joined Carter Holt Harvey because it alleges that the product was defective.   While it admits manufacturing Shadowclad Texture, Carter Holt Harvey denies that its product was used in the school.  It also alleges that any damage attributable to the use of its product arises from errors in design by the architect and errors in installation by contractors.

[8]     Rototuna Primary School is only one school for which leaky building proceedings have been issued.  By November 2013, the Ministry of Education had issued 110 claims for leaky school buildings.   The use of Carter Holt Harvey’s product is in issue in some of those claims.

[9]      The  Ministry  of  Education  has  established  a  team  which  deals  with  the litigation for leaky schools.  This team arranges the inspection of schools by building consultants, receives reports, arranges remedial works, and also runs the litigation on behalf of the ministry and schools.  Inevitably, the large number of schools suffering

water ingress problems and the significant resources the ministry is putting in to dealing with these problems mean that vast numbers of documents are generated. The litigation to recover compensation for losses, including the costs of remedial work, is only one part of the ministry’s efforts to deal with leaky school buildings. Documents relating to claims against those alleged to be responsible for the damage must be only some fraction of all the documents held by the ministry.  The discovery of documents for a proceeding for one school requires selection of documents that are relevant. That calls for a careful exercise of judgment.

[10]     In the case of Rototuna Primary School, the architect has gone public with some of the issues arising in this proceeding. Mr Thorn has complained that the ministry has gone overboard on its remedial works.  He has gone to the media with his  complaints;  he  has  raised  the  matter  with  political  parties.    A Member  of Parliament has visited the school in response.  The ministry has had to deal with this public airing of complaints by Mr Thorn.  That involved advising the minister.  That matter, however, has little to do with the litigation.

The scope of discovery in this case

[11]     On 5 December 2012 Associate Judge Doogue made discovery orders.   He directed that there was to be standard discovery under r 8.7 of the High Court Rules by all parties.  There have been no applications to vary the scope of discovery.  Any party proposing more extensive discovery would need to apply for a variation under r 8.17. The third parties have not relied on r 8.17 in these applications.

[12]     Standard discovery under r 8.7 requires each party to disclose documents in their control that are:

(a)       documents on which that party relies;  or

(b)      documents that adversely affect that party’s own case;  or (c)  documents that adversely affect another party’s case;  or (d)        documents that support another party’s case.

[13]     Standard discovery was introduced under the High Court Amendment Rules (No.2) (SR 2011/351).   These new discovery rules were a response to increasing dissatisfaction1 with the old discovery rules, in particular the wide-ranging “train of inquiry” relevance test in Compagnie Financière et Commerciale du Pacifique v Peruvian Guano Co.2   In that case Brett LJ said:3

I think it obvious from the use of these terms that the documents to be produced are not confined to those, which would be evidence either to prove or to disprove any matter in question in the action; and the practice with regard to insurance cases shews, that the Court never thought that the person making the affidavit would satisfy the duty imposed upon him by merely setting out such documents, as would be evidence to support or defeat any issue in the cause.

The doctrine seems to me to go farther than that and to go as far as the principle which I am about to lay down. It seems to me that every document relates to the matters in question in the action, which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may - not which must - either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary. I have put in the words "either directly or indirectly," because, as it seems to me, a document can properly be said to contain information which may enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary, if it is a document which may fairly lead him to a train of inquiry, which may have either of these two consequences...

[14]     The effect of the train of inquiry test was to require disclosure of documents on the off-chance they might help an adversary, even though there was no prospect of those documents being used in evidence.

[15]     The purpose of standard discovery is to cut down on the range of documents to be disclosed.  New Zealand has taken the standard discovery test from the English Civil Procedure Rules.4   That had its genesis in the proposals by Lord Woolf in his report, Access to Justice.  He said:5

My recommended solution involved the identification of four categories of documents which at present have to be disclosed. These are:

1      Priestley J’s judgment in Air New Zealand v Auckland International Airport (2001) 16 PRNZ

783 (HC) is an example.

