Staples v Freeman

[2019] NZHC 839

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2016-409-309

[2019] NZHC 839

BETWEEN

BRYAN DOUGLAS STAPLES

First Plaintiff

AND

CLAIMS RESOLUTION SERVICE LIMITED

Second Plaintiff

AND

RICHARD LOGAN FREEMAN

First Defendant

AND

MEDIAWORKS TV LIMITED

Second Defendant

AND

KATE McCALLUM

Third Defendant

AND

TRISTRAM CLAYTON

Fourth Defendant

Hearing:

26 March 2019

Appearances:

P A Morten and A L Austin for First and Second Plaintiffs No appearance for First Defendant

J G Miles QC and J W J Graham for Second, Third and Fourth Defendants

Judgment:

16 April 2019

JUDGMENT OF ASSOCIATE JUDGE LESTER

[1]                 Six applications were before the Court at the commencement of the hearing on 26 March 2019. Three of the applications can be dealt with shortly, two were dealt with by submissions for practically the full day, and the outcome of the sixth may in

STAPLES & ANOR v FREEMAN & ORS [2019] NZHC 839 [16 April 2019].

part be capable of being resolved given the observations made at the conclusion of this Judgment.

[2]                 The first defendant took no part in the hearing. The remaining defendants are referred to as the “media defendants”. Counsel dealt with the application on the basis that the outcome would be the same for all media defendants and I adopt the same approach.

[3]The applications were:

Defendants’ applications

(i)An application for a direction that the trial be a judge alone trial.

(ii)An application for further and better discovery from the plaintiffs.

Plaintiffs’ applications

(iii)An application for further and better particulars of “Publication Facts” pleaded in accordance with s 38 of the Defamation Act 1992, along with an application for an unless order in respect of that application.

(iv)An application that four paragraphs of the Schedule of Publication Facts pleaded in support of the honest opinion positive defence be struck out.

(v)An application in respect of the adequacy of discovery said not to satisfy an order for discovery made by Associate Judge Matthews in his Judgment of 2 July 2018.

[4]                 The sixth arose from an amended application filed on 25 March 2019 in relation to another aspect of the defendants’ discovery, that is the treatment of Part 3 of the defendants’ list of documents which sets out documents for which confidentiality is claimed. In the amended application, the plaintiffs also sought what amounted to further and better discovery in relation to a Schedule of documents.

Defendants’ application dealt with by consent

[5]                 Immediately prior to the hearing, a memorandum of counsel was filed advising that the media defendants’ applications had been dealt with by consent.

[6]There are accordingly the following orders:

(i)There is an order  that the trial of this proceeding be by judge  alone.  I record that the plaintiffs  have  agreed to withdraw their election for a trial by jury.

(ii)There is an order that the plaintiffs are to provide further and better discovery of the documents described in paras 4.4, 4.5, 4.7, 4.8 and 4.9 of the Canterbury Legal letter of 19 March 2019 addressed to Chapman Tripp, solicitors.

(iii)Costs are reserved and to be dealt with by memoranda at the same time as  the  costs  on  the   applications   that   proceeded   in   Court   on 26 March 2019.

Plaintiffs’ amended application

[7]                 The plaintiffs filed an amended interlocutory application on 20 March 2019 adding a challenge to the confidentiality claimed in Schedule 3 of the media defendants’ lists of documents and an application for further and better discovery. Submissions  in  support  of  that  amended  application  were  circulated  on   Sunday 24 March 2019, that is one clear working day before the hearing.

[8]                 Mr Morten for the plaintiffs in practical terms sought leave to have the amended application included for argument in the hearing on 26 March 2019. He referred to the rules relating to the timing of the filing of notices of opposition to an interlocutory application and noted that there had not been an opposition to the amended application and that the subject matter of the application had been the subject of argument before Associate Judge Matthews on 14 June 2018, but that His Honour did not directly rule on the issue the plaintiffs sought to raise.

[9]                 Mr Miles QC for the media defendants strenuously opposed the amended application being heard on two grounds.

[10]             The first, and what he described as his fundamental ground, was that amendments had come too late. The new issue concerned the confidentiality attaching to the identity of a journalist’s sources pursuant to s 68 of the Evidence Act 2006 (“the Act”) which raises complex issues.

[11]             The second ground of opposition was that Associate Judge Matthews’ orders in relation to s 68(2) of the Act were the subject of an appeal heard in mid-March 2019. Associate Judge Matthews’ approach to s 68(2) presupposed that s 68(1) was satisfied. Accordingly, Mr Miles said that the outcome of the Court of Appeal decision could well be applicable to the subject matter of the amended application.

[12]             I declined leave for the new application raised in the amended application to be argued. Mr Morten’s point that the s 68 issue had been previously argued cuts both ways. If the plaintiffs were concerned that Associate Judge Matthews had not dealt expressly with s 68(1) then that should have been included in this application much earlier than the amended application. The original application was filed at the beginning of November 2018. With  matters  relating  to  s 68(2)  squarely  before the Court of Appeal it also makes sense to have the benefit of the Court of Appeal’s judgment on the issue. Mr Miles’ instinct was that the judgment from the Court of Appeal will be available within approximately four weeks or so (that is by approximately the end of April 2019).

[13]             The orders sought at paras 1.5 and 1.6 of the amended application are therefore adjourned. That part of the amended application dealing with further and better discovery was progressed in a practical way by the media defendants filing an updating affidavit. I will address that aspect of the amended application at the end of this Judgment.

[14] Once the decision from the Court of Appeal is received and the parties have a chance to consider its implications for the orders sought as referred to at [13] above,

the parties can file a joint memorandum and/or seek a telephone conference with me to address how those extended applications are to be dealt with.

[15]That leaves the applications to be dealt with in this judgment as being:

(i)the particulars application (incorporating the strike out); and

(ii)the adequacy of discovery application.

[16]             The plaintiffs summarised the background to their proceedings in their submission as follows:

3.Mr Staples (the first plaintiff) is a director of Claims Resolution Service Limited, a litigation funder. In 2014 Mr Freeman was the manager of Ironclad Securities Ltd, a secondary debt collection company with associations with a motorcycle gang. He administered Ironclad’s   webpage    on   Facebook.     Mediaworks   TV   Ltd   is a broadcaster. Ms McCallum and Mr Clayton were both Mediaworks employees when Mediaworks published two Campbell Live programmes about Mr staples on 23 July and 30 July 2014.

4.Mr Staples alleges statements published by Ironclad in three posts on its Facebook site in April 2014 were defamatory. The defamatory imputations include that he was corrupt and a thief, was a fraudster and a conman and had had over 24 companies struck off. He obtained an injunction on 15 April 2014 restraining the defendants, their employees and associates “from publicising any information in any way relating to the proceeding pending further order of the court”.

5.In Parliament on 23 July 2014, the Rt Hon. Winston Peters accused Mr Staples and associated companies of fraudulent practices, defrauding misleading and cheating people, employing unqualified people to carry out technical inspections of earthquake damaged properties, and supplying reports that were worthless. Mediaworks TV published a program about that on 23 July 2014, on Campbell Live. The programme included a video clip of part of Mr Peters’ speech in the house. On 30 July 2014 Mediaworks published a second program on Campbell Live and then posted the program on its website.

6.Ironclad filed a statement of defence and four affidavits in opposition (by Mr Freeman, Mr Craig, Mr Wilson and Mr Pearl). The plaintiffs say that Mediaworks received those affidavits, was aware of the terms of the injunction, but used the affidavits regardless in the second Campbell Live programme.

7.The plaintiffs claim that the defamatory imputation of the words used in the second program meant Mr Staples was a fraudster, had threatened at least 30 homeowners, that he rorted the system, that he

used unqualified people to carry out building damage assessments, and that he was a thief. The defendants deny the defamatory meanings. They originally pleaded consent, statutory privilege; common law qualified privilege; responsible journalism; and honest opinion. The common law qualified privilege and responsible journalism pleadings have now been replaced with the newly recognised defence of “public interest communication”.

[footnotes omitted]

[17]Mr Miles did not take issue with the broad summary.

Adequacy of discovery

[18]             The plaintiffs submit that the media defendants have not complied with orders made by Associate Judge Matthews on 2 July 2018 to provide sufficient particulars of the facts and circumstances relied on to support their honest opinion positive defence. Associate Judge Matthews’ decision dealt with three matters.

