Rasela v Auckland City Medical Clinics Limited
[2021] NZHC 109
•9 February 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV2020-404-001327
[2021] NZHC 109
UNDER The Companies Act 1993, section 174 BETWEEN
DR VANDANA RASELA
Plaintiff
AND
AUCKLAND CITY MEDICAL CLINICS LIMITED
First Defendant
AND
DR SHIGY ALEX THACHANKARY
Second Defendant
Hearing: 27 January 2021 Appearances:
G A Keene for the Plaintiff
M A E Sullivan for the Defendant
Judgment:
9 February 2021
JUDGMENT OF VAN BOHEMEN J
This judgment was delivered by me on 09 February 2021 at 4.00pm Pursuant to Rule 11.5 of the High Court Rules
…………………………
Registrar/Deputy Registrar
Solicitors/Counsel:
G A Keene, Barrister, Auckland Jackson Russell, Auckland
Skeates Law, Auckland Copy:
Hucker & Associates, Auckland Simpson Dowsett Meggitt, Auckland
RASELA v AUCKLAND CITY MEDICAL CLINICS LIMITED [2021] NZHC 109 [9 February 2021]
Introduction
[1] The second defendant, Dr Shigy Thachankary, applies for further and better discovery by the plaintiff, Dr Rasela, in a proceeding that has been given a priority fixture on 29 March 2021. However, as became apparent at the hearing of the application on 27 January 2021, the core dispute between the parties is more about the scope of the hearing than the scope of discovery. As matters stand, the prospects of the proceeding being fully heard on 29 March 2021 would appear to be remote. For that reason, at the conclusion of this judgment, I direct that the proceeding and the related proceeding discussed below are referred to the Registry for urgent case management.
[2] To understand this application and the implications for the hearing on 29 March 2021, it is necessary to set out the claims of the two doctors in the two proceedings that are currently before the Court and relevant orders made during the case management of those proceedings.
Background
[3] Dr Rasela and Dr Thachankary are two medical practitioners who, having established a joint practice in Papakura and a secondary practice at Flat Bush, have had a serious falling out and are engaged in two related proceedings.
[4] The Papakura practice is operated by Auckland City Medical Clinics Ltd (ACML) in which Dr Rasela and Dr Thachankary are equal 50 per cent shareholders. The Flat Bush practice operated as the Flat Bush Medical Centre (FBMC). The FBMC has been put into receivership and is no longer operating.
The Flat Bush proceeding
[5] In November 2019, Dr Thachankary brought a proceeding against Anurag Rasela, Dr Rasela’s husband, Dr Rasela and other parties, including the receiver of FBMC (CIV-2019-404-2640), (the Flat Bush proceeding). An amended statement of claim dated 16 October 2020 runs to 92 paragraphs and contains detailed allegations
about the establishment and financing of the FBMC including the advance of a loan by ACMC to FBMC for $361,833 (the ACMC loan).
[6]Among other things, the amended statement of claim alleges that:
(a)Mr Rasela failed to repay Dr Thachankary a loan of $175,000 (the personal loan) which Dr Thachankary says he made to Mr Rasela to enable Mr Rasela to settle the purchase of the property from which the FBMC was to operate, and failed to pay Dr Thachankary a further
$60,000 which Dr Thachankary says is owed to him in repayment of the personal loan;
(b)Dr Rasela refused to authorise the payment of drawings of $247,352 from the ACMC which Dr Thachankary says are owed to him, failed to provide timesheets or other documents to verify the basis of payments by ACMC to Dr Rasela, and entered into loan agreements with FBMC that have the effect of granting security and a preference in favour of Dr Rasela over the ACMC loan;
(c)Dr Rasela breached an agreement with Dr Thachankary (ACMC Agreement) by failing to transfer Dr Thachankary 50 per cent of the shares in FBMC, appoint Dr Thachankary a director of FBMC, and in various other respects.
[7] The amended statement of claim seeks orders for, among other things, payment of amounts said to be owed to Dr Thachankary, damages and costs.
[8] In their statement of defence, Mr Rasela and Dr Rasela (the Raselas) admit some of these allegations and deny others and say their actions are justified by the circumstances of the situation.
[9] The Flat Bush proceeding has been set down for a five day hearing commencing 4 October 2021.
The Papakura proceeding
[10] In July 2020, Dr Rasela commenced the present proceeding against ACMC and Dr Thachankary under s 174 of the Companies Act 1993 (CIV-2020-404-1327), (the Papakura proceeding). An amended statement of claim alleges that the affairs of ACMC have been and are being conducted in a manner that is oppressive, unfairly discriminatory and unfairly prejudicial to Dr Rasela. Among other things, the amended statement of claim, in paragraph 6(f), alleges that Dr Thachankary regularly behaves in a bullying and aggressive manner towards Dr Rasela.
[11] Dr Rasela seeks orders under s 174 of the Companies Act requiring Dr Thachankary to sell his shares in ACMC to Dr Rasela or directing an informal auction between the two doctors under which one or other would sell their shares in ACMC to the higher bidder.
[12] In paragraph 6.6 of his statement of defence and counterclaim dated 15 September 2020, Dr Thachankary says he has no knowledge of, and there is a lack of particulars to plead to, the allegation of bullying in paragraph 6(f) of Dr Rasela’s amended statement of claim. In relation to that allegation, however, Dr Thachankary then alleges that Dr Rasela and Mr Rasela have themselves engaged in conduct oppressive, unfairly discriminatory and unfairly prejudicial to him. In paragraph 6.6.3, Dr Thachankary particularises that allegation in 15 sub-paragraphs which reflect the substance of Dr Thachankary’s allegations in the Flat Bush proceeding.
[13] Dr Thachankary also separately pleads three counterclaims in the statement of defence and counterclaim:
(a)Counterclaim 1: Breach of the ACMC Agreement in respect of which Dr Thachankary refers to and repeats much of the substance of the Flat Bush proceeding.
The relief sought includes various orders, compensation and general and special damages.
(b)Counterclaim 2: Non-repayment of the personal loan and other advances that Dr Thachankary says he made to FBMC, in respect of which Dr Thachankary again refers to and repeats much of the substance of the Flat Bush proceeding.
The relief sought includes judgment for the ACMC loan payable to ACMC or judgment for half the ACMC loan payable to Dr Thachankary, and judgment for the personal loan and other loans said to have been made by Dr Thachankary to FBMC.
(c)Counterclaim 3: A claim under s 174 of the Companies Act that the affairs of ACMC have been conducted in a manner oppressive, unfairly discriminatory and unfairly prejudicial to Dr Thachankary, in respect of which Dr Thachankary repeats all of the allegations in the Flat Bush proceeding and, in 23 further paragraphs, sets out the substance of the allegations made in the Flat Bush proceeding.
