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 order appropriate?

[5]    The parties provided discovery under a standard discovery order. In determining whether documents should be discovered in such a case the court will apply the adverse documents test, which includes documents that adversely affect a party’s case or support another party’s case.5 The “train of inquiry” basis that previously captured documents of only indirect relevance, and might in a case like this require disclosure of a vast array of electronic records, no longer applies.6

[6]    Mr Morten submits that the relevance threshold is not high, and that ultimately the question is one of materiality of the documents in question and “the likelihood discovery will result in admissible evidence of meaningful probative value to an issue in dispute”.7 I agree with that approach, bearing in mind also that the issues are defined by the pleadings which set the outer limits of what must be disclosed on discovery.8

[7]    It is not disputed that metadata may be discoverable. The term “document” is defined in r 1.3 of the Rules in an expansive way and includes “information electronically recorded or stored, and information derived from that information”. “Electronically stored information” is defined in pt 3 of sch 9 of the Rules to mean “any information stored electronically” and “includes metadata and embedded data”. “Metadata” is defined in pt 3 of sch 9 in the following way:

... means data about data. In the case of an electronic document, metadata is typically embedded information about the document that is not readily accessible once the native electronic document has been converted into an electronic image or paper document, for example, the date on which the document was last printed or amended. Metadata may be created automatically by a computer system (system metadata) or may be created manually by a user (application metadata). Depending on the circumstances of the case, metadata may be discoverable.

5      High Court Rules 2016, r 8.7.

6      Chatfield & Co Ltd v Commissioner of Inland Revenue [2016] NZCA 614 at [21], referring to

Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano (1882) 11 QBD 55 (CA).

7      Citing Robert Jones Holdings Ltd v McCullagh [2016] NZHC 2529 at [35].

8      West Harbour Holdings Ltd (in liq) v Tamihere [2014] NZHC 716 at [15]–[16].

The submissions

[8]    Mr Woolley pleads five causes of action against the Council. The metadata sought is said to be most relevant to the third cause of action, identified as being a wrongful combination to injure by unlawful means.

[9]    Mr Woolley pleads that on an unknown date the Council and certain other persons employed and/or contracted to the Council (who are not parties but are collectively referred to as the wrongful combination) combined to exercise the Council’s regulatory powers in a manner that was unlawful, with the intention of injuring Mr Woolley by preventing him from operating his dairy farm business and supplying milk to Fonterra.

[10]   The wrongful combination is said to include members in 2014 of the Council’s Prosecutions and Enforcement Committee, enforcement staff of the Council (including a Ms Lines and Ms McIlveney), and resource consenting staff (including a Mr Parker and Mr Congdon).

[11]   Mr Woolley pleads 19 actions that are said to have been unlawful acts of the Council and the wrongful combination that were intended to, and did in fact, cause him to suffer damage.9

[12]   Broadly Mr Woolley seeks metadata identifying who created records, when they were created and by whom they were viewed. I understand such information would be contained in what is referred to as the audit log for each record. He also has sought notes manually entered into Content Manager concerning such records.

[13]   Mr Woolley’s justification for the request for metadata is that he is entitled to pursue a “forensic enquiry” into the creation and amendment of the records in Content Manager. Mr Woolley also submits he is entitled to test the integrity and veracity of the documents and statements made or evidence given by the Council’s officers about those records.

9      At paras 75(a)–(s) of the statement of claim. Mr Woolley also pleads that the Council did not initiate or authorise such actions, so it is not clear on what basis it could be part of the wrongful combination.

[14]   The Council  has  rejected  all  of  Mr  Woolley’s  requests.  First,  it  says  Mr Woolley challenges the reasons or motives certain actions were taken by the Council and metadata will not assist in identifying those reasons.

[15]   Second, insofar as the request extends to manually entered notes in Content Manager, the Council says it does not utilise this function and there are no such notes. Mr Morten quite appropriately accepts counsel’s advice this is the case.

[16]   Third, the Council says to require litigants to discover metadata on the basis Mr Woolley now advances would make discovery disproportionate. It contends it should not incur the time and cost of extracting metadata and listing it as part of discovery, noting also that Mr Woolley has made no effort to discover equivalent records himself.

