Minister of Education v James Hardie New Zealand Limited
[2019] NZHC 1760
•25 July 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2013-404-1899
[2019] NZHC 1760
UNDER Consumers Guarantees Act 1993, the Fair Trading Act 1986, the Building Act 2004 BETWEEN
THE MINISTER OF EDUCATION AND OTHERS
First to Fourth Plaintiffs
AND
JAMES HARDIE NEW ZEALAND LIMITED
First Defendant
STUDORP LIMITED
Second DefendantCARTER HOLT HARVEY LIMITED
Third DefendantCSR BUILDING PRODUCTS (NZ) LIMITED
Fourth Defendant
……………………………/continued
Hearing: 18 July 2019 Counsel:
J Carlyon and MM Moon for plaintiffs
M Heard and HAT Bush for third defendant
Judgment
25 July 2019
JUDGMENT NO. 4 OF FITZGERALD J
[As to application for particular discovery]
This judgment was delivered by me on 25 July 2019 at 3:30 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar ……………………………….. Date……………
Minister of Education v James Hardie New Zealand Limited [2019] NZHC 1760 [25 July 2019]
Third Parties
ANDAUCKLAND COUNCIL AND OTHER TERRITORIAL AUTHORITIES LISTED IN SCHEDULE 1 TO THE FIRST
AMENDED STATEMENT OF CLAIM BY THIRD DEFENDANT AGAINST FIRST TO FIFTIETH THIRD PARTIES
First to Fiftieth Third Parties
Introduction
[1] At the heart of these proceedings is the Ministry’s allegation that Carter Holt’s Shadowclad product (used to clad school buildings) is inherently defective and thus unfit for purpose. The Ministry says, in short, that Shadowclad is not adequately durable and is inherently prone to absorbing significant amounts of moisture. Carter Holt disputes these allegations.
[2] The Ministry has set out in its sixth amended statement of claim details of what it says causes Shadowclad to absorb significant amounts of moisture. The alleged causes include:
(a)capillary action through end grain timber at all edges, and particularly bottom edges, and by absorption through the rear face at the bottom of the sheet where the sheet is unsealed;1 and
(b)that the exposure of end grains at bottom and other edges make them prone to capillary action (even when painted or stained), and that sufficiently sealing Shadowclad’s cut edges to inhibit end grain absorption cannot be reliably achieved with typical cutting and painting methods used in the building industry.2
[3] The Ministry says a phenomenon known as “face checking” contributes to those causes set out at (a) and (b) above. Face checking is when the outer veneers of plywood cladding sheets are susceptible to small splits once the veneer is exposed repeatedly to moisture and heat.3 Expert evidence filed by the Ministry on the present application is to the effect that the small splits will contribute to the alleged defects in Shadowclad because they:
(a)diminish the efficacy of any paint as a seal to prevent water entry, as moisture will be able to enter the sheet through the cracks;
1 Defect 1 as pleaded in Schedule 2 to the sixth amended statement of claim.
2 Defect 5 as pleaded in Schedule 2 to the sixth amended statement of claim.
3 The splitting process is known as “checking”.
(b)add to the accumulation of water in the base of the sheet, which in turn will allow greater absorption of moisture through the end grain; and
(c)allow water entry to the inner veneers through the rear face of the sheet.
[4] Carter Holt says face checking does not contribute to weathertightness issues, and is an aesthetic issue only.
[5] The parties are presently in the process of completing discovery. As matters currently stand, Carter Holt is likely to complete its discovery within a period of about three or so weeks. Since March 2019, the Ministry has said that it expects Carter Holt to discover documents relating to face checking. Carter Holt says face checking is not a pleaded allegation, and therefore documents relating to it are not relevant or discoverable. Given the impasse between the parties, on 27 May 2019, the Ministry filed an interlocutory application for particular discovery.
[6] This judgment determines the Ministry’s application. Given the time constraints in which this judgment is being issued, I do not traverse the broader factual and procedural background to these proceedings. Those matters are set out in some detail in my earlier judgments in these proceedings.4
Factual background to present application
Discovery - background
[7] I made tailored discovery orders in my judgment dated 25 February 2019. The original timetable envisaged that discovery would be completed in two tranches by 31 May 2019. The Ministry has completed its discovery. Carter Holt has to date given discovery in three tranches:
(a)tranche one was provided in early May 2019 and contained 377 documents;
4 Minister of Education v James Hardie New Zealand [2018] NZHC 22; Minister of Education v James Hardie Ltd [2018] NZHC 1481; and Minister of Education v James Hardie New Zealand [2019] NZHC 245.
