Wentworth Retreat (2009) Limited v Dell Inc

[2018] NZHC 1860

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-510

[2018] NZHC 1860

BETWEEN

WENTWORTH RETREAT (2009)

LIMITED and MARES PROPERTIES (NZ) LIMITED
Plaintiffs

AND

DELL INC

Defendant

GRAYS AUCTIONS LIMITED

Third Party

Hearing:

25 July 2018

Appearances:

V Wethey for Plaintiffs W R Potter for Defendant

K Burkhart for Third Party

Judgment:

25 July 2018

(ORAL) JUDGMENT OF LANG J

[as to discovery issues]

WENTWORTH RETREAT (2009) LTD v DELL INC [2018] NZHC 1860 [25 July 2018]

[1]    This proceeding relates to a claim for damages arising out of a fire that occurred in a lodge in a rural area outside Whangamata. The plaintiffs claim the fire was caused by batteries in a computer manufactured by the defendant and situated in the property. The defendant denies this is the case. The defendant’s briefs of evidence allege the fire began in another room of the address and was not caused by the computer.

[2]    An issue has arisen in relation to the discovery provided by the defendant. In the latest version of its affidavit of documents the defendant has included the following information under Part 2, the section relating to documents for which the defendant claims privilege:

Correspondence by         Meredith Connell and third parties    for    the purpose    of    the proceeding. Various Various Section 56

[3]    The plaintiffs argue they are entitled to know the identity of the third parties referred to in the passage set out above. They say they are entitled to that information so they can either challenge the claim to privilege or make their own enquiries with the third parties. The plaintiffs believe the third parties may be able to provide information helpful to the plaintiffs’ case.

[4]    The defendant resists listing the names of the third parties because it says the claim to privilege is irrefutable.

Decision

[5]    It is surprising that this issue has not been the subject of more authority. The only authority the parties have been able to find on the point is the decision of Associate Judge Bell in Guttenbeil v Tower Insurance Ltd.1 In that case a similar situation arose. The Associate Judge held that the identity of witnesses interviewed by the defendants’ investigators was not to be disclosed. His reasoning was as follows:

1      Guttenbeil v Tower Insurance Ltd [2012] NZHC 2106.

[24] The plaintiffs object that the defendants have not adequately described statements obtained from witnesses. The plaintiffs seek identification of all potential witnesses interviewed by the defendants' investigators. The defendants claim privilege for witness statements. I uphold that claim for reasons given later. As litigation privilege attaches to those statements, the defendants are not required to disclose the identity of witnesses. The plaintiffs cannot overcome that by insisting on more detailed descriptions which would identify the witnesses.

[6]    I propose to adopt the same approach. I see no basis on which litigation privilege in relation to these documents could successfully be challenged. Furthermore, the only use to which the plaintiffs could put the information is to undertake enquiries that might provide it with further material to support its case. I consider the time for such enquiries has now long passed. The plaintiffs have served their evidence, as have the defendants. The only remaining step now to be taken is the service of reply briefs. These will necessarily respond only to the evidence adduced by the defendant. I consider it would be unfortunate if the pending trial in October was derailed by further enquiries made by the plaintiffs as a result of information provided by the defendant.

[7]    I therefore decline to require the defendant to list the names of potential witnesses as sought by the plaintiff.

Orders

[8]    At the request of counsel I make orders by consent in terms of the joint memorandum dated 24 July 2018.

Costs

[9]    The defendant seeks costs in relation to today’s appearance because it has succeeded in the only argument the Court was required to determine. I am conscious, however, that the matter first came before the Court because the plaintiffs were concerned that the defendant’s briefs referred to a large number of documents that had not been included in earlier discovery. This resulted in the defendant filing an updated affidavit of documents to address the issue.

[10]   Given the extent to which counsel have been able to reach agreement, I do not consider it appropriate for an order for costs to be made. There will therefore be no order for costs.

Lang J

Solicitors:

Fee Langstone, Auckland Meredith Connell, Auckland Kennedys, Auckland