PARSONS v O’CONNOR [2021] NZHC 1047

PARSONS v O'CONNOR [2021] NZHC 1047 [12 May 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2020-404-265[2021] NZHC 1047UNDER the Companies Act 1993 section 174BETWEEN MICHAEL KENNETH PARSONSFirst PlaintiffGREEN SHOOTS HOLDING LIMITEDas trustee of THE GREEN SHOOTSLIFESTYLE AND EDUCATION TRUSTSecond PlaintiffAND PAUL MICHAEL O'CONNOR andBHW TRUSTEE 2017 LIMITEDas trustees of the O'CONNOR FAMILYTRUSTFirst DefendantsSALLY JANE CAREY andANDY FOX as trustees of the FOX CUBTRUSTSecond DefendantsDATAMINE LIMITEDThird DefendantHearing: 21 April 2021Appearances: T Nelson for the PlaintiffsJ Cundy for the DefendantsJudgment: 12 May 2021JUDGMENT OF ASSOCIATE JUDGE R M BELLThis judgment was delivered by me on 12 May 2021 at 11:00 ampursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy Registrar[1] The main question in this application for further discovery is whetherMr Parsons can be required to disclose documents of his employer, when his employerhas told him not to. The answer is that the documents are not in Mr Parsons' controland he is not required to discover them. The defendants may have to use other meansto obtain the documents, such as an application for non-party discovery.[2] The case concerns Datamine Ltd which carries on business as a data analyticsconsultancy. The plaintiffs seek relief as prejudiced shareholders under s 174 of theCompanies Act 1993. Mr Parsons, the first plaintiff, started as an employee but laterbecame a director. Mr O'Connor and Ms Carey were the other directors. Mr Parsonsand his company, Green Shoots Holdings Ltd became shareholders. Mr O'Connor'sfamily trust and Ms Carey's family trust are the other shareholders. The parties havefallen out. The details of the plaintiffs' oppressiveness claim are not relevant to thisdecision.[3] The discovery question arises under the defendants' counterclaim againstMr Parsons for breach of the shareholders' agreement. In 2019, Mr Parsons stoppedworking for Datamine and took a job with Air New Zealand as General Manager, Dataand Analytics. The defendants say that he breached a provision in the agreement notto be involved in a similar business to Datamine's, including as an employee.[4] Air New Zealand has a subsidiary, 11 Ants Analytics Group Ltd, whichprovides analytical services. Datamine also provides data and analytic services toAir New Zealand. It considers that its business with Air New Zealand has droppedsince Mr Parsons left it. On the other hand, Mr Parsons says that Air New Zealandremains a significant client of Datamine and that the two companies are not incompetition.[5] The defendants' application for further discovery under r 8.19 of the HighCourt Rules 2016 seeks these documents:1(a) Correspondence between the first plaintiff and Air New Zealand(Air NZ), relating to his employment as General Manager, Data andAnalytics, at Air New Zealand, including (but not limited to) anyLinkedin messages, SMS and iMessages, showing the circumstancesin which the first plaintiff was offered the role;(b) Correspondence relating to Air NZ's renegotiation of its MasterServices Agreement with Datamine in 2019, including documentssetting out the reasons why the term of the Agreement was shortened;(c) Documents relating to Air NZ's decision to replace or replicateservices previously provided by 'Datamine, either internally, or withservices provided by another third party; and(d) Documents showing the nature of services offered by Air NZ withinthe data and analytics field, including documents showing itsreporting and analytics offering to current, past and prospectiveAirpoints participants, and documents showing the first plaintiff'sinvolvement with these services.[6] The plaintiffs filed their affidavit of documents on 24 September 2020 inresponse to Associate Judge Smith's direction to make standard discovery. In responseto the present application, Mr Parsons swore two supplementary affidavits ofdocuments – on 26 February 2021 and 10 March 2021. Datamine took issue withchanges made between the February and the March affidavits. I treat the Marchaffidavit as replacing the February one and as representing Mr Parsons' presentposition on the discovery application.[7] The documents are all stored electronically. Mr Parsons says that he hassearched his personal emails on his own email address, SMS and iMessages on hisphone, messages to and from his LinkedIn account and work emails using his workemail address and his work computer.[8] Part 5 of his affidavit deals with documents not in his control. The group-listeddocuments include:1 The application also sought other orders which were directed at matters of technical non-compliance but at the hearing I was told that those had been resolved.Other emails and documents in the control of Air New Zealand including thoserelating to the renegotiation of the MSA or the replacement of Datamineservices or services provided to Airpoints partners or 11 Ants.Other documents in the control of 11Ants relating to its services.He says that these documents are respectively in the control of Air New Zealand and11Ants. Air New Zealand has instructed him not to disclose them. Moreover, becausehe is a shareholder of Datamine, Air New Zealand has barred him from havinganything to do with renegotiation of the master services agreement with Datamine andhe is not allowed to have in his possession any documents relating to that.