Ultra Fire Sprinkler Systems Limited v Ultra Fire Protection Limited
[2020] NZHC 2243
•31 August 2020
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CIV-2018-470-000135
[2020] NZHC 2243
BETWEEN ULTRA FIRE SPRINKLER SYSTEMS LIMITED
First PlaintiffSCOTT DOUGLAS TAYLOR
Second PlaintiffAND
ULTRA FIRE PROTECTION LIMITED
First Defendant
KRISTOPHER JAMES TOCKER
Second Defendant
Hearing: 6 August 2020 Appearances:
J Hakaria for Plaintiffs
D Fraundorfer and J Macdougall for Defendants
Judgment:
31 August 2020
JUDGMENT OF ASSOCIATE JUDGE P J ANDREW
ULTRA FIRE SPRINKLER SYSTEMS LTD v ULTRA FIRE PROTECTION LTD [2020] NZHC 2243
[31 August 2020]
Introduction
[1]These are proceedings for breach of contract and breach of fiduciary duty.
[2] In their amended statement of claim, the plaintiffs allege that, between January 2014 and July 2017, the first plaintiff (UF Sprinkler) and the first defendant (UF Protection) worked together under the brand “Ultra Fire”, whereby the former would price and complete fire sprinkler works and the latter would price and complete fire alarm works. The concept was that both parties would work together as a united front to head contractors and offer both fire alarm and fire sprinkler services because head contractors preferred to contract with full-service operators. The plaintiffs allege that UF Sprinkler and UF Protection operated either as a joint venture relationship or as a contractor/sub-contractor relationship.
[3] As at August 2017, the plaintiffs say that Ultra Fire had secured 26 contracts, of which UF Sprinkler was to carry out the fire sprinkler aspect of each contract and UF Protection was to carry out the fire alarm aspect of those contracts. However, the plaintiffs say that in August 2017, UF Protection and the second defendant, Mr Tocker, elected to take 12 of those contracts away from UF Sprinkler. It is those contracts, together with the variations that flow from them, that are the subject of the plaintiffs’ claims.
[4] Of the 12 contracts allegedly appropriated, the contracts known as the Tauranga Crossing Stage 2 and the Bayfair Extension are the main contracts at issue in the present interlocutory applications.
[5] There are six interlocutory applications before me for determination. They are as follows:
(a)The plaintiffs’ challenge to the defendants’ claim of confidentiality, dated 20 March 2020, pursuant to r 8.25 of the High Court Rules 2016;
(b)The plaintiffs’ application, dated 20 March 2020, for further and better discovery pursuant to r 8.19 of the High Court Rules;
(c)The plaintiffs’ application for the defendants to provide further answers to interrogatories, dated 20 March 2020, pursuant to r 8.42 of the High Court Rules;
(d)The defendants’ application for a variation of the tailored discovery order, dated 26 May 2020;
(e)The defendants’ application for further and better discovery, dated 26 May 2020, pursuant to r 8.19 of the High Court Rules; and
(f)The defendants’ application for setting aside privilege, dated 26 May 2020, pursuant to r 8.25 of the High Court Rules.
Factual background
[6]Mr Taylor, the second plaintiff, is a director and shareholder of UF Sprinkler.
[7] Mr Tocker, the second defendant, is a director and shareholder of UF Protection. He is also a shareholder in UF Sprinkler.
[8] Between 2013 and August 2017, Ms Victoria White, trading as Abacus Business Services, an accountancy business, acted as UF Sprinkler’s accountant and as a business mentor to Mr and Mrs Taylor.
[9] Between April and June 2017, Mr Taylor and Mr Tocker discussed purchasing each other’s shares in UF Sprinkler. They were unable to reach agreement and their relationship broke down.
[10] In late August 2017, Mr Taylor incorporated a company called Cease-Fire Prevention Ltd (Cease-Fire). That company was intended to offer fire prevention services. However, Mr Taylor says that Cease-Fire ultimately provided labour-only services to a company called Zero Fire Ltd (Zero Fire) if and when it was required to do so.