[19]             In relation to the first matter, Associate Judge Matthews set out a summary of what had to be pleaded by the media defendants in their honest opinion defence.1

[25]      The facts which may sustain a defence of honest opinion under s 11 of the Defamation Act are known as publication facts. In Simunovich Fisheries Ltd v Television New Zealand Ltd, the Court of Appeal said:2

We have held that a defendant who pleads honest opinion must comply with s 38. It follows that under s 11 a defendant must plead the publication facts the truth  of  which  it  intends  to  prove:  Lowry v New Zealand Times Co Ltd [1910] 29 NZLR 570. “Publication facts” is a convenient term for those facts that may sustain a defence of honest opinion under s 11. They are facts that were alleged or referred to in the publication or generally known at the time. A defendant is not required to prove the truth of all such facts, but must prove sufficient of them to show that the opinion was genuine having regard to the facts that have been proved.

[26]      The Court of Appeal also provided a non-exhaustive list of principles applicable to the defence of honest opinion. This is in the following terms:3

(a)Each respondent must identify those parts of the defamatory publications that are said to be honest opinion, and the person to whom such opinion is attributed;

1      Staples v Freeman [2018] NZHC 1604.

2      Simunovich Fisheries Ltd v Television New Zealand Ltd [2008] NZCA 350 at [118].

3 At [126].

(b)The respondent must identify publication facts by reference to the truth of which it alleges that those defamatory publications were honest opinion;

(c)The respondents may plead other facts and circumstances that are capable of proving the publication facts. They should be separately pleaded so that they are distinguished from the publication facts;

(d)It may be necessary to portray something of the relevant background, and to set out by way of context material that connects the main facts relied on. But the respondents may not seek to prove the truth of publication facts by reference to the opinions or assertions of others.

[20]             The order made by His Honour was that the media defendants were to file an amended statement of defence giving particulars in relation to their defence of honest opinion:4

…the particulars will be given in such form as shall clearly distinguish between the facts relied on for s 38(a) [Defamation Act] and those relied on for s 38(b) [Defamation Act].

[21]             The second matter was in relation to the confidentiality claimed by the media defendants under s 68 of the Evidence Act, which is the subject of appeal as already noted.

[22]             The third area dealt with by His Honour and which is relevant to the present application, relates to Part 4 to the Schedule to the media defendants’ list of documents. This lists documents which were once in the defendants’ control, but which are no longer.

The orders made on 2 July 2018

[23]             The orders made by Associate Judge Matthews in relation to Schedule 4 were as follows:

[79]      In my view Part 4 of the Schedule does not comply with the obligation on each of the defendants to disclose details of documents which are no longer in their possession or under their control. Paragraph (a) relates to documents which were disposed of. These documents are to be identified with as much precision as can now be given. Paragraph (b) refers to documents received in hard copy which were returned to the confidential source. The same applies.

4 At [84].

I note, too, that as this paragraph refers to documents received in hard copy, there is an implication that those referred to in paragraph (a) may have been received in electronic format, and therefore, for clarity, the form in which the documents were received is to be stated in all paragraphs.

[80]      Paragraph (c) is to provide detail of when the decision to cease production of Campbell Live was taken, and how this resulted in the destruction of documents given that in paragraph (a) the destruction is said to have been in accordance with standard journalistic practice. The date on which the relocation of the newsroom occurred and the date of the resignation of Mr Clayton from Mediaworks are to be given. Again, information is yet to be provided on why either of these events resulted in destruction of documents. In this context I note that four different reasons are given in paragraphs (a) and (c) for documents having been destroyed. If, as the Court must presently assume, there were four different reasons and those reasons arose at different dates (as appears to have been the case), there is to be full disclosure of the documents which were destroyed on each occasion, and how those documents came to be destroyed then, while other documents were destroyed on the other occasions.

[24]             I reproduce below Part 4 of the Schedule from the list provided by the second defendant to satisfy the orders made by Associate Judge Matthews. The words that are underlined were added to satisfy His Honour’s order.

PART 4 OF THE SCHEDULE

Documents that are no longer in my control.

The following documents were, but are not now, in my control:

(i)Documents, such as emails, drafts and notes, which were in my control for the purposes of investigation and reporting for the Campbell Live program which were received by email and in hard

copy, and disposed of immediately following the broadcast of the Campbell Live program on or about 30 July 2014, in accordance with my standard journalistic practice.

1. Documents   from   the   confidential   source(s),   being   copies   of

documents  filed  in  Court  proceedings,   judgment(s),   affidavit(s),

emails and notes, which were in my control for the purposes of investigation and reporting of the Campbell Live Program which were received in hard copy, and returned back to the confidential source(s), shortly after  the  Campbell  Live  Program went  to air  on or   about

30 July 2014.

(iii) Any remaining documents, such as emails, drafts and notes, which were in my control for the purposes of investigation and reporting for the Campbell Live program which were received by email and in hard

copy, which had not already been disposed of in accordance with

paragraph (a) above, and were destroyed as a consequence of the following:

(i)A decision by the second defendant to cease production of the Campbell Live programme on or about 21 May 2015, resulting in the destruction of documents sourced for the purposes of investigation and reporting in Campbell Live programs, in or about June 2015, after the final episode of

Campbell Live was aired on 30 May 2015; and

(ii)The relocation of the newsroom of the second defendant from

on or about 16 September 2015, resulting in the destruction of

any remaining Campbell Live records.

(iv)The originals of correspondence originating from me and my legal advisors where only copies have been discovered were last in my possession or power on or about the respective dates of those documents. The originals of these should now be in the hands of the addresses.

(v)The originals of all court documents in this proceeding should have been filed in Court.

[25]             The plaintiffs in the present application submit that the amendments did not satisfy the terms of Associate Judge Matthews’ orders.

The discovery application

[26]             The plaintiffs seek an order that the defendants file a further affidavit of documents:

… properly identifying documents in Part 4 of their affidavits which are no longer in their possession or control, and the precise dates on which they disposed  of  each  document,  in  accordance  with  the  order  made  by   His Honour Associate Judge Matthews on 2 July.

[27]             Mr Morten in his submissions developed the further detail sought to be included in the media defendants’ lists and be examined whether Part 4 of the media defendants’ amended list of documents (reproduced above) complied with the Rules, commencing with an examination of r 8.16 of the High Court Rules. He noted that the Rule is in mandatory terms, that is that the Schedule annexed to the Rules must:

… list or otherwise identify documents that -

…

(d) have been, but are no longer, in the control of the  party  giving discovery, stating when the documents ceased to be in that control, and the person who now has control of them:

[28]Mr Morten referred to r 8.16(2) which provides:

Subject to Part 2 of Schedule 9, documents of the same nature falling within subclause … (1)(d)… may be described as a group or groups.

[29]Part 2 of Schedule 9 is the listing and exchange protocol for discovery.

[30]The protocol records at cl 7(1):

The format of the document descriptions should be as follows:

(4)       Author           The name of the author of the document

If only part of either the individual or organisation can be determined, provide the information available

[31]             The same requirements apply to how the recipient of a document is to be described.

[32]             Mr Morten submitted that the reference in the amended list to “documents, such as emails, drafts, and notes…” was an improper grouping of documents for the purposes of r 8.16(2).

[33]             Mr Morten submitted firstly that there was reason to believe that there are other documents that should have been discovered by the media defendants and that the description of the documents in Part 4 was inadequate.

[34]             As to the rigour required for the description of documents in the schedule to  a list of documents, Mr Morten relied on Todd Pohokura Ltd v Shell Exploration Ltd.5

[35]             In Todd Pohokura, the complaint by Todd was that Shell’s list of documents did not treat individual emails as separate documents. Rather, it listed them only by reference to the sender and principal recipient of the last in the chain of emails, therefore failing to disclose the number of earlier communications and the parties to them.

[36]Dobson J concluded at [49]:

5      Todd Pohokura Ltd v Shell Exploration NZ Ltd (2008) 18 PRNZ 1026.

[49] In dealing with [the second defendant’s] earlier application, I have recorded my view at [29] above that on the present terms of the High Court Rules for discovery, each email constitutes a document. Each email reflects the initiative taken by the writer of it to convey its contents to the recipient or recipients. I do not accept that its independent status can be subsumed merely because it is subsequently reviewed in a stream of emails, presumably having some common theme in terms of their content, and being likely to have similar contributors in terms of those writing and receiving the communications in the chain.

[50]      The reality is that a list will be in breach of the Rules if it does not list individual documents. The recognised exception to this requirement is for groups of documents with a common character such as invoices, or periodic recordings such as of temperature or weights over a period to which the litigation refers. There is no justification for extending such a group listing to individual items reflecting who conveyed what to whom, and when.

[37]             Mr Morten’s basic submission in terms of the adequacy of the description was that “documents, such as emails, drafts, and notes…” were not a group of “documents of the same nature” being the pre-condition for documents being treated as a group under r 8.16(2). In short, Mr Morten said the list was an improper bundling together of documents as a group.

