White v James Hardie New Zealand (No 4)
[2019] NZHC 1543
•4 July 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2015-404-2981 (WHITE)
[2019] NZHC 1543
BETWEEN KAREN LOUISE WHITE AND THE PERSONS LISTED IN SCHEDULE 1
Plaintiffs
AND
JAMES HARDIE NEW ZEALAND
First Defendant
STUDORP LIMITED
Second DefendantJAMES HARDIE NZ HOLDINGS
Third DefendantRCI HOLDINGS PTY LIMITED
Fourth DefendantJAMES HARDIE AUSTRALIA PTY LIMITED
Fifth Defendant
JAMES HARDIE RESEARCH PTY LIMITED
Sixth Defendant
JAMES HARDIE INDUSTRIES PLC
Seventh Defendant
Hearing: 27 June 2019 Counsel:
B Gray QC, A Thorn and V Cole for Plaintiffs in White matter J K Stewart and S M Sharma for Plaintiffs in Waitakere matter J McKay and J Kerkin for Defendants
Judgment:
4 July 2019
JUDGMENT (NO 4) OF WHATA J
KAREN LOUISE WHITE AND THE PERSONS LISTED IN SCHEDULE 1 v JAMES HARDIE NEW ZEALAND [2019] NZHC 1543 [4 July 2019]
CIV-2015-404-3080 (WAITAKERE GROUP LIMITED)
BETWEEN WAITAKERE GROUP LIMITED & ORS
Plaintiffs
AND JAMES HARDIE NEW ZEALAND
First Defendant
STUDORP LIMITED
Second DefendantJAMES HARDIE NZ HOLDINGS
Third DefendantRCI HOLDINGS PTY LIMITED
Fourth DefendantJAMES HARDIE AUSTRALIA PTY LIMITED
Fifth DefendantJAMES HARDIE RESEARCH PTY LIMITED
Six DefendantJAMES HARDIE INDUSTRICES PLC
Seventh Defendant
This judgment was delivered by me on 4 July 2019 at 10.30 am pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date: ………………………….
[1] In my judgment (No 2) in this proceeding I made orders for discovery by the plaintiffs and by the defendants. Issues relating to the plaintiffs’ discovery are not addressed in this judgment. In relation to the defendants, I made an order as to discovery in relation to Categories D - customer complaints. I adjourned the application in relation to Categories L (records of site visits) and M (advice to customers) pending the outcome of the Category D discovery. That process is still ongoing. I also adjourned the application for discovery in relation to Categories J (insurance documents), P (licensing agreements) and U (agency, representation, joint venture or similar arrangements) pending the appeal by the third, fourth and seventh defendants on the justiciability of the claims in respect of those defendants. That appeal has now been decided against them.
[2] There has been one further development since my judgment. The plaintiffs in the Waitakere proceedings are now separately represented and seek modified orders for discovery from the plaintiffs in the White proceedings. But the central issues remain the same for both proceedings for the purpose of discovery. I must determine whether Categories J, U and P should be discovered and, if so, to what extent.
Context
[3] The background is set out in my judgment (No 2). I largely reproduce it here for ease of reference.
[4] The central claim in the proceedings is that the defendants manufactured, supplied and/or promoted defective exterior cladding products sold under the brand names “Harditex”, “Monotek” or “Titan” (the James Hardie products). Approximately 1,246 properties are claimed to be clad with defective James Hardie products and, of those properties, 1,236 are residential homes, five are commercial buildings and five are retirement villages. The five retirement villages are the plaintiffs in the Waitakere proceedings.
[5] In my judgement of 3 July 2018, I directed that there should be a staged trial, with stage one directed to the issues set out in schedule 1. In summary, stage one will address the following issues:
(a)Who is responsible for the design/manufacture/sale of the James Hardie products and related product information;
(b)Whether the James Hardie products are defective;
(c)Whether the defendants knew/ought to have known about any defects; and
(d)Whether the defendants breached any common law and/or statutory duties in respect of the James Hardie products or James Hardie product information.