[11] Cease-Fire ceased trading on 31 March 2018, and in October 2019, the Companies Office removed Cease-Fire from the Companies Register.
[12]In September 2018, the statement of claim was filed and served.
[13] In 2018, Mr Taylor was employed by Zero Fire as the Bay of Plenty regional manager.
[14] On 3 May 2019, counsel filed a joint memorandum agreeing to tailored discovery. It was agreed that the contracts identified as the Tauranga Crossing Stage 2 and the Bayfair Extension should be disclosed. The agreed discovery categories (and the subject of a consent order I subsequently made) included emails, invoices, payment claims, bank statements and financial statements.1
[15] In November 2019, Mr Taylor was offered shares in Zero Fire and he currently has a 15 per cent shareholding in that company.
[16] The amended statement of claim, dated 12 March 2020, contains two causes of action: breach of contract and breach of fiduciary duty.
[17] On 13 May 2020, the defendants filed and served the second defendant’s amended statement of defence and counterclaim. The counterclaim alleges that Mr Taylor conducted the affairs of UF Sprinkler in an oppressive, unfairly discriminatory or unfairly prejudicial way to Mr Tocker’s detriment as shareholder. The counterclaim includes allegations that:
(a)Mr Taylor preferred his interests to those of Mr Tocker and UF Sprinkler;
(b)Mr Taylor was disloyal to UF Sprinkler when he became the director of a competitor with UF Sprinkler, namely Cease-Fire;
1 See my minute of 6 May 2019.
(c)Mr Taylor preferred the interests of Cease-Fire to those of Mr Tocker and UF Sprinkler;
(d)Mr Taylor preferred the interests of Zero Fire to those of Mr Tocker and UF Sprinkler;
(e)Mr Taylor diverted corporate opportunities to Cease-Fire that could have been carried out by UF Sprinkler;
(f)Mr Taylor disclosed information gained in his position as director of UF Sprinkler to Zero Fire and Cease-Fire; and
(g)Mr Taylor used information gained in his position as director of UF Sprinkler to further the interests of Zero Fire and Cease-Fire.
Relevant legal principles
Rule 8.19 — Particular discovery
[18] The Court usually follows a four-stage approach in considering an application under r 8.19.2 This approach, as adopted by Asher J in Assa Abloy New Zealand Ltd v Allegion (New Zealand) Ltd, involves the following questions:3
(a)Are the documents sought relevant, and if so, how important will they be?
(b)Are there grounds for belief that the documents sought exist? This will often be a matter of inference. How strong is that evidence?
(c)Is discovery proportionate, assessing proportionality in accordance with pt 1 of the discovery checklist in the High Court Rules?
2 Lyttelton Port Co Ltd v Aon New Zealand [2016] NZHC 2996.
3 Assa Abloy New Zealand Ltd v Allegion (New Zealand) Ltd [2015] NZHC 2760, [2018] NZAR 600.
(d)Weighing and balancing these matters, in the Court’s discretion in applying r 8.19, is an order appropriate?
[19] Relevance is to be assessed according to the pleadings.4 In determining relevance, it is the case of the party seeking discovery that must be assumed to be true, not that of the party from which discovery is sought.5
Rule 8.25 — Challenge to privilege or confidentiality claim
[20]Rule 8.25 reads:
Challenge to privilege or confidentiality claim
(1)If a party challenges a claim to privilege or confidentiality made in an affidavit of documents, the party may apply to the court for an order setting aside or modifying the claim.
(2)In considering the application, a Judge may require the document under review to be produced to the Judge and may inspect it for the purpose of deciding the validity of the claim.
(3)The Judge may –
(a)set aside the claim to privilege or confidentiality; or
(b)modify the claim to privilege or confidentiality; or
(c)dismiss the application; or
(d)make any other order with respect to the document under review that the Judge thinks just.
