Waitakere Group Limited v James Hardie New Zealand Limited

[2021] NZHC 1403

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2015-404-3080

[2021] NZHC 1403

BETWEEN

WAITAKERE GROUP LIMITED

First Plaintiff

METLIFECARE PINESONG LIMITED
Second Plaintiff

FOREST LAKE GARDENS LIMITED
Third Plaintiff

VISION (DANNEMORA) LIMITED

Fourth Plaintiff

METLIFECARE COASTAL VILLAS LIMITED

Fifth Plaintiff

AND

JAMES HARDIE NEW ZEALAND LIMITED

First Defendant

Continued next page

Hearing:	11 June 2021
Counsel:	C M Meechan QC, C L Gordon and A C Kennedy for Plaintiffs J E Hodder QC and T F Cleary for Defendants
Judgment:	15 June 2021

JUDGMENT (NO 12) OF WHATA J

Re: Application for leave to amend interrogatory

This judgment was delivered by me on 15 June 2021 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

WAITAKERE GROUP LTD v JAMES HARDIE NEW ZEALAND LTD [2021] NZHC 1403 [15 June 2021]

STUDORP LIMITED

Second Defendant

JAMES HARDIE NZ HOLDINGS LIMITED
Third Defendant

RCI HOLDINGS PTY LIMITED
Fourth Defendant

JAMES HARDIE AUSTRALIA PTY LIMITED

Fifth Defendant

JAMES HARDIE RESEARCH PTY LIMITED
Sixth Defendant

JAMES HARDIE INDUSTRIES PLC
Seventh Defendant

Solicitors:           Minter Ellison Rudd Watts, Auckland

Chapman Tripp, Auckland

[1]    This is an application by the Waitakere plaintiffs for leave to amend interrogatories and for corresponding orders to answer. In my Judgment (No 10), I granted leave to amend other interrogatories and made orders to answer some of them.1 That judgment deals with the background and key principles. This judgment should be read together with it.

[2]The interrogatories presently in focus are:2

State whether the James Hardie Product Statements listed at Schedule 6 to the Fourth Amended Statement of Claim were authorised, approved or reviewed by any individual employed by any member of the James Hardie Group. If so identify:

(i)the name of that employee;

(ii)which entity within the James Hardie Group they were employed by;

(iii)their specific role within that entity in the James Hardie Group; and

(iv)the name, position, and location of the person or persons they reported to during that time (ie, their line manager or Board).

(Interrogatories 247-251)

[3]    These interrogatories are a modified form of an earlier set of interrogatories, which asked the defendants to:

State whether public statements (whether to general public, media, local government or industry professionals) made by the James Hardie New Zealand business in relation to “weathertightness” issues from 2003-2015 were authorised, approved or reviewed by any individual employed by any other James Hardie entity…

[4]    The defendants object to leave on the basis, in short, that this is a second bite of the cherry. It is common ground that leave to interrogate a second time is required.3 But, in reality, these interrogatories have been modified to address the defendants’

1      Waitakere  Group Ltd v James Hardie New Zealand (No 10)  [2021] NHZC 1052 [Judgment  (No 10)].

2      In my Judgment (No 10), it was sufficient to refer to these interrogatories by their anchor question, as “interrogatory 247”. Here I refer to the set of questions in full as Interrogatories 247-251. For clarity, they are the same questions I adjourned for consideration in Judgment (No 10).

3      See Wilson v Broadcasting Corporation of New Zealand (1987) 1 PRNZ 368 (HC).

previous complaint that the first iteration was too broad. As Heron J said in Wilson v Broadcasting Corporation of New Zealand, there is no “insurmountable objection” to revised interrogatories of this kind,4 and subject to my concerns about the drafting of the proposed Interrogatory 247, I am satisfied that it is in the interests of justice to grant leave to amend.

[5]    I turn to the merits of the proposed amendments. Interrogatories 247-251 are directed to a central issue in this case: namely, who among the defendants was responsible for the James Hardie Products. So, relevance is not an issue. The plaintiffs have also identified the specific documents under scrutiny and, while they span some 30 years, answers relating to them will not be so burdensome as to disqualify the interrogatories on that basis. Unlike the case in Wright v Attorney-General, a case helpfully cited by Mr Hodder QC for the authority that temporal considerations are relevant to the issue of burden, the James Hardie defendants are well resourced and have already thoroughly investigated the history of the statements under scrutiny.5 Notably, Mr Hodder advised that the defendants will plead to various allegations relating to the statements (see below at [6]) and, in the supporting affidavit filed by Mr Petrie, he notes evidence will be given about that process in respect of each of the documents. Save for what I will shortly say about the imprecise nature of the interrogatories, questions about that process can, therefore, hardly be said to be unduly onerous.

