Woolley v Marlborough District Council - [2023] NZHC 3840

No judgment structure available for this case.

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE

CIV-2020-406-015

[2023] NZHC 3840

BETWEEN
PHILIP JOHN WOOLLEY

Plaintiff

AND

MARLBOROUGH DISTRICT COUNCIL

Defendant

Hearing: 22 May 2023 and 30 October 2023

Appearances:

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

Judgment:

21 December 2023

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 21 December 2023 at 3.00 pm pursuant to rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:

WOOLLEY v MARLBOROUGH DISTRICT COUNCIL [2023] NZHC 3840 [21 December 2023]

Introduction [1]

The context [10]

The relevant discovery principles [16]

Part 1 documents
Can litigation privilege be claimed in respect of preparatory materials for proceedings before the Environment Court?  [24]
Does litigation privilege lapse following completion of the proceedings to which it
relates?  [38]
Has litigation privilege been correctly claimed?  [58]

Part 2 and Part 3 documents
Has the Council undertaken a sufficient search to locate documents within the scope of the discovery order? [61]
The particular discovery sought in part 2 and part 3 [90]

Should the Court order access to the Council’s database? [93]

Should the Court make an unless order? [96]

The application to cross-examine [101]

Result [112]
Schedules

Introduction

[1] The plaintiff, Mr Woolley, had a dairy farm at Glenmae. He is seeking damages from the Marlborough District Council (the Council) in respect of events that occurred between 2014 and 2015. There are five causes of action in the statement of claim, namely:

(a)tortious interference by the Council with Mr Woolley’s supply contract with Fonterra Co-operative Group Ltd (Fonterra);

(b)tortious interference with Mr Woolley’s milking contract with the CN and DV Perrott Partnership;

(c)wrongful combination to injure Mr Woolley by multiple means;

(d)negligence; and

(e)breach of statutory duty.

[2] Associate Judge Johnston directed the parties to provide standard discovery. The Council’s affidavit of documents was filed in December 2020. Subsequently, counsel became aware that certain documents were not properly uploaded to an external document processor, and therefore were not included in the Council’s affidavit of documents. On 28 February 2022, an amended affidavit of documents was filed.

[3] Mr Woolley is not satisfied the Council has complied with its discovery obligations. In December 2022, he made an application for orders setting aside claims to privilege and particular discovery, which the Council opposed. That application came before me on 22 May 2023, but was adjourned part heard. The hearing resumed on 30 October 2023. In between times, Mr Woolley filed an amended application, the Council filed an amended notice of opposition along with several further affidavits,

and Mr Woolley applied for leave to cross-examine Council witnesses, which I declined.1

[4]In his amended application, Mr Woolley is seeking the following orders:

(a)setting aside the Council’s claim to privilege or confidentiality over documents identified in pt 1 of sch A to his amended application (the pt 1 documents);

(b)a declaration that litigation privilege claimed by the Council over documents prepared in relation to a prosecution taken against him in the Environment Court has expired;

(c)that the Council provide further and better discovery in respect of categories of documents identified in pt 2 and pt 3 of sch A to his amended application (the pt 2 and pt 3 documents);

(d)that the Council make available to Mr Woolley all documents over which litigation privilege has expired or that it is required to further discover; and

(e)that an unless order be made in favour of Mr Woolley.

[5] Counsel for Mr Woolley also argues that I should make an order granting access to the Council’s computer systems to ensure compliance with its discovery obligations.2

[6] The Council’s stance is that it has gone to considerable lengths to respond to challenges to its discovery by Mr Woolley, that privilege has been properly claimed and does not lapse, and it has complied with its discovery obligations.

1 Woolley v Marlborough District Council [2023] NZHC 2995.
2 Fujitsu General New Zealand Ltd v Black Diamond Holdings Ltd HC Wellington CIV-2000-485- 668, 31 May 2004.

[7] The challenges Mr Woolley makes to the claims of privilege in respect to the pt 1 documents (and some pt 2 documents also) raise the following issues:

(a)whether litigation privilege can be claimed in respect of preparatory materials for proceedings before the Environment Court;

(b)if so, whether litigation privilege lapses following completion of the proceedings to which it relates; and

(c)whether litigation privilege has been correctly claimed.

[8]In respect to the pt 2 and pt 3 documents, the issues are:

(a)whether the Council has undertaken a sufficient search to locate documents within the scope of the discovery order; and

(b)if not, whether further discovery ought to be ordered.3

[9] In addition, I am also required to consider Mr Woolley’s application for an unless order and provide reasons for declining Mr Woolley leave to cross-examine.4

The context

[10] In 2010, Mr Woolley was granted resource consent for a dairy operation at Glenmae. The resource consent contained a condition requiring a certificate from the designing engineer of the effluent system to confirm it was installed and functioned according to the approval. No effluent was to be discharged until the certificate was received by the Council.

[11] In 2012, Mr Woolley designed and built two effluent ponds himself. An engineer did not certify the ponds. In June 2013, the Council applied to the Environment Court for an enforcement order which was granted on 4 April 2014. Mr Woolley was ordered to cease operating the milking sheds on Glenmae until the

3 Assa Abloy NZ Ltd v Allegion (NZ) Ltd [2015] NZHC 2760, [2018] NZAR 600.
4 Woolley v Marlborough District Council, above n 1.

effluent disposal system had been certified. The engineer’s certificate was to be provided to the Council and the Environment Court by 6 June 2014. On 9 June 2014, the Environment Court refused an application by Mr Woolley for an extension of time to comply with the enforcement order. In July 2014, Mr Woolley and his contract milker started milking cows using the milking shed on the property in breach of the enforcement order.

[12] Mr Woolley was contracted to Fonterra for the supply of milk from Glenmae. He says Fonterra, under pressure from the Council, refused to collect his milk. In addition, his contract milker terminated its contract milking agreement in mid-September 2014 on the ground that Mr Woolley’s actions prevented milking.

[13] On 5 September 2014, Opus International Consultants Ltd (Opus) certified compliance with the enforcement order, but the Council refused to accept the certificate and receivers and managers were appointed over Mr Woolley’s assets on 24 November 2014.

[14] On 27 November 2014, the Council filed charges against Mr Woolley in the District Court for breaches of the enforcement order. On 24 July 2015, Judge Smith convicted Mr Woolley of breaching the enforcement order,5 and on 14 August 2015 Mr Woolley was sentenced.6

[15] In 2018, Mr Woolley commenced proceedings against Fonterra, alleging it was in breach of its supply contract by refusing to collect milk from Glenmae.7 His claim was dismissed in the High Court,8 and an appeal to the Court of Appeal was also dismissed.9

5      Marlborough District Council v Woolley [2015] NZDC 13811. At [23] Judge Smith held that Opus’s certificate of 5 September 2014 satisfied the requirements of the enforcement order; but see n 8.
6      Marlborough District Council v Woolley [2015] NZDC 16110.
7      Woolley v Fonterra Co-operative Group Ltd [2021] NZHC 2690.
8      Woolley v Fonterra Co-operative Group Ltd, above, n 7. Contrary to the conclusion of the Environment Court, Isac J held at [380] that Mr Woolley remained in breach of the enforcement order and his resource consent after 5 September 2014.
9      Woolley v Fonterra Co-operative Group Ltd [2023] NZCA 266.

The relevant discovery principles

[16] Standard discovery requires disclosure of documents in a party’s control and that are:10

(a)documents on which the party relies; or

(b)documents that adversely affect that party’s own case; or

(c)documents that adversely affect another party’s case; or

(d)documents that support another party’s case.

[17] Standard discovery only requires disclosure of documents of actual and direct relevance.11 Relevance is determined by the pleadings, and the case of the party who seeks discovery must be assumed to be true, and not that of the party from whom discovery is sought.12

[18] Under r 8.2, parties must cooperate to ensure discovery and inspection are proportionate and facilitated by agreement on practical arrangements.13 The obligation to cooperate falls on both parties.14 This is reflected in other rules and in the listing and exchange protocol.15

[19] Rule 8.14 requires that a party must make a reasonable search for documents within the scope of a discovery order. What amounts to a reasonable search is context specific,16 requiring consideration of factors including the following:17
(a)the nature and complexity of the proceeding;

(b)the number of documents involved;

(c)the cost of retrieving documents;

10     High Court Rules 2016, r 8.7.
11     Pyne Gould Corporation Ltd v Bath Street Capital Ltd [2020] NZHC 1247 at [13].
12     Body Corporate 366611 v Downer New Zealand Ltd [2019] NZHC 2656 at [23].
13     High Court Rules, r 8.2.
14     Schedule 9 pt 2.
15     Schedule 9 cls 2(a) and 3(2)(ii).
16     Pyne Gould Corporation Ltd v Bath Street Capital Ltd, above n 11, at [30].
17     High Court Rules, r 8.14(2).

(d)the significance of any document likely to be found; and

(e)the need for discovery to be proportionate to the subject matter of the proceeding.

[20] Rule 8.15 sets out the standard requirements for affidavits of documents. Importantly, a party must:18

…

(b)give particulars of the steps taken to fulfil those obligations; and

(c)state the categories or classes of documents that have not been searched, and the reason or reasons for not searching them; and

(d)list or otherwise identify the documents required to be discovered under the order in a schedule that complies with rule 8.16 and Part 2 of Schedule 9; …

[21] Mr Woolley’s application seeks further discovery in respect to the pt 2 and pt 3 documents. He relies upon r 8.19, which provides:

8.19Order for particular discovery against party after proceeding commenced

If at any stage of the proceeding it appears to a Judge, from evidence or from the nature or circumstances of the case or from any document filed in the proceeding, that there are grounds for believing that a party has not discovered 1 or more documents or a group of documents that should have been discovered, the Judge may order that party—

(a)to file an affidavit stating—

(i)whether the documents are or have been in the party’s control; and

(ii)if they have been but are no longer in the party’s control, the party’s best knowledge and belief as to when the documents ceased to be in the party’s control and who now has control of them; and

(b)to serve the affidavit on the other party or parties; and

(c)if the documents are in the person’s control, to make those documents available for inspection, in accordance with rule 8.27, to the other party or parties.

18 Rule 8.15(2).

[22] The key issue in applications under r 8.19 tends to be whether there are grounds for believing a party has not discovered documents that should have been discovered. The Court generally adopts the following four-stage approach to such applications as outlined in Assa Abloy New Zealand Ltd v Allegion (NZ) Ltd:19
(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?

[23] In Lighter Quay Residents’ Society Incorporated v Waterfront Properties (2009) Ltd, Katz J noted that in relation to an application under r 8.19 the relevant principles are:20

(a)Existence of the document does not have to be established on the balance of probabilities or a “more likely than not” basis. A lower threshold is required, which may vary given the relevance of the documents and issues of proportionality.21

(b)While there is a presumption that affidavits of documents filed are conclusive,22 an application under r 8.19 is a proper way to circumvent the conclusiveness rule. The party seeking further discovery has to establish the existing affidavit of documents is incomplete.23

19 Assa Abloy New Zealand Ltd v Allegion (New Zealand) Ltd, above n 3, at [14].
20 Lighter Quay Residents’ Society Incorporated v Waterfront Properties (2009) Ltd [2017] NZHC 818 at [16].
21 Assa Abloy New Zealand Ltd v Allegion (New Zealand) Ltd, above n 3, at [12] where Asher J noted “… all that is necessary is to show that there is some credible evidence which assessed objectively indicates that the documents that are sought exist”.
22 McCullagh v Robt Jones Holdings Ltd [2015] NZHC 1462, (2015) 22 PRNZ 615 at [7].
23 At [7].

