Woolley v Marlborough District Council - [2024] NZHC 1647

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE

CIV-2020-406-015

[2024] NZHC 1647

BETWEEN
PHILIP JOHN WOOLLEY

Plaintiff

AND

MARLBOROUGH DISTRICT COUNCIL

Defendant

Hearing: 11 June 2024

Appearances:

P A Morten and M A Robertson for Plaintiff A C Harpur and N Ravaji for Defendant

Judgment:

21 June 2024

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

(Disclosure)

This judgment was delivered by me on 21 June 2024 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:

WOOLLEY v MARLBOROUGH DISTRICT COUNCIL [2024] NZHC 1647 [21 June 2024]

[1] I have previously issued a judgment on an application by Mr Woolley for further and better discovery from the Marlborough District Council.1 The disclosure Mr Woolley sought from the Council included metadata of documents included in the Council’s affidavit of documents. The Council has a records management policy requiring its staff to capture records of their work in a database referred to as Content Manager.2 Content Manager records and retains certain metadata such as, but not limited to, the date a record is created or edited and by whom it is created, edited or accessed.

[2] The orders I made in my previous judgment included that Mr Woolley could request from the Council metadata (for specific records with reasons for the request), with any disputes as to whether such metadata was to be provided referred back for the Court to determine.3 Mr Woolley has made such requests which the Council has refused.

[3] Mr Woolley now seeks an order that metadata in Content Manager relating to 42 records in eight categories be disclosed. Some of the metadata sought does not exist. In most instances, however, the primary issue is whether the metadata is sufficiently relevant to any matter in issue to require disclosure.

Principles

[4] An application for further discovery is made under r 8.19 of the High Court Rules 2016 (the Rules). Most often, the court adopts the four-stage approach set out in Assa Abloy NZ Ltd v Allegion (NZ) Ltd as follows:4
(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?

1      Woolley v Marlborough District Council [2023] NZHC 3840. There is now a long history of litigation arising from the dispute between Mr Woolley and the Marlborough District Council. The dispute has been subject to detailed scrutiny by the Environment Court, the District Court, the High Court and the Court of Appeal.
2      Woolley v Marlborough District Council, above n 1, at [66].
3 At [113].
4      Assa Abloy NZ Ltd v Allegion (NZ) Ltd [2015] NZHC 2760, [2018] NZAR 600 at [14].

(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…

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: [2024] NZHC 1647
Decision Date: 21 June 2024

CaseChat Overview and Summary

The High Court of New Zealand heard an application by Mr Philip Woolley against the Marlborough District Council for further and better discovery. Mr Woolley sought metadata from the Council's Content Manager database relating to 42 records across eight categories, arguing it was necessary for a forensic inquiry into the records. The Council argued the metadata was irrelevant to the issues in dispute and that requiring its disclosure would be disproportionate. The court considered whether the metadata was relevant, whether it existed, whether its disclosure was proportionate, and whether it was appropriate to order disclosure in the court's discretion. The court found that while some metadata existed, most of Mr Woolley's requests were irrelevant to the issues in the pleadings. The court rejected the requests, noting that discovery would not be ordered on a train of inquiry basis and that metadata would not provide meaningful probative evidence. The court dismissed Mr Woolley's application and reserved costs pending further proceedings.

The court also directed the parties to proceed with Mr Woolley's application for leave to appeal the previous discovery decision and to file their respective submissions on appeal and costs. The hearing was to be conducted either in person or by audio-visual link, with the court reserving leave for counsel to seek amendments to the timetable.

Orders