Moeke v Raukawa Iwi Development

[2023] NZHC 1952

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2019-463-46

[2023] NZHC 1952

BETWEEN

FORD MOEKE

Plaintiff

AND

RAUKAWA IWI DEVELOPMENT LIMITED

First Defendant

SOUTH WAIKATO DISTRICT COUNCIL

Second Defendant

Hearing:	22 June 2023
Appearances:	Megan Crocket for the Plaintiff Gary Judd KC for the Defendants
Judgment:	27 July 2023

JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR

[Application to set aside privilege and for non-party discovery]

This judgment was delivered by me on 27 July 2023 at 3:00pm

pursuant to Rule 11.5 of the High Court Rules

…………………………. Registrar/Deputy Registrar

Solicitors:

K J Patterson Law, Tauranga, for the Plaintiff

Tompkins Wake (Megan Crocket), Hamilton, for the Defendants

Copy for:

Gary Judd KC, Kerikeri, for the Plaintiff

MOEKE v RAUKAWA IWI DEVELOPMENT LIMITED [2023] NZHC 1952 [27 July 2023]

Table of contents

Paragraph

Introduction  [1]

Background  [3]

Mr Moeke’s application  [7]

Council’s opposition  [9]

Legal principles  [11]

Setting aside privilege  [11]

Non-party discovery  [15]

Analysis  [16]

Whether leave should be granted to Mr Moeke to permit the

late filing of his application?  [18]

Whether the Council’s claim to privilege in respect of documents from 2018 for which solicitor-client privilege is claimed is

a proper claim?  [21]

Conclusion on this issue  [27]

Whether the redactions made by the Council from documents

on the basis of irrelevance are properly made?  [35]

Whether orders for non-party disclosure against

Mr Douch and Mr Bracken should be made?  [37]

Result  [41]

Orders  [42]

Introduction

[1]    The second defendant, the South Waikato District Council (the Council), applied in an application dated 26 February 2021 for leave to apply for orders for further and better discovery and for an order to answer interrogatories and, if leave is granted, for those orders to be made. The Council’s application has been resolved by agreement between the parties, and accordingly is not dealt with in this judgment.

[2]    The plaintiff, Mr Ford  Moeke  (Mr  Moeke)  made  an  application  dated  15 March 2023 for orders setting aside the Council’s claim to privilege of certain documents and for non-party discovery.

Background

[3]    In May 2019, Mr Moeke commenced these proceedings seeking summary judgment on liability against Raukawa Iwi Development Limited (Raukawa) and the Council in relation to a property at  10  Dumfries  Road, Tokoroa  (the  property). Mr Moeke pleaded that Raukawa breached its contract to sell the property to him, by instead selling it to the Council, and that both defendants had conspired to defraud him.

[4]    On 4 December 2019, Associate Judge Sargisson entered summary judgment as to liability against both Raukawa and the Council (the Liability Judgment).1 This left the issue as to quantum alone to be determined.

[5]    On 13 April 2022, Mr Moeke then applied to join five further defendants personally as members of, or lawyers for, Raukawa and the Council. Finding that the exceptional circumstances required for joinder post-judgment were not made out, the Court declined that application on 1 February 2023.2

1      Moeke v Raukawa Iwi Development Ltd [2019] NZHC 3166, (2019) 21 NZCPR 493.

2      Moeke v Raukawa Iwi Development Ltd [2023] NZHC 7, (2023) 26 PRNZ 230.

[6]This judgment now disposes of Mr Moeke’s application referred to at [2].

Mr Moeke’s application

[7]Mr Moeke seeks orders:3

1.1. Setting aside the second defendant's claim to privilege for the documents listed in Part 2 of the Schedule to the second defendant's affidavit of documents and dated 6–11 December 2018 ("claimed documents").

1.2. Setting aside the second defendant's claim to privilege or irrelevance for the redactions listed in the Redaction Log.

1.3. Setting aside or modifying the claim to confidentiality for the documents listed in Part 3 of the Schedule to the second defendant's affidavit of documents.

1.4. Ordering each of HAMISH DOUGH and MIKE BRACKEN to file an affidavit stating whether documents relating to the agreement for sale and purchase of 10 Dumfries Road, Tokoroa from the first defendant to the second defendant in December 2018 are or have been in his control, and if the documents have been but are no longer in his control, his best knowledge and belief as to when the documents ceased to be in his control and who now has control of them, and to serve the affidavit on the plaintiff and the defendants, and if the documents are in his control, to make those documents available for inspection, in accordance with rule 8.27, to the plaintiff.