[38]             Mr Morten in his submissions referred to the presumption that affidavits of documents are conclusive and that the party seeking further discovery must establish the affidavit is incomplete. He noted the applicant is not required to meet a high standard when challenging the conclusiveness of a list with the issue being whether it had been shown that there are documents that “should have been discovered”.

[39]             The media defendants do not dispute that they are obliged to give disclosure of the documents which are no longer in their control, or of the types of documents that are relevant for the purposes of that obligation. The issue relates to the detail in which those documents are described.

[40]             Again, the media defendants do not dispute that copies of District Court documents arising from the proceeding between the plaintiffs and the first defendant which was transferred and incorporated to the present proceeding would be relevant. There are listed in the confidential part of the media defendants’ lists a number of court documents, some of which are affidavits which bear the same dates as affidavits from the District Court proceeding between the plaintiffs and Mr Freeman.

[41]             Mr Miles did not argue that the affidavits or other categories of documents covered by the broad descriptions in Part 4 of the list were not relevant, indeed he argued that the documents in Part 4 of the list were documents he would now like to have as he considered they may well bolster the media defendants’ case.

[42]             In short, the plaintiffs’ complaint was of a lack of detail in relation to the documents in the Part 4 Schedule. There is, for example, no attempt to name the author or recipient of any email, the author of any note, and no attempt to identify the Court proceedings referred to in (b) of the Schedule.

Media defendants’ response

[43]             Mr Miles argued that r 8.16 permits grouping and he argued it was permissible to group documents by their theme. Thus, he said taking para (a) of Part 4 of the Schedule as an example, that the reference to “emails, drafts and notes” was a proper grouping by theme – the theme being that the documents all related to the investigation of issues/complaints related to Mr Staples that formed the content of the Campbell Live programme.

[44]             Mr Miles also argued that the listing of documents that one no longer has of necessity, has to be viewed differently from the other classes of discovery. He said that compliance with the Rules in this context had to be viewed through a “slightly different prism”. The starting point was that the documents do not exist and could have been destroyed or provided to a third party at some distant time in the past and that reality had to colour the level of detail required when listing such documents.

[45]             Mr Miles noted in this case that the proceedings were issued some two years after the Campbell Live programme in issue was broadcast.

[46]             Mr Miles’ submission was that the article in issue was one of many reports that the journalists in question would have worked on. With the proceedings coming two years after the article, it was not surprising that documents had not been retained or that details could not be recalled.

[47]             Mr Miles referred to r 8.19(a)(ii) which deals with applications for particular discovery and provides that a Judge may order that the party stating that documents are, or have been, in that party’s control is to state to:

… the party’s best knowledge and belief as to when the documents ceased to be in the party’s control and who now has control of them.

[48]             This was to support the submission that it was sufficient for the media defendants in the circumstances to have adopted the general description of documents that they did, as that was all they could do in their “best knowledge and belief”.

[49]             To require the media defendants to individually list documents that they disposed of years before the preparation of their list of discovery was described as ‘overly pedantic’.

[50]             Mr Miles submitted that the Todd Pohokura decision was of little assistance in this context as it was concerned with the treatment of privileged documents. He placed emphasis on Heath J’s decision in Blomfield v Slater.6

[51]In summary, Mr Miles’ arguments were:

(i)the documents were long gone, and it was unreasonable to expect detailed listing years after the event; and

(ii)the description of the documents by a common theme was appropriate, the theme being that the contents of the documents as grouped were that they were all critical of the plaintiffs’ business practices.

[52]             Mr Miles raised an issue of relevance, but I do not see this application as concerning relevance. The media defendants have given discovery in terms of Part 4 of their Schedule reproduced above and in doing so accept that the documents they have referred to are relevant. The issue is whether they have complied with the listing requirements set out in Associate Judge Matthews’ order and as required by the Rules.

6      Blomfield v Slater [2017] NZHC 1654.

Discussion

[53]             The different approach to the detail of disclosure in Part 4 appears to me to be driven by the different points of view of the parties. Mr Miles submitted that it went without saying that the media defendants could not provide more detail because of the passage of time. Mr Morten made the point that no affidavits were filed in support of the notice of opposition to the present applications submitting that if the issue was an inability to recall, it would have been a simple matter for that to be subject to sworn evidence.

[54]             This is the practical point on which the application turns. The media defendants ask that the plaintiffs accept as a matter of faith that they are all unable to recall any detail whatsoever about any of the documents in Schedule 4, that is they cannot, for example, recall the sender or recipient of a single email.

[55]             In respect of the proceedings  referred  to  in  subparagraph  (b)  of  Part  4, Mr Miles confirmed that the affidavits and other Court documents referred to in Part 3 of the Schedule, that is the confidential documents, were different from the judgments and affidavits in subparagraph (b) of Part 4. That the media defendants are able to say that the documents they retain are different from those that were disposed of suggests that they have some idea as to the identity of the documents disposed of.

[56]             I do not accept Mr Miles’ submission that documents can be classified as      a group provided those documents fit a common theme. That would create considerable uncertainty over the definition of the “theme” a party may adopt to group documents. Overly broad themes would allow a large amount of material to be grouped and would require a list to define the theme or themes adopted and is inconsistent with the way in which “documents of the same nature” (r 8.16(2)) have been treated previously.

[57]In Todd Pohokura, Dobson J said:7

[50]The reality is that a list will be in breach of the Rules if it does not list individual documents. The recognised exception to this requirement is for groups of documents with a common character such as invoices,

7      Todd Pohokura above n 5, at [50].

or periodic recordings such as temperatures or weights over a period to which the litigation refers. There is no justification for extending such a group listing to individual items reflecting who conveyed what to whom, and when.

[58]             The case for extending the ability to group documents by theme is weaker again. I do not accept the media defendants’ argument that they can group documents by theme.

[59]             However, as noted by Heath J in Blomfield v Slater,8 discovery obligations must be tailored to the circumstances of the particular case.

[60]The media defendants will not be ordered to undertake what is impossible.

[61]             The starting position is that the specificity required by Part 2 of Schedule 9 applies to the listing of documents that are no longer in the control of the party giving discovery because of the wording of r 8.16(2). Such documents may, if of the same nature, be described as a group or groups, but if they cannot be properly grouped, Part 2 of Schedule 9 applies, and each must be listed.

[62]             The media defendants are therefore obliged to list the Part 4 documents in accordance with Part 2 of Schedule 9 given I have rejected their grouping by theme.

[63]             I do not consider that the plaintiffs have to accept as a matter of faith that the media defendants have no further knowledge whatsoever in respect of the documents covered by Part 4 of Schedule 9. Associate Judge Matthews recorded:9

[78] Mr Cleary’s objection to providing an affidavit with further detail in Part 4 of the Schedule was also based on the protection of the source of the documents in question, as well as a lack of recollection by the defendants of what those documents were. He notes that it is now four years since the relevant events took place.

[64]             For the media defendants to assert again a lack of memory without supporting evidence was in my view, rightly the subject of comment by the plaintiffs.

8      Blomfield v Slater, above n 6, at [17].

9      Staples v Freeman, above n 1, at [78].

[65]             If the short answer is that the media defendants can do no more because of their inability to recall or provide further details, then I would have expected the media defendants to have provided that explanation on oath.

[66]             Mr Miles took me to para [9] of the second defendant’s affidavit sworn following Associate Judge Matthews’ decision. There, Mr Turton said:

In Part 4 of the Schedule, I list documents that are no longer in the second defendant’s control and state when, to the best of my knowledge and belief, each deponent ceased to be in the second defendant’s control and the persons who, to the best of my knowledge and belief, now have control of each document.

[67]             That, in my opinion, does not squarely address the claimed lack of memory and inability to provide further details.

Order

[68]             I order that the media defendants are to file a further affidavit addressing the following:

(i)What, if anything, they each recall in relation to the sender and recipient and any other detail of all communications referred to in Part 4 of their existing Schedule.

(ii)What, if anything, they each recall about the authors and any other detail of all documents referred to in Part 4 of their Schedule (this order is not intended to override any claim for confidentiality that is made should the deponents be able to recall an author to which confidentiality is relevant).

(iii)What, if anything, they each recall about the identity of and the parties to any and all proceedings referred to at para (b) of Part 4 of their existing Schedule. I note the reference to “Court proceedings” is plural and so if more than one Court proceeding was referred to, all details the defendants recall in relation to each proceeding. Such detail is to include the identity of any party, the Court and Registry the proceedings

were in, and the identity of any counsel involved. In short, any detail that can be recalled.

(iv)The third and fourth defendants are to expressly confirm that they do not retain any personal records in relation to the matters in issue.

