SIEMER V FARDELL HC AK CIV.2003-404-5782

SIEMER V FARDELL HC AK CIV.2003-404-5782 12 December 2006IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV.2003-404-5782BETWEEN VINCENT ROSS SIEMER AND JANE CHAPMAN SIEMER First Plaintiffs AND PARAGON SERVICES LIMITED (FORMERLY KNOWN AS PARAGON OIL SYSTEMS LIMITED) Second Plaintiff AND KATHLEEN MARY FARDELL AS EXECUTRIX OF THE ESTATE OF JOHN ROBERT FORTESCUE FARDELL Defendant AND MICHAEL PETER STIASSNY AND FERRIER HODGSON Discovery Non-Parties Hearing: 2 October 2006 Counsel: Mr Siemer in person for Plaintiffs (with Mr Candy as McKenzie Friend) No appearance for defendant (Helen Rice observing) Peter Hunt for Mr Stiassny and Ferrier Hodgson (Discovery Non-Parties) Judgment: 12 December 2006 at 3:30pmJUDGMENT OF WILLIAMS J [Re: application to review Lang J's judgment]This judgment was delivered by Hon. Justice Williams on12 December 2006 at 3:30pmpursuant to R 540(4) of the High Court Rules..Registrar/Deputy Registrar Date: ...____________________________________________________________________A The review application is allowed to the extent that the plaintiffs are to pay 75% of the hours claimed of Mr Stiassny/Ferrier Hodgson in complying with the order for non-party discovery at $175.00 per hour plus the junior staff member ($176.00), that being the sum of $7600.13 plus disbursements and GST, and, by reducing recovery of McElroys' costs as their solicitors to 75% of the amount claimed, namely, the sum of $12,229.87 plus photocopying of $575.21, plus the other disbursements claimed, plus GST. B The judgment deals with the lack of a verified list of documents from the non-parties in this claim in the manner set out in para [119]. C The costs of this application are to lie where they fall. TABLE OF CONTENTS Paragraph Issue and Introduction [1] Procedural(a) Up to 14 March 2005 [8](b) Judgment under review [29](c) After 14 March 2005 [37] Submissions on Review Application [60] Discussion and Decision [78] Result [110] ____________________________________________________________________ Issue and Introduction[1] On 4 August 2004, before Master Lang (as he then was), the plaintiffs sought an order that two non-parties, Mr Stiassny and Ferrier Hodgson:"Discover records they hold in relation to the receivership of Paragon Oil Systems Limited including but not limited to their phone records for the periods November 2000-January 2001 and 18 July-10 August 2001 and all correspondence with the defendant and Christopher Morris."on the grounds that:"access to records compiled in the receivership of Paragon are necessary to assist in quantifying the losses claimed as a result the defendant's actions."[2] On 17 September 2004 the plaintiffs filed an application for further and better discovery from Mr Stiassny and Ferrier Hodgson including:"detailed local phone records for the period of 23 November 2000 through 31 December 2001 and the numbering of all relevant discovery documents in their possession"and"immediately make available their computers for a Court-approved third party to retrieve all electronic correspondence"which related to the plaintiffs for the same period. The application sought an order that the non-parties meet the costs of compliance. The grounds on which the application was brought included:1. The files Ferrier Hodgson made available for inspection are substantially different from earlier representations by Ferrier Hodgson and McElroys. 2. The evidence suggests that Michael Stiassny and Ferrier Hodgson are being deliberately obstructive in failing to disclose documentation from Mr Stiassny's receivership of Paragon. 3. Ferrier Hodgson did not make available detail on local phone calls despite Ferrier Hodgson's legal counsel McElroys representations to the Court and the Plaintiffs that phone records would be made available. 4. McElroys delayed Plaintiff's inspection of the documents for two weeks upon the representation that they were waiting on phone records from Telstra Clear. When Plaintiffs were finally allowed to inspect the documents early this week McElroys provided the First-named first plaintiff with a "Memorandum" stating "There are no statements which detail individual calls made". This statement is not accurate according to a representative of Telstra Clear.5. McElroys would not allow Plaintiffs to obtain copies of the limited phone records that were available despite these records having the first three digits of each phone number erased. 6. Ferrier Hodgson provided no apparent discovery relating to Ferrier Hodgson taking legal advice in relation to Mr Stiassny's receivership of Paragon Oil Systems Limited despite representations by Mr. Stiassny of legal costs to the Court and legal advice in this regard to the Plaintiffs. 