1.5. For costs against the second defendant on an indemnity basis, or increased costs.

[8]The grounds on which the orders are sought are:4

2.1.As to order 1.1 and 1.2,

a. The claimed documents and the redactions for which privilege is claimed are communications made or received and/or contain information compiled or prepared, for the dishonest purpose described in judgment [2019] NZHC 3166, in summary, "the designed object ... to cheat [the plaintiff of his] known existing right to land" (paragraph [49]), and/or the dishonest purpose of concealing what was intended and what was done.

b.   The claimed documents and the redactions for which privilege is claimed are communications made or received and/or contain information compiled or prepared to enable or aid the second defendant to commit what the second defendant knew or ought to have known was an offence, being the offences of dishonestly using a document (the agreement for sale and purchase by which

3      Mr Moeke’s application, above n Error! Bookmark not defined. at [1].

4 At [2].

the second defendant purchased the property) (Crimes Act 1961, s228), (causing loss by deception (s 240), and conspiracy to commit an offence (s 310).

c.   The other redactions are in relevant documents and the rules provide no basis for refusing to disclose parts of relevant documents unless they are privileged or limitations on disclosure are permitted on the grounds of confidentiality.

2.2.As to order 1.3,

a.   The affidavit of documents does not state the nature and extent of the confidentiality, as required by rule 8.16(1)(c).

b.   The affidavit of documents does not state any restrictions proposed to protect the claimed confidentiality, as required by rules 8.15(2)(f) and 8.28(3).

c.   No proper foundation having been laid out for the claim of confidentiality, production cannot be resisted on the grounds of confidentiality.

2.3.As to order 1 .4, Messrs Douch and Bracken were the solicitors acting for the first defendant and the second defendant respectively in the effecting of the transaction referred to in paragraph 1.4 above and must have or have had the control of 1 or more documents that they would have had to discover if they were parties to the proceeding.

2.4.As to order 1.5,

a.   The second defendant was under a continuing obligation to give discovery and offer inspection at all stages of the proceeding, even though the second defendant had filed and served an affidavit of documents.

b. It ought to have been obvious to the second defendant once judgment [2019] NZHC 3166 had been delivered that the second defendant was not entitled to maintain privilege for the documents generated in the course of perpetrating the fraud on the plaintiff.

c.   The plaintiff has pointed out that privilege cannot be maintained for these documents (refer memorandum of counsel for plaintiff dated 22 November 2021, paragraphs 25-29), and this application should not have been necessary.

d.   The second defendant has very recently offered to provide copies of some of the documents, but not all, and the offer is subject to qualifications when none is justified.

2.5. As to all orders, the affidavits of documents of RIDL and SWDC.

Council’s opposition

[9]The Council opposes the application on the following grounds:5

All orders

a.   Interlocutory applications were due by 18 December 2020 (Minute of Associate Judge Gardiner dated 3 December 2020). The plaintiff’s application was filed more than two years late, without an application for leave, and with an explanation for the lengthy delay. Accordingly, leave to bring these applications should not be granted.

Order 1.1

b.   Judgment has been entered against the second defendant for conspiracy. The tort of conspiracy is not ‘fraud’ such that would cause the loss of solicitor-client privilege.

c.   The respondent was not acting to aid anyone to commit or plan what it knew or ought to have known was an offence.

d.   The order is unnecessary. Council has previously offered to waive privilege in respect of documents from 6 and 7 December 2018 for the purposes of these proceedings. The applicant did not accept this offer. Council is willing to waive privilege in the three additional documents from 2018 for the purposes of these proceedings.

e.   Approximately half of the documents for which privilege is claimed are from mid-2019 (“the 2019 documents”). Even if the Court were minded to require release of the documents from December 2018, the 2019 documents were not created in the course of Council’s purchase of the property and there is no basis for setting aside Council’s privilege in them.

Order 1.2

f.    The two claims for privilege in the redaction log are in relation to documents from December 2018 and therefore are documents for which Council is willing to waive privilege.

g.   The redactions for irrelevance in the redaction log are for the portion of the document which shows a Council staff member forwarding documents as part of the discovery exercise. They have no relevance to the proceedings.

