Minister of Education v James Hardie New Zealand Limited

The case involved a dispute between the Ministry of Education and Carter Holt Harvey Limited regarding the durability and moisture absorption of Shadowclad, a product used for cladding school buildings. The Ministry alleged that Shadowclad was inherently defective and prone to absorbing significant amounts of moisture, while Carter Holt denied these allegations. The specific issue at hand was whether documents relating to "face checking," a phenomenon where plywood cladding sheets develop small splits, should be discovered by Carter Holt. The Ministry argued that face checking contributed to the moisture absorption issues, while Carter Holt maintained that it was an aesthetic issue only. The court examined whether the Ministry had provided sufficient notice of the face checking allegation for Carter Holt to be obliged to give discovery in relation to it. The court found that face checking was not a pleaded defect or a contributing cause of a pleaded defect, and thus, it was not incumbent on Carter Holt to predict what the Ministry might say contributes to or causes the pleaded defects in Schedule 2 to the statement of claim. The court concluded that if the Ministry wished Carter Holt to discover documents specifically addressing face checking, it would need to amend Schedule 2 to include that issue. The court also noted that if the Ministry amended its claim, 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. The Ministry's application for particular discovery was dismissed, but the court encouraged the parties to confer on a timetable for discovery if the Ministry chose to amend its pleading to include face checking as an issue.