2      Compagnie Financière et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55 (CA).

3      At 62-63.

4      CPR Pt 31.6.

5      Lord Woolf Access to Justice, Final Report (HMSO, July 1996) at ch 12, [38].

(1) The parties’ own documents, which they rely upon in support of

their contentions in the proceedings;

(2) Adverse  documents  of  which  a  party  is  aware  and  which  to  a material  extent  adversely affect  its  own  case  or  support  another party’s case;

(3) Documents which do not fall within categories (1) or (2) but are part of the “story” or background, including documents which, though relevant, may not be necessary for the fair disposal of the case;

(4) Train of enquiry documents:  these are documents which may lead to a  train of enquiry enabling a  party to advance his own  case  or damage that of his opponent.

[16]     Lord Woolf recommended that standard disclosure be limited to documents within categories (1) and (2) only, while allowing for applications for specific disclosure in exceptional cases.   That has been largely carried through in the new discovery rules in Part 8 of the High Court Rules.

[17]    Under standard discovery, documents are to be disclosed if they or the information in them are capable of being used in evidence – either because they support the case of the party making discovery or of any other party, or because they are adverse to the case of the discovering party or any other party.  That does not mean that the documents will be bound to be used in the hearing.   In this case I have inspected documents which are subject to challenges for privilege or which have been redacted.  While many of them have to do with managing the litigation, very few of them have information which could be used in evidence.  The plaintiffs have gone far beyond what they were required to disclose, but only because the third parties have pressed them to do so.

[18]     While I will decide whether documents are privileged, I will also consider whether they are relevant.  I will not order inspection of those documents which are not relevant under standard discovery.

[19]     The third parties’ position is that if the plaintiffs listed the documents in any of their five affidavits of documents, the plaintiffs must have accepted that they were discoverable and accordingly the third parties are entitled to test the claims as to privilege.  I do not accept that.  It seems to me that the plaintiffs have tried to deal with the third parties’ suspicions by listing documents even if they are not strictly

caught under a standard discovery order.   While such a policy of appeasement is understandable,  I do  not  see why the  court  should  indulge the third  parties by requiring disclosure or inspection of documents to which they are not entitled under standard discovery and which will never be used in evidence.

Litigation privilege

[20]     The plaintiffs have claimed litigation privilege under s 56 of the Evidence Act

2006:

56       Privilege for preparatory materials for proceedings

(1)       Subsection (2) applies to a communication or information only if the communication or information is made, received, compiled, or prepared for the dominant purpose of preparing for a proceeding or an apprehended proceeding (the “proceeding”).

(2)       A   person   (the   “party”)   who   is,   or   on   reasonable   grounds contemplates becoming, a party to the proceeding has a privilege in respect of—

(a)      a communication between the party and any other person:

(b)      a communication between the party's legal adviser and any other person:

(c)      information compiled or prepared by the party or the party's legal adviser:

(d)      information compiled or prepared at the request of the party, or the party's legal adviser, by any other person.

…

[21]     Blanchard J’s   description of the privilege in Dinsdale v Commissioner of

Inland Revenue remains applicable under the Evidence Act:6

This appeal concerns the type of legal professional privilege often called “litigation  privilege”:  the  privilege  which  applies  to  communications between a legal professional adviser and a third party and between a client and a third party, made with a view to obtaining information to be submitted to a legal professional adviser.  It protects the process of gathering evidence for consideration by a lawyer acting for a party in civil or criminal litigation or threatened with such litigation.   The Law Commission has said in its discussion paper on Evidence Law: Privilege (1994) NZLC PP23, that the central feature of litigation privilege “is that it represents the fruits of effort

6      Dinsdale v Commissioner of Inland Revenue (1997) 11 PRNZ 325 (CA).

on the part of litigants in preparing for the case” (para 109).  The evidence may have been gathered by the lawyer, the client or an agent for either of them, but the work must have been carried out with the dominant purpose of conducting or advising on actual or reasonably anticipated litigation: Guardian Royal Exchange Assurance of NZ Ltd v Stuart [1985] 1 NZLR 596 (CA). The privilege is thus one related to:

the right of a litigant or potential litigant to seek and obtain legal advice on his prospects and the conduct of proceedings under the seal of confidence [and to] the right of such a litigant and his legal adviser to prepare for and conduct his case without, directly or indirectly, revealing the effect of such advice.

(Ventouris v Mountain [1991] 1 WLR 607, 612; [1991] 3 All ER 472, 476 per Bingham LJ)

If  litigation  is  but  one  of two  equally important  purposes,  it  is  not  the dominant purpose.  It is a question of fact what the dominant purpose is.

