New Zealand Detector Dog Services Limited v Wildlife Contractors Limited

[2017] NZHC 2156

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-002043 [2017] NZHC 2156

BETWEEN

NEW ZEALAND DETECTOR DOG

SERVICES LIMITED First Plaintiff

JANET WILLIAMS Second Plaintiff

AND

WILDLIFE CONTRACTORS LIMITED First Defendant

NZ K9 DETECTION SERVICES Second Defendant

K9 DETECTOR DOG SERVICES LIMITED

Third Defendant

GUUS KNOPERS Fourth Defendant

CALLUM BLAIR Fifth Defendant

CAMPUS SECURITY LIMITED Sixth Defendant

Hearing:	6 September 2017
Appearances:	B Cain for the Plaintiffs D J K Mitchell for the First to Fourth Defendants R Hern for the Fifth and Sixth Defendants
Judgment:	6 September 2017

JUDGMENT OF HINTON J

NEW ZEALAND DETECTOR DOG SERVICES LIMITED v WILDLIFE CONTRACTORS LIMITED [2017] NZHC 2156 [6 September 2017]

This judgment was delivered by me on 6 September 2017 at 3.30 pm pursuant to Rule 11.5 of the High Court Rules

……………………………………………………………………

Registrar/Deputy Registrar

Solicitors:

James & Wells Solicitors, Auckland

Douglas Mitchell Lawyer, Auckland

Wynn Williams, Auckland

[1]      The matters to be addressed at this hearing are applications for security for costs; for inspection of documents and for further discovery.

[2]      No  order  is  required  with  respect  to  the  application  for  inspection.   All documents have apparently been provided with the exception of two, which have not yet been received from the fifth to sixth defendants, but are expected.  The security for costs application has also been resolved in that the details the plaintiffs were seeking from the fifth and sixth defendants have been provided.

[3]      That leaves outstanding the application for further discovery dated 30 June

2017.

[4]      In terms of categories 3 and 4 of that application, the plaintiffs had filed a memorandum saying the requests under these categories had been resolved and they were not pursuing further discovery in those regards.   I was advised this morning that in fact, although the defendants had provided “a lot of documents” in these categories, some are still missing.  The plaintiffs had only appreciated this in the last two days.  Mr Cain agreed with my suggestion that in those circumstances he should engage in correspondence with counsel for the defendants to see whether the gaps can be filled, rather than the Court having to deal with that matter.  It does seem that the defendants are now alive to the need to properly engage over discovery issues. Although that might seem arduous, in a case such as this, resolving discovery issues by means of correspondence and co-operation is much cheaper than Court hearings.

[5]      After hearing from Mr Cain as to the further discovery sought, it seemed to me that with some clarification, the documents in categories 1, 2, and 5-7 were all discoverable.

[6]      The first to fourth defendants have not filed any notice of opposition.  They had filed a supplementary list of documents which their counsel, Mr Mitchell, understood would resolve the outstanding issues in terms of further discovery.  He broadly accepted, having heard from Mr Cain, that there would need to be further enquiry and by inference that a further affidavit would be required.  For example, in terms of category 1, Mr Knopers had said in his affidavit that he believed any other

documents  were  held  by  Mr  Austin,  who  apparently  is  based  in  Australia. Mr Mitchell did not know, though, whether the documents held by Mr Austin were nonetheless  under Mr  Knopers’ control.    Mr  Mitchell  had  not  appreciated  until Mr Cain produced in Court today the relevant Guidelines that Mr Knopers likely had an obligation to maintain the records in question himself.

[7]      Mr  Hern,  who  has  only  recently  been  instructed  by  the  fifth  and  sixth defendants, very sensibly said that his clients were happy to file a further affidavit and recognised the need to engage proactively in the process.   He said he expects that most of the documents will not in fact exist, but in that event of course answers need to be provided as to whether they did exist and if so, what has happened to them.

[8]      Mr Hern said he would need 21 days to complete the additional affidavit and

Mr Cain had no difficulty with that.

[9]      I therefore make orders in terms of the plaintiffs’ application for further

discovery dated 30 June 2017, subject to the following amendments:

(a)      The documents to be discovered in terms of category 1 are more specifically documents setting out the testing procedure used by the first to fourth defendants for independent dog certification and proficiency test reports or certificates for the relevant dogs.

(b)      No orders are made with regard to categories 3 and 4.

(c)      The documents to be provided with respect to category 6, instead of the description provided, are documents with regard to the operation of  the  third  defendant  between  September  2015  and  the  end  of January 2016.  I note in this regard that Mr Blair has already sworn an affidavit  saying  that  he  believes  he  has  provided  all  documents relating to establishment of the third defendant, but acknowledges there are many more emails between himself and others with regard to the operation of the third defendant.

(d)For clarification only, the documents requested in terms of category 7, relate to correspondence between Mr Blair and former clients of the plaintiffs, who have been previously named so their identity is clear.

(e)       The discovery is to be provided by Wednesday, 27 September 2017.

(f)       All questions of costs are reserved, to be dealt with by Associate

Judge Sargisson, as already advised by the Registry.

---------------------------------------- Hinton  J