[69]             I raised with Mr Miles whether any work had been done by his client to recover deleted electronic records. Mr Miles referred me to para 4.2 of the affidavit of documents of the second defendant in which Mr Turton said that he had carried out key word searches of the electronic databases to identify any relevant documents.  Mr Clayton in his list refers to authorising the second defendant to search his archived email account (para 4.3) and Ms McCallum makes a similar comment.

[70]             For the avoidance of doubt, the defendants’ further affidavits are to confirm that they have ascertained that it is not possible to recover any of the deleted electronic information of any type.

[71]             The purpose of the above orders is to deal with the practical issue on which this application turns. If the media defendants simply cannot provide further detail in respect of the documents they previously had, then they have complied as best they can with the order of Associate Judge Matthews and the listing requirements in the Rules. They will have completed that part of their respective lists to their “best knowledge and belief(s)”. If as a result of this order the media defendants are able to provide further detail then that will need to be provided and to the extent that it is possible, provided in a form that complies with the listing requirements in the Rules.

The particulars application – the honest opinion defence

[72]Section 38 of the Defamation Act 1992 provides:

38       Particulars in defence of truth

In any proceedings for defamation, where the defendant alleges that, in so far as the matter that is the subject of the proceedings consists of statements of fact, it is true in substance and in fact, and, so far as it consists of an expression of opinion, it is honest opinion, the defendant shall give particulars specifying—

(a)the statements that the defendant alleges are statements of fact; and

(b)the facts and circumstances on which the defendant relies in support of the allegation that those statements are true.

[73] Associate Judge Matthews’ order set out at [19] above, in respect of s 38 of the Defamation Act 1992 led to the media defendants filing an amended statement of defence with an amended Schedule A setting out what is referred to in the authorities as the “Publication Facts” (s 38(a)) and under each such fact, the facts and circumstances that if proven would support the assertion that the publication fact was true (s 38(b)).

[74]             At the hearing, Mr Miles provided a Schedule which set out the paragraphs of Schedule A to the first amended statement of defence which was filed to address Associate Judge Matthews’ order in respect of s 38. In response, the plaintiffs issued a notice requiring further particulars of Schedule A. Mr Miles’ Schedule set out the terms of the plaintiffs’ notice and the defendants’ response.

[75]             The extant challenge to the particulars provided is to paras 5, 15, 17, 18, 19, 20, 22 and 23 of Schedule A which are said to require further particulars, and paras 6, 7, 23, and 24 which are said to be so defective as to warrant being struck out.

[76]             The parts of the media defendants’ Schedule dealing with those paragraphs are referred to as Schedule One to this Judgment, which is Mr Miles’ Schedule provided at the hearing and cut back to the live challenges.

Particulars

[77]             Mr Morten relied on the same submissions in respect of particulars presented to Associate Judge Matthews. The argument was that s 38 of the Defamation Act 1992 is not self-contained as to what particulars had to be provided. Mr Morten pointed to r 5.48(5) which provides:

The statement of defence must give particulars of time, place, amounts, names of persons, nature and dates of instruments, and other circumstances sufficient to inform the court, the plaintiff, and any other parties of the defendant’s defence.

Mr Morten submitted that this applies to the s 38 defence as it does to any defence.

[78]             I also reproduce paragraphs from Associate Judge  Matthews’ decision  as His Honour recorded that counsel who appeared for the media defendants at that hearing did not take issue with those principles, and I did not understand Mr Miles to dispute that those principles applied.

[21]      The sufficiency of particulars in a pleading in a defamation case was discussed in Television New Zealand Ltd v Ah Koy. Reference in the following passage to truth is equally applicable to a defence of honest opinion, as can be seen from s 38. The Court of Appeal said:10

One of the purposes of particulars is to enable the plaintiff to check the veracity of what is alleged; another is to inform the plaintiff fully and fairly of the facts and circumstances which are to be relied on by the defendant in support of the defence of truth; yet another is to require the defendant to vouch for the sincerity of its contention that the words complained of are true by providing full details of the facts and circumstances relied on. It can be seen that against each of these three purposes the particulars provided by TVNZ fall well short of being sufficient.  It  should  be  mentioned  that  a  further  purpose of particulars is that a defendant at trial is not usually permitted to lead evidence of facts and circumstances beyond those referred to in the particulars. In Zierenberg v Labouchere [1893] 2 QB 183, 186 Lord Esher MR said that a plea of justification (now of truth) without sufficient particulars was invalid and that this had been the law “from the earliest times”. As Gatley says at 27.10, it is arguable that in these circumstances there is no plea of justification on the record. On that basis a plea of truth without sufficient particulars would be at risk of being struck out.

[22]      In APN New Zealand Ltd v Simunovich Fisheries Ltd, the Supreme Court cited this passage from Ah Koy and then stated:11

These observations, which the parties accepted as an accurate statement of the law, apply with equal force to particulars of the facts relied on in support of a defence of honest opinion. The defendant is required to identify a sufficient factual basis for its opinion, so that readers or viewers may assess the validity of the opinion for themselves against the relevant facts truly stated.

[79]             A further area of common ground between counsel is that a defendant wishing to plead a fact and circumstance to support a Publication Fact must have been aware at the time of publication of the fact and circumstance pleaded.12 Mr Morten argued

10     Television New Zealand Ltd v Ah Koy [2002] 2 NZLR 616 (CA) at [17].

11     APN New Zealand Ltd v Simunovich Fisheries Ltd [2009] NZSC 93, [2010] 1 NZLR 315 at [18].

12     APN New Zealand Ltd v Simunovich Fisheries Ltd, above n 11, at [36].

that to the extent the response to the notice requiring further particulars of the defence reproduced in the attached Schedule referred to “further particulars will be provided following discovery” the pleading offended against this rule. Mr Miles agreed and confirmed those references would be abandoned.

[80]             While this principle limits the facts and circumstances that can be pleaded and relied on to those known at the time of publication, it does not restrict a defendant to being only able to adduce the evidence it had at the time of publication.

Media defendants’ response

[81]             The media defendants submit that their particulars provide “sufficient” detail to  inform  the plaintiffs  and  the Court of the defence,  that  being the standard in     r 5.48(5). The submission is that anything further is evidence.

[82]             The media defendants say that it is necessary to apply first principles to each of the paragraphs of Schedule A for which further detail is sought. They say three questions should be asked:

(i)Do the pleadings provide sufficient information to inform the other party of the case they have to meet and enable them to take steps to respond?

(ii)Second, is there a real risk that the other party may face a trial by ambush if further particulars are not provided?

(iii)Third, is the request oppressive or an unreasonable burden on the party concerned.

[83]             They media defendants rely on the statement in the Court of Appeal in Price Waterhouse v Fortex Group Ltd as follows:13

What is required is an assessment based on the principle that a pleading must, in the individual circumstances of the case, state the issue and inform the opposite party of the case to be met. As so often is the case in procedural

13     Price Waterhouse v Fortex Group Ltd CA, 179/98, 30 November 1998, at 19.

matters, in the end a common-sense and balanced judgment based on experience as to how cases are prepared and trials work is required. It is not an area for mechanical approaches or pedantry.

[84]             The media defendants’ submissions emphasise that what is required is sufficient factual basis for the opinion. They cite The Law of Torts in New Zealand:14

It is normally sufficient that the commentator merely gives some indication of the facts on which he or she is commenting.

[85]             Mr Miles in submissions recognised that the issue raised the not unfamiliar dilemma of trying to draw a bright line between particulars and evidence.

[86]             Ultimately, the context of the allegations and the defence will illuminate whether the particulars are “sufficient”.

[87]             Against those general statements of principle and keeping in mind the context, I turn to the particulars that are in issue. I will leave the strike-out to be dealt with separately.

[88]             I do not repeat the Publication Facts and other details set out in the attached Schedule, but will deal with each claim for publication by reference to the Publication Facts number.

Publication Fact 5

[89]             Mr Morten complained that the response to the plaintiffs’ application for particulars set out in the Schedule did not distinguish between the first plaintiff, an individual, and the second plaintiff, a company. Mr Miles described this challenge as pedantic saying the reality was the television programme complained of did not distinguish between the plaintiffs.

[90]             The complainants referred to in Publication Fact 5 could be expected to have had a contractual relationship with Claims Resolution Service Ltd on the claim that they were dissatisfied clients. From a contractual point of view, their complaint would be with the company. However, as Mr Staples was the sole director of the company,

14     The Law of Torts in New Zealand, Todd (ed) (online edition, Thomson Reuters) at [16.8.02(1)].

it is understandable that the complainants did not differentiate between the plaintiffs. I do not consider that attempting to distinguish who the complainants as lay people were referring to in their complaints assists the plaintiffs in responding or understanding the Publication Fact or the facts and circumstances pleaded.

