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…
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