[6] After receiving input from the parties, I also made directions about tailored discovery involving three steps:
(a)The parties should attempt to agree on the scope of tailored discovery for the stage one trial;
(b)Failing that, they were to file interlocutory applications for orders for tailored discovery; and
(c)There was to be expert caucusing on the scale of discovery (including the number, location, and type of properties which might be subject to discovery and inspection).
[7] The parties reached agreement on the categories of discovery for the plaintiffs and some categories for the defendants (see schedules 2 and 3). Caucusing did not go well but, since my judgment (No 2), substantial progress has been made in terms of the discovery process.
The evidence
[8] The evidence is summarised in my judgment (No 2). In short, the evidence shows that discovery of the kind sought is not unprecedented but will, nevertheless, be very demanding.
Threshold tests
[9] It is common ground that the four-stage process identified in Assa Abloy is an appropriate starting point when considering an application for particular discovery, namely:1
(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 Part 1 of the Discovery Checklist in the High Court Rules?
(d)Weighing and balancing these matters, in the Court's discretion applying r 8.19, is an order appropriate?
[10] The defendants challenge the proposed discovery of Categories J, U and P at each step. I turn therefore to address each of them.
Relevance
[11] The plaintiffs in the White proceedings submit that the documents in Categories J, U and P are relevant in relation to:
(a)The state of knowledge and information flow as between the defendant companies of:
(i)The defects and risk characteristics of the James Hardie products; and
(ii)The risk that the James Hardie products would or might not be weathertight and would or might cause damage or fail to comply with applicable building standards.
(b)The interrelationship and degree of control/division of responsibility between each of the defendant companies for:
1 Assa Abloy New Zealand Ltd v Allegion (New Zealand) Ltd [2015] NZHC 2760 at [14].
(i)The design, development, manufacture, promotion and sale of the James Hardie products; and
(ii)The writing, authorising and publishing specifications, instructions and other information for the use with the James Hardie products.
[12] The Waitakere plaintiffs no long seek discovery in relation to Category U. But they say the balance of the documents sought are relevant to:
(a)The nature of the design, development, manufacture and supply services carried out by the defendants;
(b)How the services were promoted to the public;
(c)Whether or not the defendants had knowledge of the facts as to defects and risk characteristics;
(d)Whether or not the defendants continued to actively promote and supply their products to the public despite having knowledge of the defects and risk characteristics; and
(e)Whether or not the defendants knew that plaintiffs would rely upon the defendants’ expertise and James Hardie brand.
[13]The defendants submit that:
(a)The insurance documents (Category J) are irrelevant as no insurance issue arises and it is well established that documents relating to professional indemnity or public liability issues are normally irrelevant.2
2 Body Corporate 187242 v Auckland Council HC Auckland CIV-2005-404-001597, 20 July 2006 at [20]; Walker v Forbes [2017] NZHC 2694 at [16]-[18].
(b)The defendants’ knowledge of relevant matters is covered by Categories D and I (documents identifying risk).
(c)The insurance documents are likely to be privileged.
(d)It does not appear any claims arising in New Zealand weathertightness issues have ever been recorded.
(e)It is not clear what the agency or similar agreements (Category U) might be relevant to and the Waitakere plaintiffs have abandoned this category presumably because the agreements are not relevant or necessary.
(f)It is not clear why branding arrangements (Category P) are relevant.
Assessment
[14] I prefer the plaintiffs’ submissions on the issue of relevance. All three categories are prima facie relevant to the issue of responsibility for the James Hardie products. I understand that the third, fourth and seventh defendants presently deny any responsibility for those products and therefore any liability for any proven defects. I base this on the following passage from the Court of Appeal’s 2018 decision in relation to summary judgment:3
Each of the holding company defendants sought to bring an early end to the claims against them, arguing that since they did not manufacture, market or supply the allegedly defective products, the claimants cannot succeed against them.