[9] Datamine says that Mr Parsons must disclose all relevant documents in hiscontrol and that includes Air New Zealand documents that he can access as itsemployee.[10] Under r 8.16 of the High Court Rules 2016, a party making discovery must listdocuments that:(a) are in the control of the party giving discovery and for which the partydoes not claim privilege or confidentiality:(b) are in the control of the party giving discovery for which privilege isclaimed, stating the nature of the privilege claimed:(c) are in the control of the party giving discovery for whichconfidentiality is claimed, stating the nature and extent of theconfidentiality:(d) have been, but are no longer, in the control of the party givingdiscovery, stating when the documents ceased to be in that control,and the person who now has control of them:(e) have not been in the control of the party giving discovery but whichthat party knows would be discoverable if that party had control ofthem.[11] Under r 1.3:control, in relation to a document, means—(a) possession of the document; or(b) a right to possess the document; or(c) a right, otherwise than under these rules, to inspect or copy thedocumentdocument means—(a) any material, whether or not it is signed or otherwise authenticated,that bears symbols (including words and figures), images, or sounds,or from which such symbols, images, or sounds can be derived, andincludes—(i) a label, marking, or other writing that identifies or describes athing of which it forms part, or to which it is attached:(ii) a book, map, plan, graph, or drawing:(iii) a photograph, film, or negative; and(iv) information electronically recorded or stored, and informationderived from that information.[12] On an application for further discovery under r 8.19(a) and (c) of the HighCourt Rules, when the court finds that there are grounds for believing that a party hasnot discovered documents that should have been discovered, the judge may order aparty to make an affidavit disclosing documents in that party's control and to makethose documents available for inspection.[13] Under r 8.27:(1) As soon as a party who is required to make discovery has filed andserved an affidavit of documents, that party must, subject to rule 8.28,make the documents that are listed in the affidavit and that are in thatparty's control available for inspection by way of exchange.[14] Under r 8.28 a party is not required to make privileged documents availablefor inspection. Inspection of confidential documents may be restricted.[15] The meaning of "control" in these rules is constant. The documents which aparty is required to make available for inspection under r 8.27 as in their control arethe same documents which that party has listed in their affidavit of documents as beingwithin their control. Because of "must" in r 8.27 there is no room for saying that eventhough a document is in a party's control, they do not have to make it available forinspection (except under any provisos in the rule or r 8.28). The rule does not give thecourt any discretion to disallow inspection. The same applies to orders to makedocuments available for inspection under r 8.19. That rule gives the judge the powerto order further discovery and to make documents available for inspection, but thatpower is exercised according to the discovery principles underlying Part 18 subpart 1of the High Court Rules 2016. If the judge orders discovery of further documents, anorder to make them available for inspection will follow as a matter of course. It wouldbe wrong to read the rule as conferring a discretion to disallow inspection ofdocuments ordered to be discovered (unless inspection is barred under any of theprovisos in rr 8.27 and 8.28). Otherwise a party who has not made discovery correctlywould be in a better position than one who had done it right at the outset. They shouldnot be allowed to argue on an application for further discovery under r 8.19 that theinspection rules should be adjusted for them. They should be held to the same rulesas those who make discovery correctly.[16] The law was not always so. In the past the courts distinguished betweenpossession for discovery and possession for production for inspection. A party had todisclose all documents in his "corporeal possession" even if the documents belongedto someone else but could not be required to produce documents that did not belongto them. So in Clinch v Financial Corporation, Page-Wood V-C said:2 if you have any possession – that is enough. There may be grounds for notproducing; but even then you must give discovery.