Wakefield v Network Waitaki Limited
[2024] NZHC 614
•21 March 2024
IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY
I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE
CIV-2023-476-009
[2024] NZHC 614
BETWEEN GARRY WAKEFIELD and FIONA WAKEFIELD
First Plaintiffs
OTHER PLAINTIFFS
Second to One Hundred and First Plaintiffs (detailed in Schedule A)AND
NETWORK WAITAKI LIMITED
Defendant
Hearing: 27 February 2024 Appearances:
C M Stevens, B R D Cuff and C S M Henley for Plaintiffs
C T Walker KC, G N Gallaway and W J Hamilton for Defendant
Judgment:
21 March 2024
JUDGMENT OF ASSOCIATE JUDGE PAULSEN
This judgment was delivered by me on 21 March 2024 at 11.30 am pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date:
WAKEFIELD v NETWORK WAITAKI LIMITED [2024] NZHC 614 [21 March 2024]
[1] The defendant owns and operates the electrical lines and associated infrastructure that provides power to the Lake Ōhau Village. On 4 October 2020, Lake Ōhau Village was devastated by fire. The plaintiffs allege the defendant is responsible for the fire and the resulting loss of their property.
[2] The plaintiffs’ original statement of claim was dated 2 June 2023; in response to which the defendant served a notice requiring further particulars on 3 July 2023. The plaintiffs provided a response to that request for particulars on 21 July 2023. The defendant was unsatisfied with the response and filed this application seeking both further particulars and initial disclosure.
[3] The defendant’s primary concern is that it is prejudiced because the plaintiffs’ pleading does not fairly inform it of the case it has to meet, limit the scope of the matters that may be put in evidence at trial, and enable it to know what witnesses to brief and call.
[4] The plaintiffs oppose the defendant’s application and have also now filed a first amended statement of claim. The plaintiffs say they have provided initial disclosure and any failings in this regard are immaterial. They also say the amended statement of claim provides the particulars required by the High Court Rules, and to the extent that it may not do so such particulars will be provided following discovery.
[5]The application broadly raises the following issues:
(a)whether the plaintiffs’ amended statement of claim provides sufficient particulars of the plaintiffs’ claims as required by the High Court Rules in the respects identified by the defendant; and
(b)whether the plaintiffs have complied with their initial disclosure obligations and, if not, what orders should be made in response.
Context
[6] The claim is brought on behalf of 101 plaintiffs (comprising individuals, companies or trusts), all of whom suffered property damage in the fire.
[7] The defendant carries on business as an electricity distribution company. Its core business is the provision, operation and management of electricity lines and infrastructure, including to the Lake Ōhau village.
[8] The plaintiffs say the fire commenced between 2.10 am and 3.00 am on 4 October 2020, approximately 3 km north-west of Lake Ōhau Village. The fire had clearly established itself by 3.06 am when the first 111 call was made.
[9] The defendant retains log records of overcurrent events that occur on its network. Those records show that several phase to earth faults occurred on the network between 2.10 am and 2.13 am, and a much larger phase to phase and phase to earth fault at 3.23 am.
[10] The plaintiffs’ case is that the faults that occurred at or about 2.10 am were the result of a catastrophic failure at a power pole on the defendant’s network, identified as Pole 35693, and that a fire originated in the immediate vicinity of that power pole shortly thereafter.
[11] The plaintiffs consider the failure that occurred at Pole 35693 was also the cause of the faults recorded at 3.23 am, resulting in a second fire that began about 80 m to the north of Pole 35693.
[12] The plaintiffs plead the fires merged and destroyed or damaged the plaintiffs’ property.
[13] Fire and Emergency New Zealand (FENZ) carried out an investigation. While it investigated several possible causes of the fire(s) in its report issued November 2021, FENZ concluded that the most probable cause was the failure of the cross-arm at Pole 35693, but the report was inconclusive as to whether there had been a second fire.
[14] The FENZ report has been put into evidence and was referred to in detail by counsel. They also referred to a report written by Mitton Electrical Investigations, which similarly concluded that the most likely cause of the fire was the failure of the cross-arm at Pole 35693.
[15] While it appears that in earlier correspondence the lawyers representing an insurer, and now the plaintiffs, had advanced a different theory as to the cause of the fire, the plaintiffs have adopted the conclusions in the FENZ report. Their counsel says there is “no daylight” between the FENZ report and the case the plaintiffs are advancing, yet also that the cause of both fires was the catastrophic failure at Pole 35693.
[16] The defendant does not accept the conclusions in the FENZ report and says the plaintiffs’ case is no more than a hypothesis, and one that is pleaded at an unacceptable level of generality.
[17] Pole 35693 was constructed from steel-reinforced concrete with a timber cross- arm. The cross-arm was attached to the top of the pole by a galvanised steel bolt and single nut. It was further supported by diagonal galvanised steel support braces likewise attached to the cross-arm and the pole with a steel bolt and single nut. The timber cross-arm supported three steel-reinforced aluminium strand conductors which were identified as the red, yellow and blue phase conductors. This configuration is represented in the diagram below.
[18] The plaintiffs’ case is that on or prior to 4 October 2020 the cross-arm became partially detached as a result of nuts securing bolts A and B becoming loose and falling off so that the partially detached cross-arm dropped and rotated, causing the underside of the lakeside stay brace to make contact with the red phase conductor. They say this occurred at about 2.10 am and was recorded in the defendant’s log. The plaintiffs also plead the contact between the lakeside stay brace and the red phase conductor rendered the stays, bolt D and its washer live, resulting in a flashover event between the stays, bolt D and its washer and steel reinforcing beneath the surface of the concrete pole and causing a short circuit current to flow to earth. This in turn is said to have generated intense localised heating and molten material to fall to the ground, igniting dry vegetation at or near the base of the pole, resulting in the first fire.