The relief sought includes orders removing Dr Rasela as a director of ACMC and requiring Dr Rasela to sell her shares in ACMC to Dr Thachankary.
Applications for consolidation and priority
[14] In September 2020, Mr Sullivan of Jackson Russell, Dr Thachankary’s solicitors, filed a memorandum applying to consolidate the Flat Bush proceeding and the Papakura proceeding on the grounds that common questions of law and fact arise in both proceedings. The application was opposed by Dr Rasela whose counsel, Mr Keene, filed a memorandum asserting that there were no good reasons for bringing damages claims into an application under s 174 of the Companies Act.
[15] In his memorandum, Dr Rasela applied for a priority fixture for the Papakura proceeding. That application was opposed by Dr Thachankary on the grounds he would be prejudiced by any order requiring the sale of the shares in ACMC before resolution of Dr Thachankary’s claims in the Flat Bush proceeding and, in particular, before his claims to the monies loaned to ACMC had been resolved.
Associate Judge Andrew’s minute of 20 October 2020
[16] Following a case management conference, Associate Judge Andrew issued a minute dated 20 October 2020 in which he declined to order the consolidation of the two proceedings and granted Dr Rasela’s application for a priority fixture for the Papakura proceeding.
[17] Associate Judge Andrew accepted there was some merit in the submission that the issues in the two proceedings were inter-related and acknowledged Dr Thachankary’s concern that the Papakura proceeding could not be resolved without also addressing the ACMC loan and whether the Raselas should compensate either of the two companies or Dr Thachankary. However, the Associate Judge considered it preferable that the two proceedings be set down for trial separately.
[18] The Associate Judge directed that “the counterclaim” of Dr Thachankary in the Papakura proceeding not be heard as part of the trial of the Papakura proceeding. The Associate Judge stated:
[7] … In my view the counterclaims are in substance the principal claims that Dr Thachankary as plaintiff, makes in the Flat Bush proceedings. The Part 18 procedure for determination of s 174 Companies Act 1993 proceedings is intended to be a relatively clean and straightforward one unencumbered by counterclaims. My ruling that the counterclaims of the defendants in the Papakura proceedings are effectively deferred does not, in my view, prejudice Dr Thachankary. The terms of any relief that might be granted in the s 174 Papakura proceedings can, if necessary, accommodate any potential issue of prejudice to Dr Thachankary.
[19] At [12] of his minute, Associate Judge Andrew directed the parties to discuss whether each party should provide one affidavit of documents in relation to both proceedings rather than separate affidavits, but directed that separate affidavits of documents were to be filed and served if there was no agreement.
[20] The Associate Judge ordered standard discovery in both proceedings and made timetable orders, including setting the same deadline of 27 November 2020 for the filing and serving of affidavits of documents in both proceedings. The orders also stated that the listing and exchange protocol in sch 9 to pt 2 of the High Court Rules 2016 would apply to discovery in both proceedings.
[21]The Associate Judge’s orders included the following direction:
[13] …
(h) The plaintiffs’ claims will be the subject of a one-day trial commencing at 10 am on Monday 29 March 2021. The defendants’ counterclaims will not be heard or determined at that trial but are deferred pending further order of the Court.
The parties apply to recall Associate Judge Andrew’s minute of 20 October 2020
[22] On 5 November 2020, Mr Sullivan wrote to Mr Keene advising that he had been instructed to appeal Associate Judge Andrew’s decision refusing to consolidate the two proceedings and deferring consideration of the counterclaims in the Papakura proceeding. Among other things, the letter stated that the Court hearing the Papakura proceeding could not both make findings and grant relief on Dr Rasela’s s 174 application while still preserving Dr Thachankary’s counterclaim under s 174. The letter proposed a possible solution under which the parties would obtain further orders by joint memorandum that the counterclaims were not deferred, and the Court could grant such relief as it sought fit.
[23] That proposal was not accepted by Mr Keene, although in an email to Mr Sullivan on 9 November 2020, Mr Keene said he considered Associate Judge Andrew had not intended to suggest that Dr Thachankary could not pursue Counterclaim 3 in the Papakura proceeding.
[24] On 10 November 2020, Mr Keene filed a memorandum seeking the recall of Judge Andrew’s minute on the basis it was his understanding that the Associate Judge’s deferral of the counterclaims in the Papakura proceedings was intended to apply only to Counterclaims 1 and 2. Paragraph 6 of the memorandum stated:
This counsel took it as a “given” that Dr Thachankary would be entitled to ask for the same relief as Dr Rasela was seeking, in reverse, at the s 174 hearing. Dr Thachankary’s third counterclaim, in effect, argues that the medical practice was malfunctioning due to the conduct of Dr Rasela and that for that reason the court should order that Dr Rasela be required to sell her shares to Dr Thachankary.
[25] The memorandum concluded by submitting that, if Associate Judge Andrew recalled his minute, “… it would only be necessary for Your Honour to clarify that Dr Thachankary is free to pursue his third counterclaim at the s 174 hearing.”
[26] The following day, Mr Sullivan filed a memorandum supporting the request that the minute be corrected to clarify that Dr Thachankary could pursue Counterclaim 3 at the March hearing, provided it was also clear the Court could grant any relief it considered just and equitable under s 174.
Associate Judge Andrew’s minute of 17 November 2020
[27]In a minute dated 17 November 2020, Associate Judge Andrew stated:
[3] For the reasons submitted by the parties, I accept that my directions of 20 October 2020 should be recalled and amended to allow Dr Thachankary to pursue his third counterclaim at the 29 March 2021 hearing and that at that hearing the Court ought logically to be able to grant any relief that it considers just and equitable under s 174 of the Act.
[28] The Associate Judge amended his timetable directions of 20 October 2020 as follows:
[5]The direction I made at paragraph [13](h) … is varied as follows:
(a)The plaintiff’s claims (the Papakura proceedings) will be the subject of a one-day trial commencing at 10 am on Monday 29 March 2021. The first and second of the defendants’ counterclaims will not be heard or determined at that trial but are deferred pending further order of the Court. The third counterclaim may be advanced at the 29 March 2021 hearing which is to proceed on the basis that the Court may grant any relief that it considers just and equitable under s 174 of the Act.
(b)I also make corresponding amendments to paragraphs [3] and
[7] of my Minute of 20 October 2020 to provide that the third counterclaim is to be heard and determined at the 29 March 2021 hearing.
[29] The minute recorded that all other directions remained as in the minute of 20 October 2020.