[21] The confidentiality of information is not a ground for opposing discovery; the sole test in this regard is relevance in the usual way.6 However, r 8.15(2)(f) recognises the prospect that confidentiality of the contents of documents may justify restrictions on the inspection and use of the documents. Rule 8.28(3) provides that a party may limit inspection of confidential documents to the person specified in the affidavit of documents, subject to the restrictions proposed in the affidavit. Where the scope of confidentiality claims is contested, r 8.25 provides for court resolution.7
4 Robert v Foxton Equities Ltd [2014] NZHC 726, [2015] NZAR 1351 at [8].
5 Kawerau Village Holdings Ltd v Yuen [2015] NZHC 1379 at [38].
6 Port Nelson Ltd v Commerce Commission (1994) 7 PRNZ 344 (CA) 348; and NSK Ltd v General Equipment Co Ltd [2016] NZHC 1424 at [56].
7 McGechan on Procedure (online looseleaf ed, Thomson Reuters) at [HR8.25.17].
[22] Parties are prohibited from disclosing discovered information to third parties or using that information for a collateral purpose. To do so is an abuse of the Court’s process and would amount to a contempt.8
Analysis and decision
Application (a) — Plaintiff’s application challenging confidentiality claim by defendants dated 20 March 2020 (r 8.25 of the High Court Rules)
[23] The defendants have claimed confidentiality in relation to some 383 documents listed in their affidavit of documents. Those documents have not been disclosed to the plaintiffs or offered up for inspection. All these documents relate to what the plaintiffs regard as two critical contracts, namely the Tauranga Crossing Stage 2 and Bayfair Extension contracts.
[24] The defendants further say that the plaintiffs have no interest in the Tauranga Crossing Stage 2B (an entirely separate contract to Stage 2A), which was tendered for and awarded months after the relationship between the parties ended. Likewise, the defendants say that the Bayfair Extension contract was re-priced and awarded six months after the parties parted company.
[25] However, I find that all of these documents, including Tauranga Crossing Stage 2 and Bayfair Extension, are relevant. They were clearly part of the consent order for tailored discovery that I made in my minute of 6 May 2019. That discovery order referred to the “Tauranga Crossing Stage 2” and did not refer to any particular sub-stages (for which the defendants now contend, namely 2A or 2B). It also expressly referred to the Bayfair Extension contract. I also note that the defendants have listed these 383 documents under “Part 3 confidentiality”, which of course denotes that the defendants take the view that the documents are relevant to the proceedings, albeit that confidentiality is claimed over them.
[26] There may be some merit to Mr Fraundorfer’s submission for the defendants that it is difficult to see, at least in relation to the breach of contract cause of action, how some of the contracts entered into after the parties severed their relationship could
8 At [HR8.25.17(1)].
be relevant. However, relevance is to be assessed according to the pleadings, which include, of course, a claim of breach of fiduciary duty in relation to a joint venture. Furthermore, simply because many of the documents in this disputed category relate to the issue of quantum, rather than to the nature of the relationship, it does not mean that the test of relevance is not made out.
[27] The real reason for the defendants’ objection to production of these documents is one of confidentiality. As noted above, that is not a ground for opposing discovery. The critical issue that arises is whether there should be restrictions on inspection.
[28] Mr Tocker says that he developed a new pricing method after UF Sprinkler and UF Protection split in August 2017, and that the defendants have withheld documents because they may reveal the new pricing method to Mr Taylor, who is now employed by Zero Fire Ltd, which is a competitor of UF Protection.
[29] For the reasons submitted by Mr Hakaria, for the plaintiffs, there is good reason to be somewhat sceptical of the defendants’ claims about confidentiality. It appears that Mr Tocker has to some extent explained to the plaintiffs in his affidavit his pricing methods and the components of that. Furthermore, as the plaintiffs allege, a pricing method is not an exact formula or script to follow but, rather, numerous variable components which Mr Tocker appears to use to derive a figure — that is, base rates and square metre rates which are subject to refinement. In addition, Mr Taylor’s claim that it would be impossible for him to try and reverse engineer the pricing that is contained in the withheld documents and to ascertain Mr Tocker’s pricing method because it is subject to so many variables, is clearly a plausible one.