[19] As far as the second fire is concerned, the plaintiffs say this was caused by the later rotation of the partially detached cross-arm towards the hillside of the pole. What is being alleged is that the cross-arm effectively flipped.1 This resulted in the yellow and red phase conductors being twisted at a point further down the network between what are identified as Poles 35693 and 870452, generating sparks and arcing and molten aluminium particles falling to ground igniting vegetation below. They consider this was what caused the fault recorded by the defendant’s log at 3.23.09 am.
[20] The plaintiffs plead three causes of action on behalf of all plaintiffs in negligence, the rule in Rylands v Fletcher and nuisance.2 Each cause of action alleges that the plaintiffs’ loss was caused by the first fire and the second fire. There is no pleading that differentiates loss that may have been caused by one fire but not the other.
The law - further particulars
[21] The relevant rules for present purposes are rr 5.11(1)(g), 5.26 and 5.32 of the High Court Rules 2016. To the extent they are relevant, I set them out below:
[22]Rule 5.11(1)(g) provides:
1 There is evidence of high winds in the area at this time.
2 Rylands v Fletcher (1868) LR 3 HL 330.
5.11 Heading on statement of claim and counterclaim
(1) The heading of a statement of claim, and of any counterclaim intended to be served upon a person other than the plaintiff, must show—
…
(g) the full name, and the place of residence and occupation, of every plaintiff and defendant, so far as they are known to the party presenting the document for filing.
[23]Rule 5.26 provides:
5.26 Statement of claim to show nature of claim
The statement of claim—
(a)must show the general nature of the plaintiff's claim to the relief sought; and
(b)must give sufficient particulars of time, place, amounts, names of persons, nature and dates of instruments, and other circumstances to inform the court and the party or parties against whom relief is sought of the plaintiff's cause of action; and
(c)must state specifically the basis of any claim for interest and the rate at which interest is claimed; and
…
[24]Rule 5.32 provides:
5.32 Amount of money claim
A statement of claim seeking recovery of a sum of money must state the amount as precisely as possible.
[25] The principles applicable to consideration of an application for further and better particulars are well established. In Platt v Porirua City Council, Kós J identified that particularisation of pleadings are important to:3
(a)inform defendants as to the case they have to meet;
(b)limit the scope of matters the plaintiff may put an issue at trial (or in pre-trial settlement discussion);
(c)enable the defendants to know what witnesses it will need to retain and enable them to start preparing evidence ahead of the formal exchange of evidence; and
3 Platt v Porirua City Council [2012] NZHC 2445 at [19].
(d)provide an opportunity for a defendant to seek summary determination on the basis that the claim is pleaded as untenable.
[26] Kós J also referred and quoted from (as did counsel before me) the leading decision of the Court of Appeal in Price Waterhouse v Fortex Group Ltd as follows:4
… Pleadings which are properly drawn and particularised are, in a case of any complexity, if not in all cases, an essential road map for the Court and the parties. They are the documents against which the briefs of evidence are or should be prepared. They are the documents which establish parameters of the case, not the briefs of evidence.
…
… What we are saying is that both the Court and opposite parties are entitled to be advised of the essential basis of a claim or defence, and all necessary ingredients of it, so that subsequent processes and the trial itself can be conducted against recognisable boundaries. Neither the Court nor opposite parties should be placed in the position of having to deal with a proposition of whose substance adequate notice has not been given in the pleadings.
…
The object of a Statement of Claim is to “state” the “claim”, so that the Court knows what it is to rule upon, and the Defendant knows the case which it must meet. As a matter of practicalities, this initial “statement” is not at the level of a full disclosure of all evidence and documentation. It is of course an abbreviated summary “statement” of the basic facts said to give rise to the claim, and of the relief which is sought.
…
In the result, and particularly in complex cases, a rather more detailed factual narrative has come to be required than was the case in earlier and simpler times. That does not require the full detail which later will be contained in a brief of evidence. Nor does the modern requirement for pre-trial exchange of briefs dilute the earlier and differently based requirement for sufficiently particular pleading. 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 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.
[27] A practical guide to the approach to be taken can be found in Associate Judge Osborne’s judgment in Body Corporate 74246 v QBE Insurance (International) Ltd, where he said:5
4 Price Waterhouse v Fortex Group CA179/98, 30 November 1998 at 17–19.
5 Body Corporate 74246 v QBE Insurance (International) Ltd [2015] NZHC 1360 at [18] (footnotes omitted).
(h)Questions which a Court can usefully ask itself are:
(i)Has sufficient information been provided to inform the other party of the case they have to meet and to enable them to take steps to respond?
(ii)Is there a real risk that the other party may face a trial by ambush if further particulars are not provided?
(iii)Is the request oppressive or an unreasonable burden upon the party concerned?
(i)In considering whether any party is likely to be taken by surprise, the Court is entitled to have regard to the fact that:
(i)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;
(ii)Case management is available to ensure each side is fairly informed of what is in issue, with the Court able to require leading counsel to agree a list of issues;
(iii)Briefs of evidence will be exchanged well in advance of the hearing. The Court is also entitled to take into account its ability in cases with substantial evidence to provide for defendants to have extended periods of time to digest and respond to the evidence of the plaintiff.
(j)Particulars of pleading should be approached in a practical and not a theoretical, mechanical or pedantic manner.
The particulars sought in this case
[28] In explanation for the particulars sought, Mr Walker KC submits the plaintiffs’ case turns almost entirely on whether they are correct the fire originated at Pole 35693. He says the plaintiffs will attempt to make their case by drawing together the threads of circumstantial evidence of a technical/scientific nature involving a considerable volume of expert evidence. For this reason, he submits considerable precision is required, and the defendant must have a clear understanding of the plaintiffs’ case so that experts are properly briefed and are able to carry out their own investigations which will need to begin well before the briefing of witnesses.