[22]     In  this  case  it  is  necessary  to  decide  whether  documents  for  which  the plaintiffs claim privilege have the dominant purpose under s 56(1).   It is also necessary to establish when the plaintiffs contemplated litigation on reasonable grounds.

[23]     As to the first, I have found that for many of the documents for which privilege was claimed, the dominant purpose test has not been satisfied.   In many cases, privilege has been claimed for an internal communication within the plaintiffs where a fleeting reference is made to the litigation but the document has been made for another purpose.  In other cases, there are documents to which privilege does not attach. They have been copied to the plaintiff’s lawyers.  The fact that the document has been copied to the plaintiff’s lawyers does not mean by itself attract litigation privilege under s 56.   The dominant purpose test has not been satisfied for those documents.

[24]     As to when litigation was contemplated, the third parties take these points:

(a)      there was a significant gap between the time when the plaintiffs say that they contemplated proceedings and when they started this proceeding; and

(b)the  plaintiffs  have  claimed  privilege  for  certain  documents  when similar documents between the same parties are not subject to any privilege claim.

[25]     I  find  that  the  plaintiffs  reasonably  contemplated  that  there  would  be litigation over the water ingress problems at Rototuna Primary School from early

2010.   For that, I rely on the affidavit of Mr Bos, formerly national programme manager in the Ministry’s building improvement team.  He received a report from consultants, Prendos NZ Ltd in late December 2009 as to the results of destructive testing  on  some  of  the  buildings  at  the  school  from  September  2009  onwards. Mr Bos  says  that  from  reading  that  report  he  learnt  that  there  were  serious weathertightness issues with a number of the school’s buildings and he concluded that to recover the costs the Ministry would incur in remediating the buildings, litigation was more than likely.

[26]     I  accept  the  plaintiffs’ explanation  for  the  lapse  before  they  started  this proceeding.    Given  the  large  number  of  legal  proceedings  it  has  brought,  the Ministry has had to prioritise proceedings to ensure that limitation deadlines are not missed.  The Rototuna Primary School proceeding was not started until mid-2012, because there were other cases which had to be issued earlier to meet deadlines.

[27]     I also accept the plaintiffs’ explanation for claiming litigation privilege for some communications passing between their consultants in the first half of 2011, but not for others.   The plaintiffs have distinguished between consultants’ reports obtained at the stage where school buildings were investigated for water-ingress problems  (when  litigation  was  not  necessarily  contemplated)  and  reports  made during remediation when information was obtained to be used in evidence.   Two buildings, the Kahikatea classroom pod and the performing arts block, were only investigated in 2011, whereas the other school buildings were investigated in 2009. Litigation  privilege  was  not  claimed  for  reports  investigating  the  Kahikatea classroom pod and the performing arts block in 2011.  On the other hand litigation privilege was properly claimed for the other buildings because by that time the plaintiffs had already decided to issue proceedings.

[28]     I was provided with copies of all the contested documents for which the plaintiffs claimed litigation privilege.

Redaction of documents

[29]     The plaintiffs covered up parts of documents on the grounds that those parts were irrelevant.  The third parties did not accept the plaintiffs’ explanations that the covered up parts were irrelevant.  They wanted me to check the claim out.   I was provided with copies of documents and checked them.

[30]     The approach to redactions for irrelevance is set out in the judgment of Hoffmann LJ in G E Capital Corporate Finance Ltd v Bankers Trust Co.7    That is subject to the qualification that that case was decided when the Peruvian Guano test still applied in England. A later decision of the English Court of Appeal has held that the same approach applied under the new discovery rules in England.8   Hoffmann LJ said:

It has long been the practice that a party is entitled to seal up or cover up parts of a document which he claims to be irrelevant.  Bray’s Digest of the Law of Discovery (2nd ed 1910) pp 55-56 puts the matter succinctly:

Generally speaking, any part of a document may be sealed up or otherwise concealed under the same conditions as a whole document may  be  withheld  from  production  …  The  party’s  oath  for  this purpose is as valid in the one case as in the other.  The practice is either to schedule to the affidavit of documents those parts only which are relevant, or to schedule the whole document and seal up those parts which are sworn to be irrelevant. …

The oath of the party giving discovery is conclusive –

Unless the court can be satisfied – not on a conflict of affidavits, but either from the documents produced or from anything in the affidavit made by the defendant, or by any admission made by him, in the pleadings, or necessarily from the circumstances of the case – that the affidavit does not truly state that which it ought to state. …

(See Jones v Andrews (1888) 58 LT 601, 604 per Cotton LJ)

Can one in this case see from the documents produced that the affidavit must be wrong in claiming that the blanked-out pages do not relate “to any matter in question” in accordance with the Peruvian Guano test?