[17] In connection with possession for an affidavit of documents, Bray onDiscovery says:3All documents must be included which are in his corporeal possession whetherhe has the exclusive property or only a partial property in this. It is conceivedthat he must also schedule those in his corporeal possession in which hehas no property at all.But as for production for inspection the text says:42 Clinch v Financial Corporation (1866) LR 2 Eq 271 at 273.3 Edward Bray The Principles and Practice of Discovery (Reeves and Turner, London, 1885) at224.4 At 193.Possession or power for the purpose of founding thereon an order forproduction has a far narrower significance than for the purpose of inclusion inthe affidavit. Many documents may have to be included in the affidavit ofdocuments of which production cannot be ordered as not being in the party'spossession or power in this more limited sense.And:5Possession (or power) for the purpose of actual production means notcorporeal possession but legal possession, a right and power to deal with them.As an example, in Kearsley v Philips6 the court declined to order production ofdocuments disclosed in a discovery affidavit where the documents were in the jointpossession of the defendant and another.[18] Because of this past practice, it has sometimes been suggested that the courthas a discretion whether to order production by balancing competing interests.7 Theold cases on production do not show any such balancing. The current rules do not giveany room for such a discretion.[19] There is, I suggest, a reason why it is no longer necessary to observe thedistinction made in the older cases. In the past it was not possible to obtain non-partydiscovery, except in limited circumstances.8 Accordingly, "possession" was given awide meaning so that even if the party holding the document could not be required toproduce it, it was at least identified and other means could be used to put it in evidence.Now a party making an affidavit of documents must disclose documents not in theircontrol which they are aware of.9 And non-party discovery is available on a widerbasis to access such documents.10 The old reason no longer applies. The upshot isthat the "control" test is to be applied on the basis that a document will be consideredto be in the control of a party if that party could be made to produce it under r 8.27.[20] Under the old test for production, a party would not be ordered to produce adocument to which they did not have a right to possession. For the reasons givenabove, that informs the test for control under the current rules. Against that, Datamine5 At 194.6 Kearsley v Philips (1883) 10 QBD 465 (CA).7 Dale v Jeffrey (2009) 19 PRNZ 568 (HC) at [24].8 Norwich Pharmacal Co v Customs & Excise Commissioners [1974] AC 133 (HL).9 High Court Rules 2016, r 8.16(e).10 High Court Rules 2016, r 8.21.submitted that a party was required to disclose documents in their physical possession,whether or not they had a right to possession. In support it cited Disclosure:11 there is nothing in the [Civil Procedure] Rules [1998 (UK)] to limitdisclosure to cases where the physical possession is lawful. Accordingly, it issubmitted that even a thief would have to give disclosure of stolen documentsif appropriate to litigation to which he was a party.[21] But the text also records that under the English Civil Procedure Rules, r 31.3,inspection can be resisted not only on grounds of privilege but also on more generalgrounds that a document is not within a party's control or that it would bedisproportionate to require it to be inspected.12 Citing National Crime Agency vAbacha it says that the court retains a discretion to refuse inspection.13 Again, ourrules do not give the court a discretion to refuse inspection.[22] The "control" test to decide whether documents should be disclosed wasintroduced under an amendment to the High Court Rules in 2004. Before that, the testwas whether the documents were in the "possession, custody or power" of the partyrequired to make discovery. As to "power", the speech of Lord Diplock in Lonrho Ltdv Shell Petroleum Co Ltd has been influential:14Identification of documents requires that they must be or have at one timebeen available to be looked at by the person upon whom the duty lies toprovide the list. Such is the case when they are or have been in the possessionor custody of that person; and in the context of the phrase "possession, custodyor power" the expression "power" must, in my view, mean a presentlyenforceable legal right to obtain from whoever actually holds the documentinspection of it without the need to obtain the consent of anyone else.Provided that the right is presently enforceable, the fact that for physicalreasons it may not be possible for the person entitled to it to obtain immediateinspection would not prevent the document from being within his power; butin the absence of a presently enforceable right there is, in my view, nothing inOrder 24 to compel a party to a cause or matter to take steps that will enablehim to acquire one in the future.11 Paul Matthews and Hodge M Malek Disclosure (5th ed, Sweet & Maxwell, London, 2017) at 182,[5.63].12 At 270, [9.06].13 National Crime Agency v Abacha [2016] 1 WLR 4375 (CA) at [28] and see [31] for the court'sbalancing of competing interests.14 Lonrho Ltd v Shell Petroleum Co Ltd [1980] 1 WLR 627 (HL) at 635.