[17]   Fourth, the Council submits Mr Woolley is alleging dishonesty against the Council and its employees with no prima facie evidence to support those allegations. It says in all other related proceedings between these parties (as well as in other proceedings arising out of the same facts) it has been held that the Council acted reasonably, and that Mr Woolley is alone responsible for what has befallen him.

[18]   Finally, the Council argues it has provided disclosure of documents in related proceedings and its staff have been subjected to cross-examination by Mr Woolley’s counsel, and it is highly unlikely metadata would reveal any information of significance. It says Mr Woolley is fishing for material to support unsubstantiated allegations of misfeasance by Council officers, which is impermissible.

My analysis

[19]   It is common ground that metadata embedded in the records held in Content Manager exists. As the requests relate to relatively few documents and, except in one important respect, metadata that is covered by Mr Woolley’s requests exists and is readily retrievable from Content Manager, it cannot be said that it would be burdensome for the Council to provide it.

[20]   However, I do not accept the broad assertion that Mr Woolley is entitled to the metadata so he can undertake a forensic enquiry to determine which of the wrongful combination were involved in drafting/editing records or had viewed the records. This represents the train of inquiry approach which no longer applies to discovery in litigation before the courts. Discovery will not be ordered on a train of inquiry basis in response to a party’s bare assertion that it may turn up some important detail that has previously been overlooked.

[21]   It is also to be expected that several persons within the Council would almost invariably be involved in drafting/editing individual records stored in Content Manager. Likewise, it is to be expected that many persons would access and view those records during the course of the Council’s dealings with Mr Woolley. That is, after all, why the records are maintained. Confirmation provided by metadata that this occurred will not be evidence of meaningful probative value in this proceeding.

[22]   As an example, on 16 July 2014 the Chief Executive of the Council, Mr Besley, sent a letter to the Chief Executive of Fonterra seeking Fonterra’s assurance that milk would not be collected from Mr Woolley’s farms and noting that collection of the milk could be considered as aiding in a breach of Environment Court orders. Mr Woolley seeks metadata to show who created this letter and pleads at para 75(i) of the statement of claim that “[t]he Wrongful Combination acting through the Chief Executive of the Defendant” threatened to prosecute Fonterra as an accessory to criminal charges. That is not what the letter says but, in any event, the letter is from Mr Besley to Fonterra on behalf of  the Council.   It is his letter, and it is to be expected that in preparing it   Mr Besley would necessarily have relied upon information and advice from other Council officers, including those whom Mr Woolley asserts are part of the wrongful combination.

[23]   Assertions are made on Mr Woolley’s behalf that some records may have been created by persons other than the stated authors or altered in significant ways. There is no evidential foundation for such assertions in my view. Mr Woolley’s requests are to, my mind, in the main an impermissible fishing exercise because they do not

sufficiently relate to matters arising from the pleadings. They will also not provide evidence that is probative of facts that will be in issue.10

[24]   To the extent it is suggested that metadata might provide a basis to challenge the integrity and veracity of Council officers, there is a recognised need to keep such requests firmly in check.11 This does not provide justification for ordering discovery of the metadata.

[25]   Against that background, I turn to consider the relevance of metadata to each category of documents having regard to the pleaded claim.

Abatement notices

[26]   Mr Woolley seeks metadata showing when abatement notices issued by the Council to him and his sharemilker were drafted or edited and by whom. There is no pleading in the statement of claim that puts the creation of the abatement notices in issue. The disclosure of the metadata will not produce evidence that is meaningful or probative.

Hills Laboratory/Eurofin soil analysis

[27]   Soil sample reports were received by Ms Lines on or around 4 September 2014. Ms Lines has given evidence in other proceedings that she provided the reports to her superior, Mr Congdon, which I understand is not in dispute. Mr Woolley seeks metadata as to when the reports were filed and who filed, read or opened them.

[28]   The reports are considered by Mr Woolley to be relevant to the issue of the clay content of soil which lined his effluent pond. At para 75(j) of the statement of claim Mr Woolley pleads the wrongful combination falsely asserted throughout the period April 2014 to September 2014 that his Pond 1 was not clay-lined, and on learning by the reports that it was clay-lined suppressed the information without taking any remedial action or correction of its position. I understand Mr Woolley’s case is that the information in the reports was suppressed as it was not disclosed to him or his

10     Intercity Group (NZ) Ltd v Naked Bus NZ Ltd [2013] NZHC 1054 at [34].

11     Robert Jones Holdings Ltd v McCullagh, above n 7, at [55].

engineering consultants, Opus International Consultants Ltd (Opus), or to the Council’s independent consultant.