(c)Whether a document “should have been discovered” should be determined by reference to the “adverse documents” test in r 8.7, or any stricter test imposed upon tailored discovery pursuant to r 8.8.24

Part 1 documents

Can litigation privilege be claimed in respect of preparatory materials for proceedings before the Environment Court?

[24] The Council has claimed litigation privilege in respect to most of the documents in pt 1.25 It relies on s 56 of the Evidence Act 2006, which provides:

56 Privilege for preparatory materials for proceedings

(1)Subsection (2) applies to a communication or information only if the communication or information is made, received, compiled, or prepared for the dominant purpose of preparing for a proceeding or an apprehended proceeding (the proceeding).

(2)A person (the party) who is, or on reasonable ground contemplates becoming, a party to the proceeding has a privilege in respect of—

(a)a communication between the party and any other person:

(b)a communication between the party’s legal adviser and any other person:

(c)information compiled or prepared by the party or the party’s legal adviser:

(d)information compiled or prepared at the request of the party, or the party’s legal adviser, by any other person.

…

[25]The term “proceeding” is defined in s 4(1) as:

proceeding means—

(a)a proceeding conducted by a court; and

24 Citing Air National Corporate Ltd v Aiveo Holdings Ltd [2012] NZHC 2258 at [16]: “It is implicit in r 8.19 … that documents will only be directed to be discovered if they can be shown to be discoverable under the general rules relating to discovery”; citing also Domenico Trustee Ltd v Tower Insurance Ltd [2014] NZHC 2657 at [67]–[68].
25 It has also claimed legal advice privilege and privilege for settlement negotiations in fewer instances.

(b)any interlocutory or other application to a court connected with that proceeding[.]

[26]“Court” is defined in the same section as:26

court includes the Supreme Court, the Court of Appeal, the High Court, and the District Court[.]

(emphasis added)

[27] Under s 53(1) of the Evidence Act, a person who has privilege in respect of a communication or any information conferred by any of ss 54 to 59 may refuse to disclose the document in a proceeding. I do not understand it to be disputed that the Council has the burden of establishing that any claim to privilege is made out.27

[28] Mr Woolley submits that an application to the Environment Court for an enforcement order is not a “proceeding” conducted by “a court”. He submits “court” is defined as including the Supreme Court, the Court of Appeal, the High Court and the District Court, but does not include the Environment Court.28

[29] I do not accept Mr Woolley’s submission. The definition of the term “court” is non-exhaustive.29 It anticipates a broader application than to just the courts listed.30

[30] The Environment Court was created by pt 11 the Resource Management Act 1991 (RMA). Section 247 of the RMA provides:

26 The term “District Court” is further defined as including the Family Court and the Youth Court.
27 The Minister of Education v James Hardie New Zealand [2019] NZHC 3487 at [46].
28 The argument that litigation privilege attached to proceedings in the Human Rights Review Tribunal was made in Williams v Craig [2016] NZHC 1453 at [11], but the argument did not need to be considered by the Court to dispose of the claim. The Court of Appeal in Clerk of House of Representatives v Witcombe [2008] NZCA 538 allowed leave to appeal the decision of the Employment Court limiting the application of s 56 in proceedings before that court, but it appears that appeal did not advance. Counsel for Mr Woolley cites Ingot Capital Investments Pty Ltd v MacQuarrie Equity Capital Markets Ltd [2006] NSWSC 530, (2006) 67 NSWLR 91 but that case concerns an entirely different statutory landscape.
29 Mathew Downs (ed) Adams on Criminal Law (online ed, Thomson Reuters) at [EA4.09.01]; and Elisabeth McDonald and Scott Optican (eds) Mahoney on Evidence (4th ed, Thomson Reuters, Wellington, 2018) at [EV56.04].
30 For example, the term “Judge” is defined in s 4(1) as: “Judge includes a Justice of the Peace, a community magistrate, and any tribunal”. Also, some powers are given specifically to “Judges” in the Act outside of the definition of “proceeding”. See Evidence Act, ss 12 and 13.

247 Planning Tribunal re-named Environment Court

There shall continue to be a court of record called the Environment Court which shall be the same court as the court called the Planning Tribunal immediately before the commencement of this section and which, in addition to the jurisdiction and powers conferred on it by or pursuant to this Act or any other Act, shall continue to have all the powers inherent in a court of record.

[31] Under s 278 of the RMA, the Environment Court has the powers of the District Court as follows:

278 Environment Court has powers of District Court

(1)The Environment Court and Environment Judges have the same powers that the District Court has in the exercise of its civil jurisdiction, including, without limitation, the power to commission a report from an independent expert on any matter raised in an appeal, as provided for by subpart 4 of Part 9 of the District Court Rules 2014.

(1A) Despite rule 9.31 of the District Court Rules 2014, an independent expert from whom a report is commissioned under subsection (1) must be available to be cross-examined by any party.

(2)An application for an order for discovery or production of documents may be made only with the leave of an Environment Judge.

…

[32] Section 276 of the RMA deals with evidence the Environment Court may receive and most relevantly provides that it is “not bound” by the rules of law about evidence that apply to judicial proceedings:31
276 Evidence

(1)The Environment Court may—

(a)receive anything in evidence that it considers appropriate to receive; and

(b)call for anything to be provided in evidence which it considers will assist it to make a decision or recommendation; and

(c)call before it a person to give evidence who, in its opinion, will assist it in making a decision or recommendation.

(1A) The court may, whether or not the parties consent,—

31 See also the Family Court Act 1980, s 12A(4); and the Employment Relations Act 2000, s 189(2).

(a)accept evidence that was presented at a hearing held by the consent authority under section 39:

(b)direct how evidence is to be given to the court.

(2)The Environment Court is not bound by the rules of law about evidence that apply to judicial proceedings.

…

[33] Section 5(1) of the Evidence Act provides that if there is an inconsistency between the provisions of the Evidence Act and any other enactment, the provisions of the other enactment generally prevail. It might then be thought that, because s 276(2) of the RMA provides that the Environment Court is not bound by the rules of law about evidence, the Evidence Act (and rules of evidence at common law) do not apply to it.32 Such a result cannot have been what is intended.

[34] The purpose of litigation privilege can equally apply to proceedings in the Environment Court as it does any other court, being that “a potential [party to litigation] should be able to seek evidence and prepare the case without being obliged to disclose the material created to the opponent”.33 The purpose of litigation privilege is linked to the adversarial process.34 The Environment Court conducts both inquiries and appeals and there are inquisitorial and adversarial elements to its procedures.35 It cannot be the case that parties involved in adversarial proceedings before the Environment Court do not enjoy the benefit of, and right to assert, litigation privilege.

[35] The position of the Environment Court itself is set out in its Practice Note 2023, which is that the Evidence Act applies to proceedings before it and s 276(2) is an enabling provision only. It provides:

8.1 General law applies

(a)The provisions of the Evidence Act 2006 apply to proceedings in the Environment Court. Attention is drawn to ss6-9, 23-26, and 53 and 57 of the Evidence Act in particular.

32     See Craig v Visiting Justice at Auckland Prison HC Auckland CIV-2007-404-5156, 6 June 2008 at [22].
33     R v King [2007] 2 NZLR 137 (HC) at [20].
34     Adams on Criminal Law — Archived Evidence Commentary pre Evidence Act 2006 (Thomson Reuters, online ed) at [EC20.10(1)].
35     John Hassan and David Kirkpatrick “Effective Lawyering in the New Plan-Making Paradigm” in Royden Somerville and others Environmental Law Intensive (NZLS CLE, 2016) at [15].

(b)The provision in s 276(2) of the Act, that the Environment Court is not bound by the rules of law about evidence that apply to judicial proceedings, is an enabling provision for the Court and not an exemption for parties, Counsel, or witnesses.

[36]Notably, in relation to expert witnesses the Practice Note provides:

…

(e) The relevant provisions of the Evidence Act 2006 apply, particularly including the definitions in s 4 of “expert” and “expert evidence” and the provisions in relation to statements of opinion and expert evidence in ss 23-26, as well as the provisions of this Practice Note. In the event of any conflict, the provisions of the Evidence Act prevail.

[37] I agree with the Environment Court’s view that s 276(2) is an enabling provision. In my view, the Environment Court is a “court” for the purposes of the Evidence Act and litigation privilege can be claimed in respect of preparatory materials for a “proceeding” before the Environment Court.

Does litigation privilege lapse following completion of the proceedings to which it relates?

[38] Mr Woolley argues that if the Council can claim litigation privilege in respect of materials prepared for the purpose of the District Court prosecution brought against him, then that privilege expired in August 2015 when he was sentenced.

[39] This argument derives from the Canadian Supreme Court decision in Blank v Canada (Minister of Justice) which is authority that litigation privilege expires, departing from the “once privileged, always privileged” principle which prevails in the United Kingdom.36

[40] In Blank, Fish J for the majority identified a difference between litigation privilege, where documents are made in preparation for proceedings, and solicitor- client privilege, which protects communications between a lawyer and his or her client:

[26] Much has been said in these cases, and others, regarding the origin and rationale of the solicitor-client privilege. The solicitor-client privilege has been firmly entrenched for centuries. It recognizes that the justice system

36 Blank v Canada (Minister of Justice) 2006 SCC 39, [2006] 2 SCR 319.

depends for its vitality on full, free and frank communication between those who need legal advice and those who are best able to provide it. Society has entrusted to lawyers the task of advancing their clients’ cases with the skill and expertise available only to those who are trained in the law. They alone can discharge these duties effectively, but only if those who depend on them for counsel may consult with them in confidence. The resulting confidential relationship between solicitor and client is a necessary and essential condition of the effective administration of justice.

[27] Litigation privilege, on the other hand, is not directed at, still less, restricted to, communications between solicitor and client. It contemplates, as well, communications between a solicitor and third parties or, in the case of an unrepresented litigant, between the litigant and third parties. Its object is to ensure the efficacy of the adversarial process and not to promote the solicitor- client relationship. And to achieve this purpose, parties to litigation, represented or not, must be left to prepare their contending positions in private, without adversarial interference and without fear of premature disclosure.

[41] His Honour quoted an article by RJ Sharpe, who explained the difference thus:37

Litigation privilege, on the other hand, is geared directly to the process of litigation. Its purpose is not explained adequately by the protection afforded lawyer-client communications deemed necessary to allow clients to obtain legal advice, the interest protected by solicitor-client privilege. Its purpose is more particularly related to the needs of the adversarial trial process. Litigation privilege is based upon the need for a protected area to facilitate investigation and preparation of a case for trial by the adversarial advocate. In other words, litigation privilege aims to facilitate a process (namely, the adversary process), while solicitor-client privilege aims to protect a relationship (namely, the confidential relationship between a lawyer and a client).