Paragraphs 2, 3, 18, 24, and schedule 1 of the amended statement of claim.
[29] The plaintiffs’ amended statement of claim does not identify the plaintiffs’ property said to have been destroyed and/or damaged in the fire nor the amount(s) being claimed except in broad terms. Attached as a schedule to the amended statement of claim is a table identifying each plaintiff, the “address of loss” and the “type of damage/loss” suffered by each of them, limited to descriptions such as “dwelling”, “motor vehicle”, and “contents”. No values are attributed to the property except to the extent the plaintiffs plead:
[26] The plaintiffs have suffered losses in excess of $40 million. The plaintiffs are quantifying their losses following destruction of their property (and in some cases associated records) and will provide further particulars of their losses following discovery and before trial.
[30]The defendant seeks the following particulars:
Give particulars, in respect of each plaintiff or set of plaintiffs as appropriate, of:
3.1the items of property allegedly lost or damaged in the fire, specifying in each case whether they were lost or damaged;
3.2the location of each such item of property (where appropriate, by address);
3.3the relevant plaintiff’s ownership or possessory interest in the item of property said to have been lost or damaged (i.e. whether they were the owner, lessee, tenant, occupier or otherwise);
3.4the amount of loss or damage alleged to have been suffered by the plaintiff in each case; and
3.5the damages claimed as a result.
[31] Mr Walker submits that r 5.32 requires the plaintiffs to state the sum of money claimed “as precisely as possible”, and that an open-ended statement that the losses will exceed $40 million does not meet that obligation. He submits that r 5.32 is not optional and is underpinned by the importance of properly informative pleadings. Mr Walker acknowledges that the plaintiffs will have suffered difficulties in cataloguing and assessing their losses. However, he argues that three and a half years have passed since the fire and, given the time elapsed, they must be in a position to provide a better
assessment of loss. He argues the sum that will be claimed is a matter of considerable concern and will inform any settlement discussions so that a precise figure, with particulars of each plaintiff’s alleged losses, could and should be provided.
[32] Mr Stevens emphasises this was the largest urban fire in New Zealand’s history with 48 homes destroyed and six more seriously damaged. He argues that determining the plaintiffs’ losses is a large, complex and ongoing quantification project. He says the plaintiffs have repeatedly made clear that the pleadings would be updated once the quantification process is completed and discovery undertaken. He also submits the defendant is seeking particularisation of every piece of property lost or damaged for each of the 101 plaintiffs at a level of detail that is not required for a pleading or to inform the defendant of the case to be met. Mr Stevens argues the plaintiffs have particularised their losses as precisely as possible at this stage, and it has been recognised as an acceptable practice in complex cases to provide particulars of loss upon finalisation of expert evidence.6
[33] I do not accept that the defendant can be expected to wait until discovery has been completed (or worse, until expert evidence is exchanged) to be provided with particulars of the losses being claimed by each plaintiff, despite the fact I would expect that the figures may need to be updated prior to trial. While I have no doubt the task of quantifying each plaintiff’s losses is a large one, there is no evidence before me of any particular difficulties which prevented the task from being completed before now. I agree with Mr Walker’s submission that, given the length of time that has elapsed since the fire, there can be no excuse for the plaintiffs’ failure to provide better particulars of loss. In this respect the comments made by Associate Judge Osborne in Crossfit Inc v Exercise Industry Association Ltd are apposite:7
[129] The requirement under r 5.32 to state as precisely as possible the sum of money the plaintiff seeks to recover is not optional. It is underpinned by the importance to the parties and the Court of properly informative pleadings of each aspect of the plaintiff’s claim.
[130] The commentary in McGechan on Procedure to which Mr Ringwood refers is not to be taken as a statement of acceptable practice under the High
6 In support of this submission I was referred to Pyne Gold Corp Ltd v Bath Street Capital Ltd [2020] NZHC 1247 at [76] and Robert Osborne and others (ed) McGechan on Procedure (online ed, Thomson Reuters) at [HCR 5.32.02].
7 Crossfit Inc v Exercise Industry Association Ltd [2016] NZHC 1028 (footnotes omitted).
Court Rules. The authors’ use of the words “permits a plaintiff to avoid particularising the claim for damages” is at most a statement as to what plaintiffs often do. The Court of Appeal authority (see especially Hunt v New Plymouth District Court) is that such is not an acceptable practice where the plaintiff is able to provide either a precise claim or an estimate of damages. In the absence of evidence from CrossFit on the state of its work on the assessment of damages, I am driven to the conclusion that CrossFit must by this time be capable of providing some assessment. Indeed, at one point of his submissions, Mr Ringwood, in stating that CrossFit does not know precisely what its damages are, stated that CrossFit has “a feel for its damages”.
[34] I note also that the plaintiffs made something of the fact that despite it being made known at the time of the first case management conference that the plaintiffs’ pleadings would be updated, the defendant had agreed to the making of a discovery order. If it is intended to suggest that the defendant had thereby accepted that the provision of particulars could await discovery, then I do not accept that submission. The defendant was equally clear at that time that further particulars of the claim were required, and no doubt expected that such particulars would be provided well before discovery was undertaken.
[35] Mr Stevens said that if the Court were to order particulars of the losses then the plaintiffs would be embarrassed because they would presently be unable to provide them. I accept that may well be the case and, as in Crossfit Inc v Exercise Industry Association Ltd, it would serve no purpose if the plaintiffs were to file a knee-jerk set of particulars because of the imposition of an unrealistic timetable.8 However, further particulars will be ordered, within a timeframe that I consider reasonable in all the circumstances.
Paragraph 11
[36] At issue here is the date and time at which the plaintiffs allege the cross-arm at Pole 35693 became detached. The relevant pleading and the particulars required are:
“On and/or prior to the night of the fire, the cross arm became partially detached from Pole 35693 as a result of the nuts securing Bolts A and B becoming loose and falling off.”