[6]    But, as I said in my Judgment (No 10), an interrogatory must relate to a primary fact and must be precise.6 Here the class of persons captured, who may have “authorised or approved or reviewed” the relevant statement, is potentially very wide, at least from the perspective of the interrogatee. By way of illustration, it may literally include technicians, managers (including junior and senior managers), executive officers, a board or boards of directors and individual directors. It may include a combination of them or others who may over had some responsibility for the James Hardie Product Statements referred to in Interrogatory 247 (Statements). Furthermore,

4      Above n 4, at 371.

5      Wright v Attorney-General [2021] NZHC 18 at [125].

6      See discussion of “primary facts” in Judgment (No 10), above n 1, at [15]-[16]; and Todd Pohokura Ltd v Shell Exploration NZ Ltd [2009] NZCA 561 at [14]-[16], and Commerce Commission v Air New Zealand Ltd (No 6) [2012] NZHC 2113 at [18].

whether a person “authorised” and “approved” the Statements may involve contestable assumptions of responsibility, including legal responsibility.

[7]    Ms Meechan QC, nevertheless, maintained that the target of the interrogatories was obvious, noting for example that the defendants have offered to plead to the allegations that:7

(a)the defendants either individually or collectively were responsible for “making and or authorising or endorsing the James Hardie Product Statements …”

(b)“carried out and/or authorised promotional activities”, including:

(i)“writing, publishing and releasing the James Hardie Product Information … which contained the James Hardie Product Statement …”

(ii)“marketing directly to consumers/end users, architects and building contractors …”

(c)“made and /or authorised the James Hardie Product Statements; and

(d)Engaged in conduct including:

(i)“making the James Hardie Product Statements … and/or authorising them to be made; and

(ii)“endorsing the James Hardie Product Statements.”

[8]    But a pleading to an allegation may logically and legitimately involve reliance on contestable assumptions and proof of multiple, disparate facts. By contrast, any answer to an interrogatory that involves a narrative comprising contestable assumptions and multiple disparate facts is likely to take on the character of a brief of

7      See plaintiffs’ fourth amended statement of claim at [38], [48], [49] and [67].

evidence. That prospect is objectionable per se.8 So, while some latitude is to be expected, the proposed Interrogatories 247-251 cast the net too widely.

[9]    I, nevertheless, understand why the plaintiffs wish to interrogate on this issue. Their desire to achieve clarity about the issue of managerial oversight or supervision of the production of the Statements is legitimate. So, what then should be done? There are three features of this case which justify what might fairly be described as a generous approach to the plaintiffs. First, these proceeding are still recalibrating following their separation late last year from the White proceedings, one consequence of which is that the interlocutory processes have become disjointed. Second, as noted above, a further amended statement of defence is due, and the defendants propose to plead on the plaintiffs’ allegations made in relation to the Statements. Third, evidence is shortly due in the White proceedings on the issue of the making and production of the Statements.

[10]   That evidence, together with the amended pleadings, may usefully narrow the scope of any interrogatories and bear on the justification for them. It may be possible, for example, to interrogate more precisely about the supervision of production of the Statements.

[11]   Given the foregoing, I adjourn final consideration of the issue of leave in relation to Interrogatories 247-251, pending the filing of the defendants’ amended statement of defence and the provision of the White evidence. The parties have leave to revert to me as to timetabling of these steps if necessary. For reasons expressed in this judgment, any revision of Interrogatories 247-251 must be precise. An attempt to replicate the present draft of them will not be well received. Conversely, in a case of this scale, technical objections are equally unwelcome.

8      As noted by Heron J in Wilson, above n 4, at 370. See also Wright above fn 5 at [13]. I acknowledge that there may be cases where the answer may involve narrating multiple facts, for example an interrogatory as to the basis for a valuation decision (see Turner v Goulden (1873) LR 9 CP 57 (Comm Pleas).

[12]   In terms of costs, I propose to adjourn that issue, too. I simply record that the defendants have been largely successful to this point: Interrogatories 247-251 as presently drafted are impermissible.