[42] The majority in Blank held that once litigation has ended the justification for the information remaining privileged also ends:

[34] The purpose of the litigation privilege, I repeat, is to create a “zone of privacy” in relation to pending or apprehended litigation. Once the litigation has ended, the privilege to which it gave rise has lost its specific and concrete purpose — and therefore its justification. But to borrow a phrase, the litigation is not over until it is over: It cannot be said to have “terminated”, in any meaningful sense of that term, where litigants or related parties remain locked in what is essentially the same legal combat.

[35] Except where such related litigation persists, there is no need and no reason to protect from discovery anything that would have been subject to compellable disclosure but for the pending or apprehended proceedings which provided its shield. Where the litigation has indeed ended, there is little room for concern lest opposing counsel or their clients argue their case “on wits borrowed from the adversary” …

37 At [28]; citing RJ Sharpe “Claiming Privilege in the Discovery Process” in Special Lectures of the Law Society of Upper Canada (1984) 163, at 164–165.

[36] I therefore agree with the majority in the Federal Court of Appeal and others who share their view that the common law litigation privilege comes to an end, absent closely related proceedings, upon the termination of the litigation that gave rise to the privilege …

[37] Thus, the principle “once privileged, always privileged”, so vital to the solicitor-client privilege, is foreign to the litigation privilege. The litigation privilege, unlike the solicitor-client privilege, is neither absolute in scope nor permanent in duration.

[43] Fish J said that “related litigation” includes, at a minimum, “separate proceedings that involve the same or related parties and arise from the same or a related cause of action (or ‘juridical source’)”.38 He considered that proceedings which raise issues common to the initial action and which share its essential purpose would also qualify.

[44] There have been decisions of this Court which approved the approach in Blank,39 and others, such as NZH Ltd v Ramspecs Ltd and Minister of Education v James Hardie New Zealand, which do not appear to do so.40 In NZH Ltd v Ramspecs Ltd, Peters J concluded that, even if Blank applied, the proceedings before her were related and so litigation privilege would apply regardless.41 However, she provided the following observation on the wording of the Evidence Act:42
… neither the Defendants nor NZH made submissions as to how the Act falls to be interpreted on this particular issue. However, most if not all of the “privilege” provisions in the Act — ss 54, 56, 57, 58, 59 and 60 — provide that a party “has” a privilege in the subject matter and s 53, which provides for enforcement, does not suggest that the privilege ceases.

[45] In Minister of Education v James Hardie New Zealand, Fitzgerald J said on this issue:

38 At [39].
39 Body Corporate No 189855 v North Shore City Council HC Auckland CIV-2005-404-5561, 20 October 2006 at [9]; Snorkel Elevating Work Platforms Ltd v Thompson [2007] NZAR 504 (HC) at [13]; Houghton v Saunders [2013] NZHC 1824 at [20]–[23]; and Osborne v Worksafe New Zealand [2015] NZHC 264, (2015) 22 PRNZ 560 at [19]. The Court of Appeal granted leave to appeal the issue of whether Blank applies in Reid v New Zealand Fire Service Commission (2010) 19 PRNZ 923 (CA) at [20]–[22], but it appears this appeal never progressed to hearing. The Court of Appeal in MA v Attorney-General [2009] NZCA 490 at [27] considered it an “interesting question” but did not have to consider it because of the application of the iniquity exception.
40 NZH Ltd v Ramspecs Ltd [2015] NZHC 2396; and Minister of Education v James Hardie New Zealand, above n 27.
41 At [25]–[27].
42 At [32].

[106] In my view, the proper interpretation and application of s 53 to this issue is likely to be key. That section does not appear to contemplate litigation privilege ceasing at the conclusion of the proceedings in relation to which the relevant documents had been prepared. Rather, s 53(1) expressly provides that a person who has a privilege conferred by any of ss 54 to 59 “has the right to refuse” to disclose the document or communication “in a proceeding …” (emphasis added). Accordingly, s 53(1) does not distinguish between any of the different forms of privilege for the purposes of the duration of that privilege. Nor is the type of proceeding in which a privilege-holder has the “right” to refuse to disclose a privileged document limited, at least in the case of litigation privilege, to the related proceedings contemplated in Blank.

[46] Her Honour also had practical concerns about the application of Blank in New Zealand:

[107] I also have some concern as to how the Blank approach might operate in practice. What if the original proceedings had ended, no further or related litigation was either pending or reasonably apprehended at that time (such that the privilege ceases), but some years later, a proceeding meeting the definition of Blank’s related proceeding was commenced? Would the privilege “re-attach” to the documents concerned? And what if in the intervening period, other proceedings had been commenced which did not meet the definition of Blank’s “related proceedings”, in which the documents, having lost their privileged status, had been disclosed? Having been so disclosed, the documents would have lost their confidentiality (despite the restraints on what use might be made of documents discovered in proceedings; they might, after all, be referred to in open court). Losing confidentiality would then be inconsistent with “regaining” their privileged status for later related proceedings. At least at first blush, it strikes me that difficulties could arise if documents moved “in and out” of a privileged state.

[47] In my view, Blank is not good law in this country and is incompatible with the Evidence Act. Blank was decided before the introduction of the Evidence Act and the approach taken is not reflected in the terms of s 56. None of the cases satisfactorily explain how the approach in Blank is available on the wording of the Evidence Act.

[48] Peters J, in Ramspecs, and Fitzgerald J, in Minister of Education v James Hardie New Zealand, placed emphasis on the use of the word “has” in s 56(2), that “[a] person (the party) who is, or on reasonable grounds contemplates becoming, a party to the proceeding has a privilege in respect of…”.

[49]The word “has” is repeated in s 53(1):

53 Effect and protection of privilege

(1) A person who has a privilege conferred by any of sections 54 to 59 in respect of a communication or any information has the right to refuse to disclose in a proceeding …

…

(3)A person who has a privilege conferred by any of sections 54 to 59 and 64 in respect of a communication, information, opinion, or document may require that the communication, information, opinion, or document not be disclosed in a proceeding …

…

(4)If a communication, information, opinion, or document, in respect of which a person has a privilege conferred by any of sections 54 to 59 and 64, is in the possession of a person other than a person referred to in subsection (3), a Judge may, on the Judge’s own initiative or on the application of the person who has the privilege, order that the communication, information, opinion, or document not be disclosed in a proceeding.

…

(emphasis added)

[50] Mr Morten referred me to an article “Litigation privilege: permanent or temporary?” by Sean McAnally, in which Mr McAnally argues that the wording of the section supports the approach taken in Blank:43
It is apparent that for the purposes of s 53, the term “has” is determinative. If a person “has” a privilege it can be asserted in “a” proceeding — potentially any proceeding (and not just “the” proceeding). However, under s 56 a person only “has” a privilege if that person is or contemplates becoming a party to “the proceeding”. Once the person is neither, arguably that person no longer “has” a privilege that might be asserted in any proceeding. Not so, for example, in the case of legal advice privilege under s 54 — that privilege is absolute and may be asserted in a proceeding — any proceeding — for the purposes of s 53.

[51] I am not persuaded by Mr McAnally’s analysis. It will be apparent the word “has” in s 56(2) can be engaged both for and against the Blank approach. For my part, the word “has” indicates when a person gains a privilege; it does not concern when that person loses it.

43 Sean McAnally “Litigation privilege: permanent or temporary?” [2022] NZLJ 8 at 11.

[52] While noting that, in Minister of Education v James Hardie New Zealand, Fitzgerald J had expressed practical concerns with the application of Blank in New Zealand, Mr McAnally dismisses the concerns in the following manner:44
In those circumstances, practical concerns are subservient to the public policy considerations at stake. Practicalities must bend to the public interest, not the other way around. If litigation privilege no longer advances a public interest, it is difficult to argue that it should subsist simply because, at one point, it once did. The same does not apply to solicitor-client, or legal advice, privilege. Communications with one’s legal advisor are confidential, and intended to be confidential, for all time and all purposes. …

[53] I do not accept the ease with which this approach departs from established law and, to my mind, it ignores both the wording of the Evidence Act and the practicalities (or impracticalities) of adopting the Blank approach. It also suggests, somewhat improbably, that the public interest has somehow dramatically changed since the Evidence Act was enacted in 2006, under 20 years ago.

[54] I note also that s 54 provides that a “person who requests or obtains professional legal services … has a privilege…”, yet such privilege does not lapse when that person is no longer requesting or obtaining legal services. I have not been referred to anything in the Evidence Act to support a view that litigation privilege lapses when no other privileges operate in this manner.

[55] Further, it is important that the Evidence Act does not allow for the related proceedings exception in Blank. Mr McAnally suggests that the process of statutory interpretation could lend itself to a conclusion that the related litigation extension is not available in New Zealand.45 However, it has been recognised that the absence of such an exception would frustrate the purpose of litigation privilege. As explained by Dobson J in Houghton v Saunders:46
Conceptually, a privilege recognised because of the need for a “zone of privacy” while proceedings are on-going comes to an end when the proceedings do. However, that proposition must, in the interests of justice, be subject to an exception where there is a relevant connection between one set of proceedings and another, whilst the other litigation continues. If the subject matter is sufficiently inter-related, the litigation strategy in one set of proceedings will have a bearing on the litigation strategy in others. It would frustrate the purpose

44     At 10.
45     At 11.
46     Houghton v Saunders, above n 39, at [21].

of litigation privilege if it was brought to an end when either of the proceedings terminated, thereby breaching the “zone of privacy” reasonably expected in the on-going proceedings.

[56] There may be an argument for adopting the approach in Blank in this country, but to my mind, given the terms of the Evidence Act, that is a decision for Parliament to make.

[57] It is not necessary for me to decide whether, if Blank applies, this proceeding and the prior proceedings taken by the Council against Mr Woolley are related such that the privilege has not lapsed, although I consider there are very good reasons to take the view that they would be considered so.

Has litigation privilege been correctly claimed?

[58] Mr Woolley’s challenges are made under r 8.25(1) of the High Court Rules. Rule 8.25 provides:

8.25 Challenge to privilege or confidentiality claim

(1)If a party challenges a claim to privilege or confidentiality made in an affidavit of documents, the party may apply to the court for an order setting aside or modifying the claim.

(2)In considering the application, a Judge may require the document under review to be produced to the Judge and may inspect it for the purpose of deciding the validity of the claim.

(3)The Judge may—

(a)set aside the claim to privilege or confidentiality; or

(b)modify the claim to privilege or confidentiality; or

(c)dismiss the application; or

(d)make any other order with respect to the document under review that the Judge thinks just.

[59] Counsel asked me to exercise my power under r 8.25(2) and inspect the pt 1 documents for the purpose of deciding the validity of the Council’s claims. I agreed to do so.

[60] Attached to this judgment is a table with details of the documents in issue, the privilege claimed, the challenge made to the claim to privilege, the Council’s response to the challenge, and my ruling in respect of each document.

Part 2 and Part 3 documents

Has the Council undertaken a sufficient search to locate documents within the scope of the discovery order?

[61] In the Council’s amended affidavit of documents filed February 2022, the Council’s in-house solicitor Ms McIlveney says: “In order to fulfil these obligations, the defendant has diligently searched for all documents required to be discovered under the discovery order”. That does not satisfy the requirements of r 8.15(2)(c).