7. Other than one brief handwritten notation, there appears no record among Ferrier Hodgson's documents relating to discussions between Ferrier Hodgson and the Defendant over the purpose of receivership. Given that the Defendant was the one to recommend receivership to the Plaintiffs, he selected Stiassny as receiver, his close relationship with Stiassny and the substantial financial investment the first plaintiffs had in Paragon, the lack of any communication between these two on this issue is unfathomable. 8. The lack of documentary discovery by Ferrier Hodgson extends to an hour-long meeting at Mr. Stiassny's office on 19 February 2001, where the Defendant attended ostensibly as the first Plaintiff's lawyer. The Defendant is already under oath as saying he does not recall what was discussed at this meeting.[3] The claim itself is as described in the judgment of 18 July 2006:[5] The case revolves around the affairs of Paragon Services (then known as Paragon Oil Systems) and a dispute between the directors of that company in October/November 2000. [6] As a result of the dispute, Mr Fardell was instructed to act for Mr and Mrs Siemer. The plaintiffs plead he advised them to issue oppression proceedings under the Companies Act 1993 s 174 and seek the appointment of a Mr Stiassny as Paragon's receiver. They claim that, for a variety of reasons, the advice was negligent and in breach of Mr Fardell's duty of care to the plaintiffs and seek damages of $750,000 for the loss of technology, receivers' and other fees, refund of Mr Fardell's fees, plus company expenses and interest. [7] They also plead Mr Fardell was in an undisclosed conflict of interest capacity as regards the receiver and failed to disclose information to them to the detriment of their interests. In a statement of claim lodged on 7 November 2005 – but not "filed" because of the stay – the plaintiffs also claim Mr Fardell failed to inform them he was simultaneously representing Mr Stiassny and advised Paragon to sign a compromise agreement with the receiver which was disadvantageous to Paragon and that Mr Fardell advised Paragon to confirm the settlement agreement some six months later. That statement of claim particularised matters said to support that plea. [8] The latest claim also asserts that Mr Stiassny sued Mr and Mrs Siemer on 11 April 2005 claiming approximately $1m in damagesplus costs as a result of a claimed breach by those plaintiffs of the compromise agreement.[4] That summary of the claim demonstrates that, although Mr Stiassny and his firm, Ferrier Hodgson, have never been parties to this claim, their position has been somewhat closer than many other third parties against which discovery is sought. Indeed, Mr Siemer has made it clear on a number of occasions that, were it not for the compromise agreement, Mr Stiassny and Ferrier Hodgson would be parties to this claim. [5] Following a number of hearings on the third party discovery claim, on 14 March 2005 Lang J delivered a reserved judgment in which he ordered the plaintiffs to pay the non-parties' costs of discovery of $10,100 plus GST and disbursements of the amount claimed by Ferrier Hodgson and 85% of the fee charged by McElroys as their solicitors of advising them on compliance plus GST and disbursements. The dollar amounts claimed as recounted in the judgment were $20,219.78 for Ferrier Hodgson and $19,575.08 for McElroys although as noted in this Court's judgment of 18 July 2006 declining the plaintiffs' application to transfer the review of Lang J's judgment directly to the Court of Appeal, the total recorded in the judgment, $30,403.84, is arithmetically incorrect. The sums claimed, as set out in the judgment, actually totalled $39,794.86. [6] On 21 March 2005 the plaintiffs applied for review of Lang J's judgment. An amended application to the same effect was filed on 26 April 2006. In addition to seeking an order that Lang J's judgment be "quashed", it sought orders that the costs on the plaintiffs' non-party discovery application and the review be paid by the non-parties and the "non-parties' solicitor's conduct be referred by this Court to the Law Society for disciplinary action". The seventeen grounds listed in support of the amended application included:1. That Master Lang erred in fact and law. Moreover, Master Lang's ruling defied the facts before him and the law regarding discovery that he was sworn to uphold. 2. That Master Lang ignored overwhelming and clear evidence the non-parties were not complying with the discovery orders over four separate appearances before him. The Master's failure to allow the plaintiffs proper discovery in this context suggest a deliberate denialof the plaintiffs' rights that require a definitive ruling of a superior court. 