[91]             I consider the particulars set out at para 1.1(a) in relation to para 5 adequately describe what the complaints were. I do not consider it necessary for the defendants to plead the particular plaintiff against which the complaints were made.

[92]             In relation to the complaint that the particulars should identify who the complainants were, Mr Miles says this is “pure evidence”.  I agree.  The thrust of  the Publication Fact is that there had been numerous complaints to the media defendants between 23 July 2014 and 30 July 2014. The particulars provided set out the nature of those complaints. The identity of the complainant and the exact time of the complaint is not a detail required to give the plaintiffs sufficient notice of the Publication Fact the defendants rely on that there were numerous complaints.

Publication Fact 15

[93]             The media defendants’ response to this request for further particulars, as with others, is that the plaintiffs have knowledge of the matters in relation to which they seek further details.

[94]             The authors of McGechan on Procedure in the context of considering whether there is a risk that the party seeking particulars may face a trial by ambush said:15

In considering whether a party is likely to be taken by surprise, the court is entitled to have regard to the fact that:

·     If the particulars sought are within the knowledge or control of the requesting party an order for further particulars may be declined pending the completion of discovery or other matters.

[95]             The Publication Fact asserted is that Mr Potter agreed to sell his home for the registered value of $310,000. The particulars sought in relation to which plaintiff was the publisher, the date of the agreement, the terms of the sale and purchase agreement,

15     McGechan on Procedure (online loose-leaf ed, Thomson Reuters) at [HR 5.21.01].

and details of the registered value are again, in my view, all unnecessary to give the plaintiffs sufficient notice of the Publication Fact asserted. While the above passage from McGechan refers to particulars being given after discovery which will not happen here, the plaintiffs do not claim they are unaware of Mr Potter or the events concerning him. In my view, such can be taken into account when considering the sufficiency of a pleading.

Publication Facts 17, 18, 19, 20 and 22

[96]             I deal with these Publication Facts together as they all relate to the property transaction referred to in Publication Fact 15 and proceedings alleged to have been commenced on behalf of Mr Potter.

[97]             In respect of Publication Fact 17, I consider the facts and circumstances provided sufficiently specific.

[98]             The provision of the matter number of the Court proceeding is not required to inform the plaintiffs about the Publication Fact the media defendants rely on.

[99]             In respect of Publication Fact 18, I hold the same view. Whether the media defendants can prove the facts and circumstances at 18.1 and 18.2 will be sufficient to prove the Publication Fact that Mr Potter incurred tens of thousands of dollars in costs relating to the proceeding is a trial matter. Publication Fact 18.3 referring to particulars after discovery is to be abandoned as asserted.

[100]In Television New Zealand Ltd v Ah Koy, the Court of Appeal said:16

It should be mentioned that a further purpose of particulars is that a defendant at trial is not usually permitted to lead evidence of facts and circumstances beyond those referred to in the particulars.

[101]         No doubt the plaintiffs will be zealous in holding the media defendants to this principle. Thus, a practical balance is struck.  The starting point is the pleading – is  it sufficient in the circumstances of the case to inform the plaintiffs of the Publication Facts that the defendants will seek to prove? If so, then the defendants may adduce

16     Television New Zealand Ltd v Ah Koy, above n 10, at [17].

evidence that is relevant to the pleaded Publication Fact if such is denied by the plaintiffs. The plaintiffs however will be required by the normal rules of discovery to give discovery in relation to the disputed Publication Facts.

[102]         I also hold that view in respect of Publication Facts 19, 20 and 22. Mr Morten did not say that the plaintiffs were unaware  of the proceeding referred to, or who  Mr Potter was, or what the contract referred to. Mr Staples in his affidavits in support of the present application does not say that he was unaware of the events or facts described in the Publication Facts. While such evidence would not be determinative, its absence is a factor against concluding the pleadings were not sufficient to properly inform the plaintiff of the defence.

[103]         Given the Publication Facts referred to in Publication Facts 15 to 22 relate to a transaction entered into by one or other of the plaintiffs and proceedings that they are alleged to have commenced through Mr Shand on behalf of Mr Potter against named defendants and said to have been issued on a specified date, in my view the pleading is sufficient to communicate what the defendants are referring to.

Publication Fact 23

[104]         The thrust of Publication Fact 23 is that Mr Pearl worked as a consultant for Mr Staples’ earthquake services company. That is said to be supported by a fact to be proved that Mr Pearl was involved in companies that Mr Staples was associated with as director or shareholder.

[105]         I consider the response to the notice of particulars to be sufficient to inform the plaintiffs of the Publication Fact asserted and the circumstances that are to be relied on. Again, that the plaintiffs will know about involvement they had with Mr Pearl.

The strike-out application – Publication Facts 6 and 7

[106]Publication Fact 6 states:

Ruth Dyson was contacted by 30 homeowners and understood from what they told her that they had concerns with the plaintiff’s business practices.

[107]         Mr Morten summarised the principles to apply to a strike-out with reference to Gatland v Fairfax New Zealand  Ltd.17     The Court  may strike-out  all  or part of     a pleading if it discloses no reasonably arguable defence. The defence must be so clearly untenable that it cannot possibly succeed. The jurisdiction is exercised sparingly, presumed for clear cut cases. In all other cases, the respondent should not be deprived of having the case determined in the ordinary way.

[108]         The thrust of the challenge to Publication Facts 6 and 7 is that Publication Facts 6 and 7 are not statements of fact. The submission is:

The evidence by Ms Dyson is hearsay. Repeating the (unspecified) claims of (unidentified) constituents does not prove the primary facts supporting the proposition that homeowners have concerns with the plaintiffs’ business practices, or that they were afraid to speak out publicly. It is not admissible. Nor is it salvageable by giving the defendants the opportunity to amend their pleadings.

[109]         What is pleaded is not evidence. Whether Publication Fact 6 is a permitted Publication Fact is another matter. Whether hearsay issues will arise will be a matter of evidence when the media defendants come to prove their Publication Facts.

[110]The Court of Appeal in Simunovich Fisheries Ltd said:18

…publication facts cannot include the fact that someone else has said something about Simunovich. Rather, the defence must be established by reference to underlying or primary facts.

[111]         The respondents in Simunovich sought to show that the opinions they pleaded were genuine by showing that the persons giving the opinion based them on reliable sources. An example was given as follows:19

Mr Gray identified another example, given in support of APN’s honest opinion defence to the highlighted statements 7/5. A supporting particular is that Mr Nalder’s lawyer confirmed Mr Nalder was paid to leave the Ministry. APN relies on the fact that the lawyer made that statement. It does not intend to prove the underlying fact that Mr Nalder was in fact paid to do so. In short, APN’s stance is that it may establish sufficient publication facts merely by proving that allegations of this type were made.

17     Gatland v Fairfax New Zealand Ltd [2016] NZHC 970.

18     Simunovich Fisheries Ltd v Television New Zealand Ltd, above n 2, at [122].

19 At [120].

[112]         In this case, what Ms Dyson was told by 30 homeowners and what she understood from that, is pleaded as a Publication Fact.

[113]         Permitted Publication Facts are confined to objectively proveable primary facts. “Particulars may not include expressions of opinion or allegations by third parties about or concerning those facts”.20 An opinion or assertion is not capable of being a Publication Fact: Publication Facts must be the underlying or “primary” facts.21

[114]         In short, an honest opinion cannot be based on someone else’s opinion. Applying Simunovich to the present case would mean the media defendants’ Publication Facts cannot include the fact that Ms Dyson has understood something about the plaintiffs based in turn on what she had been told by complainants.

[115]         I consider that the addition of the reference to what Ms Dyson understood is in breach of the rule that the beliefs or opinions of an individual cannot be a Publication Fact.22 That, however, does not mean the paragraph should be struck out. The thrust of what the media defendants intend to convey by para 6 is set out at para 6.4 of the Publication Facts and circumstances.

[116]A pleading that can be saved by a remedial amendment will not be struck out.

[117]         To the extent that Publication Fact 6 sets out a statement of what Ms Dyson understood, is in my opinion defective because of the rule that statements of belief cannot themselves serve as primary facts. However, the paragraph is capable of being recast to remove the statement of belief.

[118]         Publication Fact 7 again refers to an understanding of Ms Dyson. The same conclusion applies.

20     APN New Zealand Ltd, above n 11, at [1].

21     APN New Zealand Ltd, above n 11, at [13]

22     APN New Zealand Ltd, above n 11, at [20], referring to Milmo and Rogers (eds), Gatley on Libel and Slander (11th ed), 2008 at [29.10].

[119]         To the extent that Publication Fact 7 and fact and circumstance paragraph 7.4 refer to what Ms Dyson understood, the pleading is defective.