[30] I also note that the defendants willingly provided documents in the form of 17 payment schedules about the Tauranga Crossing Stage 2. However, Mr Tocker now says that of those documents, six were validly disclosed and 11 were intended to be confidential and inadvertently disclosed.
[31] It is clear that the documents at issue need to be disclosed to the plaintiffs. The critical issue is whether some of the more commercially sensitive documents should
be the subject of a confidentiality protocol or terms of disclosure which protect the confidentiality claimed by the defendants.
[32] Imposition of terms as to confidentiality of inspection was considered thoroughly by the Court of Appeal in Port Nelson Ltd v Commerce Commission.9 Orders for non-disclosure can be made only when the Court considers it necessary, and it must be apparent from either the document itself or some other evidence that disclosure would be likely to prejudice the party making discovery in some significant way. It is clearly preferable that counsel ought generally to agree the scope and extent of any special protection.
[33] The defendants have provided, to the Court, a sample of some of the documents they claimed as confidential. These documents have not, to date, been seen by the plaintiff. Despite some residual doubt, I find that at least some of the information in the 383 documents claimed as confidential by the defendants is genuinely commercially sensitive and confidential and that it is appropriate to impose terms as to confidentiality of inspection. However, in my view, the defendants have drawn the claim of confidentiality too widely, and they need to reconsider the scope of the confidentiality claimed by focusing on truly sensitive commercial information such as base rates and square metre rates (which Mr Tocker describes as new pricing methods), which, understandably, they wish to prevent a trade competitor having access to.
[34] The plaintiffs say that they asked the defendants for an inspection protocol, but nothing was forthcoming from the defendants. That is regrettable because an inspection protocol is clearly the obvious solution.
[35] In the circumstances, I grant the plaintiffs’ challenge to the claim of confidentiality and make the following directions:
(a)The defendants are to review the claim of privilege and to provide to the plaintiffs redacted copies (that is, redacting the truly commercially sensitive material); and
9 Port Nelson Ltd v Commerce Commission, above n 6.
(b)Full, unredacted copies of the 383 documents are to be provided to counsel for the plaintiffs and an independent expert nominated by the plaintiffs (but that cannot be Ms White).
[36] I do not see the redaction exercise that I have directed as being unduly onerous. The samples of the confidential documents provided to me suggest that the information that needs to be redacted is somewhat limited.
Application (b) — Plaintiffs’ application for further and better discovery dated 20 March 2020 (r 8.19 of the High Court Rules)
[37] Subsequent to the plaintiffs filing their application in March 2020, the defendants have provided further documents to the plaintiffs, documents which the plaintiffs say should have been provided some nine months earlier.
[38] The plaintiffs’ application now focuses on documents relating to the Melrose Retirement Village, Bayfair Extension, financial statements and records, bank statements and records, and invoices.
[39] In my view, there is no serious dispute that the documents sought do in fact exist. The substance of the opposition by the defendants is a combination of relevance, confidentiality and proportionality.
[40] For reasons outlined above, I am satisfied that the documents sought are relevant. I also find, having regard to the quantum of the claim and the significant steps the defendants have taken to date to gather together and assess a large pool of documents, that no issue of proportionality arises.
[41] To the extent there are genuine issues of confidentiality/commercially sensitive information contained in these further documents, those issues can be addressed by adopting the confidentiality inspection protocol that I have directed at [35] above.
[42] I find that the defendants should be required to provide discovery of the bank statements and records and invoices. The tailored discovery order expressly referred to bank statements, and I accept the position of the plaintiffs that they have some
concerns about the accuracies and discrepancies identified in the Xero documents provided to date.