Give particulars of the approximate date and time that it is alleged the cross arm became “partially detached from Pole 35693”.
8 Crossfit Inc v Exercise Industry Association Ltd, above n 7, at [133].
[37] The defendant says that the plaintiffs’ theory of causation requires them to persuade the Court that the partially detached cross-arm dropped from its original position and rotated but did not initially flip over. As such, it says how long the cross-arm is alleged to have stayed in that position is critical information and the plaintiffs should be able to say approximately when this occurred, and it is evasive for them not to do so.
[38] The plaintiffs argue the request is wasteful and that it is not possible for anyone to say more than that the cross-arm became detached “[a]t or before 2.10 am on 4 October 2020”.
[39] I accept the plaintiffs’ submission. There is no evidence, nor any suggestion, that anyone observed that the cross-arm had become detached until after the fire. The plaintiffs cannot possibly be expected to make an assessment of when exactly that occurred. The FENZ report could state the matter with no better precision than to say that “[a]t an unknown time/date the centre bolt holding the wooden cross-arm has vibrated backwards, allowing the arm to drop down …”.
[40] On several occasions Mr Walker made the submission that if the plaintiffs did not know when exactly certain events occurred the statement of claim should state that was the case. In this instance I do not accept that submission. The plaintiffs have pleaded the matter as precisely as they can, and I do not consider more can be required of them.
Paragraph 17
[41] This concerns the nature of the molten material that the plaintiffs say ignited the first fire. The pleading and the particulars required are:
Having pleaded that:
“Intense localised heating produced by the arc that accompanied the flashover and/or short circuit generated molten material which fell to the ground and ignited dry vegetation at or near the base of Pole 35693.”
Give particulars of:
5.1what elements or materials comprised the so-called “molten material which fell to the ground”; and
5.2the precise geographic area or point where it is alleged that the material made contact with the ground and “ignited dry vegetation”.
[42] The defendant says the plaintiffs have declined to provide particulars of what the molten material was that fell to the ground starting the fire and the plaintiffs must be able to produce particulars, at least in general terms, of where the material came from and what it comprised because that is a fundamental aspect of the causation theory.
[43] The defendant considers the failure to provide these particulars is notable when they have provided them in relation to the alleged second fire, and the Mitton Electrical Investigations report stated that the material was “molten aluminium, steel or concrete”. Failure by the plaintiffs to adopt that description is said to be a reasonable basis for inference that the plaintiffs have indeed formed a view as to what the material was and have chosen not to plead it. The defendant also contends that the plaintiffs have also refused to provide particulars of the points where the “molten material” made contact with the ground, beyond saying it was “at or near the base of Pole 35693”.
[44] The plaintiffs argue that they have pleaded the composition of the pole and the components of the cross-arm’s attachments, and that the defendant is well aware of holes in Pole 35693 the molten material was expelled from. They also note that not only have they particularised the location where the molten material fell from but have also pleaded the GPS coordinates of the pole.
[45] My assessment is that the defendant is entitled to further particulars in part. It appears the composition or nature of the molten material is a matter that may be relevant to whether the plaintiffs’ causation theory is accepted. The plaintiffs do not suggest they do not know the nature of the material, even going so far as to say in submissions that it was expelled from identified holes in the pole. I consider particulars of what the molten material comprised should be provided.
[46] I do not accept the defendant’s contention that the plaintiffs have not provided adequate particulars of the point where the molten material made contact with the ground. I believe this is sufficiently identified, to the extent that it can be, by the plaintiffs’ pleading.
Paragraph 21
[47] The defendant seeks further particulars when and where it is alleged the first and second fires merged as follows:
Having pleaded that:
“The Second Fire originated in the area between Pole 35693 and Pole 870452, at a point approximately 80 metres to the north of Pole 35693 and 33 metres to the south of Pole 870452 at or about the coordinates 44.2555S, 169.8175E, and subsequently merged with the First Fire.”
Give particulars of:
6.1the precise geographic area or point where it is alleged that that [sic] the “Second Fire merged with the First Fire”; and
6.2the date and time that it is alleged that the “Second Fire merged with the First Fire”.
[48] The defendant says the plaintiffs have alleged that two fires started approximately one hour and 13 minutes apart and that they merged. It submits they must be able to say when and where that merger occurred, and the defendant is entitled to that information in a pleading so it can instruct its fire and origin expert to respond to the plaintiffs’ causation theory and not be required to wait for briefs of evidence to be exchanged. While the plaintiffs’ case appears to be that they accept the conclusions in the FENZ and Mitton Electrical Investigations reports, those are inconclusive as to whether there were in fact two fires.
[49] The plaintiffs argue that where and when the two fires merged is not material, and it is unclear when or where this occurred given that the first fire had already been burning in the vicinity for over an hour. They say that the point of merger cannot be material when the allegation is that both fires were caused by the defendant.
[50] Whether there was a second fire, and if so whether it merged with the first fire and/or caused any loss to all or any of the plaintiffs are issues the defendant will have to respond to at trial. The position of the plaintiffs is somewhat curious given their reliance upon the FENZ report, yet that is inconclusive as whether there was a second fire. In any event, the plaintiffs pleading is that the “First Fire and Second Fire” merged and destroyed and/or damaged the plaintiffs’ property, with no attempt to distinguish loss resulting from each fire. In my view, due to the manner in which the matter is pleaded, the defendant is entitled to know where and when the plaintiffs say the fires merged or, at least, if the plaintiffs do not know for them to state that in the pleading.
Paragraph 24
[51] The defendant is seeking particulars of where it is alleged the second fire originated as follows:
Having pleaded that:
“This led to a phase-to-phase short circuit between the yellow and red phase conductors in the process of which sparking/arching generated molten and burning aluminium particles that fell to the ground and ignited dry vegetation below.”