[29]   Given the dates of the reports, they cannot shed any light on the allegation that the Council had from April 2014 to September 2014 falsely asserted that the pond did not have a clay lining. Further, whether the content of the reports was suppressed will not be illumined by metadata showing when the reports were filed or who within the Council viewed them.

[30]   In addition to the above, in other proceedings Mr Woolley has conceded that the sample was not taken from Pond 1, and it has been held that the report results have no relevance to its clay content. In Woolley v Fonterra Co-operative Group Ltd Isac J held: 12

[511]  Ms Lines was not cross-examined by Mr Morten in any great depth  on the location of the sample. She did not resile from her position that the sample was taken from pond 2. And Mr Woolley himself conceded the sample was not from pond 1. In that context, the Hills Laboratories’ results is of no relevance to the clay content of pond 1.

[31]   While I accept Mr Woolley may wish to resile from his previous evidence or seek to have the Court take a different view in this proceeding, the prior findings strongly suggest that the requested metadata will not produce meaningful probative evidence.

Site visit reports

[32]   Council officers prepared site visit and compliance inspection reports relating to Mr Woolley’s property over a period of years. Mr Woolley has identified 26 such reports relating to the period 3 May 2011 to 16 March 2015 and seeks metadata showing when the reports were drafted, edited and read and by whom. It is said metadata may also show what content in the reports was edited.

[33]   Only in three instances has it been explained how metadata is said to be relevant to any issue arising other than as part of the background narrative to the

12     Woolley v Fonterra Co-operative Group Ltd [2021] NZHC 2690.

dealings between the parties. Standard discovery does not generally require a party to disclose documents that are merely background.13

[34]   Counsel focused on two site visit reports dated 31 July 2014 (in relation to a site visit on 30 July) and a report dated 13 August 2014. In relation to these it is said that there is reason to believe the reports have been edited or altered and that a discrepancy between the 31 July 2014 reports calls into question the accuracy of Council records of visits to Mr Woolley’s property.

[35]   As far as  site visit reports of 31 July  2014 are concerned, it  appears both  Ms Lines and Mr Congdon prepared a report of a visit to Mr Woolley’s property that day. Mr Woolley asserts that Ms Lines gave evidence in other proceedings that she alone drafted the reports, and he considers it significant that there is a discrepancy between them in that one describes material examined as “a clay loamy soil with gravel stones and some bigger rocks” and the other as “a mixture of stones and dirt”. Whether there is a discrepancy is arguable but the suggestion that the Congdon report was altered makes no sense when it might be considered supportive of Mr Woolley’s case to the extent it refers to “clay loamy soil”.

[36]   Further, the argument that the discrepancy calls into question the accuracy of Council records of visits to the Woolley property more generally so that metadata in respect to all of them should be disclosed is simply untenable. Even on a train of inquiry approach that could not be justified.

[37]   As far as the site visit report of 13 August 2014 is concerned, Ms Lines recorded that a soil sample was taken but not where it had been taken from. It is said the place the soil sample was taken from will be in issue. There is no reason to believe this file note has been altered, so the reason for requesting metadata falls away. Further, I again make the point that Mr Woolley has previously accepted the sample was not taken from Pond 1 and is therefore seeking metadata to advance an argument that is contrary to his evidence in other proceedings.

13     Jessica Gorman and others McGechan on Procedure (online ed, Thomson Reuters) at [HR8.7.01].

Opus engineer’s certificate

[38]   This request relates to an engineering certificate provided by Mr Woolley’s engineering consultants, Opus, dated 5 September 2014 which he says the Council wrongfully rejected. The metadata sought is notes contained in Content Manager about various matters concerning the certificate and its effect. There are no such notes.

Letter to Fonterra

[39]   I have referred to this letter earlier, and for the reasons given I do not consider metadata will produce meaningful probative evidence.