[62]As the Court of Appeal noted in James Hardie New Zealand Ltd v White:47

[76] Nor does r 8.15(2)(c) assist the claimants. That limb of r 8.15 is concerned with the document location process. The document location process needs to be described in sufficient detail that the party receiving discovery is assured that the categories specified in the tailored discovery order have been applied, and the methods and strategies specified in that order have been followed. If insufficient detail of these matters is provided in an affidavit of documents, the deponent can be required to file a further affidavit providing more detail about the document location process and verifying that the process set out in the court’s order has been followed. …

[63] The decision of Pyne Gould Corporation Ltd v Bath Street Capital Ltd provides useful guidance as to what is required by way of a reasonable search for documents.48 Katz J noted, in the context of a proceeding that had been assigned to the Commercial Panel involving a claim for damages of $22 million, “the process … fell significantly short of what was required for a reasonable and proportionate search for documents” in the tailored discovery categories in a major commercial proceeding.49 The Judge went on to say:50
Appropriate key word searches should have been conducted across all relevant hard drives or other repositories of electronic documents (including the hard drives associated with all persons who may have created, received or accessed

47 James Hardie New Zealand Ltd v White [2020] NZCA 142; cited in Everest Serviced Apartments Ltd v Body Corporate 511909 [2021] NZHC 1725 at [61].
48 Pyne Gould Corporation Ltd v Bath Street Capital Ltd, above n 11.
49 At [32].
50 At [32].

relevant documents). If Pyne Gould did not have internal IT experts with the necessary forensic computing skills, external consultants should have been engaged. The key words and phrases used for searching should ideally have been agreed between the parties. They should have been comprehensive enough to capture the majority of potentially relevant documents.

[64] In response to Mr Woolley’s application for further discovery the Council has filed several further affidavits providing details of the searches undertaken to locate discoverable documents.

[65] An affidavit has been filed by Anthony Quirk, the District Secretary of the Council, but it does not take matters very far as it provides no detail of the searches the Council has undertaken.

[66] Kathleen McIlveney made an affidavit dated 3 August 2023. She was previously the Council’s in-house counsel and is familiar with the requirements of standard discovery. From 2008 to 2010 the Council digitised its hardcopy files into a database previously called TRIM, now called CM (HPE Content Manager). Hardcopy files were destroyed. The Council’s records management policy requires all staff to capture all records of their work into CM. Records from Glenmae are stored in CM under the property number, including resource consents (including monitoring), building consents, compliance, legal and other services. In addition, the Council’s email archive service (AfterMail) captures all emails in and out of the Council going back to 2005.

[67] Ms McIlveney says following the making of the standard discovery order she provided the Council’s discoverable documents to its external solicitors. To do so, she identified the property file for Glenmae and also did keyword searches in CM and AfterMail using keywords “Woolley” and “Glenmae”. She also requested files from the Council’s external lawyers, Radich Law, and the Crown Solicitor’s office in Nelson (who acted in the prosecution against Mr Woolley). Ms McIlveney inspected the files and copied any documents which the Council did not already have. After the initial list of documents was filed in November 2020, she was informed that some documents had not been uploaded to the external document processor and a further list was completed in February 2022.

[68] Shelley Lines was a senior environmental protection officer with the Council from 2018 to 2023 and has also sworn an affidavit dated 3 August 2023. In response to queries raised by Mr Woolley she did further searches in CM and AfterMail, going back to 2005 in respect to four categories of documents. In respect to three of those categories she used keyword searches selected for the subject matter of the query.

[69] An affidavit was also made by Peter Radich, the external solicitor for the Council. He responds to specific requests by Mr Woolley for documents in pt 2. He says as far as he can recall all files were provided to the Council and then returned. He has looked through the files and cannot find any further documents sought by Mr Woolley.

[70] There was also a further affidavit of Ms McIlveney of 9 October 2023, in response to Mr Woolley’s application that she be cross-examined. In it she addresses several matters, including her experience in the use of CM and AfterMail, the extent to which proper searches were undertaken in the Council’s electronic databases, the Council’s record management policy, and whether there was a likelihood of Council staff creating and retaining documents outside of CM contrary to the Council’s record management policy.

[71] In challenging the adequacy of the searches undertaken by the Council, Mr Woolley raises a plethora of matters which I will attempt to summarise.

[72] First, Mr Woolley relies upon the fact that the Council’s first affidavit of documents was incomplete as being indicative of a failure to make a proper search. The failure to include documents in the Council’s first affidavit of documents was unfortunate but has been adequately explained.

[73] Second, it is said there were many Council employees who dealt with decisions at Glenmae and the Court cannot have any assurance that those individuals’ records have been searched. Insofar as those employees saved documents to TRIM/CM, for reasons I shall come to I am satisfied those documents will have been located.

[74] However, it is also argued that Council employees may not have saved relevant documents to TRIM/CM. It is said there is evidence in an email sent by Ms Lines that she saved photographs to her own working drafts folder and not to TRIM on one occasion (document MDC.01.0819). The Council disputes this, and on my reading of the email Ms Lines was saying the photographs were saved to both her working drafts folder and TRIM.

[75] Of course, it is possible that a Council employee might fail to save a document to CM, but local councils must maintain their records in accordance with a range of legislative requirements.51 It is common for them to have to provide disclosure in Court proceedings and in response to public information requests. Councils can be expected to have expertise in record management and retrieval.

[76] The Council’s Records Management Policy 2013 noted that its hardcopy documents were being digitised and that “[a]ll other records must be captured within the TRIM electronic management system”. As noted, following digitisation hardcopy files were destroyed. The policy also contained a clear requirement that employees will “[c]apture and maintain records, regardless of their format, into organisation-wide electronic or hard copy records management systems”.

[77] Further, given the events that are the focus of Mr Woolley’s claim occurred a decade ago, it is unlikely that any documents not saved in TRIM/CM would still exist, and even less likely that those documents will be of such relevance and importance that all Council employees who had any involvement with Mr Woolley and the events in question should now be required to undertake individual searches of hardcopy files. It was reasonable for the Council to rely on its CM and AfterMail systems in the way it has done in this case.

[78] Then it is said that the Council has not provided an audit log of “material” documents. What I understand is being suggested is that the Council must disclose

51 The Council’s 2013 Records Management Policy records these as including compliance with the Public Records Act 2005, Local Government Act 2002, Local Government Official Information and Meetings Act 1987, Privacy Act 1993, Employment Relations Act 2000, Health and Safety In Employment Act 1992, Electronic Transactions Act 2002, the Tax Administration Act 1994 and Goods and Services Tax Act 1985.

the metadata of documents stored in its electronic databases. I do not accept there is such a requirement. If it were so, discovery would almost invariably be disproportionate and oppressive. There are, of course, circumstances where metadata must be disclosed. This would be, for instance, where a matter in issue was who authored a particular document, or when it was created and/or what changes were made to it in the course of its creation. Mr Woolley has raised such issues about very few documents.

[79] If Mr Woolley seeks metadata in respect to specific documents, he should make requests for it to the Council, justifying requests by the relevance of such documents to issues raised in the pleadings. I expect that such requests would be few in number and with cooperation of counsel they would be quickly resolved. I would expect that to occur without further intervention of the Court. If not, any disputes can be determined by the Court, and I will make provision for this in my directions at the end of this judgment.

[80] Mr Woolley then argues that the keyword search terms used by the Council to locate documents in CM and AfterMail were “limited” and “generic” and would miss material documents. I accept the Council’s submission that the keywords used were broad, not limited. I do not see how Mr Woolley can legitimately complain at the Council’s use of keywords such as “Woolley” and “Glenmae”, which it appears to me would capture most relevant documents. To the extent they would not do so, keyword searches were not the only document location method used by the Council.

[81] Next, it is said there is no evidence that anyone in the Council’s information technology or information management team applied any specialist knowledge of the system or had input into the search terms or methodologies used to locate documents. It is also submitted there is no evidence that anyone explained Mr Woolley’s claim to the Council’s IT or other staff to enable them to search for relevant documents.

[82] I accept there are cases where information technology assistance can be expected as part of the document location process, and I said as much in Ballantyne Trustees Ltd v HFK Ltd.52 However, this is a very different case. I am satisfied both

52 Ballantyne Trustees Ltd v HFK Ltd [2021] NZHC 388.

Ms McIlveney and Ms Lines were sufficiently familiar and experienced in the use of the Council’s document management systems and the issues arising in this litigation to make the searches on the Council’s behalf.

[83] The submission that no one explained Mr Woolley’s claim to the Council’s IT or other staff to enable them to search for relevant documents is abstruse in circumstances where there is no suggestion that IT staff were engaged in the document location process. It is indicative of the approach taken by Mr Woolley to raise purely conjectural objections to the Council’s discovery. This is particularly noticeable in respect to the pt 3 documents.

[84] Standing back and looking at the matter as a whole, I am satisfied the Council did undertake a reasonable search to locate documents it was required to disclose under the discovery order.

[85] The Council had established and robust records management systems. There were policies in place for the use of those systems. The Court can have a high degree of assurance that documents in the Council’s control relevant to the matters in issue were maintained and could be located in the CM and AfterMail databases.

[86] Searches were undertaken, including by the use of appropriate keywords, by staff familiar with the use of the databases and the issues in this proceeding.

[87] The Council also requested and disclosed the records of external solicitors who held relevant documents.

[88] The Council has responded to specific queries raised by Mr Woolley’s lawyers in relation to discovery and made further searches.

[89] I consider it is also relevant that not only has there been disclosure by the Council in this proceeding, but also in other proceedings taken against Mr Woolley and in the related civil proceedings he took against Fonterra. The areas of disagreement between the parties have already been scrutinised at length in other

proceedings. It is highly unlikely that requiring the Council to undertake further searches will reveal any documents that are of significance.

The particular discovery sought in part 2 and part 3

[90] Having found the Council has undertaken reasonable searches to locate relevant documents, I must now consider the request for particular discovery of pt 2 and pt 3 documents.

[91] I have considered each category in pt 2 and pt 3. In respect of the pt 3 documents, in almost every case there was insufficient put before me to provide grounds for the belief that the Council has not discovered all relevant documents in its control, or that such documents exist.

[92] Attached to this judgment are tables with details of the particular discovery sought in respect to the part 2 and part 3 documents, and my rulings in respect of each category of document.

Should the Court order access to the Council’s database?

[93] In reliance upon Fujitsu New Zealand Ltd v Black Diamond Holdings Ltd, Mr Woolley submits the Court should allow access to the Council’s electronic databases.53 He submits this is needed when access to metadata is required to establish important details about who accessed or modified documents and when.

[94] In Fujitsu New Zealand Ltd v Black Diamond Holdings Ltd, Associate Judge Gendall noted that before making an order to access a party’s database the party applying needs to establish that this is necessary for disposing of the case.54 Mr Woolley has fallen well short of establishing that such an order is necessary here.

[95] The justification advanced for Mr Woolley, that it is necessary to access metadata, could at best relate to only a few documents held by the Council in its electronic databases. As noted earlier, I will make directions by which Mr Woolley

53 Fujitsu New Zealand Ltd v Black Diamond Holdings Ltd, above n 2.
54 At [21].

may request metadata of particular documents and for resolving any disputes in respect of such requests. It is not necessary to allow direct access to the Council’s databases.