Give particulars of the precise geographic area or point where it is said the “molten and burning aluminium particles […] fell to the ground”.
[52] The defendant says the plaintiffs have refused to plead the precise location where it is alleged the second fire started. I do not accept that submission. Paragraph
[21] of the amended statement of claim provides sufficient particulars when it states:
The Second Fire originated in the area between Pole 35693 and Pole 870452, at a point approximately 80 metres to the north of Pole 35693 and 33 metres to the south of Pole 870452 at or about the coordinates 44.2555S, 169.8175E.
Paragraph 29.1
[53] At issue here is the scope of the duty that it is alleged was breached by the defendant as follows:
Having pleaded that:
“In breach of this duty, Network Waitaki:
29.1 Failed to take reasonable steps and follow recognised industry best practice to prevent the detachment and failure of the cross-arm on Pole 35693.
Particulars
…
(c) Network Waitaki failed to secure each of Bolts A-D with a second (lock) nut, each nut being tightened against the other, either as part of its line maintenance programme or as part of repairs undertaken to the cross-arm following the previous cross-arm failures.”
Give particulars … of:
8.1the type of second nut that it is alleged should have been installed;
8.2how it is alleged the second nut should have been installed; and
8.3when it is alleged the second nut should have been installed.
[54] I consider the plaintiffs’ pleading is adequate. It is clear the allegation is that the defendant was negligent because it failed, prior to the fire, to secure bolts A to D with a second lock nut. It is not necessary in my view for the plaintiffs to go further to specify a particular type of lock nut or to explain how that should have been installed. The defendant can be in no doubt what is being alleged.
Paragraph 29.2
[55] Again relating to the scope of the alleged duty of care, the following particulars are sought:
Having pleaded that the defendant:
“Failed to have in place an appropriate system of inspection and maintenance of its power lines to ensure hazards such as the single nutting of cross-arm and stay connection bolts were identified and rectified.”
Give particulars of:
9.1in what respects the maintenance system is alleged to have been defective; and
9.2what it is alleged the defendant should have done, but did not do, to meet the required standard of care.
[56] The defendant argues that the plaintiffs have framed their claim as one of negligent omission insofar as they plead the defendant failed to take reasonable steps to prevent detachment of the cross-arm and failed to have in place appropriate systems of inspection and maintenance. It argues that as the plaintiffs allege the defendant did not have appropriate systems, they must have retained an electrical lines/systems expert and should be expected to plead what the standard is that the defendant failed to meet. The concern is that the plaintiffs should be required to state a clear case, and not wait for discovery of the defendant’s systems and then trawl through them in an attempt to find fault. The defendant’s position is that unless it is told now how it is said it failed in its obligations to the plaintiffs the door is left open for the plaintiffs to engage in an impermissible fishing expedition.
[57] The plaintiffs’ position is that at the moment they have incomplete knowledge of the defendant’s maintenance and inspection regime and should not be required to provide further particulars of the allegation until such time as they have had discovery. They refer to my decision in Body Corporate 355492 v Queenstown Lakes District Council, when I held that the plaintiff did not need to provide particulars of the allegation that the Council had failed to undertake a sufficient inspection regime or sufficient inspections and it was sufficient to allege the defects in question ought to have been identified in the course of the Council’s inspection regime.9
[58] The plaintiffs also say that what the defendant’s maintenance and inspection systems are is solely within the defendant’s knowledge, but what is clear is that cross-arms should not detach from the top of power poles. They say it is because that occurred that they have pleaded that the defendant’s maintenance and inspection regimes were deficient, particularly in circumstances in which they say there were previous similar failures on the network. They also say the plaintiffs have asked for information relating to the defendant’s inspection and maintenance regimes which has not been provided.
9 Body Corporate 355492 v Queenstown Lakes District Council [2020] NZHC 2590 at [60].
[59] While the defendant’s position initially held appeal to me, and the plaintiffs’ pleading at paragraph 29 could, in my view, be improved, on reflection I do not consider further particulars are required in this respect. To my mind, when paragraphs
29.1 and 29.2 of the amended statement of claim are read together, as intended, the plaintiffs’ pleading is sufficiently clear.
[60] The standard that the plaintiffs allege the defendant must comply with is “recognised industry best practice”. They say in respect to the maintenance and inspection of the powerlines the defendant’s failure to identify as a hazard, and rectify, the single nutting of cross-arm and stay connection bolts breached that standard. What industry best practice requires is a matter for expert evidence at trial. Further, what the defendant’s maintenance and inspection systems comprised and what steps were taken by the defendant to comply with those systems are matters entirely within its knowledge. The plaintiffs cannot be expected to identify deficiencies in the content or application of those systems prior to discovery.
Paragraph 39
[61]In relation to a cause of action in nuisance the following particulars are sought:
Having pleaded that:
“The failure of Network Waitaki to operate and maintain the Lake Ōhau Feeder Line in a reasonable and safe manner, as pleaded above, exposed the plaintiffs’ property to a foreseeable risk of loss and harm through fire.”
Give particulars of:
10.1in what respects it is alleged that the defendant’s operation and maintenance of the line was defective; and
10.2what it is alleged the defendant should have done, but did not do, to meet the required standard of care.
[62] I consider this has been dealt with in respect to the particulars sought in respect to paragraph 29 above. The allegations made against the defendant are sufficiently clear in circumstances where discovery has not yet been provided.
The intitulement issue
[63] The defendant’s case is that the original statement of claim did not comply with r 5.11(g) because it did not give the place of residence of a number of plaintiffs and did not give the occupation of any of the plaintiffs. The amended statement of claim now lists an address for each plaintiff but in the case of natural persons this is the “address of loss” rather than the place of residence of those plaintiffs. For some plaintiffs that are bodies corporate, the registered office has instead been provided. There is no statement of the occupation of any of the plaintiffs.