3. That Master Lang failed to apply, or erred in his application of, the relevant legal principles in his determination regarding discovery compliance and costs, and his radical departure from recognized procedures occurred while apparently ignoring the weight of the evidence before him. 4. That Master Lang's radical departure from recognised discovery procedures unfairly prejudiced the plaintiffs and natural justice in the overall case. 5. That Master Lang made an error of principle by unfairly characterising and rejecting submissions made by the plaintiffs in a manner that could, in the eyes of an independent observer, give rise to an appearance of bias, or an element of predetermination by him. 6. That Master Lang's overall conduct over the course of four unsuccessful appearances by the plaintiffs seeking proper discovery from him give rise to the appearance of bias either in favour of the non-parties or against the plaintiffs, or both. 7. That the non-party has misrepresented to the Court the position regarding fees and photocopying. For example, the presentation of an invoice which was accepted by the Master as "actual costs incurred by the non-parties' solicitors" related to a charge of $249.92 for 1,371 copies when the Plaintiff requested and received only 111 copies. 8. That the third party and its advisers repeatedly withheld and impeded the discovery process of relevant records thereby causing unnecessary delays and additional costs which they then charged to the Plaintiffs. 9. That the non-parties' solicitors failed in their discovery obligation by faithfully fulfilling [sic.] the Court's orders and deliberately misleading the Court regarding availability of discovery and the related costs. 10. That Master Lang ignored overwhelming factual evidence of complicity by the non-parties in the defendant's actions as alleged in the plaintiffs' claim, including a extensive business and personal relationship that extended to the non-party Stiassny being the trustee owner of the defendant's home and cars. 11. The recovery of fees and costs is not meant to include any profit. The charge-out rate of $300 per hour for the Law Partner clearly includes substantial profit in addition to being excessive under the circumstances. 12. Counsel for the third party misrepresented matters to the Court which meant there were additional attendances and the plaintiffs were ultimately denied proper discovery. The plaintiffs should notbe required to pay when the non-party is allowed to deliberately thwart proper discovery. 13. Viewing the overall costs in an objective way, the charges claimed by the third party and their advisers were exorbitant and deliberately inflated to allow for some scaling down. The Court should not countenance such criminal overbilling and should show its displeasure by throwing out all requests for costs by the non-party and assessing costs against the non-party in favour of the plaintiffs. 14. That Master Lang has failed to provide a specific ruling as to costs associated with the Plaintiffs' application dated 4 August 2004 in relation to the third-party discovery. 15. That Master Lang has failed to provide a specific ruling as to costs associated with the Plaintiffs' application dated 17 September ;2004 in relation to the third-party discovery deficiencies. 16. That the Master premised his judgment on the need to view the matter overall in an objective way, yet he ignored the objective measures when rendering his judgment.[7] This judgment deals with the review application.Procedural(a) Up to 14 March 2005[8] It is pertinent to note what occurred in the lead-up to Lang J's judgment, stressing that what follows is derived almost wholly from the Court's voluminous file concerning this claim. [9] What follows may not refer to all documents the plaintiffs consider relevant. Identifying the various documents has not been helped by the fact the plaintiffs have acted for themselves throughout nearly all this matter and have regularly filed documents containing wide-ranging comments on what they see as live issues in the claim - not just the issue with which the memo was primarily concerned - couched in terms never encountered in documents filed by lawyers and which, were they filed by lawyers, would risk disciplinary or contempt proceedings. [10] On 24 August 2005 the non-parties filed a notice of opposition setting out the documents they were prepared to discover as being, in their view, relevant. It was conditional on the plaintiffs complying with a number of conditions including paying$14,000 into their solicitor's trust account to be held "pending the issue of an invoice for costs of complying" with the plaintiffs' application. An accompanying memo said the non-parties had found two boxes concerning the Paragon receivership and a number of telephone records which were suggested as relevant to the matter but opposed delivering full telephone accounts because they contained confidential information concerning other clients. It estimated the cost of providing discovery as being $3,000 for Ferrier Hodgson, $6,000 for McEloys' legal executive and $5,000 for solicitors' costs. [11] The plaintiffs' memorandum for the hearing on 27 August 2004 suggested the opposition and costs requests were "unreasonable and an attempt to exploit the situation to garner large fees" for reasons which the memorandum discussed including that it was :"Mr Stiassny's improper refusal to disclose records he acquired in the receivership of Paragon that is largely responsible for the necessity of this application"They sought an order for third party discovery on the basis that the plaintiffs :"only pay reasonable photocopying charges".