Should the Court make an unless order?

[96] Mr Woolley seeks an unless order to the effect that judgment will be entered against the Council if it does not comply with its discovery obligations. Mr Woolley argues this is justified in circumstances where there has been a continued breach of the discovery order despite the exertions of his counsel to obtain documents from the Council. Mr Woolley’s counsel also refers to the release of documents by the Council in “dribs and drabs”, that unsustainable claims to privilege have been made, and the late filing of affidavits to “patch up” the Council’s case.

[97]Rule 7.48(1) of the High Court Rules provides:

7.48Enforcement of interlocutory order

(1)If a party (the party in default) fails to comply with an interlocutory order or any requirement imposed by or under subpart 1 of Part 7 (case management), a Judge may, subject to any express provision of these rules, make any order that the Judge thinks just.

[98] In SM v LFDB, the Court of Appeal noted that r 7.48 empowers a Judge to respond to a breach of a procedural order by making any order the Judge thinks fit, which includes an unless order.55 The Court of Appeal held that the principles which guide a Judge dealing with a situation of disobedience of court orders included that “an unless order is an order of last resort, it is properly made only where there is a history of failure to comply with earlier orders”.56

[99]The Court of Appeal also noted:

[27] Case management plainly matters to the immediate parties in any given case. It matters to litigants in other cases too, because it affects the time their cases will take to come to trial and influences their expectations of the Court; expectations matter because they influence the settlements in which the majority of civil proceedings end. And it matters to potential litigants – the public at large – because they should feel confident that the Court can try cases fairly, quickly and efficiently. From the perspective of a judge dealing with

55 SM v LFDB [2014] NZCA 326, [2014] 3 NZLR 494 at [29].
56 At [31].

any given case, all these interests are relevant; all form part of the interests of justice.

(footnote omitted)

[100] Here, there is no justification for making an unless order. Except in relation to the Council’s claims to privilege over certain pt 1 documents, I consider it has complied with its discovery obligations. There has not been a history of persistent non-compliance by the Council with court orders. Furthermore, the making of an unless order would be disproportionate, in circumstances where there is no reason for me to believe the Council would not comply with such limited directions as I make in this judgment.

The application to cross-examine

[101] Mr Woolley applied for an order requiring Ms McIlveney and Ms Lines to attend for cross-examination. I now provide my reasons for dismissing that application.

[102]The application was made in reliance upon r 7.28 which provides:

7.28 Cross-examination of maker of affidavit

A Judge may in special circumstances, on the application of a party, order the attendance for cross-examination of a person who has made an affidavit in support of, or in opposition to, an interlocutory application.

[103] On such an application the applicant must establish that special circumstances exist for the making of the order sought. “Special circumstances” is not a defined term but indicates something abnormal, uncommon or out of the ordinary, but less than extraordinary or unique.57 That there are conflicts between deponents does not of itself create special circumstances justifying cross-examination. Ultimately the test is whether injustice will arise or is likely to arise unless cross-examination is permitted.58 The Court must also be mindful of the detriment that may result in terms of conducting proceedings speedily and inexpensively if cross-examination is permitted.

57 Kidd v van Heeren CA36/97, 22 May 1997.
58 Sleeman v ANZ Banking Group (NZ) Ltd (1994) 7 PRNZ 508 (HC) at 510.

[104] It was submitted for Mr Woolley that the special circumstance justifying cross- examination was the protracted discovery process that has occurred in this case, with a history of the Council making unsustainable claims to privilege and providing disclosure on a piecemeal basis.

[105] It was said that Mr Woolley wished Ms McIlveney and Ms Lines to be interrogated on a range of issues, ultimately directed to establishing the extent to which the Council had failed to meet its disclosure obligations and the need for independent access to be granted to its electronic databases to ensure compliance. It was submitted that allowing cross-examination was efficient, because any additional time and expense involved in allowing cross-examination would be “de minimus” compared to costs that will be incurred if discovery issues are not fully resolved before trial.

[106] In dismissing the application, I did not consider that Mr Woolley had shown there were special circumstances justifying the order sought. I accept that the discovery process has been protracted but that is not uncommon in litigation of this kind, particularly in a case where there is not only a great deal of distrust between the parties but, it appears, insufficient cooperation to reach agreement as to the appropriate methods and strategies to conduct reasonable and proportionate searches.

[107] Recently, in Roebuck v Liddle, Associate Judge Skelton dismissed an application to cross-examine on affidavits filed in opposition to a plaintiff’s application to strike out on grounds which included that a local authority had failed to comply with a standard discovery order.59 Associate Judge Skelton said:
[30] It is not abnormal, uncommon or out of the ordinary for issues to arise about disclosure of documents during the discovery stage of litigation, including litigation involving public authorities such as councils. Despite diligent efforts to comply with discovery obligations, documents that fall within the scope of standard discovery may initially be overlooked or not properly assessed and subsequently located or reassessed and disclosed. Disputes in this regard do not generally raise issues requiring cross-examination of deponents of affidavits of documents.

59 Roebuck v Liddle [2023] NZHC 1479.

[108] While Mr Woolley’s counsel was very critical of the manner in which the Council has conducted itself, as this judgment makes clear I have not accepted most of the positions that have been taken on Mr Woolley’s behalf.

[109] I was also not satisfied that Mr Woolley had established any injustice would, or might, arise if cross-examination was not permitted. While Mr Woolley considered cross-examination would highlight deficiencies in the Council’s discovery, the arguments he wished to make could be, and were, adequately advanced without cross-examination. Permitting cross-examination would have unnecessarily added to the length and cost of the hearing.

[110] Furthermore, a factor that weighed against allowing cross-examination was that the matters in dispute did not affect Mr Woolley’s substantive rights but concerned a matter of procedure by which his substantive rights will be determined.60

[111] Finally, it was a concern that one of the principal grounds advanced for the application was that cross-examination would demonstrate the need for the Court to order independent access to the Council’s electronic databases, but that was not an order sought in Mr Woolley’s amended application.

Result

[112] Except to the extent that I have disallowed the Council’s claims to privilege in respect of certain pt 1 documents, Mr Woolley’s applications are dismissed.

[113] To the extent that Mr Woolley seeks discovery of metadata of documents held in the Council’s electronic databases and listed in its affidavit of documents, he may make a request of the Council for disclosure of the metadata (supported with reasons for the request) within 21 working days. The Council shall have 14 working days to respond and either provide the metadata or reasons for its refusal to provide it. To the extent Mr Woolley does not accept the Council’s reasons, he may refer the matter to the Court by memorandum. I would expect such matters could be determined on the papers after giving the Council an opportunity to respond. As any such referral arises

60 Smith v Smith [2016] NZHC 1197 at [32]–[33].

from this judgment and I am familiar with matter, the Registrar may refer any such memorandum to me.

[114] In respect to the costs of Mr Woolley’s application challenging privilege and for particular discovery, I am presently of the view costs should be reserved. While the Council has been substantially successful in its defence of the application, evidence as to the searches it undertook should have been provided at a much earlier stage. If either party wishes to apply for costs, they may do so by way of memorandum to be filed with 21 working days, with 14 working days for any replies. The memoranda shall not exceed five pages.

[115] The Council is entitled to costs on Mr Woolley’s unsuccessful application for leave to cross-examine on a 2B basis plus reasonable disbursements. If there is any dispute as to quantum, the costs are to be fixed by the Registrar.

[116] This proceeding was filed in 2020 and has been stalled over discovery issues for some time. It needs to be advanced towards a hearing as soon as possible. The Registrar should arrange a case management teleconference with an Associate Judge in the New Year. I direct that counsel are to confer and file a preferably joint memorandum at least three working days prior to the teleconference with proposed directions to take the case to hearing. In the event that counsel cannot agree on a proposed timetable, they should file separate memoranda.

O G Paulsen Associate Judge

Solicitors:
Wisheart Macnab & Partners, Blenheim Rice Speir, Auckland

Specific challenges to privilege

Objectn No.	Document ID	Date	Document Type/Email	Author	Recipient	Privilege claimed	Plaintiff’s challenge/ further discovery	Defendant’s response	Court ruling
1	MDC.01.1569	13-Jul-12 00:00	Report by regulatory department to enforcement and prosecution committee in relation to proposed enforcement action	Litigation	Privilege expired – relates to prosecution	s 56(1) litigation privilege – for the dominant purpose of anticipated enforcement action, including option of prosecution Details given in Dec 2021, plaintiff’s Vol 2, p 0220, list item 7	Claim to privilege is disallowed. The report was not for the dominant purpose of preparing for a proceeding or apprehended proceeding but to procure a decision of the Enforcement and Prosecution Committee.
2	MDC.01.1842	11-Sep-12 00:00	Email discussing enforcement order as part of anticipated legal action	Steve Urlich	Shelley Lines	Litigation	Privilege expired – relates to application for an enforcement order	s 56(1) litigation privilege – created for the dominant purpose of discussing anticipated legal action Details given in Dec 2021, plaintiff’s Vol 2, p 0220, list item 9	Claim to privilege is disallowed. The document was not for the dominant purpose of preparing for a proceeding or apprehended proceeding but to confirm compliance with resource consent conditions.
3	MDC.01.1843	11-Sep-12 00:00	Email with draft letter to the plaintiff regarding potential enforcement action	Steve Urlich	Shelley Lines; Kathleen McIlveney	Litigation	Privilege expired – relates to application for an enforcement order	s 56(1) litigation privilege. For the dominant purpose of intended enforcement action Details given in Dec 2021, plaintiff’s Vol 2, p 0221, list item 10	Claim to privilege is disallowed. The communications were not for the dominant purpose of preparing for a proceeding or apprehended proceeding but to confirm compliance with resource consent conditions.
4	MDC.01.1844	13-Sep-12 00:00	Email (continuation of email chain in MDC.01.1843) re draft letter to the plaintiff regarding potential enforcement action	Steve Urlich	Shelley Lines; Kathleen McIlveney	Litigation	Privilege expired – relates to application for an enforcement order	s 56(1) litigation privilege. For the dominant purpose of intended enforcement action Details given in Dec 2021, plaintiff’s Vol 2, p 0221, list item 12	Claim to privilege is disallowed. The communications were not for the dominant purpose of preparing for a proceeding or apprehended proceeding but to confirm compliance with resource consent conditions.