[64] Mr Walker argues the requirements of r 5.11(g) are mandatory and the plaintiffs’ approach in this case shows a lack of care or accuracy that should not be condoned.
[65] For the plaintiffs, Mr Stevens argues that the requirement to give the full name and place of residence and occupation of every plaintiff and defendant applies only so far “as they are known to the party presenting the document for filing”.10 He submits these details are not known to the plaintiffs’ solicitors. He also argues parties are expected to take a pragmatic attitude to intituling and the defendant has failed to show why it requires the information for all 101 plaintiffs, nor how the defendant and the Court will be prejudiced by the failure to provide this information.
[66] The authorities relied upon were Cooke v Department of Health and Re Foster.11 Cooke v Department of Health concerned an application for directions as to the proper hearing for a proceeding. The applicant, Mr Cooke, and the respondent, the Department of Health, did not agree on the appropriate intituling and the applicant stated that he would not be taking any further steps in the appeal until the heading references were clarified. Asher J said he did not:12
… regard intituling as a matter of precision, dictated to the word by the Rules, other than in respect of the names and capacities of the parties, where the detail is important.
10 High Court Rules 2016, r 5.11(g).
11 Cooke v Department of Health (2007) 18 PRNZ 702 (HC) at [30]; Re Foster [2019] NZHC 373 at [15].
12 Cooke v Department of Health, above n 11, at [21].
[67] Asher J went on to say “[t]he intituling of a document has no substantive consequence, save in relation to the statement of the names of the parties and their capacity”.13 Later he said:14
… The Court does not want to be seen as encouraging arguments on intituling issues, which have no practical consequence. Here, I do not consider that it is appropriate to sanction the respondent for inserting its own intituling because it is irrelevant to the substantive issues, and a diversion from the real issue of disposing of the application.
[68]In his conclusions, Asher J stated:15
Parties are expected to take a pragmatic attitude to intituling, and to agree to change clear errors, and beg to differ if they see different matters as relevant, rather than seek Court rulings, which should only be necessary in very rare cases.
[69] In Re Foster the Registry rejected proceedings because the documents filed did not comply with r 5.11 and form G1 of the High Court Rules 2016.16 Although given the opportunity to fix these issues, Mr Foster applied for review of the decision to reject the proceeding. Relevantly for present purposes, Mallon J considered that Mr Foster’s intended proceeding did not comply with r 5.11(1)(g) but that the non- compliance was not a material one because it did not give rise to prejudice to the Court or the intended defendants.17 She went on to say:
[18] In summary, I consider Mr Foster’s intended proceeding was correctly rejected by the registry at the time it was presented because of the non- compliance with r 5.11(1)(b), (c) and (g). I would be prepared to grant leave for the pleading to be accepted for filing but for the more material defect. That material defect is that the claim against [the second and third respondents] for an alleged criminal conspiracy cannot be made in a civil proceeding in the High Court. It would be struck out if filed with this claim.
[70] Here, there is no suggestion that the claim has not been properly filed or is otherwise a nullity. The defendant’s position simply is that the rules mean what they say and should be complied with. I agree. The requirements of r 5.11(1)(g) are clear. It is no answer to say that the plaintiffs’ solicitors presently do not know the details of every plaintiff because they should, and they must have it in their power to obtain that
13 At [23].
14 At [28].
15 At [30(e)].
16 Re Foster, above n 11.
17 At [15].
information easily. I do not consider either of the authorities I was referred to supports the plaintiffs’ position. I agree with Asher J that parties should take a pragmatic attitude to intituling and agree to change clear errors. In this case that means providing the simple details of the plaintiffs that are required.
Initial disclosure
[71]Rule 8.4 relevantly provides:
8.4 Initial disclosure
(1)After filing a pleading, a party must, unless subclause (2) applies, serve on the other parties, at the same time as the service of that pleading, a bundle consisting of—
(a)all the documents referred to in that pleading; and
(b)any additional principal documents in the filing party's control that that party has used when preparing the pleading and on which that party intends to rely at the trial or hearing.
(2)A party need not comply with subclause (1) if—
(a)the circumstances make it impossible or impracticable to comply with subclause (1); and
(b)a certificate to that effect, setting out the reasons why compliance is impossible or impracticable, and signed by counsel for that party, is filed and served at the same time as the pleading.
(3)A party acting under subclause (2) must, unless the other parties agree that initial disclosure is not required, or that a longer period is acceptable, either serve the bundle referred to in subclause (1) within 10 working days from the service of the pleading or apply for a variation of that requirement within that period.
(4)If a party fails to comply with subclause (1) or (3), a Judge may make any of the orders specified in rule 7.48.
(5)Despite subclause (1), a party does not need to disclose any document in which the party claims privilege or that a party claims to be confidential.
…
(9)If an amended pleading is filed prior to the making of a discovery order, this rule applies to that amended pleading if it either—
(a)refers to documents not referred to in any earlier pleading filed by the party who files the amended pleading; or
(b)pleads additional facts.
[72] The plaintiffs provided by way of initial disclosure only the FENZ and Mitton Electrical Investigations reports. Their position is that no other principal documents were used in preparing their pleading that were not either the defendant’s documents (which they accept should have been disclosed) or privileged.
[73] The defendant does not accept that and argues that other documents must have been used in preparing the pleading, such as documents evidencing loss. It also contends that the plaintiffs have the burden of establishing an evidential basis for any claim to privilege and the blanket claim to privilege, unsupported by any evidence, is insufficient.
[74] At the hearing, Mr Walker suggested that a practical way forward would be that, if the Court makes an order that further particulars of the claim be provided, the defendant should be required to provide further initial disclosure in respect to those matters that satisfies the requirements of r 8.4.