[43] In relation to the invoices, it is difficult to see that they contain any pricing method or any other confidential/commercially sensitive information. They should be disclosed to the plaintiffs.
[44] I note that since the application was filed by the plaintiffs, the defendants (so the plaintiffs say) have provided profit and loss statements for 10 of the 12 contracts in question. As Mr Hakaria submitted, there is no legitimate basis for withholding financial statements and records in respect of Tauranga Crossing Stage 2 and the Bayfair Extension.
[45] I also accept Mr Hakaria’s submission that the discovery that should be provided in relation to the Melrose Retirement Village extends to the 14 documents referred to in the contractor’s letter of acceptance, including the “special conditions of sub-contract” and “Watts & Hughes Construction special conditions of contract”.
Application (c) — Plaintiffs’ application for orders requiring defendants to file and serve further answers to the interrogatories (r 8.42 of the High Court Rules)
[46] The plaintiffs served interrogatories on the defendants, and question 12 of those interrogatories required the defendants to answer various sub-questions for each of the 12 contracts in dispute. The defendants have objected to answering question 12 in respect of the contracts known as the Tauranga Crossing Stage 2 and Bayfair Extension.
[47] I find that the questions relating to Tauranga Crossing Stage 2 and the Bayfair Extension contracts are relevant and that the interrogatories at issue are neither vexatious or oppressive. The real objection of the defendants to answering question 12 is because they are concerned that providing the answers would prejudice UF Protection’s commercial interests.
[48] I also reject the submission of the defendants that the interrogatories at issue are essentially questions based on disputed assumptions of fact.10 There is no dispute that the “appropriated contracts”, the subject of question 12, exist. It is the legal consequences of the answers to the questions, including their relevance, which remain in dispute (including whether the contracts were, as the plaintiffs allege, “appropriated”). The principle that interrogatories based on disputed assumptions of fact are impermissible, does not apply here.
[49] I find that the appropriate way to address the concerns of the plaintiff as to confidentiality and commercial sensitivity is to direct that the answers given to question 12 by the defendants should be the subject of the same confidentiality protocol that I have made in relation to the plaintiffs’ other applications.
[50] That means that the defendants are required to answer question 12 in relation to both the Tauranga Crossing Stage 2 and the Bayfair Extension contracts and to provide a redacted copy (if there are genuine commercially sensitive matters) to the plaintiffs and an unredacted copy to counsel for the plaintiff and the plaintiffs’ nominated expert. In this regard, it would appear that questions 12(a), (d), (h) and (i) do not give rise to any confidentiality concerns.
Applications (d) and (e) — Defendants’ application for a variation of a tailored discovery order dated 26 May 2020; and Defendants’ application for further and better discovery dated 26 May 2020 (r 8.19 of the High Court Rules)
[51] As Mr Fraundorfer submitted, these two applications are essentially the same. They both relate to the defendants’ amended counterclaim based on s 174 of the Companies Act 1993.
[52] I accept that the amended counterclaim was not filed and served until well after I made the order for tailored discovery. There may be some merit to Mr Hakaria’s submission that essentially the counterclaim is a “make weight” claim, having been filed a very long time after the original pleadings. However, the documents sought are clearly relevant, with relevance being determined by reference to the pleadings. This is not a case where I could safely conclude that the amended counterclaim is
10 Westpac Banking Corp v Hart (1987) 1 PRNZ 719 (HC).
incapable of success or so obviously hopeless that discovery would be a complete waste of time and resources. As noted above, strike-out applications and/or summary judgment applications are the appropriate vehicle for addressing those kinds of issues.
[53] The critical issue in relation to these applications is the scope of any discovery order.
[54] I note that the plaintiffs already provided the defendants with 34 documents in relation to Cease-Fire. It may well be, as Mr Hakaria submitted, that any other documents in relation to Cease-Fire are unattainable because Cease-Fire has been removed from the Companies Office and the company no longer exists. However, in my view, the plaintiffs should be required to take some steps to verify whether that is the case.