Other developments
[30] By letter dated 23 October 2020, Jackson Russell wrote to Mr Keene and counsel and solicitors for other parties in the two proceedings and proposed that each party create a single affidavit of documents in both proceedings. The letter also made suggestions and requests regarding implementation of the Listing and Exchange Protocol which included the following:
(c)Clause 10(1): We expect that a label or note will be provided explaining the grounds for redaction.
(d)Clause 11(4): We request that if a document has relevant metadata, it is provided in native file format.
[31] By email dated 5 November 2020, Mr Keene informed Mr Sullivan that he did not agree to one list of documents for the two proceedings. The email advised that Mr Keene’s clients would be preparing a relatively brief affidavit of documents which would refer only to documents relevant to the s 174 issues and asked that Mr Sullivan ensure that his client’s list of documents for the Papakura proceeding contained only documents clearly relevant to that proceeding. The email did not refer to the Listing and Exchange Protocol issues raised in Jackson Russell’s letter.
[32] By letter dated 12 November 2020, Jackson Russell expressed surprise that Mr Keene considered his client’s affidavit of document in the Papakura proceeding would be relatively brief and referred to paragraphs 1 to 6 of Dr Thachankary’s statement of defence and counterclaim. The letter said discovery was required in respect to the pleaded issues. The letter also referred to the correspondence between Mr Keene and Mr Sullivan over Associate Judge Andrew’s minute of 20 October 2020 and said that to avoid the risk that further discovery would be required and of putting the March 2021 hearing at risk, the issues in Counterclaim 3 should be included in Dr Rasela’s affidavit of documents.
[33] By letter to Jackson Russell dated 26 November 2020, Mr Keene responded to some of the Listing and Exchange Protocol issues in Jackson Russell’s letter of 23 October 2020. Mr Keene noted the request for any metadata material in native file format.
[34] Dr Thachankary’s affidavits of documents in the Papakura and Flat Bush proceedings, both dated 26 November 2020 and apparently identical, were filed on 1 December 2020.
[35] Dr Rasela’s affidavit of documents in the Papakura proceeding, dated 1 December 2020, was filed on 2 December 2020.
[36] The Raselas’ affidavit of documents in the Flat Bush proceeding, dated 8 December 2020, was filed on 10 December 2020.
[37] In a memorandum dated 16 December 2020, Mr Sullivan requested an urgent conference to address timetable defaults in the Papakura and Flat Bush proceedings, having regard to Associate Judge Andrew’s timetable directions. Among other things, the memorandum said Dr Rasela’s affidavits of documents in both proceedings did not provide standard discovery and failed to comply with the Listing and Exchange Protocol.
[38] The current application for further and better discovery in the Papakura proceeding was filed with that memorandum, together with an affidavit in support sworn by a solicitor at Jackson Russell. The application annexed a schedule of categories of documents, which identified the documents for which discovery was sought by reference to issues and pleadings in Dr Rasela’s amended statement of claim and Dr Thachankary’s statement of defence and counterclaim in the Papakura proceeding (the Schedule of Documents).
[39] In a further memorandum dated 18 December 2020, Mr Sullivan provided an updated Schedule of Documents.
Associate Judge Bell’s minute of 21 December 2020
[40] Following a conference on 21 December 2020, Associate Judge Bell issued a minute directing the Registrar to allocate a hearing of Dr Thachankary’s application for further and better discovery in the second half of January 2021. The minute also directed Dr Rasela to file and serve any notice of opposition and affidavits by 15 January 2021 and said the notice of opposition should refer to the various classes
of documents in the updated Schedule of Documents, and state whether the documents exist or not, whether they have been disclosed or not, whether they are relevant or not, and whether it would be disproportionate to produce them.
[41] Associate Judge Bell also made timetable directions for the hearing of the application for further and better discovery and adjusted the timetable directions for the hearing of the Papakura proceeding in Associate Judge Andrew’s minute of 20 October 2020 to take account of slippage by Dr Rasela in serving evidence.
[42] The Registrar set down Dr Thachankary’s application for further and better discovery for a half day hearing on 27 January 2021.
Steps taken prior to hearing on 27 January 2021
[43]On 19 January 2021 Dr Rasela’s counsel filed:
(a)A notice of opposition to Dr Thachankary’s application for further and better discovery dated 17 January 2021;
(b)An affidavit in support sworn by Dr Rasela on 18 January 2021; and
(c)An undated statement of defence to Counterclaim 3.
[44] The Notice of Opposition states Dr Rasela’s opposition to all of the orders sought in the application and encloses a schedule that addresses the classes of documents in the Schedule of Documents and answers the questions directed by Associate Judge Bell in his minute of 23 December 2020.
[45] In her affidavit in support, Dr Rasela says her approach to the Papakura proceeding has been to treat only issues that were clearly relevant to the day to day affairs of ACMC as relevant to the question of whether the Court should intervene and compel one or other of the doctors to purchase the shares of the other. Dr Rasela also says that because FBMC has ceased to trade, Dr Thachankary’s allegations regarding the FBMC do not have direct relevance to the day to day operations of ACMC.
[46] Dr Rasela also says that 15 of the 18 categories of documents in the Schedule of Documents are associated with the affairs of FBMC and, while it is “difficult to argue” they have no connection to the affairs of ACMC, their relevance is “extremely low” and they will not assist the Court to address the current difficulties at ACMC and the need for intervention.
[47] Mr Keene handed up a second affidavit sworn by Dr Rasela on 26 January 2021 to which Mr Sullivan objected. I have read the affidavit. It addresses the substance of allegations made by Dr Thachankary that likely be considered at the substantive hearings of the two proceedings. I agree it is not relevant to the application for discovery and I have put it aside.
The application for further and better discovery
[48]Dr Thachankary’s application seeks two categories of orders:
(a)Directions that Dr Rasela comply with the Listing and Exchange Protocol with respect to:
(i)The redaction of documents (cl 10);
(ii)The provision of a table or spread sheet for the exchange of documents electronically (cls 6(1)(b) and 11(1));
(iii)The form of the file name for each individual document (cls 6(1)(a) and 11(3));
(iv)The provision of documents with metadata in native file format (cl 11(4)).
(b)An order for particular discovery by reference to the categories of documents in the Schedule of Documents.
[49] The order sought in the second category is the more substantial and occupied the greater part of the hearing on 27 January 2021. For that reason, I deal with it first.
[50] The principal point of difference between the parties is whether documents in the categories identified in the Schedule of Documents are relevant to the Papakura proceeding. To resolve that question, it is necessary to decide the scope of the Papakura proceeding as determined by the pleadings but having regard to the directions of Associate Judge Andrew in his minutes of 20 October 2020 and 17 November 2020.