(b)tranche two was provided on 4 June 2019 and contained 6,184 documents; and
(c)tranche three was provided on 5 July 2019 and contained 2,898 documents.
[8] As flagged earlier, Carter Holt expects its final tranche of discovery to be provided in approximately three weeks’ time.
[9] Carter Holt has been using “technology assisted review” (TAR) as its primary means of searching for and producing relevant documents for discovery. It is using a platform for the TAR model called “Brainspace”. While the use of TAR to give discovery is not yet common in New Zealand, it is widely used overseas in large scale litigation (particularly in the United States). TAR is not dependant on keyword searches and other such traditional methods for finding potentially relevant documents to then be reviewed for discovery purposes. Rather, TAR involves the legal team “training” a computer model (by way of an initial review and coding for relevance of a seed pool of documents) to identify how likely it is that a particular document in the overall document pool is responsive to issues in the proceeding, based on the text and concepts it contains. Human review can then be directed to likely responsive documents, thus avoiding review of large volumes of likely irrelevant documents. The human review of responsive documents identified by TAR is then itself used by the TAR model to continuously learn and develop the identification of potentially relevant documents.5
How the issue relating to face checking arose
[10] Turning back to discovery of documents about face checking, the Ministry first (expressly) raised the issue in a memorandum for a case management conference dated 25 March 2019. In the context of the Ministry’s concern that Carter Holt was taking an overly narrow approach to certain categories of documents for discovery, it said that:
5 I have summarised, very briefly, the technology being used by Carter Holt to give discovery in this case, as it becomes relevant to proportionality arguments made by Carter Holt if the Ministry’s discovery application is successful.
… a document discussing the fact that face checking causes Shadowclad not to meet the requirements of the Building Code may well be relevant to the pleaded defects as the face checking may cause undue moisture absorption.
[11] In response, Carter Holt accepted that documents discussing or commenting on Shadowclad’s compliance with the Building Code were relevant, but only to the extent they relate to pleaded defects. Carter Holt said that the addition of the italicised text to the discovery category proposed by the Ministry would enable it to search for and identify relevant documents in a proportionate manner.
[12] I agreed that documents would only be relevant if they related to the pleaded defects. Thus, in a case management conference minute dated 27 March 2019, I ordered that the proposed discovery category have the italicised words added to it. I also noted that “it appears there is a dispute between the parties whether certain issues relate to a pleaded defect”. This reflected a discussion at the conference about face checking. I noted that if the parties could not agree, the matter may need to be the subject of an application for particular discovery. The parties could not agree, hence the Ministry’s application.
The parties’ submissions
The Ministry’s submissions
[13] With reference to expert evidence filed in support of its application, and also by reference to certain Carter Holt documents already produced on discovery, the Ministry says it is clear that face checking is relevant to the pleaded allegation that Shadowclad is prone to absorbing undue amounts of moisture.
[14] The inherent defects in Shadowclad alleged by the Ministry are set out in a reasonably detailed list of defects in Schedule 2 to the sixth amended statement of claim. The Ministry says documents relating to face checking are relevant to pleaded Defects 1 and 5. Defect 1 is described in the claim as follows:
Shadowclad takes in and retains more moisture than the protection offered by the preservative treatment would otherwise allow because it is inherently prone to absorbing significant amounts of moisture for example:
(a)by capillary action through end grain timber at all edges, particularly bottom edges (and it is a particular feature of
Shadowclad that there are end grains exposed on every side of a Shadowclad sheet);
(b)by absorption through the rear face at the bottom of the sheet where the sheet is unsealed; and
(c)it also experiences uptake of moisture by diffusion, air movement, adsorption, absorption, capillary movement and liquid flow
[15]Defect 5 reads as follows:
Bottom and other similar edges of the Shadowclad sheet are prone to moisture absorption, in particular by capillary action.
Particulars
i.The exposure of end grains at bottom and other edges of Shadowclad sheets make them prone to capillary action, even when painted or stained.
ii.For painting to form a water-resistant barrier, timber surfaces (including edges) need to be smooth and free from raised grain or machining defects prior to painting and Shadowclad does not reliably meet this requirement.
iii.Sufficiently sealing the cut edges of Shadowclad to inhibit end grain absorption cannot be reliably achieved with the typical cutting and painting methods used in the building industry (being cutting by way of circular saw and painting bybrush).
iv.The bottom edges of Shadowclad sheets fail to incorporate adequate features or mechanisms to promote efficient water dispersion from the base of the sheet (such as a drip edge).