7      G E Capital Corporate Finance Ltd v Bankers Trust Co Ltd [1995] 1 WLR 172 (CA) at 174; [1995] 2 All ER 993 (CA) at 994-995.

8      Shah v HSBC Private Bank (UK) Ltd [2011] EWCA Civ 1154.

[31]     In Shah v HSBC Private Bank (UK) Ltd,9 Lewison LJ cited this passage and said:

The question then is not whether the affidavit “may” be wrong; but whether it “must” be wrong.

He added:

In my judgment, the same approach to the sealing or concealing of parts of documents applies in the changed landscape of the civil procedure rules.

[32]     Apart  from  their  suspicion,  the  third  parties  had  nothing  to  go  on  in challenging the redactions.

Section 70 of the Evidence Act 2006

[33]     When I inspected the documents for the claims for privilege, I found that some of them were communications between the Ministry and the Minister of Education.  They touched briefly on the litigation.  Their purpose was to deal with enquiries from the news media following up Mr Thorn’s public airing of his concern that the Ministry had gone overboard on remedial work.  I was initially concerned whether these communications came under s 70 of the Evidence Act:

70       Discretion as to matters of State

(1)       A Judge may direct that a communication or information that relates to matters of State must not be disclosed in a proceeding if the Judge considers   that   the   public   interest   in   the   communication   or information being disclosed in the proceeding is outweighed by the public interest in withholding the communication or information.

(2)       A communication  or  information  that  relates  to  matters  of  State includes a communication or information—

(a)       in respect of which the reason advanced in support of an application for a direction under this section is one of those set out in sections 6 and 7 of the Official Information Act

1982; or

(b)       that is official information as defined in section 2(1) of the Official Information Act 1982 and in respect of which the reason advanced in support of the application for a direction under this section is one of those set out in section 9(2)(b) to (k) of that Act.

9      Shah v HSBC Private Bank (UK) Ltd [2011] EWCA Civ 1154.

(3)       A   Judge   may   give   a   direction   under   this   section   that   a communication or information not be disclosed whether or not the communication or information is privileged by another provision of this subpart or would, except for a limitation or restriction imposed by this subpart, be privileged.

[34]     I invited further submissions.  The plaintiffs sought protection under s 70, the third parties opposed.  The communications between the Ministry and the Minister are official information under s 2(1) of the Official Information Act.  Arguably, they may  be  communications  of  advice  which  should  be  kept  confidential  within  s

9(2)(f)(iv) of that Act, but in any event they are irrelevant to the proceeding.  They do not need to be disclosed under standard discovery.  If I were required to exercise the discretion under s 70(1), I would rule against those communications being disclosed in this proceeding because I can see no benefit for this proceeding in those communications being discovered at all, even if there were no need otherwise to keep the communications confidential under s 9(2) of the Official Information Act.

Rulings on documents

Documents subject to litigation privilege claims

SUPP.MOE.004.0013 dated 18 January 2011

[35]     The document is an internal report of the Ministry of Education outlining the purpose  of  the  Rototuna  Primary  School  re-cladding  project.    It  makes  brief reference to the litigation.   The document was not brought into existence for a purpose under s 56 of the Evidence Act.  It does not, however, need to be disclosed under standard discovery under r 8.7 as it does not contain information which could be used in evidence.

SUPP.MOE.001.0115 dated 3 February 2011

[36]     This  document  is  part  of  an  email  chain.   An  earlier  part  of  the  chain, document SUPP.MOE 001.0114 was sent by the building consultants instructed by the Ministry.   Privilege has been claimed for 0115, apparently because it was forwarded to  a legal  adviser.   The document  was not prepared  for the primary

purpose of litigation.   It does not, however, need to be disclosed under standard discovery as it does not contain information which could be used in evidence.