[75] I do not intend to make any orders in respect to this aspect of the application. I am not satisfied the plaintiffs’ position that they complied with their initial disclosure obligation (save in respect to documents that were created by the defendant) is incorrect. Insofar as the plaintiffs say that documents used were subject to privilege, it is clear from a very early stage following the fire that litigation was in contemplation. The plaintiffs’ position there were no principal documents concerning their losses relied upon is supported by the pleading, and by counsel’s advice that the plaintiffs are not even yet in a position to provide details of those losses.
[76] I am not prepared to adopt the approach suggested by Mr Walker which it appears to me goes beyond what is contemplated by r 8.4(7) and I consider will serve no useful purpose in circumstances where standard discovery has been ordered. I accept, however, that should discovery reveal that there was a failure by the plaintiffs to provide initial disclosure in terms of the Rules that may very well be relevant to costs.
Result
[77] I order that the plaintiffs shall within 40 working days file and serve a second amended statement of claim by which they provide:
(a)further particulars of the losses sustained by each plaintiff that they seek to recover from the defendant and shall particularise:
(i)the types of property which suffered the damage;
(ii)the location and the plaintiff’s interest in that property;
(iii)the type of damage suffered by that property;
(iv)the plaintiff’s assessment of the amount of each type of loss; and
(v)in the event any loss has not been finally assessed, the plaintiff’s best estimate of such loss.
(b)a re-pleading of paragraph [17] of the amended statement of claim which states the composition or nature of the molten material that fell to the ground starting the fire;
(c)a re-pleading of paragraph [21] of the amended statement of claim which states the location and time the plaintiffs say the two fires merged, or if the plaintiffs do not know, to state this in the re-pleading; and
(d)updated intituling detailing the full name, residence and occupation of every plaintiff.
[78] In respect to costs, my initial inclination is that costs should be reserved but if any party wishes to seek costs they may file and serve submissions within 21 days of the date of this judgment with any response to be filed and served 14 days thereafter. The submissions shall be no longer than six pages. I would expect to deal with any
application for costs on the papers. If no submissions are filed strictly within the time stipulated costs shall be reserved.
O G Paulsen Associate Judge
Solicitors:
Wotton + Kearney, Auckland Chapman Tripp, Christchurch
SCHEDULE A
GARRY WAKEFIELD, FIONA WAKEFIELD AND
ELEANOR SMART as trustees of the WAKEFIELD FAMILY TRUST
Second Plaintiffs
ERIC and MICHELLE BREETVELT
Third Plaintiffs
CAMPBELL DYKES
Fourth Plaintiff
SALLY BRIGET HOLLOWAY and JEFFREY IRVIN HOLLOWAY
Fifth Plaintiffs
DAVID HONEYFIELD
Sixth Plaintiff
ANNE ELIZABETH DENNIS, FRANK
EDGERTON DENNIS and MARINUS ANTONIUSBAKX as trustees of the LINDISBURN TRUST Seventh Plaintiffs
BARBARA and NORMAN McKAY
Eighth Plaintiffs
MALCOLM McMILLAN
Ninth Plaintiff
OHAU SNOW HOLDINGS LIMITED
Tenth Plaintiff
ANTHONY RYAN
Eleventh Plaintiff
WILLEM SANDBERG and NAPIER
INDEPENDENT TRUSTEES LIMITED as trustees of the SANDBERG TRUST
Twelfth Plaintiffs
STEPHEN SIMMONS
Thirteenth Plaintiff
JANE SIMPSON and DAVID CRAIG OVENDEN
Fourteenth Plaintiffs
VIVIENNE SMITH-CAMPBELL
Fifteenth Plaintiff
ROWENA and SIMON SMITHIES
Sixteenth Plaintiffs
HUGH SPIERS and DWAYNE RENNIE
Seventeenth Plaintiffs
BRIAN TREVATHAN, LOIS TREVATHAN and NEW ZEALAND TRUSTEE SERVICE LIMITED as
trustees of the MARYBRAE TRUST Eighteenth Plaintiffs
BRIAN and LOIS TREVATHAN
Nineteenth Plaintiffs
MARCUS WELLS
Twentieth Plaintiff
BERNIE WICHT and HELEN McMAHON
Twenty-first Plaintiffs
LEWES JOHN BUTLER and ROBERT GLENDENNING BUTLER
Twenty-second Plaintiffs
DESMOND and JUNE JELLYMAN
Twenty-third Plaintiffs
IAN and NICOLA ADAMSON
Twenty-fourth Plaintiffs
LINDA ANDERSON
Twenty-fifth Plaintiff
WARREN and RACHEL BAKER
Twenty-sixth Plaintiffs
WILLIAM DANIEL BENNETT, SUSAN MARGARET BENNETT and RUSSELL KELVIN D
