Wakefield v Network Waitaki Limited - [2025] NZHC 656

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2023-476-9

[2025] NZHC 656

BETWEEN
GARRY JOHN WAKEFIELD and FIONA JEAN WAKEFIELD

First Plaintiffs

OTHER PLAINTIFFS

Second to One Hundred and Seventeenth Plaintiffs (detailed in Schedule A)

AND

NETWORK WAITAKI LIMITED

Defendant

Hearing: 6 March 2025

Appearances:

B Cuff and K Weekly for Plaintiffs

C Walker KC, W J Hamilton and A F N Larkin for Defendant

Judgment:

26 March 2025

Reissued:

27 March 2025

JUDGMENT OF ASSOCIATE JUDGE LESTER

(Discovery)

WAKEFIELD v NETWORK WAITAKI LIMITED [2025] NZHC 656 [26 March 2025]

Introduction

[1] This proceeding concerns a fire that started on 4 October 2020 between 2.10am and 3.00am that devastated the Lake Ōhau Village. That there are 117 plaintiffs says something of the scale of the damage that occurred as does the quantum of damages claimed ($52,792,651. 87).

[2] The plaintiffs say the fire started at power pole number 35693, part of the Lake Ōhau Feeder Line operated by Network Waitaki Limited (Waitaki), which runs through vacant land outside of the Ōhau township.

[3] In this application the plaintiffs challenge the adequacy of discovery provided by Waitaki and seek orders setting aside a claim for litigation privilege by Waitaki in respect of documents created from the time it learnt of the fire to when a “hold liable” letter was sent on behalf of the plaintiffs on 7 October 2020 — after that letter the plaintiffs accept litigation privilege exists.

The application for further and better discovery

[4] This part of the plaintiffs’ application brings to the fore the tension between two principles.

[5] The first is the well-known principle that in an application for further and better discovery, the respondent enjoys a presumption that the affidavits of documents filed are conclusive.1 The onus is on an applicant to establish the documents they seek are relevant, that there are grounds for belief the documents exist, and requiring disclosure is proportionate and appropriate.2

[6] The second and perhaps lesser-known principle is that an affidavit of discovery documents is not intended to serve any broader evidential function.3 A list of

1      Jessica Gorman   and   others   McGechan   on   Procedure   (online   ed,   Thomson   Reuters) at [HR9.19.03].
2      Assa Abloy New Zealand Ltd v Allegion (New Zealand) Ltd [2015] NZHC 2760, [2018] NZAR 600 at [14].
3      James Hardie New Zealand Ltd v White [2020] NZCA 142 at [72]: and White v James Hardie New Zealand Ltd [2020] NZHC 2202 at [130].

documents is only intended to facilitate production of discoverable documents which are not privileged and the disclosure of the existence of potentially other undiscoverable documents not in the control of the party giving discovery.

[7] Mr Cuff, counsel for the plaintiffs, explained the plaintiffs have been ordered to provide particulars of their negligence claim against Waitaki once discovery has been completed. The plaintiffs say the defendant’s discovery is inadequate in respect of the maintenance of the power pole in question and generally in…

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 656
Decision Date: 26 March 2025

CaseChat Overview and Summary

This proceeding concerns a fire that started on 4 October 2020 between 2.10am and 3.00am which devastated the Lake Ōhau Village. The plaintiffs say the fire started at power pole number 35693, part of the Lake Ōhau Feeder Line operated by Network Waitaki Limited (Waitaki), which runs through vacant land outside of the Ōhau township. The plaintiffs have brought this application to challenge the adequacy of discovery provided by Waitaki and seek orders setting aside a claim for litigation privilege by Waitaki in respect of documents created from the time it learnt of the fire to when a “hold liable” letter was sent on behalf of the plaintiffs on 7 October 2020 — after that letter the plaintiffs accept litigation privilege exists.

The court found that Waitaki had not met its onus in respect of both limbs of s 56 of the Evidence Act 2006. Accordingly, the court made an order setting aside Waitaki’s claim for litigation privilege in respect of documents up until the time Waitaki received the hold liable letter on 7 October 2020. The order also directed that Waitaki file an affidavit within 15 working days confirming its position on the adequacy of discovery. The court declined the order sought at paragraph 1.1 of the plaintiffs’ application dated 1 November 2024 and made orders at [22] and [23] above in its stead. Costs are reserved.

Orders