[51] Subsidiary questions concern the scope of Dr Rasela’s obligations to discover documents which she says are already in the possession of Dr Thachankary or have been discovered by other parties to the proceeding. Those matters are addressed in the discussion below of the categories of documents in the Schedule of Documents.
What is the scope of the pleading in the Papakura proceeding?
[52]Rule 8.7 of the High Court Rules requires each party:
… to disclose the documents that are or have been in that party’s control and 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.
[53] Richardson J said in New Zealand Rail Ltd v Port Marlborough New Zealand Ltd:1
Parties are required to discover only those documents which are relevant to a question in the proceedings. They must be relevant in the sense of being capable of advancing a party's case or of damaging the case of its adversary. Relevance is determined by the pleadings and an order is not to be made unless the Court is satisfied that it is reasonably necessary.
[54] Mr Sullivan submits that all of the documents in the categories identified in the Schedule of Documents are relevant to issues identified in Dr Rasela’s amended statement of claim, in Dr Thachankary’s statement of defence and in Counterclaim 3, and in Dr Rasela’s statement of defence to Counterclaim 3.
1 New Zealand Rail Ltd v Port Marlborough New Zealand Ltd [1993] 2 NZLR 641 (CA) at 644.
[55]Mr Sullivan also submits that:
(a)Dr Rasela and Dr Thachankary make competing claims about how the behaviour of the other has prejudiced their respective positions in the ACMC and both must be allowed to make their cases in the context of competing applications under s 174 of the Companies Act;
(b)Dr Thachankary’s case is based in large part on the conduct of the Raselas towards Dr Thachankary in relation to the establishment of the FMBC because that conduct has negatively affected ACMC and prejudiced Dr Thachankary’s interest and value in ACMC; and
(c)That conduct includes unsecured loans and other support to FBMC from ACMC and the subsequent sale of FBMC without repayment of the ACMC loan, which is the ACMC’s largest asset, and that the conduct and value of the ACMC cannot be determined without addressing the ACMC loan.
[56] Mr Keene says the effect of Mr Sullivan’s submission would be to bring into the Papakura proceeding issues that relate to the Flat Bush proceeding and which are largely irrelevant to the Papakura proceeding. Mr Keene argues that in bringing Counterclaim 3 into the hearing on 29 March, the intention was to bring in only issues pleaded by Dr Thachankary that do not relate to the Flat Bush proceeding. Mr Keene says that if that were not the case, the whole point of the separate hearings directed by Associate Judge Andrew on 20 October 2020 would be lost and it would not be possible to complete the hearing of the Papakura proceeding on 29 March 2021. Mr Keene also submits that, even if issues relevant to the Flat Bush proceeding are raised in the pleadings to the Papakura proceeding, the Court should exercise its discretion not to require discovery of documents that relate to those aspects of the pleadings.
Analysis
[57] As Mr Sullivan says, the FBMC dispute is raised in the pleadings in the Papakura proceeding in two main respects:
(a)In paragraph 6.6 of his statement of defence and counterclaim, Dr Thachankary has pleaded a number of aspects of the FPMC dispute in response to Dr Rasela’s allegations in paragraph 6(f) of her Amended Statement of Claim;
(b)All of the issues in the FBMC dispute as pleaded in the FBMC proceeding are pleaded in Counterclaim 3 in Dr Thachankary’s statement of defence and counterclaim.
[58] However, I do not accept that the matters pleaded by Dr Thachankary in paragraph 6.6.3 of his statement of defence and counterclaim are properly a response to the allegations in paragraph 6(f) of Dr Rasela’s amended statement of claim. Dr Rasela alleges bullying behaviour by Dr Thachankary. Dr Thachankary’s primary response is to say he has no knowledge of and that there are insufficient particulars to plead to that allegation. However, in paragraph 6.6.3 Dr Thachankary, then pleads 15 subparagraphs alleging oppressive conduct by the Raselas.
[59] I have considered whether paragraph 6.6.3 should be accepted as an affirmative defence, notwithstanding the requirement in r 5.48(4) of the High Court Rules that an affirmative defence must be pleaded. I have concluded that paragraph 6.6.3 is not an affirmative defence. While it pleads material outside the admission and denial of facts alleged by Dr Rasela,2 even if proved, the allegations in paragraph 6.6.3 do not necessarily defeat Dr Rasela’s allegations of bullying behaviour by Dr Thachankary.3 It is quite possible that both sets of allegations could be proven and could stand together.
[60] For these reasons, I do not accept that the matters pleaded in paragraph 6.6.3 of Dr Thachankary’s statement of defence and counterclaim are a defence to the allegations in paragraph 6(f) of Dr Rasela’s amended statement of claim. They do not constitute admissions or denials of Dr Rasela’s allegations of fact as required by r 5.48
2 See Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZCA 154, (2012) 21 PRNZ 235 at [21].
3 The term “affirmative defence” is not defined in the High Court Rules. However, the term is defined in Black’s Law Dictionary, 11th ed, as “A defendant’s assertion of facts and arguments which, if true, will defeat the plaintiff’s or the prosecutions claims, even if all the allegations in the complaint are true.”
of the High Court Rules. Nor are they an affirmative defence. It follows that, of themselves, the allegations in paragraph 6.6.3 do not require Dr Rasela to discover documents in her possession and control that are relevant to those allegations. In addition, I do not consider that the simple adoption and repetition of the pleadings in the Flat Bush proceeding in Dr Thachankary’s statement of defence, for example at paragraph 6.3.4, is sufficient to make all of those matters relevant to Dr Rasela’s allegations. That adoption and repetition does not, of itself, constitute an admission or a denial of Dr Rasela’s allegations of fact as required by r 5.48.
[61] Accordingly, if Associate Judge Andrew’s minute of 20 October 2020 had remained as originally issued, Dr Rasela would not have been obliged to discover documents relating to the FBMC dispute in the Papakura proceeding because of the Associate Judge’s direction that Dr Thachankary’s counterclaims would not be heard or determined at the hearing on 29 March 2021.
[62] However, Associate Judge Andrew’s minute of 17 November 2020 changed that position. The Associate Judge recorded that “for the reasons submitted by the parties”, he accepted that his directions of 20 October 2020 should be recalled and amended to allow Dr Thachankary to pursue his third counterclaim at the 29 March 2021 hearing. The Associate Judge then directed that “The third counterclaim may be advanced at the 29 March 2021 hearing” and amended [3] and [7] of his minute of 20 October 2020 to provide that the third counterclaim is to be heard and determined at the 29 March 2021 hearing.