[12] The matter was dealt with, along with other interlocutory applications, at a hearing on 27 August 2004 and in a Minute delivered on 30 August, Lang J said:[1] The purpose of this minute is to record the agreement that has been reached in relation to the plaintiffs' application for non-party discovery against Michael Stiassny and Ferrier Hodgson. [2] Mr Stiassny and Ferrier Hodgson have agreed to make available to Mr and Mrs Siemer all of their files in relation to the receivership. This will include all file notes and communications between Mr Staissny, Mr Garrett and Mr Fardell. [3] In order to minimise expenditure Mr Siemer is to inspect the two boxes of documents presently in Mr Hunt's possession. He will then meet the reasonable photocopying costs of any documents in respect of which he requires copies. [4] Mr Hunt is to remove from the boxes any privileged documents and is to place these in a sealed envelope. These are to be filed in Court and marked for my attention. I will then determine whether or not the claim to privilege should be upheld.[5] Mr Stiassny and Ferrier Hodgson will also make available for inspection by Mr Siemer all of their telephone records detailing calls from Ferrier Hodgson to either Mr Fardell or Mr Morris for the relevant periods. Again Mr Siemer is to be entitled to obtain copies of individual records provided he meets the reasonable photocopying costs. [6] Mr Siemer has today undertaken to me to meet the reasonable costs of Ferrier Hodgson and Mr Stiassny in relation to this application and in relation to the implementation of the orders. He therefore undertakes to pay the amount ultimately determined by this Court (and subject to any rights of review and/or appeal) to be payable to the non-party. [7] The applications will be called again in this Court on Friday 17 September 2004 at 12.30 pm. If possible Mr Siemer is to be provided prior to that time with a detailed breakdown of the costs claimed by the non-parties. If he accepts these, and if no other issues arise, both Mr Siemer and Mr Hunt will be excused from attendance on 17 September.[13] Aspects of that Minute which will require later consideration as Mr Siemer, at the review hearing, disputed there was any agreement between the plaintiffs and the non-parties despite the terms used by Lang J. [14] The matter was called again before Lang J on 17 September 2004. Non-party discovery had not gone smoothly in the interim. First, on 16 September 2004 Mr Hunt, counsel for Mr Stiassny/Ferrier Hodgson, filed a memorandum which relevantly read :2. Collating the various telephone records took longer than expected. On the morning of 10 September 2004, counsel forwarded an email to Mr Siemer advising the documents were available for inspection. He arranged to inspect 11am, 14 September 2004. At that time he inspected the hard copy files. 3. In relation to the telephone records, Ferrier Hodgson had blanked out three of the numbers of each seven number telephone record. This was to protect the confidentiality of client numbers. Mr Siemer requested copies of the accounts in that form. Ferrier Hodgson insisted that he mark the relevant entries, following which he would be supplied with a copy of that entry. Mr Siemer maintained that he did not have time to inspect the telephone records. He subsequently schedule a meeting for 10.30am, 16 September 2004. 4. On 14 September 2004, Mr Siemer forwarded the letter attachedmarked "A". In reply to sub-paragraphs 1-4, Ferrier Hodgson says that Mr Siemer has all relevant documentation from its files. If Mr Siemer wants an affidavit Ferrier Hodgson is prepared to swear alist of documents, but Mr Siemer will have to pay for the costs of preparing it. 5. On 15 September 2005, Mr Siemer sent the facsimile attachedmarked "B". When it first received the application for non-party discovery, Ferrier Hodgson made enquiries with Telstra Clear. Its response was that it should be able to provide details of outgoing calls. On 14 September 2004, Telstra Clear forwarded copies of invoices. Unfortunately these did not include itemised statements of local calls. Following receipt of Mr Siemer's 15 September facsimile, Ferrier Hodgson has again asked Telstra Clear for itemised statements of local calls. Telstra Clear is again looking into the matter. If such statements are provided they will be made available to Mr Siemer in the same manner as the other telephone accounts. 