[16] Ms Carlyon, senior counsel for the Ministry on the present application, submits that face checking is a contributing cause of each of those matters set out at (a) to (c) of Defect 1 (i.e. it is not suggested it would be a new paragraph (d)). She further submits that face checking contributes to those particulars numbered (i) and (iii) under Defect 5. In this way, she says that if the Ministry had been required to expressly plead face checking in order for Carter Holt to be obliged to give discovery in relation to it, this would have required “particulars of particulars” – which is inappropriately straying into the territory of evidence.
[17] Given the (unchallenged) expert evidence on this application is that face checking is relevant to a pleaded defect, Ms Carlyon says documents relating to face checking should be discovered by Carter Holt.
[18] Given the point the parties are at in discovery, Ms Carlyon submits that if discovery of further documents through the TAR model might give rise to proportionality concerns,6 the Ministry is content for any further discovery to be given by way of a fairly simple word search being applied across the Carter Holt discovery pool. Evidence adduced by Carter Holt on the application states that the application of a word search relating to face checking to the Carter Holt discovery pool (of some
1.5 million documents) generates approximately 11,000 documents for review.7 Ms Carlyon confirmed that the Ministry has no objection to the word search used, and would be content for this approach to be adopted by Carter Holt if further discovery is ordered.
Carter Holt’s submissions
[19] As noted, Carter Holt disputes that face checking is relevant to or contributes to weathertightness issues, including the allegation that Shadowclad absorbs undue amounts of moisture. It says face checking is a common and natural occurrence in plywood cladding and is an aesthetic issue only. Nevertheless, as Mr Heard, senior counsel for Carter Holt on the present application rightly notes, this would be a matter for trial – if face checking is properly a part of the Ministry’s claim.
[20] Carter Holt says that until late March 2019, face checking has never been raised by the Ministry, in either its pleadings or expert evidence, as a defect or a contributing factor to the alleged defects.8
[21] Mr Heard submits that in a proceeding of this scale and complexity, and given the very broad and unparticularised way in which the Ministry’s claim was originally pleaded,9 it is vital for Carter Holt to have proper notice of the claim it must meet and
6 Though submitting that Carter Holt’s unilateral choice to use the TAR model for discovery cannot itself give rise to legitimate proportionality concerns.
7 The word search being “face w/5 check* OR surface w/5 check*”. Ms Carlyon confirmed that the Ministry would not insist on a word search of “check*”, accepting that would likely return a large number of irrelevant documents.
8 Ms Carlyon noted at the hearing that in a 2014 affidavit sworn by Carter Holt’s general counsel, it was stated that face checking is an aesthetic issue only. Mr Heard responded that while that may be so, the point remains that until very recently, the Ministry has never suggested otherwise.
9 For example, in the original statement of claim, the predecessor to Defect 1 was framed as “Shadowclad is inherently moisture absorbent”. The predecessor to Defect 5 was simply framed as “lower bottom edges of the Shadowclad sheet are prone to capillary rise” and was a sub- paragraph/particular of an alleged defect that “Shadowclad is not adequately durable”.
thus the documents it is required to discover.
[22] In this context, Mr Heard notes that the parties engaged extensively on particulars of the Ministry’s claim in 2013 and 2014, including in relation to the pleaded defects in Schedule 2. Mr Heard says the Ministry quite responsibly engaged on that topic, including by filing a further amended statement of claim10 which included more detailed allegations and particulars, including of Defects 1 and 5. The result has been that Schedule 2 evolved from the fairly broad brush and generally pleaded defects, to the now quite detailed schedule of defects including, importantly, how those alleged defects are said to come about. Mr Heard submits that Carter Holt has been entitled to rely on this level of detail in understanding the case against it and ensuring it complies with its discovery obligations. He emphasises that face checking does not feature anywhere in Schedule 2.
[23] Mr Heard therefore says it is inappropriate for the Ministry to say the parties should now return to the more generalised “catch all” form of pleadings, and suggest that face checking has always been, in effect, “buried” within the Ministry’s claim. Mr Heard says Carter Holt cannot be expected to guess or predict what the Ministry says contributes to or causes the alleged defects.