[63] There is nothing ambiguous about those directions; they apply to all of Counterclaim 3. Counterclaim 3 puts in issue most of the allegations pleaded in the Flat Bush proceeding. As a consequence, all of the allegations pleaded in Counterclaim 3 are relevant to the Papakura proceeding, albeit only in the context of the competing s 174 applications.
[64] It does not assist Mr Keene to say that the effect of bringing all of those allegations into the Papakura proceeding will mean that the hearing of that proceeding will not be able to be completed in a single day and that cannot have been Associate Judge Andrew’s intention. Whatever the Associate Judge’s intentions and
understanding of the implications of his amended directions may have been, the directions were clear.
[65] Accordingly, I cannot accept Mr Keene’s submission that Associate Judge Andrew could not have intended to bring all of Counterclaim 3 into the hearing of 29 March 2021. Nor do I accept there is any basis for me to limit discovery of documents relevant to Counterclaim 3.
[66] For these reasons, I find that the scope of the Papakura proceeding includes all of the allegations and responses pleaded in:
(a)Dr Rasela’s amended statement of claim;
(b)Paragraphs 1 – 6 of Dr Thachankary’s statement of defence and counterclaim to the extent they affirm or deny the allegations in Dr Rasela’s amended statement of claim; and
(c)Counterclaim 3 as set out in paragraphs 19 – 22 of Dr Thachankary’s statement of defence and counterclaim; AND
(d)Dr Rasela’s statement of defence to Counterclaim 3.
[67] It follows that Dr Rasela and Dr Thachankary must each include in their affidavit of documents all documents in their possession and control that are relevant to those matters.
[68] The consequence is that even if paragraph 6.6.3 of Dr Thachankary’s statement of defence and counterclaim is put to one side, to the extent that any of the allegations raised in those paragraphs are raised in Counterclaim 3, the parties are required to discover documents in their possession and control that relate to those allegations.
Documents in the Schedule of Documents
[69] I now apply the above findings to the categories of documents in the Schedule of Documents. I note that in a memorandum submitted after the hearing but before I
had completed this judgment, Mr Keene invited me not to direct discovery in the level of detail set out in the Schedule of Documents as prepared by Mr Sullivan and only to direct discovery by reference to the pleadings. Mr Keene submits that to do otherwise would give rise to a level of discovery that would be seriously oppressive to Dr Rasela and would be substantially unnecessary. Mr Keene also asked for the opportunity for counsel to make further submissions before I issued my judgment.
[70] Mr Keene did not seek leave to file his memorandum, as required by r 11.8A of the High Court Rules and, in a memorandum dated 4 February 2021, Mr Sullivan opposes leave being granted because there are no exceptional circumstances that justify such leave. I agree with Mr Sullivan that the circumstances of this case and the issues raised by Mr Keene in his memorandum do not warrant leave being granted. I also agree that there is no case for counsel to make further submissions, particularly when the half-day hearing on 27 January 2021 ran longer than its scheduled duration.
[71] I note, however, that the Schedule of Documents was prepared to illustrate the nature and of scope of Dr Thachankary’s application for further and better discovery and Associate Judge Bell directed Dr Rasela to respond directly to the Schedule of Documents in her Notice of Opposition. Dr Rasela responded to that Schedule. In her affidavit, Dr Rasela objected to the relevance of many of the categories of documents but did not take issue with the detail of the Schedule of Documents. In these circumstances, it would not be appropriate to put the Schedule of Documents to one side.
[72] In any event, my purpose in considering the Schedule of Documents is to determine whether the issues in the relevant categories of documents are raised in the pleadings in order to decide whether further and better discovery should be ordered.
[73] I use the numbering adopted by Mr Sullivan and Mr Keene in their subsequent versions of the Schedule of Documents. I base my summary and analysis on the positions of the parties as set out by counsel on those versions and in their submissions.
1. Formation of FBMC
While Mr Sullivan does not identify this issue as arising under Counterclaim 3, I am satisfied that events relating to the formation of the FBMC are directly relevant to Counterclaim 3 and should be discovered.
Dr Rasela says the documents exist and have not been disclosed but submits they are irrelevant because FBMC was set up as a separate entity and because what happened with FBMC is irrelevant to the business of ACMC.
Discussion
Whatever the relevance or otherwise of these documents to Dr Rasela’s claim, they are relevant to Counterclaim 3 and, to the extent they are in Dr Rasela’s possession and control, must be discovered by Dr Rasela.
2. Loan of $29,800 from Thachankary to FBMC
The loan is pleaded in paragraph 21.2 of Counterclaim 3. Dr Rasela says bank statements exist and have been discovered in the Flat Bush proceeding but does not know if other relevant documents exist and says that Dr Thachankary rather than Dr Rasela knows of them.
Discussion
The documents are relevant to Counterclaim 3 and, to the extent they are in Dr Rasela’s possession and control, must be discovered by Dr Rasela in the Papakura proceeding. The fact that Dr Thachankary may also have the documents does not relieve Dr Rasela of her responsibilities under the High Court Rules.
3. Loan of $361,833 from ACMC to FBMC (i.e. the ACMC loan)
The ACMC loan is pleaded in paragraph 21.3 of Counterclaim 3. Dr Rasela says the documents exist and the bank statements have been discovered by the receiver of FMBC and that Dr Thachankary has primary access to the
documents. Dr Rasela agrees the documents are relevant to the Flat Bush proceeding but says they are irrelevant to the Papakura proceeding.
In his post hearing submission, Mr Keene advises that the Dr Rasela, in consultation with the receiver, has decided to concede the quantum of the ACMC loan owing by FBMC. Mr Keene submits this will have the effect of rendering irrelevant a large bundle of receipts, invoices and other documents.
Discussion
The documents are relevant to Counterclaim 3. The fact the receiver has discovered the documents does not relieve Dr Rasela of her responsibilities under the High Court Rules. Dr Rasela’s apparent concession of the quantum of the ACMC loan does not mean the circumstances of the loan are not relevant to Dr Thachankary’s s 174 application. In any event, the pleadings have not been amended. Accordingly, to the extent the documents are in Dr Rasela’s possession and control, they must be discovered by Dr Rasela.
4. Loan of $175,000 from Thachankary to Rasela
The loan is pleaded in paragraph 21.4 of Counterclaim 3. Dr Rasela says the documents exist and have been discovered in the Flat Bush proceeding but are irrelevant to the Papakura proceeding.
Discussion
The documents are relevant to Counterclaim 3 and, to the extent they are in Dr Rasela’s possession and control, must be discovered by Dr Rasela in the Papakura proceeding.