SUPP.MOE.004.0005 and SUPP.MOE.001.0223 both dated 7 February 2011

SUPP.MOE.004.0020 and SUPP.MOE.001.0143 both dated 14 February 2011 and

SUPP.MOE.001.0145 dated 18 February 2011

[37]     These documents are different versions of advice given to the Minister on 7 and 18 February 2011.  Litigation privilege was claimed, but they were not prepared for the dominant purpose of the proceeding. They are, however, irrelevant.

SUPP.MOE.004.0039 dated 23 February 2011

[38]     This is an internal communication within the Ministry.   It deals with an aspect of the evidence to be investigated for the plaintiffs’ claims.  It is subject to litigation privilege under s 56.  While it deals with the gathering of evidence, it does not contain information that could be used in evidence.  It does not need to be disclosed under standard discovery.

SUPP.MOE.004.0036 dated 25 February 2011

[39]     This is a communication between building consultants and the Ministry.   It deals with evidence to be obtained.  It is subject to litigation privilege but it does not contain information that could be used in evidence.  It does not need to be disclosed under standard discovery.

SUPP.MOE.001.0072 dated 4 July 2011

[40]     This is a communication between the Ministry and the school about obtaining information for the claim.  It is subject to litigation privilege, but it does not contain information that could be used in evidence.  It does not need to be disclosed under standard discovery.

[41]     These deal with the provision of information required for preparing the claim. They are communications between the school and the Ministry, giving information required for the claim.  That information can be used as evidence in support of the plaintiffs’ claim.  They were made for the dominant purpose of the litigation.  While they contain discoverable information, they are subject to litigation privilege.

SUPP.MOE.001.0042 and SUPP.MOE.002.0043 dated 15 September 2011

[42]     These  are  internal  communications  within  the  Ministry.    Their  primary purpose is how to address media interest but there is a reference to litigation, including to part of the litigation strategy.  There is no litigation privilege, but the documents do not need to be disclosed as part of standard discovery.

SUPP.MOE.001.0030  dated  14  September  2011  and  SUPP.MOE.001.0031  and

SUPP.MOE.001.0032 both dated 26 September 2011

[43]     These are email communications within the Ministry, dealing with media interest in Rototuna Primary School.  They are not subject to litigation privilege, but they are not relevant and do not need to be disclosed.

SUPP.MOE.001.0028 dated 26 September 2011

[44]     This is a communication between the Ministry and the school directed at obtaining evidence for the proceeding.  It does not, however, contain any information to be disclosed under standard discovery.   Litigation privileges attaches, but the document is irrelevant and therefore does not need to be disclosed.

SUPP.MOE.001.0122 and SUPP.MOE.001.0123 dated 26 September 2011

[45]     These  are  internal  communications  within  the  Ministry,  dealing  with gathering information for the proceeding. They are subject to litigation privilege, but are not relevant under standard discovery.

[46]     This is part of an email chain within the Ministry.   It contains information which supports the plaintiffs’ claim and is therefore relevant under standard discovery.  It was, however prepared for litigation and is subject to privilege under s

56.

SUPP.MOE.004.0043 dated 7 October 2011

[47]     This is a communication between the school and the Ministry containing information which can be used as evidence in support of the plaintiffs’ claims.  The primary purpose of the communication is to provide information for the litigation.  It is relevant, but subject to privilege under s 56.

SUPP.MOE.001.0001 dated 23 February 2012

[48]     This document contains information obtained by building consultants for the purpose of the litigation.  That information can be used in support of the plaintiffs’ case. The document is relevant but is subject to privilege under s 56.

SUPP.MOE.001.0006 dated 16 July 2012 and SUPP.MOE.0010.007 dated 17 July

2012.

[49]     These are communications between the Ministry and the school relating to gathering information for the litigation.  They are subject to litigation privilege.  The communications, however, do not contain any information which needs to be disclosed under standard discovery.

SUPP.MOE.001.0169  dated  2  October  2012  and  SUPP.MOE.001.0170  dated

3 October 2012

[50]     These are internal documents dealing with how the Ministry should respond to matters aired by Mr Thorn.   They were not prepared for the purpose  of the litigation and are not subject to litigation privilege.  They do not contain information that could be used in evidence and do not need to be disclosed on standard discovery.

[51]     This is another document dealing with the Ministry’s response to Mr Thorn’s public airing of his concerns.  It is not subject to litigation privilege.  It is also not relevant.