[15] The difficulties faced by the plaintiffs in proving the claims against these defendants was also noted by the Supreme Court.4 This highlights the importance of discovery of internal documentation that might shed light on their connection to the manufacture, marketing and/or supply of the allegedly defective products. In my view, the insurance, agency and licencing agreements will likely reveal the defendants who
3 James Hardie Industries Plc v White [2018] NZCA 580 at [6].
4 James Hardie Industries Plc v White [2019] NZSC 39 at [9].
were associated with the James Hardie products and the nature, scale and degree of that association.
[16] In this regard, the primary relevance of the insurance documentation is not what policies have been issued and/or what claims have been made, or what their merits are, but who sought and obtained those policies and for what.
[17] This documentation, like the agency and licencing agreements, is therefore directly and cogently relevant to the third, fourth and seventh defendants’ denial of responsibility, their knowledge of likely product defects, and the steps they took, or did not take, to mitigate the effects of those defects. The usual prohibition against discovery of those types of documents on irrelevancy grounds does not apply.
[18] I further note that the case law the defendants rely upon on this point did not involve a denial of responsibility.5 Unlike in those cases, here we are dealing with an issue as to who might be responsible if the defects are proved.
Proportionality
[19]The defendants raise two primary contentions in relation to proportionality:
(a)The scope of each category is too broadly framed:
(i)spanning some 29 years in relation to the insurance documents and includes, but is not limited to, proposal documents and proposal forms; claims forms, schedules and claims; and any “Group” insurance policies;
(ii)includes all intercompany arrangements relating to “intellectual property” and the James Hardie for a period of some 34 years; and
5 Body Corporate 187242 and Walker v Forbes, above n 2.
(iii)The date ranges are excessive, having regard to the alleged construction dates.
(b)Discovery is already being provided in relation to categories A (Product Development), B (Testing), C (Promotional Material), D (Complaints) and H (Technical Literature) which should adequately cover the same ground.
Assessment
[20] For better or worse, the defect claims relate to a lengthy period, affecting several hundreds of properties and multiple James Hardie products. Discovery tied to that period and those products cannot be said to be inherently disproportionate. Moreover, the denial of responsibility by the third, fourth and seventh defendants squarely brings into frame the full period and scope of the plaintiffs’ claims. The only way that the plaintiffs can effectively rebut this denial is by having access to the internal records of those defendants and their related companies which touch and concern that issue throughout this period.
[21] Furthermore, this denial also brings into frame a broader scope of documents as the plaintiffs may prove responsibility not only by reference to documents where responsibility is expressly stated, but also by necessary inference from the inter- company dealings. While this is a potentially significant burden for the affected defendants, it naturally correlates to the absolute denials by those defendants of any responsibility.
[22] The evidential basis for a broad-based discovery about the issue of denial was helpfully summarised by the Court of Appeal when it dealt with the potential liability of the parent entity. It said:
[84] Some things emerge clearly from the affidavits and the documents, and are not really at issue. All of the other defendant companies are wholly owned by JHI, even if owned through other wholly-owned subsidiaries. It is also clear that whilst the James Hardie Group may have diversified during the eighties and nineties, it has always had extensive interest in cement-based businesses and by the late nineties, when JHI took over as parent, it was a Group with a singular business focus upon fibre cement products. Finally, it
is clear that the Group coordinates its business across the very many subsidiaries.
[23] After referring to the annual reports, information relating to head office control of global activities, and marketing websites, the Court also observed:
[89] These three threads of evidence provide an evidential narrative that JHI had direct involvement in the manufacturing operations in New Zealand through, at least, its senior executive team. The existence of a top down management structure and the pooling of technical and resource facilities suggests that the JHI executive team had superior knowledge about the technical specifications of the products, and some level of control over the local operations. This view of the way in which the Group operates is corroborated by the evidence of Mr O’Hagan. Although somewhat dated (in the sense he describes events prior to JHI taking over as parent) it is the best evidence we have as to how operations within New Zealand were managed within the Group. Mr O’Hagan describes the New Zealand business as operating as a branch and taking direction from elsewhere. At the relevant time, “elsewhere” was Australia where the Group parent company was based. We attach significance to Mr O’Hagan’s evidence because it is the only evidence which describes in any detail how the New Zealand business operated.