5. FBMC owes ACMC at least $225,021
The alleged debt is pleaded in paragraph 21.12 of Counterclaim 3. Dr Rasela says her responses and comments under Item 3 apply.
Discussion
The documents are relevant to Counterclaim 3. The fact that the receiver has discovered the documents does not relieve Dr Rasela of her responsibilities under the High Court Rules.
6. Initial set up and operating costs of FBMC paid by ACMC
This is alleged in paragraph 21.5 of Counterclaim 3. Dr Rasela says all this material has been discovered in the Flat Bush proceeding and that the set up of FBMC has no relevance to the Papakura proceeding.4
Discussion
The documents are relevant to Counterclaim 3 and, to the extent they are in Dr Rasela’s possession and control, must be discovered by Dr Rasela in the Papakura proceeding. The fact that they have been discovered in the Flat Bush proceeding does not relieve Dr Rasela of her responsibilities under the High Court Rules to discover them in this proceeding.
7. Staff at FBMC recruited and paid for by ACMC
This is alleged in paragraph 21.6 of Counterclaim 3. Dr Rasela says Dr Thachankary and his wife had the primary involvement in paying staff, that Dr Thachankary has not discovered the documents and that the documents are irrelevant to the Papakura proceeding.
Discussion
4 In this and other instances, Dr Rasela and Mr Keene use the term “s 174 proceeding” when referring to the Papakura proceeding. For consistency and to avoid confusion, I use the term Papakura proceeding.
The documents are relevant to Counterclaim 3. To the extent they are in Dr Rasela’s possession and control, they must be discovered by Dr Rasela in the Papakura proceeding. Whether or not Dr Thachankary should have discovered the documents does not relieve Dr Rasela of her responsibilities under the High Court Rules to discover them.
8. Staff absences at FBMC covered by ACMC staff
This is alleged in paragraph 21.7 of Counterclaim 3. Dr Rasela says this issue is related to the debts owing to ACMC by FBMC and is irrelevant to the Papakura proceeding and is part of the Flat Bush proceeding.
Discussion
The documents are relevant to Counterclaim 3 and Dr Rasela does not deny their existence. To the extent they are in Dr Rasela’s possession and control, they must be discovered by Dr Rasela in the Papakura proceeding.
9. Supplies for FBMC procured and paid for by ACMC
This is alleged in paragraph 21.8 of Counterclaim 3. Dr Rasela says documents exist but have not been discovered in either the Flat Bush proceeding or the Papakura proceeding because Dr Thachankary and his wife had the primary involvement in generating and storing the documents.
Discussion
The documents are relevant to Counterclaim 3 and, to the extent they are in Dr Rasela’s possession and control, must be discovered by Dr Rasela in the Papakura proceeding. The fact that Dr Thachankary may also have the documents does not relieve Dr Rasela of her responsibilities under the High Court Rules.
10. ACMC paid salary and management fee for Dr D’Cruze
This is alleged in paragraph 21.9 of Counterclaim 3. Dr Rasela says the D’Cruze employment contract has been discovered in the Flat Bush proceeding, that the material has no relevance to the Papakura proceeding, that Dr Thachankary and his wife are more familiar with the documents than Dr Rasela and that Dr Thachankary has not discovered the documents.
Discussion
The documents are relevant to Counterclaim 3 and, to the extent they are in Dr Rasela’s possession and control, must be discovered by Dr Rasela in the Papakura proceeding. The fact Dr Thachankary may also have the documents does not relieve Dr Rasela of her responsibilities under the High Court Rules.
11. FBMC owes ACMC at least $225,021
This is alleged in paragraph 21.12 of Counterclaim 3. As Dr Rasela says, this allegation is already covered under Item 3.
Discussion
The comments under Item 3 apply here.
12. The Raselas wrongly transferred all of the shares in FBMC to themselves
This is alleged in paragraph 21.11 of Counterclaim 3. Dr Rasela says most of these documents have been discovered in the Flat Bush proceeding and have no relevance in the Papakura proceeding.
Discussion
The documents are relevant to Counterclaim 3 and, to the extent they are in Dr Rasela’s possession and control, must be discovered by Dr Rasela in the Papakura proceeding.
13. The Raselas entered into lease, loan and security arrangements
This is alleged in paragraph 21.10 of Counterclaim 3. Dr Rasela says the documents have been discovered in the Flat Bush proceeding and have no relevance in the Papakura proceeding.
Discussion
The documents are relevant to Counterclaim 3 and, to the extent they are in Dr Rasela’s possession and control, must be discovered by Dr Rasela in the Papakura proceeding.
14. Dr Rasela did not authorise payments to Dr Thachankary for his work
This and related matters are alleged in paragraphs 21.15 – 21.20 of Counterclaim 3. Dr Rasela concedes she needs to discover any correspondence between herself and Dr Thachankary. However, she says Dr Thachankary also has the relevant correspondence and has not discovered it and that Dr Rasela has already disclosed some documents (timesheets) to Dr Thachankary’s previous counsel.
Discussion
The documents are relevant to Counterclaim 3 and, to the extent they are in Dr Rasela’s possession and control, must be discovered by Dr Rasela in the Papakura proceeding. The fact Dr Thachankary may also have an obligation to discover the documents does not relieve Dr Rasela of her responsibilities under the High Court Rules. Rule 8.16(4) of the High Court Rules and cl 6(6) of the Listing and Exchange Protocol require the list of documents to include documents previously disclosed under r 8.4.
15. Dr Rasela failed to provide timesheets to support salary claim
This is alleged in paragraph 21.21 of Counterclaim 3. Dr Rasela says Dr Thachankary knows Dr Rasela did not keep timesheets before February
2019 and says Dr Thachankary did not keep timesheets either for a period and that the detail of claims and counterclaims over payment of salary is complicated and will require significant court time if the parties cannot resolve it themselves. Dr Rasela also says the detail of this dispute is not directly relevant to the Papakura proceeding.
Discussion
The documents are relevant to Counterclaim 3 and, to the extent they are in Dr Rasela’s possession and control, must be discovered by Dr Rasela in the Papakura proceeding. If Dr Rasela does not have relevant documents, she must say so. The fact the matters are complicated does not relieve Dr Rasela of her obligations under the High Court Rules. The current application and the way in which it has been opposed indicate that the parties and their counsel find it very difficult to cooperate.
16. Appointment of GK Accounting
This matter is alleged in paragraph 6(j) of Dr Rasela’s amended statement of claim. Dr Rasela says one document has been discovered and a further document is being sought. At the hearing Mr Keene advised that the accountants have agreed to make their files available. However, Dr Rasela also says Dr Thachankary will have relevant emails in his possession which he has not discovered.