SUPP.MOE.001.0221 dated 10 April 2013

[52]     This is a communication between the Ministry and the school dealing with the  conduct  of  the  litigation.    It  is  subject  to  litigation  privilege.    It  does  not, however, contain information which needs to be disclosed under standard discovery.

SUPP.MOE.001.0053 dated 26 August 2011

[53]     This  is  an  internal  Ministry  communication  dealing  with  the  Ministry’s response to media and political interest in Rototuna School.  It was not prepared for the purpose of litigation and is not subject to litigation privilege.  It is not, however, relevant.

SUPP.PRE.008.0322 dated 17 March 2011

SUPP.PRE.013.0010 dated 18 March 2011

SUPP.PRE.008.0323 dated 31 March 2011

SUPP.PRE.013.0011 dated 2 May 2011

SUPP.PRE.013.0012 dated 9 May 2011

SUPP.PRE.009.0021 dated 26 May 2011

[54]   These documents are communications between the Ministry’s building consultant and Beagle Consultancy, a bio-deterioration consultant.   The Ministry’s building  consultant  has  supplied  Beagle  Consultancy with  samples  for  analysis. Beagle Consultancy has provided reports.  These were all prepared in contemplation of litigation.  The evidence was required to establish if there was decay in samples provided.  These communications were for the primary purpose of litigation and are subject to litigation privilege.   They contain information to support the plaintiffs’ claims and are discoverable.

[55]     This  document  does  not  contain  information  which  could  be  used  for evidence.   While there was a litigation purpose, it does not need to be disclosed under standard discovery.

Redacted documents

SUPP.MOE.001.0062 dated 28 September 2010

[56]     This is a communication between the Ministry and the school asking for information  for  the  purpose  of  the  proposed  proceedings.    A large  part  of  the document was redacted.  I have seen the entire document.  The dominant purpose of the document was for the purpose of contemplated proceedings.   It is subject to litigation privilege.   It does not contain any information within by r 8.7.   It is therefore irrelevant.

SUPP.MOE.001.0178, 0179, 0180 and 0181 - all dated 25 June 2012

These are communications between the Ministry and its building consultants.  They contain information to support the plaintiffs’ claim.   They were prepared for the dominant purpose of litigation. They are relevant and subject to privilege.

SUPP.MOE.001.0166 dated 29 June 2012 and SUPP.MOE.0167 dated 30 June 2012

[57]     These are communications between the building consultants and the Ministry. The redacted parts relate to another school and are irrelevant.

SUPP.PRE.008.0200 dated 20 February 2012

[58]     The redacted parts of this communication between the building consultant and the Ministry relate to another school and are not relevant to this proceeding.

[59]     The third parties have requested the plaintiffs to identify particular policies and guidelines in the Ministry website applicable to this proceeding.    In correspondence between the parties, the plaintiffs’ lawyers advised that they had disclosed only general policies and guidelines that were no longer available on the Ministry’s  website.   They had  not  disclosed other documents  on  the  Ministry’s website as the plaintiffs considered them to be in the public domain already and therefore accessible by the third parties.

[60]     On that, the third parties have a fair point.  They cannot be expected to trawl through every document on the Ministry’s website to check for those that might have some bearing on this case.  If there are documents on the Ministry’s website – such as general policies and guidelines applicable to matters in issue in this proceeding – the plaintiffs are required to identify them.  By the hearing, the plaintiffs accepted the point.  They undertook to provide lists of those documents to the third parties. That is no longer a live issue.

Compliance with discovery obligations

[61]     The  third  parties’  submitted  that  they  were  concerned  that  each  of  the Minister of Education, the Secretary for Education and the Board of Trustees had not complied with their several discovery obligations.  All the affidavits had been sworn by Mr Lipa, an officer within the Ministry.  His affidavits confirm that searches have been undertaken through all records and files held by the Ministry and enquiries have been made of other employees of the Ministry and of the school.  Mr Lipa was attacked because he had arranged for other people to undertake the enquiries.  There was no certainty that Mr Lipa himself was personally familiar with or had personally supervised the collation of records of each of the plaintiffs.  It was contended that the affidavits did not comply with r 8.15.   The third parties sought a further supplementary affidavit requiring Mr Lipa to depose as to the steps taken to comply with the discovery order and in particular affirming that each of the plaintiffs –

(a)       was personally aware of their discovery obligations;

(b)had carried out diligent searches to make the relevant documents available to Mr Lipa in the context of their search efforts;  and

(c)      had expressly confirmed to counsel or to Mr Lipa that they do not hold any discoverable documents other than those contained in the verified lists of Mr Lipa.