5	MDC.01.2707	13-Sep-12 00:00	Email (continuation of email chain in MDC.01.1843) re draft letter to the plaintiff regarding potential enforcement action	Steve Urlich	Shelley Lines; Kathleen McIlveney	Litigation	Privilege expired – relates to application for an enforcement order	Duplicate of MDC.01.1844 Details given in Dec 2021, plaintiff’s Vol 2, p 0222, list item 13	Claim to privilege is disallowed. The communications were not for the dominant purpose of preparing for a proceeding or apprehended proceeding but to confirm compliance with resource consent conditions.
6	MDC.01.2577	7-Dec-12	Minutes of meeting of the Enforcement and Prosecution Committee	Litigation	Privilege expired – relates to application for an enforcement order	s 56(1) litigation privilege. For the dominant purpose of considering enforcement action	Claim to privilege is disallowed. The minutes were not for the dominant purpose of preparing for a proceeding or apprehended proceeding but record decisions of the Enforcement and Prosecution Committee. Only paras 1 and 2 relate to Mr Woolley and the balance of the document is irrelevant to any matters in issue.
7	MDC.01.0420	22-Jan-14 00:00	Email (with redactions) re enforcement order and discussion with Council’s lawyer	Kathleen McIlveney	Redacted	Litigation	Privilege expired – enforcement proceedings	s 56(1) litigation privilege. Discussion for dominant purpose of enforcement proceeding	Claim to privilege is upheld.
8	MDC.01.0366 .01	18-Jun-14 00:00	Internal memorandum re expert opinion on drop test	Peter Radich – lawyer Radich Law	Miriam Radich – Radich Law	Litigation	Privilege expired – Environment Court proceedings	s 56(1) litigation privilege. For the dominant purpose of dealing with the enforcement proceeding	Claim to privilege is disallowed. The document was not created for the dominant purpose of preparing for a proceeding or apprehended proceeding but was a response to Mr Woolley’s intention to have a drop test done of the effluent ponds.
9	MDC.01.0264	02-Jul-14 00:00	Email seeking instructions on affidavit to be filed	Miriam Radich- Radich Law	Kathleen McIlveney; Garth Congdon	Litigation/ Solicitor- client	Privilege expired – Environment Court proceedings	s 54 – solicitor seeking instruction from client s 56(1) for the dominant purpose of ongoing proceedings	Claim to privilege is upheld.

10	MDC.01.0137	22-Aug- 14 00:00	Letter to the plaintiff	Peter Radich – Radich Law	David Clark – Wisheart Macnab & Partners; Clive Perrott; Robbie Peat, Andrew Trolove – ASB Bank Ltd	Without prejudice	Not confidential/not a communication in a dispute of a kind for which relief may be given in a civil proceeding/not a genuine attempt to settle the dispute/not plea discussions	Privilege waived	Claim to privilege has been waived.
11	MDC.01.0242	24-Aug- 14 00:00	Email from Council’s lawyer advising on matters for an upcoming hearing	Miriam Radich – Radich Law	Hans Versteegh; Kathleen McIlveney; Garth Congdon; Shelley Lines; Glen Parker; Glen Thomas; Independent Project Consultants Ltd	Litigation/ Solicitor- client	Privilege expired – Environment Court proceedings	s 54(1) – legal advice s 56(1) for the dominant purpose of active proceedings	Claim to privilege is upheld.
12	MDC.01.0025	25-Aug- 14	Email to Council’s in-house solicitor with draft court memorandum	Hans Versteegh	Kathleen McIlveney	Litigation/ Solicitor- client	Privilege expired – relates to prosecution/ Environment Court proceedings	s 54(1) – legal advice s 56(1) for the dominant purpose of active proceedings	Claim to privilege is upheld.
13.	MDC.01.0101	25-Aug- 14	Email from Council’s lawyer seeking instructions on draft court memorandum	Miriam Radich – Radich Law	Kathleen McIlveney	Litigation/ Solicitor- client	Privilege expired – relates to prosecution/ Environment Court proceedings	s 54(1) legal advice s 56(1) for the dominant purpose of active proceedings	Claim to privilege is upheld.
14	MDC.01.0050	25-Aug- 14 00:00	Email from Council’s in-house solicitor to staff member re draft court memorandum	Kathleen McIlveney	Hans Versteegh	Litigation/ Solicitor- client	Privilege expired – relates to prosecution/ Environment Court proceedings	s 54(1) legal advice s 56(1) for the dominant purpose of active proceedings	Claim to privilege is upheld.

15	MDC.01.2330	08-Sep-14 00:00	Email – part of email chain re evidence from Fonterra	Miriam Radich – Radich Law	Andrew Besley; Kathleen McIlveney	Litigation	Privilege expired – relates to prosecution/ Environment Court proceedings	s 56(1) for the dominant purpose of active proceedings	Claim to privilege is upheld.
16	MDC.01.1927	15-Oct-14 00:00	Draft application for a search warrant (with attached warrant authorising entry and search)	Shelley Lines	Litigation	Privilege expired/not confidential	s 56(1) for the dominant purpose of proceedings; draft copy, final version MDC.01.0822	Claim to privilege is disallowed. The document was not created for the dominant purpose of preparing for a proceeding or apprehended proceeding but to check compliance with abatement notices.
17	MDC.01.0295	21-May- 15 00:00	Email re evidence preparation	Shelley Lines	Kathleen McIlveney	Litigation	Privilege expired	s 56(1) for the dominant purpose of active proceedings	Claim to privilege is upheld.
18	MDC.01.2007	02-Jun-15	Email to organise meeting with witness	Kathleen McIlveney	Kim Lawson – Hardy-Jones Clark	Solicitor- client	HJC is not a client – not solicitor- client privilege – privilege expired	Correction: s 56(1) for the dominant purpose of proceedings	Claim to privilege is upheld.
19	MDC.01.2417	02-Jun-15 00:00	Email re witness evidence	Kathleen McIlveney	Andrew Cordner – Fonterra Co-operative Group Ltd; Alison Brewer – Fonterra Co-operative Group Ltd	Litigation	Privilege expired	s 56(1) for the dominant purpose of proceedings	Claim to privilege is upheld.
20	MDC.01.2333	03-Jun-15 00:00	Email re witness evidence	Kathleen McIlveney	Alison Brewer – Fonterra Co- operative Group Ltd	Litigation	Privilege expired	s 56(1) for the dominant purpose of proceedings	Claim to privilege is upheld.

21	MDC.01.0503	04-Jun-15 00:00	Email re witness evidence	Alison Brewer – Fonterra Co- operative Group Ltd	Kathleen McIlveney	Litigation	Privilege expired	s 56(1) for the dominant purpose of proceedings	This document has already been provided to the plaintiff.
22	MDC.01.2325	04-Jun-15 00:00	Email re witness evidence	Kathleen McIlveney	Alison Brewer – Fonterra Co- operative Group Ltd	Litigation	Privilege expired	s 56(1) for the dominant purpose of proceedings	Claim to privilege is upheld.
23	MDC.01.2326	04-Jun-15 00:00	Email re witness evidence	Kathleen McIlveney	Alison Brewer – Fonterra Co- operative Group Ltd	Litigation	Privilege expired	s 56(1) for the dominant purpose of proceedings	Claim to privilege is upheld.
24	MDC.01.2334	04-Jun-15 00:00	Email re witness evidence	Alison Brewer – Fonterra Co- operative Group Ltd	Kathleen McIlveney	Litigation	Privilege expired	s 56(1) for the dominant purpose of proceedings	Claim to privilege is upheld.
25	MDC.01.2335	04-Jun-15 00:00	Email re witness evidence	Alison Brewer – Fonterra Co- operative Group Ltd	Kathleen McIlveney	Litigation	Privilege expired	s 56(1) for the dominant purpose of proceedings	Claim to privilege is upheld.
26	MDC.01.2082	05-Jun-15	Email re brief of evidence	Glen Parker	Kathleen McIlveney	Litigation	Privilege expired	s 56(1) for the dominant purpose of proceedings	Claim to privilege is upheld.
27	MDC.01.2318	09-Jun-15 00:00	Letter from Council’s lawyer on evidence heard during hearing (with attached excerpt from transcript)	Peter Radich – Radich Law	Kathleen McIlveney	Litigation/ Solicitor- client	Privilege expired	s 54 legal advice s 56(1) for the dominant purpose of proceedings	Claim to privilege is upheld.

28	MDC.01.2400	09-Jun-15 00:00	Email re witness statement	Kathleen McIlveney	Alison Brewer – Fonterra Co- operative Group Ltd	Litigation	Privilege expired	s 56(1) for the dominant purpose of proceedings	Claim to privilege is upheld.
29	MDC.01.2395	10-Jun-15 00:00	Email re witness evidence	Kathleen McIlveney	Alison Brewer – Fonterra Co- operative Group Ltd	Litigation	Privilege expired	s 56(1) for the dominant purpose of proceedings	Claim to privilege is upheld.
30	MDC.01.2404	10-Jun-15 00:00	Email re witness evidence	Alison Brewer – Fonterra Co- operative Group Ltd	Kathleen McIlveney	Litigation	Privilege expired	s 56(1) for the dominant purpose of proceedings	Claim to privilege is upheld.
31	MDC.01.1938	11-Jun-15 00:00	Email re witness evidence	Kathleen McIlveney	Alison Brewer – Fonterra Co- operative Group Ltd	Litigation	Privilege expired	s 56(1) for the dominant purpose of proceedings	Claim to privilege is upheld.
32	MDC.01.1993	12-Jun-15 00:00	Email re witness evidence	Kathleen McIlveney	Donna Perrott	Litigation	Privilege expired	s 56(1) for the dominant purpose of proceedings	Claim to privilege is upheld.
33	MDC.01.2010	12-Jun-15 09:51	Email re witness evidence	Kathleen McIlveney	Kim Lawson – Hardy-Jones Clark; Mike Hardy-Jones – Hardy-Jones Clark	Please provide all documents provided by HJC to MDC	s 56(1) for the dominant purpose of proceedings	Claim to privilege is upheld.
34	MDC.01.1983	15-Jun-15	Email re witness evidence	Kathleen McIlveney	Donna Perrott	Solicitor- Client Correction: litigation	Clive Perrott and Donna Perrott are not the Council’s client.	Correction: s 56(1) for the dominant purpose of proceedings	Claim to privilege is upheld.
35	MDC.01.1985	15-Jun-15 00:00	Email re witness evidence	Donna Perrott	Kathleen McIlveney	Litigation	Privilege expired	s 56(1) for the dominant purpose of proceedings	Claim to privilege is upheld.

36

MDC.01.1987

15-Jun-15

00:00

Email re witness evidence

Kathleen McIlveney

Donna Perrott

Litigation

Privilege expired

s 56(1) for the dominant purpose of proceedings

Claim to privilege is upheld.

37

MDC.01.1989

15-Jun-15

00:00

Email re witness evidence

Kathleen McIlveney

Donna Perrott

Litigation

Privilege expired

s 56(1) for the dominant purpose of proceedings

Claim to privilege is upheld.

38

MDC.0L00SS

Draft abatement notice

Phillip Woolley; Clive Perrott

Litigation

Privilege expired – abatement notice not subject to litigation privilege.

Draft – final document is MDC.01.2547

Claim to privilege is disallowed. The document was not created for the dominant purpose of preparing for a proceeding or apprehended proceeding.

Part 2 – Requests for particular discovery/privilege challenges – updated responses

Request No.

Source doc ID

Date

Doc type

Author

Recipient

Further discovery

Defendant’s response

Court’s ruling

1

MDC.01.1281

29-Oct-13

12:32

Email

Mirka Lanford

– Fonterra Co- operative Group

Shelley Lines

Ms Lines refers to consulting with MDC’s engineers or expert to assess the existing ponds. Please provide any records of those consultations and any documents or reports relevant to same. Please also provide any Council standards that were in place at the time the relevant resource consent was granted in November 2008 or September 2010 as to the performance/ seepage tolerances of clay lined ponds. If no such standards were in place, please state same.