[120]         There will be an order that the media defendants re-plead Publication Facts 6 and 7 of Schedule A of their amended statement of defence to remove reference to Ms Dyson’s understanding, including the reference in paragraph 7.4.

Publication Facts 24 and 25

[121]         The strike-out application in relation to Publication Facts 24 and 25 is more focused. The plaintiffs’ submission is:

The fact that the defendants are unable to plead facts and circumstances in support of the proposition that some inspectors lacked appropriate qualifications and that inspections undertaken by the plaintiff were not independent until discovery means that the defendants were not aware of the relevant facts at the time the second Campbell Live programme was broadcast.

[122]This submission again brings into play the particulars and evidence dichotomy.

[123]         To the extent that Publication Facts 24 and 25 refer to further particulars being provided following discovery, Mr Miles as noted has confirmed that pleading will be abandoned.

[124]         The names of the individual inspectors who lacked appropriate qualifications is, in my opinion, not necessary to give the plaintiffs sufficient notice of the Publication Fact and facts and circumstances relied on. Similarly, in respect of the call for particulars of the particular inspections which were undertaken by inspectors who were not independent, and which inspectors were from which companies, is also not required to give sufficient notice of the Publication Fact asserted or the facts and circumstances that the media defendants will attempt to prove to support the Publication Fact. This is another area where the response that the details sought are within the knowledge of the plaintiffs has merit and where the absence of any claim from Mr Staples that he does not know what is being referred to, is significant.

Orders in relation to the particulars application

[125]         To  the extent that the application has achieved the acknowledgment from   Mr Miles that the reference to further particulars being provided after discovery will be abandoned, the application has succeeded. Other than in respect of the defects found in Publication Facts 6 and 7 the strike-out applications are dismissed.

[126]         As noted at the outset, the amended interlocutory application that did not proceed included an application that the media defendants give further discovery of documents set out in the Schedule to the application. The media defendants adopting a practical approach to that application filed an updating affidavit from Mr Turton of the second defendant, briefly addressing each category of documents in the Schedule. The end result was that the media defendants say they do not have any further documents to disclose in relation to the categories sought. Mr Turton’s affidavit referred to enquiries he had made of the other media defendants. Mr Morten was critical of this affidavit saying that it was not a list that complied with the Rules.

[127]         Accordingly, this further application raises the same practical issue about disclosing documents that do not exist, discussed above. Mr Miles’ submission was that a brief narrative response to each class of documents, explaining that such documents were not held, was sufficient.

[128]         While provision of the affidavit was a practical and understandable response to the application, the media defendants should still provide as much detail as they can in relation to each category of documents for which further discovery is sought, similar to the detail set out in the orders made above. This is not an order as this aspect of the amended application was not argued, but given it raises the same practical issues as the application for further discovery that was argued, my initial reaction is that the further categories of documents would fall to be dealt with in the same  way.   If     the parties do not accept this suggestion then this aspect of the amended application can be dealt with, with the balance of the amended application, in due course.

Associate Judge Lester

Solicitors:

NZ Legal Ltd t/a Canterbury Legal, Christchurch Copy to counsel: MP Reed QC, Barrister Wellington Copy to counsel: J Moss, Barrister, Christchurch Chapman Tripp, Auckland

Copy to counsel: P Morten, Barrister, Wellington

SCHEDULE ONE

In the High Court of New Zealand Christchurch Registry I Te Kōti Matua O Aotearoa Ōtautahi Rohe CIV-2016-409-309		IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY I Te Kōti Matua O Aotearoa Ōtautahi Rohe CIV 2016-409-309		In the High Court of New Zealand Christchurch Registry I Te Kōti Matua O Aotearoa Ōtautahi Rohe CIV-2016-409-309
between:	B D Staples First Plaintiff	BETWEEN	BD STAPLES AND ANOTHER Plaintiffs	between:	Bryan Douglas Staples First Plaintiff
and:	Claims Resolution Service Limited Second Plaintiff	and:	Claims Resolution Service Limited Second Plaintiff
and:	R L Freeman First Defendant	AND	RL FREEMAN First Defendant	and:	Richard Logan Freeman First Defendant
and:	Mediaworks TV Limited Second Defendant	AND	MEDIAWORKS TV LTD Second Defendant	and:	Mediaworks TV Limited Second Defendant
and:	K McCallum Third Defendant	AND	KATE MCCALLUM Third Defendant	and:	Kate McCallum Third Defendant
and:	T Clayton Fourth Defendant	AND	TRISTAM CLAYTON Fourth Defendant	and:	Tristram Clayton Fourth Defendant

Schedule A of First amended statement of defence of second defendant to second amended statement of claim NOTICE BY FIRST AND SECOND PLAINTIFFS REQUIRING SECOND, THIRD, AND FOURTH DEFENDANTS TO GIVE PARTICULARS OF STATEMENT OF DEFENCE Response by the second defendant to notice requiring further particulars of statements of defence

Dated: 5 September 2018 Dated:  5 October 2018 Dated: 19 October 2018

REFERENCE:        Justin Graham ([email protected]) Thomas Cleary ([email protected]) Liora Bercovitch ([email protected])	Solicitors: Canterbury Legal Services Ltd Barristers and Solicitors PO Box 22115 Christchurch 8140	Counsel acting: Paul Morten Harbour Chambers PO Box 10242 Wellington 6011	REFERENCE:        Justin Graham ([email protected]) Thomas Cleary ([email protected]) Liora Bercovitch ([email protected])
Solicitor acting:     Grant Smith Email: [email protected] Telephone:  [phone] Mobile:	Email: [email protected] Telephone:     [phone] Mobile:        [phone]

MERGED PLEADINGS

1st ASOD of 2nd DEFENDANT TO 2nd ASOC SCHEDULE A – PUBLICATION FACTS WITH PARTICULARS OF FACTS AND CIRCUMSTANCES IN SUPPORT		NOTICE BY 1ST AND 2ND PLAINTIFFS REQUIRING 2ND, 3rd AND 4TH DEFENDANTS TO GIVE PARTICULARS OF SOD		RESPONSE BY SECOND DEFENDANT TO NOTICE REQUIRING FURTHER PARTICULARS OF STATEMENTS OF DEFENCE
5	The second defendant received numerous complaints about the plaintiffs' conduct.	3.	Paragraph 5 and 5.1: this paragraph fails to set out any particulars of	1	Amended statement of defence, paragraphs 5 and 5.1 of the Schedule: 1.1       In response to paragraph 3:
Facts and circumstances 5.1    Between 23 July 2014 and 30 July 2014, MediaWorks received numerous complaints about the plaintiffs’ conduct and concerns with the plaintiffs’ business practices.	3.1     the "numerous complaints" allegedly received by the second defendant,	(a)       In response to paragraph 3.1 and 3.2, the second defendant received complaints about the first and second plaintiffs throughout early 2014, those complaints including that: (i)       the plaintiffs did not explain costs properly to their clients; (ii)       the second plaintiffs did not explain that they would charge for multiple reports when the first or repeated reports lacked sufficient detail and were rejected by the insurer and EQC; (iii)      the plaintiffs charged clients more than they initially indicated; (iv)      the plaintiffs promised clients that they would receive large payments for their claims, but later convinced them to settle for inferior offers; and (v)       the plaintiffs did not explain to their clients that their professionals were not all independent of the plaintiffs group of companies.
	3.2     what the complaints about the plaintiffs' conduct were,
3.3     which plaintiffs the alleged complaints and concerns referred to,		(b)     In response to paragraph 3.3, the complaints did not differentiate between the plaintiffs and instead treated the first and second plaintiffs together given that the first plaintiff was the director and effectively ran the second plaintiff.
3.4     who the complaints were received from and when they were received,		(c)     In response to paragraph 3.5 and 3.6, the plaintiffs are effectively asking for evidence rather than particulars. In any case, the second defendant repeats the answer in paragraph 1.1(a) above. In response to 3.4, the second defendant repeats the answers in paragraphs 1.1(a)-(c) above but beyond this the particulars are matters of evidence.