Order 1.3

h.   Council’s affidavit of documents inadvertently omitted the nature and extent of the confidentiality and the proposed restrictions. These details are as follows:

5      Notice of opposition to plaintiff's application for order setting aside defendant's claim to privilege and for non-party discovery dated 21 March 2023 at [1]–[3].

i.SWDC.00128

Type: Staff report to Elected Members

Nature of confidentiality: Prepared for a public- excluded meeting pursuant to s 46A(8) and (9) LGOIMA.

Extent: Entire document

Proposed restriction: Provided on a counsel-only basis

ii.SWDC.00129

Type: Agreement for Sale and Purchase

Nature of confidentiality: Contains personal information of private individuals who purchased the property from Council.

Extent: Entire document

Proposed restriction: Provided on a counsel-only basis

Order 1.4

i.    With respect to Mike Bracken this order is unnecessary given the information in respect of which the respondent is willing to waive privilege.

Order 1.5

j.    This application was brought over two years out of time.

k.   There is no basis for increased costs:

i.The respondent has already offered to provide most of the December 2018 docs on reasonable terms.

ii.It is not unreasonable for Council to defend its claim to privilege.

l.    There is no basis for indemnity costs.

[10]   Notably the Council is not opposed to order 1.4 as to Mr Hamish Douch. While Mr Douch’s lawyers in a memorandum initially conveyed his intended opposition, as Mr Moeke has now served summary judgment proceedings on Mr Douch (CIV-2023- 463-030), Mr Douch, relying on abuse of process grounds, seeks the following orders:6

Mr Douch respectfully seeks orders adjourning the plaintiff’s interlocutory application for orders to set aside the defendants’ claim to privilege and non- party discovery in the CIV-2019-463-46 matter, pending the outcome of the plaintiff’s summary judgment application in CIV 2023-463-030.

6 Memorandum of counsel on behalf of Hamish Douch dated 7 June 2023 at [10].

Legal principles

Setting aside privilege

[11]Rule 8.25 of the High Court Rules provides:

8.25 Challenge to privilege or confidentiality claim

(1)If a party challenges a claim to privilege or confidentiality made in an affidavit of documents, the party may apply to the court for an order setting aside or modifying the claim.

(2)In considering the application, a Judge may require the document under review to be produced to the Judge and may inspect it for the purpose of deciding the validity of the claim.

(3)    The Judge may—

(a)    set aside the claim to privilege or confidentiality; or

(b)    modify the claim to privilege or confidentiality; or

(c)    dismiss the application; or

(d)    make any other order with respect to the document under review that the Judge thinks just.

[12]   In this case the challenge is based on s 67(1) of the Evidence Act 2006, which provides:

67       Powers of Judge to disallow privilege

(1) A Judge must disallow a claim of privilege conferred  by any  of  sections 54 to 59 and 64 in respect of a communication or information if satisfied there is a prima facie case that the communication was made or received, or the information was compiled or prepared, for a dishonest purpose or to enable or aid anyone to commit or plan to commit what the person claiming the privilege knew, or reasonably should have known, to be an offence.

[13]   The Act makes no attempt to define a “dishonest purpose”. However, as noted in Mahoney on Evidence,7 the approach of the English common law judgment of Crescent Farm (Sidcup) Sports Ltd v Sterling Offices Ltd has continued to be influential.8 In that case Goff J held that privilege will not be lost merely because the

7      Elisabeth     McDonald     and    Scott     Optican    (eds)     Mahoney    on     Evidence    Act     and Analysis (4th ed,)Thomson Reuters, Wellington, 2018) [EV 67.03].).

8      Crescent Farm (Sidcup) Sports Ltd v Sterling Offices Ltd [1972] Ch 533 (Ch).

purpose amounts to a civil wrong. Dishonesty must be present, although this will include “all forms of fraud and dishonesty, such as fraudulent breach of trust, fraudulent conspiracy, trickery and sham contrivances”.9

[14]   Associate Judge Lester in Spackman v Martin,10 adopted the following passage from Cross on Evidence:11

Removal of the privilege under the “dishonest purpose” limb of s 67(1) requires dishonesty, in the sense of an intention to deceive, or to commit “sharp practice” by intentionally taking advantage of a misapprehension.

Non-party discovery

[15]Rule 8.21 of the High Court Rules provides:

8.21 Order for particular discovery against non-party after proceeding commenced

(1)This rule applies if it appears to a Judge that a person who is not a party to a proceeding may be or may have been in the control of 1 or more documents or a group of documents that the person would have had to discover if the person were a party to the proceeding.