Notes of telephone conferences

[40]   The Council has disclosed notes of telephone conferences between Ms Lines and Mr Congdon and representatives of Opus on 8 September 2014, 30 September 2014 and 3 October 2014. There are two versions of the notes of the teleconference on 8 September 2014.

[41]   It is submitted for Mr Woolley that what Opus’s representatives told Ms Lines and Mr Congdon will be relevant to why the Council rejected Opus’s certificate, and to the pleading in para 75(j) of the statement of claim that the Council had no evidence to contradict Mr Woolley’s view that his Pond 1 was clay-lined. Mr Woolley seeks metadata that shows when the notes were created and edited and by whom.

[42]   The notes of the teleconference of 8 September 2024 are not identical but I do not see that those differences are material. To illustrate, the major difference identified was a statement of Lew Metcalf of Opus recorded in one note as “Yes Opus has referred to less than 10% clay, although that my [sic] not be the correct clay content used for pond 1” and in the other as “Yes Opus has referred to less than 10% clay, though there [sic] would not be the correct clay content used for pond 1”. In my view the meaning of those statements is the same.

[43]   The pleading that there was an absence of evidence to contradict Mr Woolley’s statement that the pond was clay-lined relates to the period April 2014 to 4 September 2014, predating the telephone conferences in question. The notes will not shed any

light on that issue. Further, the metadata sought will not shed light on the content of the conversations beyond what is recorded in the notes themselves.

Decision to publicly notify variation to resource consent

[44]   The Council issued  a  decision  on  2  July  2014  that  an  application  by  Mr Woolley to vary a consent to have an effluent pond relined was to be publicly notified. He pleads at para 75(h) of the statement of claim that the wrongful combination delayed processing his routine application for consent. He seeks metadata to show who drafted the notification decision, when it was edited and read and by whom.

[45]   The Council officers who made that decision are identified on the decision, they have signed it and have provided reasons for the decision. For the reasons given above, I do not consider metadata that may show other persons were involved in the creation of the record or viewed it will assist the Court.

Report to Enforcement and Prosecutions Committee

[46]   The Council has disclosed a report to the Enforcement and Prosecution Committee which Mr Woolley says is ostensibly drafted by Ms McIlveney and makes certain statements and representations to the Committee which are not accepted as being accurate. To the extent that the Court may be required to resolve disputes as to the factual content of the report it will not be assisted by disclosure of metadata.

Summary and outstanding issues

[47]   For the reasons set out above, I dismiss Mr Woolley’s request for the metadata. That leaves two outstanding issues.

[48]   First, Mr Woolley has made an application for leave to appeal my previous decision on discovery, but his counsel has flagged that he may wish to amend the grounds of the application. That application needs to be progressed to a hearing. I understand that the Council’s preference is that the application be determined after an in-person hearing. I am prepared to accommodate that if possible, but would also be

prepared to hear the matter by AVL if to do otherwise will delay the hearing to a significant degree. I will make directions in relation to that below.

[49]   The second matter concerns costs on Mr Woolley’s discovery applications which were reserved in my previous judgment. I was intending to issue a decision on costs as part of this judgment, but on reflection I consider that would be unfair as the result of this application will need to be considered. I will reserve costs on this application and deal with all costs issues at the same time as Mr Woolley’s application for leave to appeal is heard.

Result

[50]   Mr Woolley’s application for discovery of metadata is dismissed. Costs on the application are reserved.

[51]In relation to Mr Woolley’s application for leave to appeal and costs, I direct:

(a)Mr Woolley shall file any amended notice of appeal within 14 days of the date of this judgment;

(b)the Council shall have 14 days thereafter to file any amended opposition to the application for leave to appeal;

(c)the Registrar is to liaise with counsel to set those matters down for hearing before me with half a day reserved, noting that I am next on circuit in Wellington at the end of July 2024 but I remain open to conducting the hearing by AVL;

(d)Mr Woolley is to file his submissions in support of the application for leave to appeal and any further submissions in relation to costs at least five working days prior to the hearing;

(e)the Council is to file its submissions in opposition to the application for leave to appeal and any further submissions in relation to costs at least two working days prior to the hearing; and

(f)I reserve leave for counsel to seek amendments to the timetable, if necessary, by memorandum.

O G Paulsen Associate Judge

Solicitors:

Wisheart McNab & Partners, Blenheim Rice Speir, Auckland