RODGERS as trustees of the BENNETT FAMILY TRUST
Twenty-seventh Plaintiffs
CATHERINE BOYLE
Twenty-eighth Plaintiff
BRYAN DAVIES
Twenty-ninth Plaintiff
BRENDAN and JACQUELINE DURCAN
Thirtieth Plaintiffs
ESTELLE EASTON
Thirty-first Plaintiff
PAUL EDMONDSTON
Thirty-second Plaintiff
JOHN FRASER
Thirty-third Plaintiff
GLEN MARY SKI CLUB INCORPORATED
Thirty-fourth Plaintiff
DAVID GREEN
Thirty-fifth Plaintiff
VICTORIA KELLAND
Thirty-sixth Plaintiff
RODNEY and RACHEL McLELLAN
Thirty-seventh Plaintiffs
DAVID McMILLAN
Thirty-eighth Plaintiff
PERPETUAL TRUST LIMITED and MALCOLM
DAVID McMILLAN as trustees of the E A McMILLAN FAMILY TRUST
Thirty-ninth Plaintiffs
JANET MITCHELL
Fortieth Plaintiff
STUART and MICHELLE PATERSON
Forty-first Plaintiff
KATHERINE MARGARET POULSEN
Forty-second Plaintiff
JOANNA RANDALL
Forty-third Plaintiff
ROOPALI JOHRI
Forty-fourth Plaintiff
JOSHUA SCHAAR
Forty-fifth Plaintiff
KARLA SCHMIDT
Forty-sixth Plaintiff
ANNE SIMPSON
Forty-seventh Plaintiff
STANLEY SPIERS
Forty-eighth Plaintiff
GARY STICHBURY
Forty-ninth Plaintiff
TARBIT BUILDING LIMITED
Fiftieth Plaintiff
VIVIENNE MARY SMITH-CAMPBELL and JOHN
LOUIS CAMPBELL as trustees of the INLAND TRUST
Fifty-first Plaintiffs
VOODOO PROPERTY HOLDINGS LIMITED
Fifty-second Plaintiff
WARREN ANDERS BAKER and RACHEL ANNE
BAKER as trustees of the WA & RA BAKER FAMILY TRUST
Fifty-third Plaintiffs
CLARE WILLIAMS
Fifty-fourth Plaintiff
ROSS and BRENDA YEAGER
Fifty-fifth Plaintiffs
DAVID and JENNIFER HOWEY
Fifty-sixth Plaintiffs
UPWEY FARMING COMPANY LIMITED
Fifty-seventh Plaintiff
PAUL and NICHOLA WHEARTY
Fifty-eighth Plaintiffs
NEVILLE and LINDA LEWIS
Fifty-ninth Plaintiffs
PAUL AUBREY
Sixtieth Plaintiff
OLD STONE HUT FOREST LIMITED
Sixty-first Plaintiff
WILLIAM and ANDREW SUTHERLAND of the WH & AJ SUTHERLAND PARTNERSHIP
Sixty-second Plaintiffs
VERITY FARMS NZ LIMITED
Sixty-third Plaintiff
SHARON FAE ENGLISH and CAROLYN SUE
ENGLISH as trustees of the ENGLISH FAMILY TRUST
Sixty-fourth Plaintiffs
STEPHEN and JULES MARK
Sixty-fifth Plaintiff
BARRY BIGGS
Sixty-sixth Plaintiff
ANNA-MARIE MILLER and SARAH LOUISE
MILLER as trustees of the CM MILLER FAMILY TRUST
Sixty-seventh Plaintiffs
SALLY GREAVES
Sixty-eighth Plaintiff
VIVIENNE MARY SMITH-CAMPBELL and JOHN
LOUIS CAMPBELL as trustees of the OHAU FAMILY TRUST
Sixty-ninth Plaintiffs
MARIE BERNICE McAUGHTRIE and RICHARD NIGHTINGALE
Seventieth Plaintiffs
DANIEL WILLIAM JOHNSTON and MJO
TRUSTEE COMPANY LIMITED as trustees of the D J P SHARE TRUST
Seventy-first Plaintiffs
MICHAEL GEORGE GOULD, JANET KATHLEEN GOULD, SIMON GEORGE GOULD and
BENJAMIN JAMES TAYLOR as trustees of the RED TREE TRUST
Seventy-second Plaintiffs
WILLEM ALEID CORNELIS SANDBERG
Seventy-third Plaintiff
DAVID FRASER RENDALL and MEGAN ELIZABETH JANE RENDALL
Seventy-fourth Plaintiffs
JAMES ANTHONY CARNIE and MARGARET
MARY CARNIE as trustees of the OHAU TRUST Seventy-fifth Plaintiffs
WILLIAM PATRICK CHISHOLM
Seventy-sixth Plaintiff
MICHAEL TATTERSALL and PAULETTE TATTERSALL
Seventy-seventh Plaintiffs
XU
Seventy-eighth Plaintiff
FIVE RIVERS LIMITED
Seventy-ninth Plaintiff
MAREE CAROLINE HORO as trustee of the OHAU COMPANY TRUST
Eightieth Plaintiff
CHARLES SPIERS
Eighty-first Plaintiff
JANET ELIZABETH MUIR and RICHARD
HANDLEY BROWN as trustees of the WELBOURNE TRUST
Eighty-second Plaintiffs
AARON GILMORE
Eighty-third Plaintiff
TIM MUELLER
Eighty-fourth Plaintiff
PHILLIPPA WALTER
Eighty-fifth Plaintiff
KATHLEEN LAWSON
Eighty-sixth Plaintiff
MARTIN HEAL
Eighty-seventh Plaintiff
NYREE SCHAAR
Eighty-eighth Plaintiff
ROGER MEE
Eighty-ninth Plaintiff
JOY MARGARET HALL
Ninetieth Plaintiff
SARAH JANE LOVIE, JAMES NEVILLE SCHEIWE and MARK JONATHAN TAVENDALE
as trustees of the JAMES SCHEIWE & SARAH LOVIE FAMILY TRUST
Ninety-first Plaintiffs
JILLIAN STONE, DAVID STONE and MAINLY TRUSTS LIMITED
Ninety-second Plaintiffs
PHIL DUNCAN
Ninety-third Plaintiff
DEBORA LETHBRIDGE
Ninety-fourth Plaintiff
GENEVIEVE BECROFT
Ninety-fifth Plaintiff
ROBIN FINNEY
Ninety-sixth Plaintiff
STEWART NEGUS
Ninety-seventh Plaintiff
ANDREW LONIE
Ninety-eighth Plaintiff
DAVID LITTLETON
Ninety-ninth Plaintiff
KRIS BREETVELT
One hundredth Plaintiff
SARAH HOLLOWAY, JEFFREY HOLLOWAY and DOWNIE STEWART TRUSTEE LIMITED as
trustees of the JEFF AND SALLY HOLLOWAY FAMILY TRUST
One hundred and first Plaintiffs
0
6
0