[55] The more difficult category of documents is that relating to Zero Fire. As Mr Hakaria submitted, Mr Taylor is an employee of Zero Fire and is not in control of that company, and Zero Fire is not a party to these proceedings. To the extent that Mr Taylor has access to or possession of Zero Fire documents, he has no power to authorise disclosure of those documents to a competitor. To do so would mean he would likely be in breach of his obligations as an employee.11
[56] The documents the defendants seek are wide-ranging and include bank statements, financial statements, internal communications and employment agreements.
[57] I find that the scope of the documents sought in the defendants’ application is clearly too wide.
[58] Mr Hakaria also complained about the vague nature of the allegations in the defendants’ counterclaim. He submitted that there is a lack of detail as to what Mr Taylor is alleged to have done. There are no particulars or detail as to how Mr Taylor apparently preferred the interests of Zero Fire, what information was wrongly disclosed to Zero Fire, and how such information benefited Zero Fire.
11 See definition of “control”: High Court Rules 2016, r 1.3.
Likewise, no particulars are provided as to how Mr Taylor is alleged to have failed to act with the necessary care, diligence and skill.
[59] There may well be merit to those contentions, but they do not provide a complete answer to the question of whether some additional discovery should be provided. Likewise, the fact that the defendants’ counterclaim makes no express mention of correspondence between Mr Taylor and Ms White about Zero Fire does not necessarily mean that documents of that kind would not be relevant. Similarly, the absence of any express reference to the Melrose Retirement Village or the Pacific Coast Village in the pleadings does not necessarily mean the documents relating to those entities would not be relevant to the broad s 174 claim.
[60] Mr Fraundorfer contended that what the defendants were seeking was, in substance, communications between the parties. In my view, the scope of the discovery should be confined to the communications.
[61] It is also necessary to address the valid issue that Mr Hakaria raises about the status of Mr Taylor as an employee of Zero Fire. It would be inappropriate, in the context of the current proceedings, to require Mr Taylor to provide disclosure of documents that he only has access to in his capacity as an employee of Zero Fire. Mr Taylor is not being sued in that capacity; he is a party to the current proceedings in his capacity as director and shareholder of UF Sprinkler. There is a clear need to respect the relevant boundaries.
[62] What this all means is that I grant, in part, the defendants’ applications but order that the scope of the discovery to be provided by the plaintiffs is to be substantially reduced.
[63] The documents in Part A of the schedule to the defendants’ application at para 4(a)–(d) are to be discovered, to the extent that they are in the plaintiffs’ control, but their relevance for the purposes of that discovery is to be determined by reference to the principal contentions made by the defendants in their counterclaim. That includes the allegations of disloyalty, Mr Taylor preferring his own interests to those
of Mr Tocker and UF Sprinkler, Mr Taylor allegedly diverting corporate opportunities and improperly disclosing information.
[64] The documents sought at Part A of the defendants’ schedule at para 4(e)–(h) are to be confined to the following documents, which are in the control of the plaintiffs (and in relation to Mr Taylor, as director of UF Sprinkler), that relate to the principal allegations in the defendants’ counterclaim, which I have summarised above:
(a)Communications between Cease-Fire and Zero Fire;
(b)Communications between Mr Taylor and Ms White; and
(c)Communications between Mr Taylor, in his capacity as a director of UF Sprinkler, and Zero Fire.
[65] To the extent that Mr Taylor has access to documents in his capacity as an employee of Zero Fire, they are not, for the purposes of the High Court Rules, in his control and he is not required to disclose them.
[66] To the extent that there are genuine concerns by the plaintiffs about commercial sensitivity and confidentiality, the protocol I have proposed at [35] above should be adopted.