1st ASOD of 2nd DEFENDANT TO 2nd ASOC SCHEDULE A – PUBLICATION FACTS WITH PARTICULARS OF FACTS AND CIRCUMSTANCES IN SUPPORT		NOTICE BY 1ST AND 2ND PLAINTIFFS REQUIRING 2ND, 3rd AND 4TH DEFENDANTS TO GIVE PARTICULARS OF SOD		RESPONSE BY SECOND DEFENDANT TO NOTICE REQUIRING FURTHER PARTICULARS OF STATEMENTS OF DEFENCE
3.5     what concerns were expressed with the plaintiffs' business practices,
3.6     and which plaintiffs' business practices were being referred to.
6	Ruth Dyson was contacted by 30 homeowners and understood from what they told her that they had concerns with the plaintiffs’ business practices.	4.	Paragraph 6 and 6.4: this paragraph fails to provide particulars of	2	Amended statement of defence, paragraphs 6 and 6.4 of the Schedule: 2.1       In response to paragraph 4:
Facts and circumstances 6.1    Ruth Dyson is a Member of Parliament for the Labour Party in Port Hills Christchurch.
6.2    Ruth Dyson has an electorate office at 642 Ferry Road, Woolston, Christchurch.
6.3    As part of being an electorate MP Ruth Dyson receives members of the public and discusses their issues with them.
6.4     Before 30 July 2014, Ruth Dyson was told by 30 homeowners t had concerns with the plaintiffs’ business practices.	4.1       the 30 homeowners alleged to have contacted Ms Dyson, 4.2       their street addresses,	(a)     No records were kept of the details referred to in paragraphs 4.1 and 4.2.
4.3     the concerns they are alleged to have had about the plaintiffs' business practices, and	(b)       In response to paragraph 4.3, the complaints against the plaintiffs’ conduct and business practices were inter alia that: (i)       unqualified people were used by the plaintiffs for inspections; (ii)       the plaintiffs were intimidating claimants by threatening to place them at the bottom of the pile if they raised any issues; and (iii)      the plaintiffs commissioned untrustworthy reports that had to be paid for by house owners.
4.4     which plaintiff's business practices were referred to.	(c)     In response to paragraph 4.4, the homeowners did not differentiate between the plaintiffs and instead treated the first and second plaintiffs together given that the first plaintiff was the director and effectively ran the second plaintiff.

1st ASOD of 2nd DEFENDANT TO 2nd ASOC SCHEDULE A – PUBLICATION FACTS WITH PARTICULARS OF FACTS AND CIRCUMSTANCES IN SUPPORT			NOTICE BY 1ST AND 2ND PLAINTIFFS REQUIRING 2ND, 3rd AND 4TH DEFENDANTS TO GIVE PARTICULARS OF SOD			RESPONSE BY SECOND DEFENDANT TO NOTICE REQUIRING FURTHER PARTICULARS OF STATEMENTS OF DEFENCE
7	Ruth Dyson understood that at least some of the homeowners who contacted her regarding the plaintiffs’ business were afraid to speak out publicly themselves. Facts and circumstances 7.1      Before 20 July 2014 Ms Dyson was told by one or more homeowners that they had felt pressured into signing the contracts. 7.2      Ms Dyson was told one or more homeowners that they felt that they could not get out of the contracts because of the minimum fee in the contract. 7.3      Ms Dyson was told by one or more homeowners that if they failed to “co-operate” with Mr Staples then Mr Staples or the second plaintiff could terminate their contract but still charge them the minimum fee. 7.4      Based on that, Ms Dyson understood that these homeowners felt trapped but could not speak out publicly because if they did Mr Staples or the second plaintiff could terminate their contract.		5.	Paragraph 7, 7.1, 7.2, 7.3: this paragraph fails to provide particulars of 5.1       the homeowners alleged to have contacted Ms Dyson, and the addresses of the properties they owned; 5.2       when they contacted Ms Dyson; 5.3       who and how many homeowners alleged they had felt pressured into signing "the contracts"; 5.4       what "pressure" was alleged to have been put on the homeowners, and by whom; 5.5       which of the plaintiff's contracts the homeowners allege they were pressured into signing; 5.6       which homeowners told Ms Dyson they could not get out of "the contracts" because of the minimum fee; 5.7       which homeowners told Ms Dyson that if they failed to cooperate with the first plaintiff, he could terminate their contract but still charge a minimum fee; 5.8       and which homeowners said they "felt trapped" and "could not speak out publicly".		3	Amended statement of defence, paragraphs 7, 7.1, 7.2 and 7.3 of the Schedule: 3.1       In response to paragraph 5:
			(a)     No records were kept of the matters referred to in paragraph 5.1.
			(b)     In response to paragraphs 5.2, particulars have already been provided that Ms Dyson was contacted by homeowners from in or around 2012 to 20 July 2014. Records were not kept of when each individual homeowner contacted Ms Dyson.
(c)       In response to paragraphs 5.3 and 5.5 to 5.8, sufficient particulars have been provided on these matters and further records were not kept on them. (d)       In response to paragraph 5.4, the homeowners’ allegations related to the second plaintiff, Claims Resolution Services Limited, contracts.
15	Mr Potter agreed to sell his home to the plaintiff for the registered value of $310,000.		7.	Paragraph 15 and 16: these paragraphs fail to particularise		5	Amended statement of defence, paragraphs 15 and 16 of the Schedule:
Facts and circumstances 15.1     The first plaintiff is a director of Trade a Home Limited.		5.1	In response to paragraph 7:
15.2	Trade a Home Limited is ultimately held by The Staples Group Limited.
15.3	Wayne Potter entered into a sale and purchase agreement with Trade a Home Limited for his property.	7.1 7.2 7.3	which plaintiff Mr Potter sold his home to; the date of the sale and purchase agreement referred to; the terms of the sale and purchase agreement;	(a)       the plaintiffs have knowledge of the matters in paragraphs 7.1 to 7.4; and (b)       further particulars will be provided following discovery.
15.4	The registered value of Wayne Potter’s property on or around the date that Wayne Potter entered into the sale and purchase agreement was $310,000.	7.4	and any details of the "registered value" to which paragraph 15.4 refers.
1st ASOD of 2nd DEFENDANT TO 2nd ASOC SCHEDULE A – PUBLICATION FACTS WITH PARTICULARS OF FACTS AND CIRCUMSTANCES IN SUPPORT		NOTICE BY 1ST AND 2ND PLAINTIFFS REQUIRING 2ND, 3rd AND 4TH DEFENDANTS TO GIVE PARTICULARS OF SOD		RESPONSE BY SECOND DEFENDANT TO NOTICE REQUIRING FURTHER PARTICULARS OF STATEMENTS OF DEFENCE
15.5   The purchase price in the sale and purchase agreement was $310,000.
15.6   Further and better particulars to be provided following discovery.
17	The plaintiffs commenced proceedings on behalf of Mr Potter against his insurance company (Vero) and the Earthquake Commission.	8.	Paragraph 17: this paragraph fails to provide particulars of which plaintiff is alleged to have commenced proceedings on behalf of Mr Potter, and the proceeding matter number.	6	Amended statement of defence, paragraph 17 of the Schedule: 6.1       In response to paragraph 8:
Facts and circumstances 17.1   Grant Shand filed proceedings on behalf of the plaintiffs and Mr Potter in the Christchurch High Court against Vero Insurance New Zealand Limited and The Earthquake Commission on 18 December 2013.	(a)       the plaintiffs have knowledge of the matters in paragraph 8; and (b)       further particulars will be provided following discovery.
18	Mr Potter incurred tens of thousands in costs relating to the proceeding.	9.	Paragraph 18: this paragraph fails to provide particulars of	7	Amended statement of defence, paragraph 18 of the Schedule:
Facts and circumstances 18.1     Wayne Potter entered into a sale and purchase agreement with Trade a Home Limited for his property. 18.2     Wayne Potter was invoiced by the second plaintiff for costs relating to the proceeding. 18.3     Further and better particulars to be provided following discovery.	9.1      the invoices the second plaintiff is alleged to have raised, and 9.2      the "tens of thousands in costs" that Mr Potter alleges he incurred, 9.3      and the dates on which Mr Potter paid those invoices.	7.1          In response to paragraph 9: (a)       the plaintiffs have knowledge of the matters in paragraph 9 (and its subparagraphs); and (b)       further particulars will be provided following discovery.
19	Mr Potter could not exit the contract with the plaintiffs. Facts and circumstances 19.1   Wayne Potter could not sell his property to a third party because of the sale and purchase agreement with Trade a Home Limited.	10.	Paragraph 19: this paragraph fails to provide particulars of "the contract with the plaintiffs" that Mr Potter alleges he could not exit.	8	Amended statement of defence, paragraph 19 of the Schedule: 8.1          In response to paragraph 10: (a)       the plaintiffs have knowledge of the matters in paragraph 10; and
19.2   The first plaintiff told Mr Potter that he would put a caveat on Mr Potter’s property if Mr Potter tried to exit the claims resolution service contract.	(b)     further particulars will be provided following discovery.