[24] Finally, the Court also commented on the paucity of evidence which might be expected, which in turn bears on the required scope for discovery:
[90] The totality of this evidence admittedly only creates a sketchy picture. But it was the holding companies that were in a position to provide the detail as to how the Group coordinates (as it obviously does) and how the New Zealand business operated within that Group. They did not do so. Nor did they provide evidence from directors, managers or staff of Studorp or James Hardie New Zealand of how the New Zealand companies are brought within the Group strategy, how they access Group resources or how Group guidance or policy is applied to them. Although these are separate legal entities to the holding companies, they are wholly-owned subsidiaries and could be expected to cooperate with their parents in the provision of such evidence.
[25] I acknowledge that discovery under the other categories is likely to cover some of the documentation sought under Categories J, P and U. A staged approach would have the advantage of enabling documents in both categories being discovered first, which could then lead to a more targeted approach if that was thought necessary. But there are two risks with this approach. First, the net is not sufficiently finely-weaved to identify the most relevant documents and, second, the staged approach could simply delay the inevitable (i.e. on the basis that the discovered documents inevitably lead to a further discovery request).
[26] I also acknowledge that privilege may attach to some of the insurance documentation. But I do not consider that prospect to be a sufficient reason to decline discovery in respect of that category of document.
[27] Finally, I acknowledge that the date ranges for the documentation sought appear to exceed the claimed construction dates. Some common sense is needed here in terms of the periods to which discovery must relate. I propose to leave that issue to the parties to resolve with leave to come back to the Court if further assistance is needed on that particular aspect.
Discretion
[28] For my part, given the ongoing denial of responsibility, the requirement for a broadly-based discovery going to the resolution of that issue is necessary and appropriate. In this regard, I adopt the argument for the plaintiffs that documents relating to internal arrangements are likely to be the most probative on this key issue. These documents may not be caught by the existing categories.
[29] I therefore make the orders sought by the White plaintiffs and the orders sought by the Waitakere plaintiffs in those proceedings, subject to my observation in relation to date range at [27]. For completeness, if it transpires the Waitakere plaintiffs seek discovery co-extensive with the White plaintiffs, I expect this will not require further involvement of the Court.
[30] If costs cannot be agreed, submissions may be filed, no more than three pages in length.
SCHEDULE 1
The allegations which the plaintiffs seek to have determined as part of a Stage 1 trial are set out here in summary form only. The full pleadings are relied on, as set out in the referenced paragraphs of the Third Amended Statement of Claim (3ASOC).