[23] That has been followed in New Zealand.15 The test of a legally enforceableright to inspect a document has been applied to the third limb of the "control" testunder the present rules.16[24] "Document" has an extended definition, not only hard copy documents but alsoinformation that is electronically recorded or stored (but which may be reproduced inhard copy). While tangible objects such as hard copy documents can be held, stored,handed over or lost, "possession" does not go so well with information. Informationis knowledge. It is learned, remembered, forgotten, shared or kept secret; but it is notpossessed in the same way as an object. When we say, "I have an idea" we say whatwe think, not that we can physically hold that thought.17 As the definition recognises,information can be recorded and stored electronically. But because information cannotbe possessed physically, it is better to use the third limb of "control". The right toinspect or copy information stored electronically goes to access to the information andthe right to retrieve and use it. Datamine wants Mr Parsons to disclose information hecan access on his work computer. His employer can control his access to thatinformation and can require that he use it only for his employment. It would be oddto say that Mr Parsons has physical possession of that information.[25] The general rule is that documents of an employer which an employee canaccess for his work are in the control of the employer, not the employee. There is asimilar rule for company documents which a director can access, but the case lawshows a greater willingness to require directors to disclose where the director isconsidered to have control of the company and therefore control of the documents.[26] The general rule is illustrated by subpoena cases. They are useful as asubpoena duces tecum requires the witness to produce documents.18 The witness'sability to do so may be in issue. The cases are an a fortiori illustration. In the daysbefore non-party discovery could be ordered, a subpoena duces tecum was used torequire production in court of documents held by a non-party. If a witness could not15 Equiticorp Industries Group Ltd v Hawkins [1994] 2 NZLR 738 (HC).16 Dale v Jeffrey (2009) 19 PRNZ 568 (HC).17 The law on breach of confidence is a matter of obligation, not property: Thomas v Farr plc [2007]EWCA Civ 118 at [39].18 For the history of subpoenas duces tecum, see Lord Denning MR's account in Penn-Texas Corp vMurat Anstalt (No 2) [1964] 2 QB 647, [1965] 3 WLR 682 (CA) at 663.be compelled to bring documents of his employer to court under a subpoena, that is apointer that they are not discoverable as in his control. In Crowther v Appleby,Coleridge CJ said:19Mr Sharpley has not the books and documents in his possession otherwise thanas the servant of the company, and without their authority or consent, he couldhave no right to remove them from their proper place of custody and bringthem up to London.[27] In Eccles & Co v Louisville and National Railroad Company, a case involvingletters rogatory from Alabama, Vaughan Williams LJ said:20This is the case of a servant or employee who, according to the view which Itake of the evidence, had no authority from his master to produce thedocuments in question; and upon the evidence before us I also take it that,although he had in a sense possession, custody, and control of the documents,he had not possession, custody, or control of them in the sense that he wasjustified, as between himself and his master, in shewing them or producingthem in evidence without the authority of his master.And Buckley LJ said:21it appears to me that it was competent to him to say that, though thedocuments were in his control, he had control of them merely in the capacityof a servant, and that, if the plaintiffs seek to compel production of them, theyought to bring his principal before the Court and obtain an order for theirproduction in his presence.Kennedy LJ dissented on the ground that there was no evidence that the employerinstructed the employee not to produce the documents, but it is not necessary toconsider that aspect here as it is clear that Air New Zealand has instructed Mr Parsonsnot to disclose the documents.[28] In Penn-Texas Corp v Murat Anstalt (No 2) Lord Denning MR said:22The question arises, what is to be done when the documents are in thepossession of a company? How is the court to compel production of them?One thing is quite clear. It is no good serving a subpoena duces tecum on anyof the officers or servants of the company: for each of them can say that hehas no authority from the company to produce them, and that would be an endof any proceedings against him.19 Crowther v Appleby (1873) LR 9 CP 23 at 29.20 Eccles & Co v Louisville and National Railroad Company [1912] 1 KB 135 (CA) at 145.21 At 147.22 Penn-Texas Corp v Murat Anstalt (No 2) [1964] 2 QB 647, [1965] 3 WLR 682 (CA) at 663.