1st ASOD of 2nd DEFENDANT TO 2nd ASOC SCHEDULE A – PUBLICATION FACTS WITH PARTICULARS OF FACTS AND CIRCUMSTANCES IN SUPPORT		NOTICE BY 1ST AND 2ND PLAINTIFFS REQUIRING 2ND, 3rd AND 4TH DEFENDANTS TO GIVE PARTICULARS OF SOD		RESPONSE BY SECOND DEFENDANT TO NOTICE REQUIRING FURTHER PARTICULARS OF STATEMENTS OF DEFENCE
20	A report used by the plaintiffs in proceedings relating to the property identifies that $557,000 was being sought, including $188,000 for piles, and $83,000 for professional fees. Facts and circumstances 20.1     Grant Shand filed proceedings on behalf of the plaintiffs and Mr Potter in the Christchurch High Court against Vero Insurance New Zealand Limited and The Earthquake Commission in 2013. 20.2     Further and better particulars to be provided following discovery.	11.	Paragraph 20: this paragraph fails to provide particulars of 11.1     "the report used by the plaintiffs in proceedings relating to the property", 11.2     how the report was "used in the proceeding", 11.3     and the identity of the entity which used the report.	9	Amended statement of defence, paragraph 20 of the Schedule: 9.1          In response to paragraph 11: (a)       the plaintiffs have knowledge of the matters in paragraph 11 (and its subparagraphs); and (b)       further particulars will be provided following discovery.
22	The value for piles being sought by the plaintiffs was approximately $4,000 per square metre. Facts and circumstances 22.1   The plaintiffs sought $188,000 for piles, according to a report used by the plaintiffs in proceedings relating to the property.	12.	Paragraph 22: this paragraph fails to provide particulars of	10	Amended statement of defence, paragraph 22 of the Schedule: 10.1      In response to paragraph 12:
12.1      which of the plaintiffs sought $188,000 for piles,		(a)            In response to paragraph 12.1: (i)       the second defendant understands that it is Earthquake Services Limited; but (ii)       the plaintiffs have knowledge of this and further particulars will be provided following discovery.
22.2   Wayne Potter’s property has a slab of 51 square metres.	12.2     and the report that it is alleged the plaintiffs used.	(b)            In response to paragraph 12.2: (i)       the plaintiffs have knowledge of the matters in paragraph 12.2; and (ii)       further particulars will be provided following discovery.

1st ASOD of 2nd DEFENDANT TO 2nd ASOC SCHEDULE A – PUBLICATION FACTS WITH PARTICULARS OF FACTS AND CIRCUMSTANCES IN SUPPORT		NOTICE BY 1ST AND 2ND PLAINTIFFS REQUIRING 2ND, 3rd AND 4TH DEFENDANTS TO GIVE PARTICULARS OF SOD		RESPONSE BY SECOND DEFENDANT TO NOTICE REQUIRING FURTHER PARTICULARS OF STATEMENTS OF DEFENCE
23	Michel Pearl worked as a consultant for the first plaintiff’s earthquake services company. Facts and circumstances 23.1     Michel Pearl was involved in companies that the first plaintiff was associated with as a director and/or shareholder.	13.	Paragraph 23: this paragraph fails to provide particulars of 13.1   "the first plaintiff's earthquakes services company" that it is alleged Mr Pearl worked for as a consultant,	11	Amended statement of defence, paragraph 23 of the Schedule: 11.1        In response to paragraph 13: (a)             In response to paragraph 13.1: (i)       the second defendants understands that it is Earthquake Services Limited; (ii)       the second defendant understands that Mr Pearl was involved as a director of EQ Services Limited; and (iii)      the plaintiffs have knowledge of this and further particulars will be provided following discovery.
13.2     what companies Mr Pearl was involved in that the first plaintiff was allegedly associated with as a director/shareholder, 13.3     and the capacity in which Mr Pearl was said to be "involved" in those companies.	(b)             In response to paragraph 13.2: (i)       Mr Pearl and Mr Staples were both formerly directors of EQ Services Limited; (ii)       Mr Pearl was a shareholder in Rhino Skinz Limited (now removed from the Companies Registry) in which Mr Staples was a director; and (iii)      Mr Pearl was a director of EQ Solutions Limited (now removed from the Companies Registry) in which The Staples Group Limited was a shareholder;
23.2     In November 2012 Michel Pearl was employed by the Earthquake Services Limited as a consultant on a commission basis. 23.3     Further and better particulars to be provided following discovery.	11.2        To the extent not detailed above: (a)       the plaintiffs have knowledge of the matters in paragraph 13 (and its subparagraphs); and (b)       further particulars will be provided following discovery.
24	At least some of the inspectors used by the plaintiffs did not have appropriate qualifications. Facts and circumstances 24.1     The Staples Group Limited, and companies associated with the Staples Group Ltd, employed or contracted inspectors to	14.	Paragraph 24: this paragraph does not particularise 14.1   which inspectors lacked "appropriate qualifications";	12	Amended statement of defence, paragraph 24 of the Schedule: 12.1        In response to paragraph 14: (a)       specific records were not kept on the matters in paragraph 14.1, but they are within the plaintiffs’ knowledge and further particulars will be provided following discovery;

1st ASOD of 2nd DEFENDANT TO 2nd ASOC SCHEDULE A – PUBLICATION FACTS WITH PARTICULARS OF FACTS AND CIRCUMSTANCES IN SUPPORT			NOTICE BY 1ST AND 2ND PLAINTIFFS REQUIRING 2ND, 3rd AND 4TH DEFENDANTS TO GIVE PARTICULARS OF SOD			RESPONSE BY SECOND DEFENDANT TO NOTICE REQUIRING FURTHER PARTICULARS OF STATEMENTS OF DEFENCE
24.2 24.3 24.4	undertake independent assessments and prepare written reports. Not all of those employed or contractors inspectors had relevant experience in the building industry. Michel Pearl was aware of the inspectors being used by the plaintiffs in their business. Further and better particulars to be provided following discovery.	14.2	what is meant by "appropriate qualifications";	(b)	in response to paragraph 14.2, “appropriately qualified” means: (i)       a degree in civil engineering with a specialisation in structural engineering; or (ii)       other relevant qualifications as required to undertake quantity surveying work;
		14.3	which companies employed or contracted which inspectors to undertake assessments and prepare reports;	(c)	the plaintiffs have knowledge of the matters in paragraph 14.3 and further particulars will be provided following discovery;
		14.4	which employed or contracted inspectors lacked relevant experience in the building industry;	(d)	specific records were not kept on the matters in paragraph 14.4, but (i)       they are within the plaintiffs’ knowledge; and (ii)       further particulars will be provided following discovery;
		14.5	what is meant by "relevant experience";	(e)	in response to paragraph 14.5, “relevant experience” means specific post-qualification work on houses and residential dwellings; and
		14.6	which inspectors Mr Pearl allegedly knew lacked relevant experience or appropriate qualifications.	(f)      specific records were not kept on the matters in paragraph 14.6.
28	The first plaintiff failed to pay Mr Haggerty for a number of jobs.
Facts and circumstances 28.1     Mr Haggerty regularly invoiced the plaintiffs for work he completed for them and/or companies owned by The Staples Group Limited.
28.2	Mr Haggerty received payments into his bank account for the invoices he submitted.

1st ASOD of 2nd DEFENDANT TO 2nd ASOC SCHEDULE A – PUBLICATION FACTS WITH PARTICULARS OF FACTS AND CIRCUMSTANCES IN SUPPORT		NOTICE BY 1ST AND 2ND PLAINTIFFS REQUIRING 2ND, 3rd AND 4TH DEFENDANTS TO GIVE PARTICULARS OF SOD	RESPONSE BY SECOND DEFENDANT TO NOTICE REQUIRING FURTHER PARTICULARS OF STATEMENTS OF DEFENCE
28.3     After four months, Mr Haggerty was not paid on time and in full for the invoices he provided to the first plaintiff and/or entities of which the first plaintiff was a director. 28.4     Further and better particulars to be provided following discovery.		16.11    the breakdown of the $75,000 alleged to be owed by the first plaintiff or entities of which the first plaintiff was a director.	(c)     in response to 16.11, the second defendant repeats the answers in paragraphs 14.1(a) and (b) above but beyond this the particulars are matters of evidence.
29	As at the time of the second Campbell Live Program, Andrew Haggerty was owed $75,000 by the first plaintiff and/or entities of which the first plaintiff was a director.
Facts and circumstances 29.1   Mr Haggerty was contracted to the first plaintiff’s project management company to conduct repair work.
29.2     Mr Haggerty regularly invoiced the plaintiffs for work he completed for them or companies owned by The Staples Group Limited. 29.3     After four months, Mr Haggerty was not paid on time and in full for the invoices he provided to the first plaintiff and/or entities of which the first plaintiff was a director. 29.4     Further and better particulars to be provided following discovery.