(2)The Judge may, on application, order the person—

(a)to file an affidavit stating—

(i)whether the documents are or have been in the person’s control; and

(ii)if the documents have been but are no longer in the person’s control, the person’s best knowledge and belief as to when the documents ceased to be in the person’s control and who now has control of them; and

(b)to serve the affidavit on a party or parties specified in the order; and

(c)if the documents are in the control of the person, to make those documents available for inspection, in accordance with rule 8.27, to the party or parties specified in the order.

9      At 565.

10     Spackman v Martin [2021] NZHC 157, (2021) 25 PRNZ 542 at [41].

11     Matthew Downs (ed) Cross on Evidence (online ed LexisNexis) at [EVA67.3] citing Gemini Personnel Ltd v Morgan &Banks Ltd [2001] NZLR 14 (HC) at [66]-[69].

(3)An application for an order under subclause (2) must be made on notice to the person and to every other party who has filed an address for service.

Analysis

[16]The issues to be determined in this judgment are:

(a)whether leave should be granted to Mr Moeke to permit the late filing of his application?

(b)whether the Council’s claim to privilege in respect of documents from 2018 for which solicitor-client privilege is claimed is a proper claim?

(c)whether redactions made by the Council from documents on the basis of irrelevance are properly made?

(d)whether  orders  for  non-party  discovery  against  Mr Douch  and  Mr Bracken should be made?

[17]I deal with each of these issues in turn.

Whether leave should be granted to Mr Moeke to permit the late filing of his application?

[18]   Ms Crocket for the Council argues  that  leave  should  not  be  granted  to  Mr Moeke to file his application late. She submits that under a minute of Associate Judge Gardiner dated 3 December 2020,  interlocutory  applications  were  due  by 18 December 2020. Accordingly, she submits that Mr Moeke’s application was filed more than two years late, without an application for leave and without an explanation for the lengthy delay.

[19]   Mr Judd KC,  for Mr  Moeke,  submits  that  Judge Gardiner’s  directions  of 3 December 2020 were superseded by my directions of 1 March 2023, and the direction that he file an application explicitly rescinds an earlier order requiring applications to be lodged by a certain date. In response, Ms Crocket submits that my

order of 1 March 2023 was an indication that this was Mr Moeke’s last chance to file the proposed application and did not grant leave.

[20]   On this point, it is my view that the intention of the direction I gave on 1 March 2023 was to allow Mr Moeke to file the application and that direction, impliedly at least, superseded Associate Judge Gardiner’s direction of 3 December 2020. Accordingly, to the extent Mr Moeke requires leave to file his application late, such leave is granted.

Whether the Council’s claim to privilege in respect of documents from 2018 for which solicitor-client privilege is claimed is a proper claim?

[21]   Mr Moeke’s application relates to setting aside privilege claimed by the Council in respect of the documents listed in Part 2 of the Council’s affidavit of documents dated 18 November 2020, being documents SWDC.00104 to SWDB.00116 dated from 6 December 2018 to 11 December 2018 (the 2018 Documents). The central issue to be determined in relation to the Council’s claim for privilege is whether the 2018 Documents were prepared for a “dishonest purpose”, for the purposes of s 67(1) of the Evidence Act 2006. If the 2018 Documents were prepared for a “dishonest purpose” then the Council’s claim for privilege must be set aside.

[22]Mr Judd makes the following submissions in respect of “dishonest purpose”:

(a)that the documents and redactions for which privilege is claimed are communications made or received and/or contained information compiled or prepared for a dishonest purpose as described in the Liability Judgment. Associate Judge Sargisson said “the desired object

… to cheat [the plaintiff of his] known existing right to land”,12 and/or

the dishonest purpose of concealing what was intended and what was done;

12 Above, n 1 at [49].

(b)neither s 67(1) nor Mr Moeke’s application relies on “fraud” (although conspiracy was in fact a conspiracy to defraud the plaintiff); and

(c)the Liability Judgment clearly branded the defendant’s behaviour as dishonest.

[23]   Mr Judd submits that at [20] of the Liability Judgment, the Court quoted the definition of fraud for the purposes of the Land Transfer Act 2017, which means “forgery or other dishonest conduct by the registered owner or the registered owner’s agent acquiring a registered estate or interest in land” and “forgery or other dishonest conduct by any other person”. Mr Judd submits that at [49] of the Liability Judgment, the Court did not accept the defendant’s submissions that “forgery or other dishonest conduct” had not been made out, saying:

Where the designed object of a transfer is to cheat someone of a known existing right to land, that is fraudulent for land transfer purposes … I consider that the applicant has demonstrated land transfer fraud occurred.

