Work v IAG New Zealand Limited

[2023] NZHC 1154

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2019-404-1267

[2023] NZHC 1154

BETWEEN

PETER ALLAN WORK AND ROBYN MARGARET WORK

Plaintiffs

AND

IAG NEW ZEALAND LIMITED

Defendant

On the Papers

Counsel:

J P Wood for Plaintiffs

P J Gunn for Commissioner of Police

Judgment:

15 May 2023

JUDGMENT OF ISAC J

[Non-party costs application]

The costs application and submissions

[1]                This judgment concerns an application for costs made by the Commissioner of Police in relation to a subpoena issued by the plaintiffs. The purpose of the subpoena was to require the production of an unredacted version of a document that was already in evidence.

[2]                In this proceeding Mr and Mrs Work seek to enforce a contract of insurance in relation to a house that was destroyed in a fire in 2013. The insurer, IAG, opposes the claim, alleging that Mr Work was responsible for the fire and that he knowingly misled its subsequent investigation. The matter was heard in Wellington over four weeks between 13 February and 10 March 2023 and judgment is yet to issue.

WORK v IAG NZ LTD [2023] NZHC 1154 [15 May 2023]

[3]                The common bundle contained redacted entries from a detective’s notebook of his enquiries during the night of the fire. This included a record of a conversation the detective had with a person living near the location of the fire. During examination-in-chief, the notebook entry  was put to a witness called by Mr and   Mrs Work. The implication of the line of questioning was that the witness had deliberately started the fire. I raised a question with counsel about the address, which had been redacted along with the name of the person spoken to, and its potential relevance to an issue in the trial.

[4]                Subsequently, counsel for the plaintiffs served the Commissioner with a subpoena requiring his attendance at the hearing in order to produce an unredacted copy of the detective’s notebook entries. The Commissioner responded with an application to have the subpoena set aside. The primary concern was the privacy interests of the individuals who were identified in the redacted entries, and the appropriateness of serving a subpoena on the Commissioner in the circumstances.

[5]                In the end the Commissioner’s application was not determined. On 7 March, notwithstanding his opposition to the subpoena, the Commissioner helpfully made the complete notebook entries available to the Court so I could assess the relevance of the redacted entries. Having reviewed the document, I concluded that the assessment of relevance was a matter for counsel and their clients. In a ruling of 10 March 2023, I ordered release of the unredacted document to the parties and their expert witnesses only, and made confidentiality orders permanently suppressing their contents.1

[6]                The Commissioner now seeks costs on a 2B basis of $8,006.50 against the plaintiffs in relation to their use of the subpoena procedure. The Commissioner submits the approach taken by the plaintiffs was an abuse of process and ignored appropriate mechanisms through which the document could legitimately have been sought.

[7]                The Works say that the Commissioner’s costs should lie where they fall. But, having been put to the trouble of defending the Commissioner’s application for costs, they in turn seek costs of $956 for filing a memorandum in opposition. They submit that they had no choice but to issue the subpoena after their efforts to obtain the document informally were unsuccessful. The plaintiffs criticise the Commissioner’s “adversarial and technical” stance, and his failure to adopt a pragmatic approach to resolving the matter. They say the Commissioner is not entitled to costs in circumstances where the application to set aside the subpoena was neither heard nor determined, and the notebook entries were eventually provided as sought.

Consideration

[8]                This was a matter that should have been capable of an informal resolution. Serving a subpoena on the Commissioner to produce a notebook entry that he did not personally create or have custody of was, with respect, the thermonuclear option. The plaintiffs’ attempts to obtain the unredacted document informally appear to have been limited to a brief email sent to the Police Records Department. The request, dated   27 February 2023, was in these terms:

We represent the plaintiffs in a High Court trial in Wellington that commenced on the 13th and is scheduled to run to the end of next week. And in issue in the trial is the attached document which are redacted pages of the notebook of Detective Barnes from 22 to 23 Nov 2013. We urgently require an unredacted copy by tomorrow if not today.

[9]                The Records Department responded at 1 pm the same day. Unsurprisingly, given the lack of context or explanation for the request, and the obvious concerns about the privacy interests of members of the public spoken to by Police, the request was declined.2 Less than half an hour later, the plaintiffs’ issued a subpoena (by email) on the Commissioner.

[10]            In terms of informal steps to obtain Police agreement, as Mr Gunn for the Commissioner pointed out, counsel for the plaintiff could have contacted the Police legal team in the first instance. And while it may have been open to issue a subpoena duces tecum had informal agreement been impossible, the more appropriate procedure

in my view would have been to apply for non-party discovery under r 8.21 of the High Court Rules 2016, where it is common for the non-party’s costs to be paid by the applicant.

[11]            Notwithstanding these concerns, and what I accept was an unnecessary burden on the Commissioner of Police, I am not satisfied that it is appropriate to order costs against the plaintiffs, albeit by a narrow margin. Ultimately the application to set aside the subpoena did not require a hearing or determination. Notwithstanding the concerns over the approach adopted by the plaintiffs, it would not be appropriate in my view to undertake a merits-based assessment of the application in order to determine whether it would, or would not, have been successful.3

[12]            Nor do I consider, for the reasons set out above, that it would be appropriate to grant costs in favour of the plaintiffs in relation to the Commissioner’s application for costs.

Conclusion and result

[13]            The Commissioner’s application for non-party costs against the defendants is declined. Costs are to lie where they fall.

Isac J

Solicitors:

Court One, Auckland for Plaintiffs

Crown Law, Wellington for Commissioner of Police

3      Generally, the Court will not speculate on the merits of a case that it has not heard for the purpose of determining costs: see for example r 14.8(1) of the High Court Rules 2016; Winton v Winton [2018] NZHC 486 at [22]; Alarm New Zealand Ltd v 15 Hopetown Ltd [2016] NZHC 2080 at [18]; Kenealy v Morton-Jones [2015] NZHC 297 at [9]; MV Celebre Ltd v Airwork Flight Operations Ltd [2015] NZHC 1400 at [11]–[13]; Powell v Hally Labels Ltd [2014] NZCA 572 at [24]; Commercial Factors Ltd v Veda Advantage (NZ) Ltd HC Auckland CIV-2010-404-6798,