Discussion
The documents are relevant to Dr Rasela’s claim and, to the extent they are in Dr Rasela’s possession and control, must be discovered by Dr Rasela in the Papakura proceeding. The fact Dr Thachankary may also have an obligation to discover the documents does not relieve Dr Rasela of her responsibilities under the High Court Rules.
17. Dr Rasela caused Dr Thachankary and ACMC to loan unsecured funds to ACMC then appointed a receiver to ACMC and received the net proceeds of sale.
This is alleged in paragraph 21.14 of Counterclaim 3. Dr Rasela says all relevant communications have been discovered by Mr Rasela and the receiver in the Flat Bush proceeding and that Dr Thachankary has been provided with these documents by the receiver and has not discovered them in his affidavit of documents in the Flat Bush proceeding.
Discussion
The documents are relevant to Counterclaim 3 and, to the extent they are in Dr Rasela’s possession and control, must be discovered by Dr Rasela in the Papakura proceeding. The fact that the documents have been discovered in the Flat Bush proceeding and that Dr Thachankary may also have an obligation to discover the documents does not relieve Dr Rasela of her responsibilities under the High Court Rules.
18. FBMC receiver
This is alleged in paragraph 21.14 of Counterclaim 3. Dr Rasela repeats her responses to Item 17.
Discussion
The documents are relevant to Counterclaim 3 and, to the extent they are in Dr Rasela’s possession and control, must be discovered by Dr Rasela in the Papakura proceeding. The fact that the documents have been discovered in the Flat Bush proceeding and that Dr Thachankary may also have an obligation to discover the documents does not relieve Dr Rasela of her responsibilities under the High Court Rules.
[74] In summary, therefore, Dr Rasela has an obligation, in the Papakura proceeding, to discover all of the documents in the categories identified in the
Schedule of Documents to the extent that those documents are in her possession and control. As Mr Sullivan submits, it cannot be disproportionate to require Dr Rasela to discover these documents because, with the possible exception of Item 16 regarding the appointment of accountants, all of the documents have to be discovered in the Flat Bush proceeding in any event and in accordance with the same timeframe.
[75] It is also relevant that it is Dr Rasela who sought the priority fixture and then asked Associate Judge Andrew to recall his minute of 20 October 2020 and to issue a revised direction that Dr Thachankary was free to pursue his third counterclaim at the Papakura proceeding. In such circumstances, it is Dr Rasela’s responsibility to ensure the High Court Rules and the Court’s timetable directions are complied with.
First category claims relating to Listing and Exchange Protocol
[76] Before considering the Listing and Exchange Protocol, it is relevant to refer to the earlier provisions of sch 9 to the High Court Rules.
[77] Clause 1 requires the parties to review the pleadings, to identify where documents are likely to be located, to estimate the cost of discovery to discuss with the other parties whether that cost is proportionate to the sums at issue and, if the cost is disproportionate or if the interests of justice require, they should seek an order for tailored discovery.
[78] As recognised in cl 4, rr 8.12(2) and 8.27(2) of the High Court Rules require parties to use the Listing and Exchange Protocol when undertaking discovery and when exchanging documents for inspection unless a discovery order directs differently.
[79] The Listing and Exchange Protocol is set out in pt 2, that is cls 6 to 11, of sch 9 of the High Court Rules.
[80] Clause 6(1) sets out the mandatory requirements that must be followed. By contrast, cl 6(2) provides that the parties “should endeavour to apply the specific details” in cls 7 to 11 to ensure consistency for listing and exchange. Further discretion is left to the parties within cls 7 to 11 themselves. However, some of the requirements
in cls 7 to 11 are also expressed in mandatory terms. I conclude, therefore, that the intention is that cl 6 and any other clauses expressed in mandatory terms must be complied with and that parties are encouraged to comply with the other clauses as much as possible.
[81] In addition, cl 4(2) recognises that the parties may agree to modify the Listing and Exchange Protocol by agreement, but that agreement must be in writing.
[82] Against that background, I consider the specific matters on which Dr Thachankary asks the Court to direct Dr Rasela.
Redactions
[83] Mr Sullivan says Dr Rasela has failed to comply with cl 10 because she has not “blacked out” redacted sections as required but has “whited out” sections of documents and has not provided a note or label explaining the redaction. The point is not trivial, although the examples handed up by Mr Sullivan do not appear to be of any moment and appear to concern emails of which Dr Thachankary would have copies himself.
[84] In any event, Mr Keene says no documents have been redacted. Rather, Mr Keene says he cut up copies of emails provided by Dr Rasela to ensure that only relevant material was included. It would seem, therefore, that the issue was whether cl 8(2), regarding emails, rather than cl 10, has been complied with not.
[85] In the circumstances, I do not consider it appropriate to make any order. However, Dr Rasela should be aware that if she has not complied with the requirements of the Listing and Exchange Protocol with regard to emails, she may face an application for further orders unless the parties, through their counsel, can resolve the question by agreement.
Provision of table or spread sheet
[86] In accordance with cls 6(1)(b)(i) and 11(1), Dr Rasela is required to exchange documents electronically by way of a single continuous table or spread sheet and to
follow the format for numbering documents set out in cl 11(1). Dr Rasela has not done so.
[87] Mr Keene submits that Dr Thachankary is insisting unnecessarily on compliance with the Listing and Exchange Protocol and says he has attempted to reduce the cost of discovery and to keep the cost proportionate by following a more informal process for numbering documents.
[88] The difficulty with that submission is that the requirements in cl 6(1)(b)(i) and also in cl 11(1) are mandatory. In the absence of written agreement to use less formal means, the clauses apply and I will order accordingly.
Form of file name for each individual document
[89] Clause 11(3) of the Listing and Exchange Protocol provides that the file name for each individual document must be as prescribed in the clause. Mr Keene followed the informal process referred to above to reduce costs.
[90] Clause 11(3) is also expressed in mandatory terms and the parties have not agreed otherwise. The clause applies, therefore, and I will order accordingly.
Provision of documents with metadata in native file format
[91] Clause 11(4) provides if a document has relevant metadata, parties may request its provision in native file format. The clause does not specify the obligations of the requested party if such a request is made. It would seem, however, that any request should be in relation to specified documents and that the expectation is that, if a request is made, it will be complied with.