[24]   Mr Judd further submits that as land transfer fraud requires “forgery or other dishonest conduct” and as forgery was not an issue, the Court’s finding plainly was that the defendants had engaged in dishonest conduct. Mr Judd submits that an attempt to avoid the consequences of that finding on the basis that the “tort of a conspiracy is not fraud” such that that would cause the loss of solicitor-client privilege is unsustainable.

[25]   With reference to the Crescent Farm decision,13 Mr Judd submits that in that case the plaintiff was trying to obtain discovery of Council’s opinion in relation to the second defendant’s rights and liabilities, relying on the common law rule that privilege does not attach to a communication which would otherwise be within the scope of legal professional privilege is made in preparation for or furtherance of a crime or fraud. In that case, the plaintiffs alleged tortious conspiracy by co-defendants in relation to a scheme to defeat a right of first refusal in respect of a piece of land.    Mr Judd submits that the present case can be distinguished from the Crescent Farm case in that the documents in issue here are between the Council and its solicitors and

13     Crescent Farm, above n 8.

were plainly documents created for the purpose of defeating Mr Moeke’s interest in the property.

[26]   Ms Crocket, on the other hand, submits that the Crescent Farm decision is analogous to the present case in that both concerned tortious conspiracy in relation to the purchase of land. She submits that the tortious conspiracy does not amount to dishonesty in terms of either the common law rule or s 67(1) of the Evidence Act.

Conclusion on this issue

[27]   In my view, the Council’s claim for privilege should be set aside on the basis that, for the purposes of s 67(1) of the Evidence Act, the documents in question were created for a “dishonest purpose”.

[28]   In my view, the submissions of the Council are correct to the extent that the tortious conspiracy to defraud by unlawful means has no “dishonesty” requirement for it to be made out (as those elements are set out in the Liability Judgment at [36]). An unlawful means conspiracy tort may be based on an unlawful act with an intent to injure the claimant (for example, equitable fraud such as inducement to breach a contract) that does not rise to the level of “a dishonest purpose”. Not all civil tortious wrongs rise to the requisite level of dishonesty.

[29]   Dishonesty for purposes of s 67(1) of the Evidence Act has been defined in several ways, but all definitions tend to relate to the moral turpitude of the act. The commentary in Cross on Evidence defines dishonesty as:14

“dishonesty”, in the sense of  an  intention  to  deceive  or  to  commit  “sharp practice” as by intentionally taking advantage of a misapprehension.

This definition was adopted by Associate Judge Andrew in O’Brien (on behalf of General Dynamics Corporation Ltd) v Parkinson15 citing its prior adoption by Associate Judge Lester in Spackman v Martin.16

14     Downs, above n 11, at [EVA67.3].

15     O’Brien (on behalf of General Dynamics Corporation Ltd) v Parkinson [2021] NZHC 3161 at [15].

16     Spackman v Martin, above n 9, at [41].

[30]   Based on these definitions, civil wrongs can rise to the required level of dishonesty to constitute “dishonest purpose” if they involve a level of moral turpitude. In the present case, Associate Judge Sargisson found dishonest conduct for the purposes of land transfer fraud and, in my view, that clearly contains the sufficient element of moral turpitude to constitute “dishonest purpose” for the purposes of       s 67(1).

[31]Also in my view, the above is consistent with the decision in Crescent Farm.17

In that case, on the facts before him, Goff J determined that he

cannot feel the tort of inducing the breach of contract or the narrow form of conspiracy pleaded in this case, come within that ambit.

That is to say, Goff J found that there was nothing rising to the requisite level of dishonesty (moral turpitude) pleaded for the tortious conspiracy in that case. In the present case, Associate Judge Sargisson in the Liability Judgment made a finding of dishonesty, which was the foundation of the tortious conspiracy to defraud Mr Moeke of his interest in the property.

[32]   Accordingly, I am of the view that Mr Moeke’s application for setting aside privilege in respect of the 2018 Documents should be granted.

[33]   As to the [e] in the notice of opposition relating to order 1.1, Mr Moeke has only sought the privilege be set aside for the 2018 Documents, so this aspect of the notice of opposition regarding documents from 2019 does not need to be dealt with.