Privilege expired

The email says that as part of the enforcement proceedings the Council was “engaging in talks at the moment in regards to consulting with our own engineer/expert to assess the existing ponds” - Relevant resulting evidence has either been discovered or is covered by litigation privilege.

No council standards exist. For guidance Council drew on Industry Best Practice/Standards, i.e. Dairy NZ, Fonterra.

Evidence provided by

G Thomas/Independent Project Consultants, see request 4 below and statement of P Radich.

Disallowed. There is no reason to believe the Council has not discovered all relevant documents in its control. Litigation privilege does not lapse. The Council has

confirmed it had no relevant standards in place.

2

MDC.01.0681

12-Jun-14

00:00

Letter

Peter Radich – Peter Radich Law

David Clark – Wisheart Macnab & Partners

Please provide any documents that relate to

the “expert advice” sought or received by Council in relation to the drop test referred to by Mr Radich or confirm that no such advice was sought or received or confirm that no documents recording whether such advice was sought or received exist.

Evidence provided by

G Thomas/Independent Project Consultants, see request 4 below and statement of P Radich.

Disallowed. The Council’s claim to privilege over MDC.01.0366.01 has been disallowed which relates to this query. There is no reason to believe the Council has not discovered any relevant documents in its control.

This request has also been answered by Mr Radich in his affidavit.

3

MDC.01.0372

01-Aug-14

00:00

Affidavit of Andrew Besley

Please provide any notes of the meeting with Fonterra on 21 July 2014 referred to in Mr Besley’s affidavit and any notes of the

meeting held on 24 July 2014.

Please also provide any policies or documents that Council had at the relevant time that provide or

empower Council to take action that will prevent a consent holder from “profiting” from any alleged non-compliance with a resource consent or that record any decisions made by Council executives in that regard.

Email dated 22.7.2014 [MDC.01.0601] and Fonterra’s record [FON.00370] records

meeting on 21 July 2014. No further discovery required. The affidavit sets out what was discussed at the 24 July 2014

meeting which was also attended by Mr Woolley’s wife, legal representatives, and others. No further discovery is required.

No additional documents found. See affidavit of S Lines and statement of P Radich.

Disallowed. There is no reason to believe the Council has not discovered any relevant documents in its control. Ms Lines has made additional searches in respect to this request but no further documents were found.

Mr Besley does not refer to any policies that empowered the Council to prevent a consent holder from “profiting” from any alleged non- compliance with a resource consent.

4

MDC.01.0831

20-Aug-14

00:00

Email

Miriam Radich

– Radich Law

Kathleen Mcllveney; Hans Versteegh; Garth Congdon

- Shelley Lines
-

Please provide any file notes of Ms Radich’s discussion with Mr

Thomas and any correspondence between Ms Radich and Mr Thomas and any drafts of Mr

Thomas’ report. Privilege expired

Documents listed in the Council’s affidavit. Privilege is not waived over those that are listed as such:

MDC.01.0232 MDC.01.0242 MDC.01.366.01 MDC.01.0490-492 MDC.01.0534 MDC.01.0831 MDC.01.0832 MDC.01.0912

Disallowed. There is no reason to believe the Council has not discovered any relevant documents in its control. Mr Radich has responded to this in his affidavit.

Litigation privilege does not lapse, however it has been waived in respect to some of these documents.

5

MDC.01.0104

22-Aug-14

00:00

Letter

Peter Radich – Radich Law

David Clark - Wisheart Macnab & Partners Clive Perrott Robbie Peat

Andrew Trolove
- ASB Bank Ltd

Not properly subject to s 57 of the Evidence Act.

Please provide a copy of Fonterra’s policy referred to by Mr Radich.

Please also provide any policies or documents that Council had at the relevant time that provide for or empower Council to take action that will prevent a consent holder from “profiting” from any alleged non-compliance with a resource consent or that record any decisions made by Council executives in that regard or, alternatively, confirm

that such documents do not exist.

Privilege expired

Waived privilege, no action required.

The document has been provided and no further action is required. Given Mr Woolley’s litigation with Fonterra, he can reasonably be expected to have copies of any relevant policies which are not in the control of the Council. The reference to the Council’s “basic

position” is clearly not a reference to a formal policy document.

6

MDC.01.0582

26-Aug-14

00:00

Letter

Miriam Radich

– Radich Law

Alison Brewer – Fonterra Co- operative Group Ltd

Please provide any file notes in relation to discussions Ms Radich had with Ms Brewer or Mr Murphy (or other Fonterra staff)

Privilege expired - relates to prosecution proceedings

Documents listed in the Council’s affidavit. Privilege is not waived over those that are listed as such:

MDC.01.0847.03 MDC.01.0846.08 MDC.01.1281-83 MDC.01.2049-50 MDC.01.2073-74 MDC.01.2094-95 MDC.01.2325-32 MDC.01.0160 MDC.01.0503 MDC.01.2417 MDC.01.0317.03 MDC.01.0375 MDC.01.050-23

MDC.01.0565-66

Counsel advised me that this request can be resolved between them.

MDC.01.0581-85 MDC.01.0602-03 MDC.01.0663 MDC.01.0683 MDC.01.0805

Part 3 – categories for further discovery to the extent not already discovered by the defendant

Category	Further discovery	Defendant’s response	Court’s ruling
1	Any notes or records of the meetings between the defendant and Fonterra on 21 July 2014 and 24 July 2014 at which Fonterra proposed an alternative that would enable milk to be collected and any documents that record your client’s reasons for rejecting that proposal or its refusal to support any application to the Environment Court to enable that proposed course to implemented.	See category 4 and 5 below.	There is no reason to believe the Council has not discovered any relevant documents in its control.
2	Any documents produced in 2014 or 2015 which record the basis upon which the defendant alleged that Fonterra would be a criminal accessory to a breach of the Enforcement Orders; or its policy of not allowing a farmer to profit from any alleged breach; or its knowledge of that issue.	See category 4 and 5 below.	There is no reason to believe the Council has not discovered any relevant documents in its control.
3	Documents created in 2014 or 2015 which record the basis of the defendant’s view and upon which the defendant asserted and maintained its position that the Enforcement Orders meant that: A. The Plaintiff was out of time to comply with the Enforcement Orders and needed to obtain new orders from the Environment Court; and B. No certificate from an engineer approved by the Defendant and obtained by the Plaintiff would be effective under the Enforcement Orders unless and until the Defendant had decided to accept it; and After an engineer’s certificate had been obtained and served on the Court and MDC that the plaintiff would have to apply to the Environment Court to have the Enforcement Orders set aside before milking could commence.	MDC.01.0523 MDC.01.0578 MDC.01.0579 MDC.01.0580 MDC.01.0606 MDC.01.0652 MDC.01.0667 MDC.01.0668 MDC.01.1183 MDC.01.1373 MDC.01.1374 MDC.01.1551 MDC.01.1572 MDC.01.0107 MDC.01.0108 MDC.01.0113 MDC.01.0114 MDC.01.0206 MDC.01.0207 MDC.01.0208 MDC.01.0657 MDC.01.1974 MDC.01.0657 MDC.01.0658 MDC.01.0109	There is no reason to believe the Council has not discovered any relevant documents in its control.

MDC.01.0110 MDC.01.0236 MDC.01.0237 MDC.01.0238 MDC.01.0412 MDC.01.0413 MDC.01.0435 MDC.01.0487 MDC.01.0508 MDC.01.0509 MDC.01.0511 MDC.01.0512

4

Documents that evidence the defendant’s reasons for its decisions to exercise its regulatory powers to take enforcement action and initiate other proceedings in the Environment Court against the plaintiff and to coerce or encourage Fonterra to not pick up the plaintiffs’ milk as pleaded at [72] - [75] of the SOC.

Samples of key documents listed. Request covers the vast majority of the defendant’s records.

MDC.01.2577 MDC.01.0195 MDC.01.0196 MDC.01.0795.08 MDC.01.0867 MDC.01.1417 MDC.01.0366.04 MDC.01.1909 MDC.01.1910 MDC.01.2198 MDC.01.0377 MDC.01.0378 MDC.01.0379 MDC.01.1199 MDC.01.2013 MDC.01.2014 MDC.01.1883 MDC.01.1834 MDC.02.0001 MDC.02.0002 MDC.02.0004 MDC.02.0005 MDC.02.0006 MDC.02.0072 MDC.02.0073

MDC.01.0055

There is no reason to believe the Council has not discovered any relevant documents in its control.

MDC.01.0171 MDC.01.0172 MDC.01.0432 MDC.01.0433 MDC.01.0082 MDC.01.0083 MDC.01.2323 MDC.01.2036 MDC.01.2045 MDC.01.2238 MDC.01.2038 MDC.01.2039 MDC.01.2040 MDC.01.2041 MDC.01.1430 MDC.01.1106 MDC.01.1200 MDC.01. 1201

MDC.01. 1202

MDC.01. 1203 MDC.01.1107 MDC.01.1860 MDC.01.1428 MDC.01.0210 MDC.01.2502 MDC.01.2583 MDC.01.0232 MDC.01.0233 MDC.01.0831 MDC.01.0832 MDC.01.0265 MDC.01.0266 MDC.01.2237 MDC.01.2238 MDC.01.2239 MDC.01.0674 MDC.01.0675 MDC.01.2111 MDC.01.2115 MDC.01.2117 MDC.01.2124 MDC.01.1902 MDC.01.2092

MDC.01.2097

MDC.01.0539 MDC.01.0647 MDC.01.0804 MDC.01.1100 MDC.01.1102 MDC.02.0002 MDC.02.0004 MDC.02.0006 MDC.02.0073 MDC.01.0055 MDC.01.0225 MDC.02.0226 MDC.01.0379 MDC.01.2065 MDC.01.2577 MDC.01.0001 MDC.01.0058 MDC.01.0059 MDC.01.0060 MDC.01.0061 MDC.01.0062 MDC.01.0063 MDC.01.0064 MDC.01.0065 MDC.01.0066 MDC.01.0067 MDC.01.0068 MDC.01.0069 MDC.01.0070 MDC.01.0071 MDC.01.0072 MDC.01.0073 MDC.01.0074 MDC.01.0075 MDC.01.0076 MDC.01.0077 MDC.01.0078 MDC.01.0079 MDC.01.0080 MDC.01.0081

5

Documents that record communications between the defendant and Fonterra in relation to the issues on Glenmae between October 2012 and July 2015.

MDC.01.0847.03 MDC.01.0846.08 MDC.01.1281 MDC.01.1282 MDC.01.1283 MDC.01.1277 MDC.01.1818 MDC.01.1797 MDC.01.1798 MDC.01.1824 MDC.01.1825 MDC.01.1838 MDC.01.2049 MDC.01.2050 MDC.01.2095 MDC.01.2326 MDC.01.2328 MDC.01.2332 MDC.01.2397 MDC.01.2398 MDC.01.2399 MDC.01.2405 MDC.01.2404 MDC.01.2407 MDC.02.0056 MDC.02.0057 MDC.01.0160 MDC.01.0503 MDC.01.1938 MDC.01.1939 MDC.01.2325 MDC.01.2333 MDC.01.2334 MDC.01.2335 MDC.01.2336 MDC.01.2395 MDC.01.2400 MDC.01.2401 MDC.01.2402 MDC.01.2417 MDC.01.0317.03

MDC.01.0375 MDC.01.0402

There is no reason to believe the Council has not discovered any relevant documents in its control.

