Wakefield v Network Waitaki Limited - [2025] NZHC 1973

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2023-476-9 [2025] NZHC 1973

BETWEENGARRY JOHN WAKEFIELD and FIONA JEAN WAKEFIELD
First Plaintiffs
OTHER PLAINTIFFS
Second to One Hundred and Twenty-one Plaintiffs (detailed in Schedule A)

AND NETWORK WAITAKI LIMITED
Defendant

Hearing: 7 July 2025

Appearances: B R D Cuff and C S M Henley for Plaintiffs
W J Hamilton and A F M Larkin for Defendant

Judgment: 18 July 2025

JUDGMENT OF ASSOCIATE JUDGE LESTER

(2nd discovery judgment)

WAKEFIELD v NETWORK WAITAKI LIMITED [2025] NZHC 1973 [18 July 2025]

[1]This is the second discovery judgment involving these parties.

[2]This proceeding concerns a fire that started on 4 October 2020 between

2.10 am and 3.00 am that devastated the Lake Ōhau Village. There are now 121 plaintiffs with the total amount claimed well over $50,000,000. The plaintiffs say that the fire started at power pole number 35693, part of the Lake Ōhau feeder line operated by Network Waitaki Limited (NWL). That feeder line runs through the vacant land outside of the Ōhau Village.

[3] In the earlier judgment,1 the plaintiffs challenged the adequacy of discovery provided by NWL and sought orders setting aside a claim for litigation privilege.

[4] In this application, NWL take issue with the plaintiffs’ compliance with the rules relating to discovery and seek orders that:

(i)the plaintiffs file and serve a further affidavit that gives full particulars of the steps taken to fulfil their obligations under the standard discovery order made in this proceeding including what they did to identify individuals or entities that may have relevant documents, the enquiries they made of those persons or entities and what steps they took to locate relevant documents;

(ii)the plaintiffs individually list the documents in respect of which privilege is claimed and identify for each document the privilege that is relied on; and

(iii)where documents are redacted, explain the reason for the redaction.

[5] NWL also sought an order that the Court inspect the documents for which privilege or confidentiality is claimed.

1 Wakefield v Network Waitaki Ltd [2025] NZHC 656.

[6] NWL seeks an order that the plaintiffs provide discovery of the complete files of their insurers, agents and loss adjusters and that the redactions be removed.

[7] NWL did not seek an order setting aside the privilege claimed by the plaintiffs from the date of a letter sent by solicitors acting for IAG New Zealand Limited (IAG) just before midnight on 7 October 2020 (the “hold liable” letter).2 However, counsel for the plaintiffs appear to accept such has been put in issue.

[8] Documents held by Vero Insurance New Zealand Limited (Vero) are said to be protected by litigation privilege from 8 October 2020. Some six other insurers became involved in the following months and years, and it is said they are entitled to common interest privilege.

The source of NWL’s concerns

[9] A challenge to the adequacy of discovery is often…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NZHC 1973
Decision Date: 18 July 2025

CaseChat Overview and Summary

The case of Wakefield v Network Waitaki Limited is a complex litigation proceeding involving a significant fire that devastated the Lake Ōhau Village in New Zealand. The plaintiffs, comprising 121 individuals, claim extensive damages against Network Waitaki Limited (NWL), asserting that the fire originated from a power pole operated by NWL. The plaintiffs seek to establish that the fire was caused by NWL's negligence and to recover substantial damages.

In this second discovery judgment, NWL challenges the adequacy of the discovery provided by the plaintiffs, focusing on the manner in which privileged documents have been listed and the completeness of the discovery process. NWL argues that the plaintiffs have not properly identified the parties to privileged communications and the nature of the documents, which is necessary to ensure compliance with the High Court Rules. The plaintiffs' use of the term "various" to describe authors and recipients of documents has led to significant uncertainty, hindering NWL's ability to assess the validity of the privilege claims.

The Court ordered the plaintiffs to provide a revised list of documents that complies with the Rules, ensuring that the authors and recipients of documents are identified by name and the nature of the documents is specified. This order aims to address NWL's concerns about the adequacy of the discovery process. Additionally, the Court required the plaintiffs to provide clearer evidence regarding the steps taken to identify and locate documents, including searches conducted by insurers and loss adjusters. The plaintiffs must also provide an explanation for any redactions in the documents and remove redactions from loss adjusters' documents.

Regarding the claims for privilege, the Court found that the plaintiffs' insurers reasonably contemplated litigation on 7 October 2020, based on the significant nature of the fire and the insurers' actions to investigate the cause and potential liability. However, the dominant purpose of the documents prepared on and after 7 October 2020 could not be assessed due to the inadequate listing of privileged documents. The Court adjourned the assessment of the dominant purpose until the plaintiffs provide a particularised list.

The Court also addressed the claim for common interest privilege, noting that the use of vague terms in listing privileged documents is insufficient to establish this privilege. The plaintiffs must provide proper particularised discovery to allow for a proper assessment of the common interest privilege claim.

Overall, the Court ordered the plaintiffs to provide a revised list of documents and additional evidence to address NWL's concerns about the adequacy of discovery and the validity of privilege claims. The assessment of the dominant purpose and common interest privilege claims was adjourned pending the provision of further information.

Orders