[34]   It is also noted that no order is sought from the Court in respect of the documents set out in pt 3 of the Council’s affidavit of documents, as this issue has been resolved by the Council’s agreement to provide these documents on a counsel- only basis.

17     Crescent Farm, above n 9.

Whether redactions made by the Council from documents on the basis of irrelevance are properly made?

[35]   During the hearing, Mr Judd conceded that redactions for irrelevance were permitted.  That this is permitted is clear from the authorities cited by Ms Crocket at

[16]  of her submissions.18     Ms Crocket also submitted that the redactions simply

showed forwarding of the documents by email to other persons and had no relevance to the matters in issue.

[36]   Accordingly, the part of Mr Moeke’s application to set aside redactions for irrelevance should be declined.

Whether orders for non-party discovery against Mr Douch and Mr Bracken should be made?

[37]   In relation to the orders for non-party discovery sought against Mr Bracken and Mr Douch, Mr Judd submits the requirements of r 8.21 are satisfied as the conveyancing solicitors may be, or may have been in control of documents, they would have had to discover if they were a party to the proceeding.

[38]   In relation to the order against Mr Bracken, Raukawa’s conveyancing solicitor, Ms Crocket submits that this order is unnecessary given the Council has been prepared to waive privilege in respect of the 2018 Documents. Given my determination at [32] that privilege claimed by the Council for the 2018 Documents is to be set aside, these documents will be made available to Mr Moeke. This will presumably cover most, if not all, the documents Mr Bracken may discover.

[39]   To finally deal with this point, Mr Bracken should confirm by affidavit that he does not hold any further documents which would be required to be discovered and which will not be discovered by the Council as a result of setting aside of privilege in respect of the 2018 Documents. An order is made below accordingly.

18 G E Capital Corporate Finance Group Ltd v Bankers Trust Co [1995] 1 WLR 172 (CA) at 174; Ministry of Education v IT Architects Ltd [2014] NZC 1541 at [30]-[31] citing Shah v HSBC Private Bank (UK) Ltd [2011] EWCA Civ 1154.

[40]   As to non-party discovery orders against Mr Douch, Raukawa’s conveyancing solicitor, in my view the application for non-party discovery against him should be adjourned until the summary judgment application by Mr Moeke against Mr Douch (among others) is determined.

Result

[41]As a result of the conclusions I have reached at [32], [36], [39] and [40]:

(a)Mr Moeke’s application to set aside the Council’s claim to privilege in respect of the 2018 Documents should be granted.

(b)Mr Moeke’s application for the redactions for privilege and irrelevance should be granted in respect of the redactions for privilege, but declined in respect of the redactions for irrelevance.

(c)Mr Bracken is to swear an affidavit confirming that he does not hold any further documents which would be required to be discovered if he was a party to the proceeding and which are not listed in the Council’s affidavit of documents.

(d)The application for non-party discovery against Mr Douch should be adjourned until the summary judgment application by Mr Moeke against Mr Douch is determined.

Orders

[42]I make the following orders:

(a)Mr Moeke’s application to set aside the Council’s claim for privilege for the 2018 Documents is granted.

(b)Mr Moeke’s application to have the Council’s redactions for solicitor/client privilege in respect of the documents set out in pt 3 of the Council’s affidavit of documents, SWDC.00014 and SWDC.00038,

set aside is granted. Mr Moeke’s application to set aside the remaining redactions for irrelevance is dismissed.

(c)Mr Bracken is to swear an affidavit confirming that he does not hold any further documents which would be required to be discovered if he was a party to the proceeding which are not listed in the Council’s affidavit of documents. Mr Moeke is to pay costs of Mr Bracken in respect of swearing the affidavit.

(d)The application for non-party discovery against Mr Douch is adjourned until Mr Moeke’s application for summary judgment against Mr Douch (among others) is determined.

(e)Counsel are directed to endeavour to agree costs within 20 working days of the date of this judgment. If no agreement is reached within the 20 working day period, counsel for Mr Moeke will file a memorandum as to costs (not exceeding five pages) within 10 working days of expiry of the 20 working day period, and counsel for the Council will file a memorandum in reply (not to exceed five pages) within 5 working days of receipt of the memorandum from counsel for Mr Moeke. A decision as to costs will then be made on the papers.

…………………………….. Associate Judge Taylor