MDC.01.0477 MDC.01.0511 MDC.01.0512 MDC.01.0520 MDC.01.0521 MDC.01.0522 MDC.01.0523 MDC.01.0582 MDC.01.0583 MDC.01.0584 MDC.01.0585 MDC.01.0602 MDC.01.0603 MDC.01.0657 MDC.01.0658 MDC.01.0662 MDC.01.0663 MDC.01.0683 MDC.01.0805
6	Documents that go to or record the defendant’s decision to not seek clarification from the Environment Court as to the correct legal position and the status of the Opus International Ltd certificate that was served on the defendant on 5 September 2014.	No documents exist.	There is no reason to believe such documents exist.
7	Documents that record communications or meeting discussions between MDC and Grant Thornton Ltd, Mr Woolley’s receivers, between November 2014 and July 2015, in relation to the defendant’s continued refusal to allow milking to recommence and threats to prosecute the receivers for use of the milking shed.	MDC.01.0586 MDC.01.0587 MDC.01.0646 MDC.01.0647 MDC.01.0648 MDC.01.0649 MDC.01.1814 MDC.01.1833 MDC.01.1834 MDC.01.1882 MDC.01.2194 MDC.01.2196 MDC.01.2197 MDC.01.2284 MDC.02.0069 MDC.02.0070	There is no reason to believe the Council has not discovered any relevant documents.

8	Documents that go to the defendant’s state of knowledge in 2014 and 2015 as to financial consequences that the plaintiff would suffer if the defendant continued to oppose use of the milking shed on Glenmae.	MDC met both the receivers and Mr Trolove from the ASB Bank. It is difficult to accept here are no records of those meetings.	No documents exist	There is no reason to believe such documents exist. Ms Lines made additional searches to locate records of meetings with the receivers.
9	Documents that record decisions made by MDC (including internal	MDC.01.0125	There is no reason to believe the Council has not discovered
communications) relating to the processing of the plaintiff’s 30 May 2014	MDC.01.0173	any relevant documents in its control.
application to amend the resource consent to allow Pond 2 to be lined	MDC.01.0174
with a synthetic liner.	MDC.01.0206
MDC.01.0207
MDC.01.0212
MDC.01.0239
MDC.01.0265
MDC.01.0266
MDC.01.0279
MDC.01.0446
MDC.01.0447
MDC.01.0448
MDC.01.0457
MDC.01.0131
MDC.01.0173
MDC.01.0174
MDC.01.0212
MDC.01.0239
MDC.01.0279
MDC.01.0327
MDC.01.0447
MDC.01.0448
MDC.01.0457
MDC.01.0471
MDC.01.0710
MDC.01.0711
MDC.01.0713
MDC.01.0777
MDC.01.0778
MDC.01.0779
MDC.01.0834
MDC.01.0835
MDC.01.1216
MDC.01.0711
MDC.01.2344
MDC.01.2974

MDC.01.0638 MDC.01.1375 MDC.01.0711 MDC.01.2343 MDC.01.2344 MDC.01.2974 MDC.01.0173 MDC.01.0174 MDC.01.0209 MDC.01.0447 MDC.01.0448 MDC.01.0457 MDC.01.0713

10

Documents that record communications between MDC and its expert advisors or any expert advice or report upon which the defendant relied to reject the veracity of Mr Talbot’s drop test.

MDC.01.0107 MDC.01.0108 MDC.01.0115 MDC.01.0116 MDC.01.0115 MDC.01.0202 MDC.01.0203 MDC.01.0211 MDC.01.0217 MDC.01.0218 MDC.01.0264 MDC.01.0265 MDC.01.0266 MDC.01.0296 MDC.01.0297 MDC.01.0349 MDC.01.0350 MDC.01.0366 MDC.01.0366.01 MDC.01.0524 MDC.01.0575 MDC.01.0576 MDC.01.0680 MDC.01.0681 MDC.01.0715 MDC.01.0771 MDC.01.0774 MDC.01.0775 MDC.01.1371

MDC.01.1372

There is no reason to believe the Council has not discovered any relevant documents in its control.

MDC.01.1572 MDC.01.0795.03 MDC.01.1372

11

Documents or expert reports or advice that record or shed light upon the defendant’s state of knowledge in 2010 at the time the plaintiff’s resource consent was granted as to what constituted a compacted clay lined effluent pond and which formed the basis for the defendant’s assertion in 2013 - 2015 that Pond 1 on Glenmae was not clay lined; and any

documents or expert testing or analysis which the defendant undertook to determine whether Pond 1 was clay lined.

No documents from 2010 were referred to in 2013- 2015.

Document re clay lining:

OPUS Report MDC.01.0624 is OPUS

report. MDC.01.0456 is the certificate.

At [4] “we have not

determined the percentage of clay in the lining of Pond 1.”

Documents related to clay lining:

MDC.01.0103 MDC.01.0104 MDC.01.0387 MDC.01.0388 MDC.01.1282 MDC.01.1283 MDC.01.2343 MDC.01.2344 MDC.01.2356 MDC.01.2885 MDC.01.2886 MDC.01.2887 MDC.01.2888 MDC.01.2889

Glen Thomas records: MDC.01.0489 MDC.01.0232 MDC.01.0366.01 MDC.01.0387 MDC.01.0388 MDC.01.0718 MDC.01.0719

There is no reason to believe the Council has not discovered any relevant documents in its control.

12

Any documents under the control of Mr Glenn Thomas, of Independent Project Consultants, that relate to the effluent disposal system on Glenmae in the period April 2014 to November 2014 including any records or notes taken by Mr Thomas in respect of his site visits to Glenmae in August 2014; and all documents referred to in his report dated 22 August 2014.

Documents held by the Council referencing evidence from Mr Thomas and any records from/to Mr Thomas: MDC.02.0036 MDC.01.0232 MDC.01.0242 MDC.01.0388 MDC.01.0489 MDC.01.0490 MDC.01.0491 MDC.01.0492 MDC.01.0534 MDC.01.0718 MDC.01.0719

I do not accept the broad submission made for Mr Woolley that the Council is required to obtain and discover all “factual materials” that an expert witness has collected and relied on in forming his or her opinion under r 8.7, as such documents may remain the property of the expert and would not be in the Council’s control. Guttenbeil v Tower Insurance Ltd [2012] NZHC 2106 at [25], [28]–[29] and [31]; NZX Ltd v Ralec Commodities Pty Ltd [2015] NZHC 3041 at [184]–[185]; Wentworth Retreat (2009) Ltd v Dell Inc [2017] NZHC 1627; and Biggs v Biggs [2018] NZHC 1592, [2018] NZFLR 580 at [266].

13

Any record of communications or correspondence between the defendant and/or Radich Law (including briefing papers) with Mr Thomas in relation to the preparation of his expert report obtained for the purpose of supporting the defendant’s August 2014 abandoned application for cancellation of the resource consent on Glenmae; and copies of any drafts of Mr Thomas’ report.

See category 12 above

For the reasons stated above, I do not accept the documents of an expert witness are necessarily within the Council’s control. I also do not accept that an expert would be required to provide drafts of his or her report which would be subject to privilege and insufficiently relevant. There is no reason to believe the Council has not discovered any relevant documents in its control.

14

Documents that record communications between MDC and Mr Perrott in relation to the procuring of his giving of evidence against the plaintiff in the prosecution proceedings.

MDC.01.2010 MDC.01.2011 MDC.01.2159 MDC.01.2160 MDC.01.0820 MDC.01.2007 MDC.01.0021 MDC.01.0415 MDC.01.1942 MDC.01.1980 MDC.01.1987 MDC.01.1988 MDC.01.2005 MDC.02.0095 MDC.01.1981 MDC.01.1983 MDC.01.1984

MDC.01.1985 MDC.01.1987

There is no reason to believe the Council has not discovered any relevant documents in its control.

MDC.01.1988 MDC.01.1989 MDC.01.1990 MDC.01.1991 MDC.01.1992 MDC.01.1993 MDC.01.1994 MDC.01.0739

15

Any documents that record communications between MDC employees and Opus International Ltd from July 2014 in relation to the certification of the effluent ponds at Glenmae.

MDC.01.0747 MDC.01.0750 MDC.01.0781 MDC.01.0784 MDC.01.0787 MDC.01.0788 MDC.01.0764 MDC.01.0766 MDC.01.0765 MDC.01.0708 MDC.01.0733 MDC.01.3131 MDC.01.3132 MDC.01.0695 MDC.01.0784 MDC.01.0795.15 MDC.01.0795.16 MDC.01.0795.18 MDC.01.1185 MDC.01.1881 MDC.01.2145 MDC.01.2885 MDC.01.3058 MDC.01.3126 MDC.01.3128 MDC.01.3129 MDC.01.3147 MDC.01.3196 MDC.01.3197 MDC.01.3198 MDC.01.3200 MDC.01.3201 MDC.01.3202 MDC.02.0068

MDC.02.0079

There is no reason to believe the Council has not discovered any relevant documents in its control.

MDC.02.0081 MDC.01.0203 MDC.01.0665 MDC.01.0795.08 MDC.01.0046 MDC.01.0170 MDC.01.0271 MDC.01.0361 MDC.01.0384 MDC.01.0395 MDC.01.0426 MDC.01.0460 MDC.01.0538 MDC.01.0542 MDC.01.0545 MDC.01.0569 MDC.01.0632 MDC.01.0633 MDC.01.0634 MDC.01.0635 MDC.01.0695

16

Any of the defendant’s prosecution committee minutes or notes that relate to the alleged breaches of the Resource Management Act 1991 on the plaintiffs Glenmae farm; and any file notes or minutes of any meeting held to determine what action should be taken against the plaintiff or in respect to the plaintiffs Glenmae farm or Fonterra; and any document that records any decisions or reasons for decisions made by the defendant in that regard.

See category 4 above.

I have disallowed the Council’s claim to privilege in respect of MDC.01.1569 which is a report of the Regulatory Department to the Enforcement and Prosecution Committee. I have no reason to believe that other records of the

Enforcement and Prosecution Committee have not been disclosed.

17

Any documents that relate to abatement notices issued by MDC on 2 July 2014, 5 August 2014, and 28 August 2014.

See category 4 above.

There is no reason to believe the Council has not discovered any relevant documents in its control.

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Citations

Woolley v Marlborough District Council [2023] NZHC 3840

Most Recent Citation

Wakefield v Network Waitaki Limited [2024] NZHC 97

Cases Citing This Decision

4

Woolley v Marlborough District Council [2024] NZHC 3081

Woolley v Marlborough District Council [2024] NZHC 1647

Save the Queen Street Society Incorporated v Auckland Council [2024] NZHC 1512

Cases Cited

26

Statutory Material Cited

1

Woolley v Marlborough District Council [2023] NZHC 2995

Assa Abloy New Zealand Ltd v Allegion (New Zealand) Ltd [2015] NZHC 2760

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

Hearing:	22 May 2023 and 30 October 2023
Appearances:	P A Morten and M A Robertson for Plaintiff A C Harpur for Defendant
Judgment:	21 December 2023