Conduct by defendants in relation to James Hardie Products
1. Which of the defendants were responsible for the design, development, manufacture, promotion and sale of Hardidex, Titan, and Monotelt (the James Hardie Products), and during which periods. [3ASOC paras 2- 33]
Product Information
2. Which of the defendants were responsible for writing, authorising and publishing specifications, instructions and other infomation for use in conjunction with the James Hardie Products (the James Hardie Product Information). [3ASOC para 34]
Defects in James Hardie Products
3. Whether the James Hardie Products have the Defects and Risk Characteristics set out in Schedule 4 and 5 of the Third Amended Statement of Claim and whether, as result of the Defects and Risk Characteristics or otherwise the James Hardie Products:
a.are not weathertight in New Zealand conditions;
b.do not comply with Applicable Legal and Building Standards;
c.caused damage to the health and safety of occupants of buildings or to other parts of buildings, in which the James Hardie Products were installed. [3ASOC para 35]
4. Whether each of the defendants knew or ought to have l‹nown from the early 1990s onwards that the James Hardie Products would or might not be weathertight, or would or might cause damage, and would nor might not comply with Applicable Legal and Building Standards. [3ASOC para 36]
Duty of care
5. Whether each of the 1S'-3'd, h and 6th defendants owed a duty of care to the plaintiffs to take all reasonable steps to ensure that the James Hardie Products would:
a.Be weathertight in New Zealand conditions;
b.Comply with Applicable Legal and Building Standards; and
c.Not cause damage to property or to the health and safety of oCcupants or visitors to buildings in which the James Hardie Products were installed. [3ASOC paras 38-40]
Breach of duty of care — defects, lack of testing
6. Whether each of the IS'-3rd t and 6'h defendants breached their duties of care by:
a.Designing and developing the James Hardie Products with the Defects. [3ASOC para 41(a)]
b.Failing to carry out adequate or reliable testing, trials or research (including “Sirowet” or other façade performance testing) in order to:
i.Verify that the James Hardie Products would comply with applicable Legal and Building Standards, be
weathertight in New Zealand conditions, and not cause injury to property or persons;
ii.Identify any or all of the Defects and Risk Characteristics which the James Hardie Products had or were lilcely to have; or
iii.Eliminate any and all such Defects and Risk Characteristics. [3ASOC para 41(b)-(d)]
c.Failing to modify or withdraw the James Hardie Products añer they failed tests conducted by James Hardie in around May 2000 and by BRANZ in approximately January 2003. [3ASOC para 41(e)]
7. Whether eaCh of the 1St 2nd and 5'h defendants breached their duties of care by manufacturing the James Hardie Products with the Defects and promoting and supplying or permi8ing to be supplied the James Hardie Products with the Defects. [3ASOC para 42]
Knowledge/failure to warn
8. Whether, once each of the defendants knew or ought to have known that the James Hardie Products would or might not be weathertight, would or might cause damage to property or to the health and safety of occupants or visitors to buildings in which the James Hardie Products were installed, and would or might not comply with Applicable Legal and Building Standards, they had a duty to warn and/or inform the plaintiYs and/or recall or withdraw the James Hardie Products. [3ASOC para 45-47]
9. Whether the defendants breached their duties to warn by failing to inform/warn the plaintiffs and/or recall or withdraw the James Hardie Products. [3ASOC para 48]
Negligent misstatement — expertise, untrue statements
10. Whether the 1"-3'd, th and 6"' defendants owed a duty of care to the plaintiffs to ensure that any statements they made or caused to be made about the James Hardie Products were tne, accurate and complete and/or remained true, accurate and complete. [3ASOC pd¥a 51-52]
11. Whether the 1st ords Cth and 6'h defendants made and/or authorised the James Hardie Product Statements. [3ASOC para 53]
12. Whether the 1 t 3'd, Cth and 6" defendants failed to talce reasonable care to ensure the James Hardie Product Statements were true, accurate and complete. [3ASOC para 54]
13. Whether the James Hardie Product Statements would lead a reasonable person to believe that the James Hardie Products when installed would:
a.Be weathertight in New Zealand conditions;
b.Comply with Applicable Legal and Building Standards; and
c.Not cause damage or harm to buildings or to the health and safety of occupants or visitors to the buildings in which they were installed. [3ASOC para 55].