Application (f) — Defendants’ application for setting aside privilege dated 26 May 2020 (r 8.25 of the High Court Rules)
[67] I accept the submission of Mr Hakaria that Ms White can properly be regarded as the plaintiffs’ agent for the purposes of assessing solicitor/client privilege.12 It is clear from the evidence that Ms White’s substantial involvement in the day-to-day administrative management of UF Sprinkler naturally led to the plaintiffs selecting her to be the main point of contact between the plaintiffs’ solicitors and the plaintiffs. As Mr Hakaria pointed out, Ms White authored 291 of some 500 privileged communications with the plaintiffs’ solicitors; by contrast, Mr Taylor authored 66.
12 Evidence Act 2006, s 51(4). See also Brandlines Ltd v Central Forklift Group Ltd HC Wellington CIV-2008-485-2803, 11 February 2011.
[68] While there are no documents formally establishing the agency relationship, it is clear, in my view, that Ms White had a responsibility to handle the obtaining of advice from the lawyer for the client’s benefit. The arrangements are not properly to be characterised as “loose” such that the relationship was of a disqualifying kind.13
[69] Mr Fraundorfer clarified at the hearing that the focus of his application was on approximately 20 documents only.
[70] Since then, and by memorandum dated 13 August 2020, Mr Hakaria has advised that his client have reconsidered their position in relation to a number of documents. That includes the email dated 28 June 2017 from Vicky White to Mel Condon and three payment schedules dated 19 February 2018 from UF Protection to UF Sprinkler.
[71] I note that the plaintiffs have advised that they will continue to communicate with the defendants on the issue of privilege to the plaintiffs’ claim and that if documents have been incorrectly claimed as privileged they will be disclosed. If, on the other hand, the privilege is maintained, then reasons will be provided to the defendants for such privilege. There is no dispute as to the relevant principles that apply in determining both solicitor/client privilege and litigation privilege.
[72] In the circumstances, beyond the finding that I make as to the agency relationship between Ms White and the plaintiffs’ solicitors, I do not see the need to make any formal orders or directions in relation to this particular application. However, I do reserve leave for the defendants to apply for further directions in the event that there are outstanding issues.
Result
[73] I grant the plaintiffs’ application dated 20 March 2020 challenging the defendants’ claim of confidentiality, pursuant to r 8.25 of the High Court Rules. I order that the defendants are required to make the withheld documents available to the plaintiffs on the terms set out at [35] above.
13 See Matthew Downs (ed) Cross on Evidence (online ed, LexisNexis) at [EVA54.13].
[74] I grant the plaintiffs’ application dated 20 March 2020 for particular discovery, pursuant to r 8.19 of the High Court Rules. The first and second defendants are to provide discovery on the terms set out at para 1(a)–(d) of the plaintiffs’ application dated 20 March 2020. The affidavit of documents from the defendants is to be filed and served by 16 October 2020.
[75] I grant the plaintiffs’ application dated 20 March 2020 for orders requiring the defendants to file and serve further answers to the interrogatories, pursuant to r 8.42 of the High Court Rules. I order that the first and second defendants are to file and serve further answers to the interrogatories on the terms set out at para 1(a) and (b) of the application dated 20 March 2020. The relevant affidavit is to be filed and served by 16 October 2020.
[76] I grant the defendants’ application dated 20 March 2020 for a variation of the tailored discovery order and the application for particular discovery pursuant to r 8.19 of the High Court Rules on the terms set out at [63] and [64] above. The relevant affidavits of documents is to be filed and served by 9 October 2020.
[77] I dismiss the defendants’ application dated 26 May 2020 for setting aside privilege, pursuant to r 8.25 of the High Court Rules. However, the parties are to take steps to address this issue in accordance with the directions I have set out at [71] and
[72] above.
[78] As to costs, I note that the plaintiffs have in the main succeeded with all three of their applications, and the defendants have had some partial success. My preliminary view is that the plaintiffs should be entitled to two-thirds of their costs and that costs are to lie where they fall in relation to the defendants’ application. If costs cannot be agreed, then memoranda are to be filed and served within 14 days (no more than three pages).
Associate Judge P J Andrew
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