[29] The High Court of Australia recognised the principle in Rochfort v TradePractices Commission, where Mason J said:23To acknowledge that the employee's possession is sufficient in itself to sustainan obligation to produce, without reference to his employer, would be todisregard the employer's rights with respect to his documents. What is more,it would deprive him of the privilege of objecting to produce a document onthe ground that it has a tendency to incriminate him. The privilege againstself-incrimination is that of the witness who is called to produce. He cannotclaim the privilege on the ground that the document tends to incriminateanotherRecognition of these interests of the employer suggests that in general it is he,not his employee, who should be required to produce the documents. Ofcourse, the protection of the employer's interests must give way to the publicinterest and the efficient administration of justice in case of collision betweenthe two. So, if it is impracticable to serve a subpoena on the employer, e.g.,by reason of absence overseas, incapacity, or his whereabouts, beingunknown, the court will insist on production of the documents by hisemployee or agent who holds them. In these circumstances, the promptdispatch of court business must prevail over the protection of the employer'sinterests.[30] As for discovery of documents, in Ambler v Ambler Master McBride said:24Thus, if the secretary/treasurer of a company happened to have some of thedocuments of the company at his residence, and he happens to own 10 per centof the issued shares of the company and is a party to an action wherein thequestion of the value of his shares in the company are concerned, clearly noorder will issue requiring him to produce the documents of the company in hisphysical possession because they are not his documents but those of another.[31] Most of the discovery decisions, however, prove the rule by stating exceptionsto it. In London and Yorkshire Bank Ltd v Cooper, an order was sought for a liquidatorto produce documents of the company in liquidation. Brett MR said:25It has been argued that the documents are not in his control; but if they are inhis possession, they are prima facie under his control. The defendant,Wing,may shew that he is the servant or the agent of some other person, and thatthere is somebody who has power to prevent the production of the documents.23 Rochfort v Trade Practices Commission [1982] 153 CLR 134 at 145. See also Gibbs CJ at 139and 140–141.24 Ambler v Ambler (1980) 1 ACWS (2d) 421 (OSC) at [4].25 London and Yorkshire Bank Ltd v Cooper (1895) 15 QBD 473 (CA) at 474.After stating that the liquidator was required to hold the company's documents, hecontinued:26He is bound to keep them during that period, but who is there that can give tohim any order respecting them? No one has the control of the documents, andhe is as to their production the absolute and sole master; he has the absolutecontrol of them and therefore he is bound to produce them.[32] In Dallas v Dallas,27 the British Columbia Court of Appeal ordered thedefendant, who had effective control of the company, to disclose documents of thecompany:It is evident that the company does not control him but that he controls thecompany in such a manner as to make it his "other person".And:28In this case the company is a juristic person with the capacity to exerciseeffective control over these documents, but the evidence shows that thecompany is an instrument of the defendant and under his sole direction andcontrol. Any nominal control exercised by the company would in reality bethe control of the defendant.In B v B Dunn J referred to a director's right to inspect documents and said:29But the right to inspect is a right vested in a director in his capacity as adirector or officer of the company; he is in a fiduciary relationship with thecompany; he owes duties to the company and to its shareholders. Without theconsent of the company he has no right to inspect documents, much less totake copies of them or remove them from the premises of the company for hisown purposes unconnected with the business of the company. Because, in hiscapacity as a director, he has the right to inspect the company documents, itdoes not follow that in his personal capacity he has an enforceable right toinspect or to obtain possession or control of them so that the documents canbe said to be in his power. It is a question of fact in each case whether or nota director has such an enforceable right; much will depend upon the sharestructure of the company. In cases of a one man company, where the directorowns all or substantially all the shares and any minority shareholders are notadverse to him, then the inference may be drawn that the company, althougha separate legal entity, does not control him but he controls the company insuch manner as to make it his other person or alter ego. In such a case, wherethe director controls the company and nominates the other directors, all thedocuments are within his power in the sense that in truth and in fact his is ableto obtain control of them.26 At 474.27 Dallas v Dallas (1960) 24 DLR (2d) 746 (BCCA) at [5].28 At [8].29 B v B [1978] Fam 181 at 188–189.