[62]     This part of the application goes to show just how far the third parties are prepared to go in pursuing their suspicions.  What stands our clearly is not that the plaintiffs have not made adequate discovery, but on the contrary, in response to the third parties they have gone overboard and far beyond what was required to satisfy the requirements of standard discovery.  If anything, there has been over-discovery, but the third parties instigated it.  There is no reason for the third parties to probe further on the plaintiffs’ discovery.

Outcome

[63]     For the above reasons I find:

(a)      That the following documents are not subject to litigation privilege, but do not need to be disclosed under standard discovery:

SUPP.MOE.004.0013 dated 18 January 2011
SUPP.MOE.001.0115 dated 3 February 2011
SUPP.MOE.004.0005 dated 7 February 2011
SUPP.MOE.001.0223 dated 7 February 2011
SUPP.MOE.004.0020 dated 14 February 2011
SUPP.MOE.001.0143 dated 14 February 2011
SUPP.MOE.001.0145 dated 18 February 2011
SUPP.MOE.001.0053 dated 26 August 2011
SUPP.MOE.001.0030 dated 14 September 2011
SUPP.MOE.001.0042 dated 15 September 2011
SUPP.MOE.002.0043 dated 15 September 2011
SUPP.MOE.001.0031 dated 26 September 2011
SUPP.MOE.001.0032 dated 26 September 2011
SUPP.MOE.001.0169 dated 2 October 2012
SUPP.MOE.001.0170 dated 3 October 2012
SUPP.MOE.001.0212 dated 3 October 2012

(b)That the following documents are subject to litigation privilege but do not need to be disclosed under standard discovery:

SUPP.MOE.004.0039 dated 23 February 2011

SUPP.MOE.004.0036 dated 25 February 2011
SUPP.PRE.009.0023 dated 24 June 2011
SUPP.MOE.001.0072 dated 4 July 2011
SUPP.MOE.001.0028 dated 26 September 2011
SUPP.MOE.001.0122 dated 26 September 2011
SUPP.MOE.001.0123 dated 26 September 2011
SUPP.MOE.001.0006 dated 16 July 2012
SUPP.MOE.0010.007 dated 17 July 2012
SUPP.MOE.001.0221 dated 10 April 2013

(c)       That  the  following  documents  are  to  be  disclosed  under  standard discovery but are subject to litigation privilege:

SUPP.PRE.008.0322 dated 17 March 2011

SUPP.PRE.013.0010 dated 18 March 2011
SUPP.PRE.008.0323 dated 31 March 2011
SUPP.PRE.013.0011 dated 2 May 2011
SUPP.PRE.013.0012 dated 9 May 2011
SUPP.PRE.009.0021 dated 26 May 2011
SUPP.MOE.001.0064 dated 13 July 2011
SUPP.MOE.001.0065 dated 13 July 2011
SUPP.MOE.001.0122 dated 26 September 2011
SUPP.MOE.001.0123 dated 26 September 2011
SUPP.MOE.001.0126 dated 26 September 2011
SUPP.MOE.004.0043 dated 7 October 2011
SUPP.MOE.001.0001 dated 23 February 2012

(d)That there are no documents in issue that require to be disclosed under standard discovery that are not subject to litigation privilege;

(e)       That there is no basis for setting aside any of the redactions made by the plaintiffs;

(f)       That it is not necessary to require the plaintiffs to produce any of the documents in issue for inspection; and

(g)That it is not necessary to require the plaintiffs to file and serve any further affidavits by way of discovery.

[64]     I am therefore not required to make any orders in favour of the third parties on their applications.

[65]     I invite the parties to confer as to costs.   If they cannot agree, memoranda should be filed.  The parties filing second are to file their submissions within five working days of the other side.

[66]     Now  that  this  discovery application  has  been  decided,  the  proceeding  is transferred to the High Court at Hamilton for further case management and for hearing.

....................................................

Associate Judge R M Bell

Solicitors:

Meredith Connell, Auckland, for Plaintiffs

Bell Gully, Auckland, for First Third Party

Heaney & Partners, Auckland, for Second Third Party