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Woolley v Marlborough District Council

Woolley v Marlborough District Council

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NZHC 3840
Decision Date: 21 December 2023

CaseChat Overview and Summary

Philip John Woolley is seeking damages from the Marlborough District Council in respect of events that occurred between 2014 and 2015. The Council has provided an affidavit of documents which Mr Woolley is not satisfied with. He makes an application for orders setting aside claims to privilege and particular discovery, which the Council opposes. The key issues are: whether litigation privilege can be claimed in respect of preparatory materials for proceedings before the Environment Court; if so, whether litigation privilege lapses following completion of the proceedings to which it relates; whether litigation privilege has been correctly claimed; whether the Council has undertaken a sufficient search to locate documents within the scope of the discovery order; and whether further discovery ought to be ordered. The Court found that litigation privilege can be claimed in respect of preparatory materials for proceedings before the Environment Court and that it does not lapse following completion of the proceedings to which it relates. The Court also found that the Council had undertaken a reasonable search to locate documents it was required to disclose under the discovery order. Therefore, Mr Woolley's applications for setting aside claims to privilege and particular discovery are dismissed, except to the extent that the Court has disallowed the Council's claims to privilege in respect of certain documents. The Court also directed that Mr Woolley may make a request of the Council for disclosure of metadata of documents held in the Council's electronic databases and that the Council shall have 14 working days to respond and either provide the metadata or reasons for its refusal to provide it. The Court also directed that the Registrar should arrange a case management teleconference with an Associate Judge in the New Year to discuss the case.

Orders