[92] Jackson Russell’s letter of 23 October 2020 to Mr Keene made a general request, using the language of cl 11(4), and asked that if a document had relevant metadata, it was provided in native file format. In his letter of 26 November 2020 to Jackson Russell, Mr Keene “noted” that request. He did not, however, agree to the request as Mr Sullivan submits. On the other hand, Mr Keene did not disagree to the request either. Given the obligation on parties under r 8.2(1) of the High Court Rules
to cooperate to ensure the processes of discovery and inspection are proportionate to the subject matter of the proceeding and facilitated by agreement on practical matters, I consider it was incumbent on Mr Keene to have informed Mr Sullivan if he did not intend to comply with the request to provide documents with metadata in native file format.
[93] Mr Keene says there are no documents discoverable by Dr Rasela in respect of which it would be appropriate to require it to be provided in native file format and that Dr Thachankary has provided no evidence or explanation that would justify the Court making such an order. Contrary to that submission, Mr Sullivan says that the veracity of documents created by Dr Rasela is at issue and has been for some time and relates to the allegations in paragraphs 21.1 to 21.4 and 21.10 to 21.13 of Counterclaim 3. That is, documents in Items 2, 3, 4, 5, 12, and 13 of the categories of documents in the Schedule of Documents as discussed at [73] above.
[94] Mr Keene’s submissions are directed to the documents he considers should be disclosed, namely those relating to Dr Rasela’s amended statement of claim, and do not take into account the wider scope of the Papakura proceeding following the directions in Associate Judge Andrew’s minute of 17 November 2020. Mr Sullivan’s submissions are directed to documents relevant to Counterclaim 3.
[95] As is recognised in cl 4(3) of sch 9, one of the purposes of using native electronic versions of documents is to reduce unnecessary costs. For that reason, I do not accept that the request by Dr Thachankary for Dr Rasela to provide documents with metadata in native format can be considered as imposing an unnecessary or disproportionate burden on Dr Rasela. The request was made on 23 October 2020 and was followed by a letter on 12 November 2020 in which Jackson Russell specifically alerted Mr Keene to their view that Dr Rasela’s discovery obligations in the Papakura proceeding were wider than he appeared to be contemplating and that he should be including the issues in Counterclaim 3 in Dr Rasela’s affidavit of documents.
[96] Given that background, I consider it is reasonable to require Dr Rasela to provide in native file format all documents that have metadata and are within Items 2, 3, 4, 5, 12, and 13 of the Schedule of Documents as discussed at [73] above.
Result and orders
[97] For all the above reasons, Dr Thachankary’s application for further and better discovery has been largely successful and I make the following orders:
(a)Dr Rasela is to comply with the Listing and Exchange Protocol with respect to:
(i)The provision of a table or spread sheet for the exchange of documents electronically (cls 6(1)(b) and 11(1));
(ii)The form of the file name for each individual document (cls 6(1)(a) and 11(3)); and
(iii)The provision of documents with metadata in native file format with respect to documents within Items 2, 3, 4, 5, 12, and 13 of the Schedule of Documents as discussed at [73] above (cl 11(4));
(b)Dr Rasela is to provide particular discovery with respect to the categories of documents in the Schedule of Documents annexed to Dr Thachankary’s application and as discussed at [73] above.
Costs
[98]As the successful party, Dr Thachankary is entitled to costs.
[99] Mr Sullivan submits that solicitor-client costs are appropriate because there was no proper basis for Dr Rasela not to provide documents in accordance with the order for standard discovery and no proper basis for resisting the current application.
[100] I consider Dr Rasela’s stance has been driven by an unwillingness to recognise the implications of the revised directions given by Associate Judge Andrew in his minute of 17 November 2020 rather than by deliberately ignoring or disobeying any order of the Court.
[101] I also consider that there has been a failure by both parties to cooperate to ensure that the scope of discovery is proportionate to the subject matter of the proceeding and facilitated by agreement on practical arrangements as required by r 8.2(1) of the High Court Rules. For these reasons, I consider that 2B costs are appropriate and order accordingly.
[102] I encourage counsel to resolve costs without the need for further intervention by the Court. If they are not able to do so, they may file memoranda of no more than five pages. Dr Thachankary shall file his memorandum no later than 26 February 2021. Any reply by Dr Rasela is to be filed by 19 March 2021.
Next steps and supplementary orders
[103] As reflected by its length, this judgment has taken longer to finalise than expected. The consequence is that it is to be released on 9 February 2021, only four days before Dr Thachankary is required to file and serve his evidence under the revised time table directions made by Associate Judge Bell in his minute of 21 December 2020.
[104] To the extent that Dr Thachankary’s evidence is contingent on documents yet to be discovered by Dr Rasela, some adjustment of the date for filing and serving that evidence is required. At the same time, and as Mr Sullivan acknowledges in his submissions, because many of the documents sought by Dr Thachankary in the Papakura proceeding have already been discovered and disclosed in the Flat Bush proceeding, it would go some way towards meeting the objective of Dr Thachankary’s application if I order that the documents discovered by the Raselas in the Flat Bush proceeding can be used in the Papakura proceeding.
[105] I consider that to be the practical way forward, and order that all documents discovered by Mr Rasela and Dr Rasela in the Flat Bush proceeding, including any documents yet to be discovered in that proceeding, are to be available in the Papakura proceeding.
[106] As a further practical measure, I adjust the date in [9][d] of Associate Judge Bell’s minute of 21 December 2020 to 22 February 2021 to give Dr Thachankary more
time to file and serve his evidence. Consequential adjustments will need to be made to the directions in [9][e] – [h] of Associate Judge Bell’s minute.
[107] However, before making such further adjustments to the timetable directions, there is a need to consider whether it is practical or appropriate for the 29 March 2021 hearing to go ahead. It is clear that the issues at stake, if not the remedies sought, in the Papakura and Flat Bush proceedings will cover a lot of the same ground. In addition, and as Mr Keene acknowledges, it is highly unlikely that the Papakura proceeding can be fully heard in one day given the range of issues that arise under Counterclaim 3 and the likelihood that one or more witnesses may be required for cross-examination.
[108] For these reasons, I direct that the Papakura proceeding and the Flat Bush proceeding are referred to a case management conference or are called in the Duty Judge list no later than 17 February 2021 so that a decision can be made on whether the 29 March 2021 hearing should proceed and, if so, on further adjustments to the timetable directions made by Associate Judge Bell on 21 December 2020.
[109] It is apparent that the implications of including Counterclaim 3 in that hearing were not brought to Associate Judge Andrew’s attention when he was asked to recall his minute of 20 October 2020 and make the adjusted directions in his minute of 17 November 2020. It is appropriate for that reason for the Court to revisit the date of the hearing of the Papakura proceeding.
[110] I also direct that this judgment is sent to the other parties to the Flat Bush proceeding.
G J van Bohemen J
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