[33] In other parts of his judgment, Dunn J held that a director might be required todisclose company documents in his actual possession, leaving the court to decide inits discretion whether to order production.30 For the reasons I have given above, I donot consider that those aspects of his decision apply under our rules, but that does notdetract from the statement above.[34] In Dale v Jeffrey,31 Associate Judge Abbott ordered the defendant to disclosedocuments of a Spanish company, of which the defendant was a majority shareholderand an executive director. While Associate Judge Abbott founded his decision oncontrol, it can also be noted that the court cannot order non-party discovery by aforeign company which does not carry on business in New Zealand.[35] Associate Judge Andrew's decision in Ultra Fire Sprinkler Systems Ltd v UltraFire Protection Ltd is an example of the general principle that employees are notrequired to disclose their employer's documents.32 It was suggested in argument thathis decision was inconsistent with Dale v Jeffrey and that I had to decide between thetwo. To the contrary, both decisions reflect the same principle that a party can berequired to disclose as documents within their control only those to which they haveenforceable rights to access and copy. In one the director had that right, in the otherthe employee did not.[36] In this case Mr Parsons as an employee has access to some information heldby his employer, but not all the information sought by the defendants. He can use hisemployer's information only for his employment. His employer has instructed himnot to disclose that information and he therefore does not have its authority to includeit in his discovery affidavit. The information is not in his control. He has correctlyidentified it in his latest discovery affidavit as being in the control of his employer.Because it is not in his control, he cannot be ordered under r 8.19 to include it in anaffidavit of documents.30 At 193–194 .31 Dale v Jeffrey (2009) 19 PRNZ 568 (HC).32 Ultra Fire Sprinkler Systems Ltd v Ultra Fire Protection Ltd [2020] NZHC 2243 at [61] and [65].[37] There is one other matter. Part 3 of Mr Parsons' supplementary discoveryaffidavit, confidential documents, lists documents relating to his employmentagreement. Air New Zealand does not object to those documents being disclosed, solong as confidentiality is preserved. Mr Parsons says that these are Air New Zealanddocuments rather than his own, but even so, he is required to discover them as in hiscontrol, as they contain his personal information to which he has an enforceable rightof access under the Privacy Act 2020.33[38] The defendants say that this part of Mr Parsons' discovery is incomplete.While he has disclosed his employment agreement (with redactions), the defendants'application seeks documents showing the circumstances in which he was offered hisrole with Air New Zealand. The circumstances of the case, the recruiting of anemployee for a senior management position, is likely to generate more documents thana completed employment agreement. The documents are likely to be relevant asshowing the nature of his employment. It would not be disproportionate to requireMr Parsons to disclose those documents. There are not likely to be many andobtaining them should not be difficult. The defendants have made their case fordiscovery under this head. The plaintiffs did not object to this part of the defendants'application but had asked for clarification of the scope of documents sought. I amconfident that the parties can resolve that.[39] I make these orders:(a) Within three weeks of the defendants giving the plaintiffs clarificationas to the scope of documents in the first group of the schedule to thediscovery application, the plaintiffs are to file and serve an affidavitdisclosing those documents. So long as the documents contain personalinformation under the Privacy Act 2020, Mr Parsons is required todisclose them, even if he does not have his employer's consent. Whenhe files and serves his affidavit, he will make the documents availablefor inspection (subject to any confidentiality safeguards).33 Johansen v American International Underwriters (NZ) Ltd [1997] 3 NZLR 765 (HC).See information privacy principle 6 in s 22 of the Privacy Act 2020, which gives an individualthe right to access to their personal information from an agency. Air New Zealand is a NewZealand private sector agency under that Act: ss 4, 7 and 8.(b) I dismiss the rest of the defendants' application.(c) If the parties cannot agree on costs, memoranda are to be filed and Iwill decide costs on the papers.(d) I direct the Registrar to set a new case management conference.(e) Leave is reserved to apply for further directions..Associate Judge R M BellSolicitors:Turner Hopkins (M J Robinson/C J Pendleton), Auckland, for the PlaintiffsLee Salmon Long (T Mullins/J Cundy), Auckland, for the DefendantsCopy for:T Nelson, AucklandG P Blanchard QC, Auckland