[24] If documents concerning face checking are to be discovered on the existing pleading, Carter Holt raises proportionality issues. Mr Heard refers to expert evidence adduced by Carter Holt explaining the difficulties in now dealing with any further discovery through the TAR model, including the need to “retrain” the model and thus incur duplication of cost and time. Mr Heard accepts, however, that if the approach to any further discovery ordered on face checking and summarised at [18] is adopted, a further pool of around 11,000 documents for review is not unmanageable in the context of a proceeding of this scale. He emphasises, however, that it could still require some three or so weeks of review time by the legal team, all of which will detract from the time available for briefing Carter Holt’s evidence.
10 The third amended statement of claim dated 10 July 2014.
Legal principles
[25] The legal principles relating to an application for particular discovery are not in dispute.
[26]Rule 8.19 of the High Court Rules provides as follows:
8.19Order for particular discovery against party after proceeding commenced
If at any stage of the proceeding 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, the Judge may order that party—
(a)to file an affidavit stating—
(i)whether the documents are or have been in the party's control; and
(ii)if they have been but are no longer in the party's control, the party's best knowledge and belief as to when the documents ceased to be in the party's control and who now has control of them; and
(b)to serve the affidavit on the other party or parties; and
(c) if the documents are in the person's control, to make those documents available for inspection, in accordance with rule 8.27, to the other party or parties.
[27]Rule 8.19 involves a four-stage inquiry:11
(a)Are the documents sought relevant, and if so how important will they be?
(b)Are there grounds for belief that the documents sought exist? This will often be a matter of inference. How strong is that evidence?
(c)Is discovery proportionate, assessing proportionality in accordance with Part 1 of the Discovery Checklist in the High Court Rules?
(d)Weighing and balancing these matters, in the Court’s discretion applying r 8.19, is an order appropriate?
11 Assa Abloy New Zealand Ltd v Allegion (New Zealand) Ltd [2015] NZHC 2760, [2018] NZAR 600, at [14].
[28] Relevance is determined by the pleadings.12 Particulars of the pleaded allegations will also shape relevance, given properly drawn and particularised pleadings “establish parameters of the case”.13 Particulars also “limit the scope of matters the plaintiff may put in issue at trial”.14 In Speedy Parcels Ltd v Johns, and with reference to a party’s discovery obligations, Master Hansen (as he then was) said that particulars operate to define the issues to be tried and thus what discovery is required.15
[29] Finally, in Price Waterhouse v Fortex Group Ltd, McGechan J, delivering the judgment of the Court of Appeal, said the following in relation to pleadings and particulars generally:16
It has become fashionable in some quarters to regard the pleadings as being of little importance. There was an echo of that approach in the implicit suggestion floated in this case that exchange of briefs of evidence before trial might be seen as curing any lack of particularity in the pleadings. Any such view is misguided. Pleadings which are properly drawn and particularised are, in a case of any complexity, if not in all cases, an essential road map for the Court and the parties. They are the documents against which the briefs of evidence are or should be prepared. They are the documents which establish parameters of the case, not the briefs of evidence.
We are not casting aspersions on the pleadings in this case which, leaving aside issues about necessary particularity, are well drawn on each side. Nor are we advocating a pedantic approach to the topic. Pleadings should be read as conveying what they would reasonably convey, in the context of the case, to a sensible legal mind. Even less are we advocating prolixity of pleadings, or the raising of every conceivable cause of action irrespective of its potential for success; this type of pleading often contains the additional flaw of overlooking R114 which requires each cause of action to be separately pleaded. What we are saying is that both the Court and opposite parties are entitled to be advised of the essential basis of a claim or defence, and all necessary ingredients of it, so that subsequent processes and the trial itself can be conducted against recognisable boundaries. Neither the Court nor opposite parties should be placed in the position of having to deal with a proposition of whose substance adequate notice has not been given in the pleadings.
12 Robert v Foxton Equities Ltd [2014] NZHC 726; [2015] NZAR 1351 at [8].
13 Price Waterhouse v Fortex Group Ltd CA 179/98, 30 November 1998 at 17.
14 Platt v Porirua City Council [2012] NZHC 2445 at [19].
15 Speedy Parcels v Johns HC Auckland CP265/89, 1 December 1989, at 11, citing Millbank v. Millbank [1900] 1 Ch.d 367 page 385.
16 Price Waterhouse v Fortex Group Ltd, above n 13, at 17–18.
[30] The Court also gave helpful guidance as to assessing whether a matter has been sufficiently pleaded so as to give the opposing party fair notice of the case it is to meet. It is worth setting out the relevant extract from the Court’s judgment in full:17
The object of a Statement of Claim is to “state” the “claim”, so that the Court knows what it is to rule upon, and the Defendant knows the case which it must meet. As a matter of practicalities, this initial “statement” is not at the level of a full disclosure of all evidence and documentation. It is of course an abbreviated summary “statement” of the basic facts said to give rise to the claim, and of the relief which is sought.