14. Whether the James Hardie Product Statements would lead a reasonable
person to believe that the 1 t 3'd th and 6 " defendants had not received any information or advice concerning the unsuitability of the James Hardie Products or the use of James Hardie Products in conjunction with other components as exterior weathertight cladding. [3ASOC para 56]
15. Whether the James Hardie Product Statements were not true, correct or complete in that:
a.The James Hardie Products:
i.do not comply with Applicable Legal and Building Standards;
ii.are not weathertight in New Zealand conditions; and
iii.have caused or will cause damage to buildings and to the health and safety of the occupants;
b.The 1St Bldg Cth and 6th defendants had received information and/or advice concerning the unsuitability of the James Hardie Products or the unsuitability of their use in conjunction with other components as exterior weathertight cladding. [3ASOC para 57]
Consumer Guarantees Act 1993
16.Whether the 1"-3 rd and/or 5'h defendants manufactured the James Hardie Products, being goods for the purposes of the Consumer Guarantees Act 1993. [3ASOC para 61]
17.Whether, at all material times, the James Hardie brand was attached to the James Hardie Products. [3ASOC para 62]
18.Whether, as manufacturers of the James Hardie Products, the 1"-3'd and/or 5'h defendants provided statutory guarantees in favour of the plaintiffs under the Consumer Guarantees Act 1993. [3ASOC para 64]
19.Whether the James Hardie Products failed to comply with the statutory guarantees of acceptable quality and correspondence with description. [3ASOC para 65]
Fair Trading Act 1986
20.Whether, at all material times, the defendants were in trade. [3ASOC para 69]
21.Whether the James Hardie Products were goods for the pwpose of the Fair Trading Act 1986. [3ASOC para 70]
22.Whether the defendants engaged in conduct as follows:
a.Making the James Hardie Product Statements and/or authorising them to be made;
b.Endorsing the James Hardie Product Statements by causing or permitted the James Hardie name and brand to be used in connection with the James Hardie Products and the James Hardie Product Statements;
c.Failing one they knew or ought to have known the Facts as to Defects to inform and/or warn the plaintiffs and/or take reasonable steps to issue recalls and/or withdraw the James Hardie Products from the market. [3ASOC para 71]
23.Whether the defendants’ conduct was misleading and deceptive or likely to mislead or deceive. [3ASOC paras 72-73]
24.Whether in making and/or authorising the James Hardie
Product Statements, the 1 t 3rd, Cth and 6"' defendants made representations to the effect that the James Hardie Products were ofa particular kind, standard, quality or grade in that when installed they would:
a.Comply with Applicable Legal and Building Standards;
b.Be weathertight in New Zealand conditions; and
c.Not cause damage or harm to buildings or to the health and safety of occupants or visitors to the buildings in which they were installed. [3ASOC para 75]
25.Whether the representations were false or misleading in breach of s 13(a) of the Fair Trading Act 1986. [3ASOC para 76-77]
SCHEDULE 2
Categories of Discovery Plaintiffs will provide Class
Description of Discovery Class
All pre-purchase inspection reports and records regarding the condition of the Properties at the time they were purchased (and where relevant, put on the market and/or sold, regardless of whether the sale went unconditional); 2 Documents relating to when the Properties were purchased (or, where relevant, sold) and on what terms and conditions (including such documents on the plaintiffs’ lawyer’s conveyancing files); 3 Documents (including plans) in relation to the original design and construction of the Properties, including (where relevant) any design and constmction of any renovations which used any of the defendants’ cladding products; 4 Documents, including any photographs which the plaintiffs have in their custody, relating to when any actual or potential weathertightness issues were initially discovered (regardless of cause or potential cause) and any subsequent documents regarding actual or potential weathertightness issues (including documents relating to the existence, extent and timing of damage); All Weathertight Homes Assessors’ Reports (including eligibility reports and all supplementary reports); Any other expert reports or other documents received from experts (including photographs and emails) regarding weathertightness issues; All documents relating to remedial works which have been suggested, planned and/or carried out or which may be carried out, including documents relating to the pre-remediation design and condition of the relevant property, the scope and cost of the remedial works and documents relating to the cost of those works; 8 All documents relating to any partiCipation (including applications, successful or otherwise) in the Financial Assistance Pacltage; 9 All documents relating to any claims against any other party which relate, wholly or partly, to weathertightness defeCts or issues, including in relation to any compensation received in response to any such claims; 10 All documents relating to any direct or indirect reliance by any of the plaintiffs on the James Hardie Product Statements;
SCHEDULE 3
Cate8ories of Discove*¥ Defendants wi€ Provide4
Class5
Description of Discovery Class
A Product Development
Product development and design of the Harditex and/or, Monotek and/or Titan Board systems (“the James Hardie Products”) relating to:
a. the development and design of the features of the James Hardie Products and the reasons they were designed in this way;
b. any updates to the development and design of the James Hardie Products following introduction to the marliet, and the reasons for any updates; and
the development and/or modification of the design of the James Hardie Products for use in the New Zealand marlcet and the reasons they were developed/modified in this way.
The documents should include documents relating to design, components, materials that form the system, technical drawings, formation of technical drawings and internal communication in relation to these design decisions being made.
B Testing
All documents relating to:
a. the testing of the James Hardie Products or parts of the James Hardie Products (including, but not limited to, testing of parts of the components of the system); and
b. any modifications made as a consequence of any testing whether in New Zealand or overseas.
The documents should include testing carried out by internal and external parties (such as BRANZ). The documents should also include the testing protocols or instructions provided in respect of each test, the results, the full report, and details of who received these reports.
4 Discovery class date ranges are not yet agreed.
Missing class leners are assigned to categories not agreed by the parties.
Promotional Material
All documents relating to:
a. internal communications in relation to the accuracy of the sales and/or promotional material for the James Hardie Products.
A reasonable selection of the following material which shows all of the various claims made about the products (we do not require every single sales and marketing material over the last 30 years):
b. final versions of sales and marketing material provided to builders (including videos and guides); and
c. final versions of sales and marlteting materials provided to industry- bodies (such as Masterbuild and design bodies); and
d. final versions of sales and marketing materials provided to customers or media to be published.
E Harditex Improvement Project
The “Harditex Improvement Project” established in around September 1999, including any documents showing the purpose of the project, who was involved, and all reports and decisions resulting from the project.
Decision to Withdraw Old Product and Introduce New Product
All documents relating to the decision to withdraw the Harditex system from the New Zealand marlcet, including who was involved in recommending the decision, and who authorised the decision.
Industry Study Tour of USA and Canada
In approximately November 2000, a representative(s) of James Hardie attended the Building Weathertightness “New Zealand Industry Tour of USA and Canada”. We seelt all documents showing the reasons for the tour, information supplied and obtained and conclusions drawn by the participants.
Technical Literature
DraHing and updating of the Technical Literature relating to the James Hardie
Products.
I Documents Identifying Rislis or defects or liability relating to James Hardie Products
Identification or discussion of any risks, defects or liability from 1987 onwards relating to the James Hardie Products, in particular relating to:
a. whether the Products were weathertight in New Zealand conditions;
b. whether the Products complied with Applicable Legal and Building Standards (as defined in paragraph 39 of the Third Amended Statement of Claim);
whether the Products had or might Cause damage to the health and safety of occupants or to other parts of buildings in which they were installed; and
d. reporting and dissemination of information within the James Hardie Group about these matters.
No discovery is required in relation to manufacturing batch defects (such as product being outside stated dimensions, or other quality issues relating to a speciflC batches).
K Training documents
All internal policies and technical training materials in relation to the installation of the James Hardie Products.
Training documents in relation to manufacturing processes are irrelevant.
N Correspondence with Industry and Regulatory Bodies
Correspondence with industry and regulatory bodies: All co«espondence between any of the defendants and the Cladding Institute of New Zealand (also known as the New Zealand Cladding Institute), BRANZ, Standards New Zealand, Master Builders Association, government ministries, councils, the Commerce Commission, or other industry or regulatory bodies regarding the
James Hardie Products.
Sales figures
Annual sales figures and annual figures covering the volume of products sold.
(In relation to the income distribution within the James Hardie Group, the Plaintiffs accept that this category of documents should be “parlied” pending the outcome of the appeal but, depending on the outcome, it is agreed this category
will be provided if the third, fourth and seventh defendants remain in this proceeding.)
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4
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