It is the level at which such abbreviation is to be set which causes ongoing difficulties. There is, of course, an eternal tension between Plaintiffs who wish to keep content as wide and general as possible, allowing maximum room to cover oversight and further developments, and Defendants who wish to narrow issues and impose restrictions to the maximum possible degree. Determinations, with respect, are not greatly assisted by very general labels such as pleading the “general” nature of matters claimed, or mantras such as “what not how”. While they grasp an idea, they afford little hard guidance. Nor, with respect, does it greatly help to talk in terms of “facts” (to be pleaded) and “evidence” (for trial) as if there were some bright-line distinction between the two. There is not. “Facts” can merge into “evidence” without any clear dividing line.
In marginal cases, it is better to avoid generalities and rules of thumb, and to return to principle. The pleader and Court simply ask “in the circumstances of this claim, is that statement sufficiently detailed to state a clear issue and inform the opposite party of the case to be met?”. This is not, under modern practice, simply some minimum which a Defendant needs so as to be able to plead. It is intended to supply an outline of the case advanced, sufficient to enable a reasonable degree of pre-trial briefing and preparation. Discovery and interrogatories are only an adjunct, not a substitute for pleading.
In the result, and particularly in complex cases, a rather more detailed factual narrative has come to be required than was the case in earlier and simpler times. That does not require the full detail which later will be contained in a brief of evidence. Nor does the modern requirement for pre-trial exchange of briefs dilute the earlier and differently based requirement for sufficiently particular pleading. What is required is an assessment based on the principle that a pleading must, in the individual circumstances of the case, state the issue and inform the opposite party of the case to be met. As so often is the case in procedural matters, in the end a common-sense and balanced judgment based on experience as to how cases are prepared and trials work is required. It is not an area for mechanical approaches or pedantry
Discussion
[31] I have reached the conclusion that the Ministry’s application must fail. Ultimately, and applying the helpful guidance of the Court of Appeal in Price
17 Price Waterhouse v Fortex Group Ltd, above n 13, at 18–19.
Waterhouse v Fortex Group Ltd, I am not satisfied that, on the basis of the pleaded case in the sixth amended statement of claim, documents relating to face checking “should have been discovered” by Carter Holt.18
[32] It is true that the Ministry says in its submissions and evidence on this application that face checking is a contributing factor to Shadowclad’s alleged tendency to absorb undue amounts of moisture. In a broad sense, therefore, it could be said that face checking is factually relevant to the “top level” defect pleaded in each of Defects 1 and 5 of Schedule 2, and/or to all or some of the sub-paragraphs to each of those defects. But the issue before me is whether sufficient notice of the allegation concerning face checking has been given to Carter Holt for it to know the case it must meet and, importantly, the discovery it must give. This is particularly important in the context of discovery categories which are qualified by documents being “related to the pleaded defects”.
[33] Face checking is not a pleaded defect. Nor is it a pleaded contributing cause of a pleaded defect. In fact, it does not appear in the pleadings at all. The Ministry did not challenge Carter Holt’s submission that face checking has never been raised by the Ministry as an issue contributing to the inherent defects in Shadowclad prior to March 2019. In those circumstances, I do not consider it incumbent on Carter Holt to, in essence, predict what the Ministry might say contributes to or causes the pleaded defects in Schedule 2 to the statement of claim.
[34] This is reinforced, in my view, by the fact that several years ago, the parties engaged on further particularisation of what were, originally at least, fairly broadly framed alleged defects. Carter Holt sought further and better particulars of, inter alia, the predecessors to Defects 1 and 5, and the Ministry gave those further particulars. None of those further particulars referred to face checking. I accept Carter Holt’s submission that in that context, it was entitled to rely on the detailed statement of defects in Schedule 2 when assessing the discovery it must give.
[35] I fully accept there will be a limit to what detail is required in a statement of claim. But as the Court of Appeal noted in Price Waterhouse v Fortex, there is no
18 As required by High Court Rules 2016, r 8.19.
“bright line” between pleadings, particulars, and evidence. What is required is a common sense and balanced judgement of whether a statement is sufficiently detailed to state a clear issue and inform the opposite party of the case to be met. I do not consider Schedule 2 in its present form meets that standard in relation to the Ministry’s present case on face checking.
[36] I also do not consider this risks excessively refined pleadings, a concern noted by Miller J in BNZ Investments Ltd v Commissioner of Inland Revenue.19 This is particularly so given face checking is the only additional “contributing factor” which the Ministry has raised which does not expressly feature in Schedule 2, and in relation to which it now says discovery should be given.
[37] Accordingly, if the Ministry wishes Carter Holt to discover documents specifically addressing face checking (i.e. which have not already been discovered in response to other categories of documents), it will need to amend Schedule 2 to include that issue. The close of pleadings date is not until early August 2019, hence the Ministry does not (presently) require leave to make such an amendment.
If the Ministry amends its claim, is discovery now on face checking proportionate?
[38] In the event the Ministry were to amend its claim in the manner outlined above, I am satisfied it would not be disproportionate or contrary to the interests of justice for Carter Holt to be required to give discovery of documents relevant to that issue.
[39] Self-evidently, the pleaded defects and mechanisms said to give rise to them lie at the heart of the Ministry’s claim. Documents relevant to face checking would not, therefore, be “at the margins” of relevance. Further, there is no suggestion such documents do not exist; the sample of Carter Holt documents attached to the Ministry’s submissions demonstrate that is so. The key issue is one of proportionality, given face checking has been raised by the Ministry fairly late in the piece. As noted earlier in this judgment, however, through discussion with counsel at the hearing, it appeared to be agreed that a reasonably efficient approach could be taken by Carter Holt to give
19 BNZ Investments Ltd v Commissioner of Inland Revenue (2008) 23 NZTC 21,821 at [45] (HC).
discovery in relation to this discrete issue. As noted, Ms Carlyon confirmed the Ministry would not object to discovery being approached in the manner set out at [18] above. And Mr Heard, quite properly in my view, accepted that in the broader scheme of these proceedings, a further review of some 11,000 documents was not an unmanageable task (at least once the main tranches of discovery are complete).
[40] As to Carter Holt’s submission that time spent dealing with further discovery will necessarily divert attention from briefing evidence, I am not persuaded that is a proper basis for discovery not to be given on a matter relevant on the pleadings (assuming the Ministry amends its claim). Discovery in relation to discrete issues is often required after the “main” round of discovery, particularly in lengthy and complex proceedings such as these. The bulk of the review time will presumably be undertaken by a team of more junior lawyers, not all of whom are likely to be heavily involved in the briefing process. I accept that, depending on the documents discovered, provision may need to be made for supplementary evidence on this topic. But the parties and the Court will cope; civil proceedings often do not progress on a linear and uninterrupted timetable or sequence of events. Further, Carter Holt’s experts will presumably already have views on whether face checking contributes to weathertightness issues, given Carter Holt’s firm position at the hearing that it does not.
[41] There may be costs consequences of any discovery being given in the manner outlined above, and the costs associated with any supplementary briefing. Given the timing of the discovery application, and that I have found face checking is not relevant on the current pleadings, it may be that the Ministry will need to bear some of the costs in this regard.
Next steps
[42] Matters ought to be dealt with promptly. If the Ministry wishes to pursue discovery of documents relating to face checking, then it ought to amend its pleading as soon as possible. I make a timetable direction that any amended statement of claim is to be filed and served on or before 1 August 2019. The face checking allegation will presumably be denied by Carter Holt. As I have noted, the parties can proceed on
the basis I would expect Carter Holt to then give discovery on this issue in accordance with the process set out at [18] above. Given the discussion at the hearing before me, I would not expect there to be any need for a formal discovery application (or order).
Result
[43]The Ministry’s application for particular discovery is dismissed.
[44] Should the Ministry wish to pursue discovery of documents relating to face checking, it will need to amend its pleading to include face (or surface) checking as an issue. Any such amended pleading is to be filed and served on or before 1 August 2019.
[45] If that occurs, Carter Holt can proceed on the basis that it will be required to give discovery in relation to face (or surface) checking, consistent with the process outlined at [18] above. The parties ought to confer on a timetable for this to occur.
Costs
[46] Costs of the Ministry’s application ought to be fixed now. There would appear to be no reason why they should not follow the event in the ordinary way, on a 2B basis.
[47] If the parties cannot agree costs, Carter Holt may file a costs memorandum within 10 working days of this judgment. The Ministry may file a memorandum in response within a further 5 working days. No memorandum is to be longer than three pages in length. I will thereafter determine costs on the papers.
Fitzgerald J
Solicitors: Meredith Connell, Auckland
LeeSalmonLong, Auckland
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