6. On 16 September 2004 at 11.10am Mr Siemer arrived for his 10.30am appointment. Mr Hunt had advised staff that Mr Siemer should not be given access to the documents without Mr Hunt being present. This was primarily because at the 14 September inspection Mr Siemer had videotaped the inspection. Ferrier Hodgson did not want the telephone accounts to be videotaped. Unfortunately Mr Hunt was delayed on an important telephone call. After waiting 10 minutes Mr Siemer, contrary to clear instructions, went directly into the inspection room. He seized the telephone accounts, refused to hand them back and refused to leave the room. He was eventually persuaded to do so and was again assured that Mr Hunt would be available shortly. However he left the office immediately. 7. Prior to leaving [on] 16 September, Mr Siemer delivered the letterattached marked "C". The explanation to Mr Siemer's question is that on prior occasions he was given access to Company, not receivership, documents. He now has seen both. 8. Further time will be required to arrange for Mr Siemer to inspect the telephone records. Counsel suggests a further two weeks.Relevant passages of Mr Siemer's letters attached to Mr Hunt's memorandum, first, raised possible omissions of documents concerning discussions including Mr Fardell QC; secondly, disputed Telstra Clear's ability to provide the telephone records and, thirdly, asserted the Paragon receivership files inspected on 14 September were substantially different from the files inspected at McElroys on 14 May 2002 coupled with demands for an explanation and that :"you bring these entire files to the hearing on Friday".[15] The plaintiffs, however, filed the 17 September further application earlier mentioned together with an affidavit by Mr Siemer detailing the reasons for the letters he had sent McElroys. This was accompanied by a memorandum in whichMr Siemer said that the non-parties had "made misleading misrepresentations to the Court" and that, as a result "we consider that the absence of an affidavit by Mr Stiassny in support is telling." [16] The matter came before Lang J on 17 September 2004. He adjourned it so that McElroys could obtain Telstra Clear's toll records and again directed the documents held by the firm be deposited with the Court. The parties had leave to apply to vary those directions on 24 hours' notice. [17] The matter still continued to be fractious. [18] On 23 September McElroys advised the Court that Ferrier Hodgson/Mr Stiassny would deposit the hard copy files which had been available to Mr Siemer but would not permit the plaintiffs full access to the telephone records because it was claimed that he had :" communicated with clients of the firm, being persons or entities with which he has no association, in a manner which Mr Stiassny and Ferrier Hodgson regard as defamatory."The memo proposed to provide all the records for the period but deleting at least three digits of each telephone number and then providing the record to the plaintiffs and photocopying the entries wanted. [19] More pertinently for present purposes, on 26 October 2004 Mr Hunt filed a memorandum reflecting Lang J's record of Mr Siemer's undertaking on 27 August 2004 to meet the reasonable costs of Ferrier Hodgson and Mr Stiassny in relation to this application and in respect of the implementation of the orders and any costs of compliance. He attached a letter from McElroys to the plaintiffs of 8 October 2004 which forwarded McElroys' and Ferrier Hodgson's fee notes. The letter assured Mr Siemer that he had "not been charged for costs that do not directly relate to the application for non-party discovery", photocopying was charged at 30 cents per sheet (and included the documents filed in Court of which McElroys had kept working copies) and set out, over some nine paragraphs, an explanation for the total charged. As they are central to the review, copies of the accounts are annexed to the signed copy of this judgment.[20] The plaintiffs' memorandum of 22 October 2004 was phrased as an additional application for further and better discovery from the non-parties, claiming that "Michael Stiassny and his solicitors have repeatedly violated the substance and spirit" of the orders made and now wished to "divert attention away from Mr Stiassny's contempt of the Court's orders but focusing on reprehensible fee charges and how difficult this discovery process is for them". The affidavits, it was suggested, supported "an order that Mr Stiassny be found in contempt and ordered to personally appear before this Court to explain" and, secondly, that the firm preserve their "computer hard drives for the receivership period of 23 November 2000 thru [sic.] November 2001 and make these available for forensic retrieval" as being the "only means available to the plaintiffs to counter Mr Stiassny and his solicitor's deliberate and calculated attempts to withhold evidence and unduly obstruct these proceedings." [21] Lang J's Minute of 27 October 2004 recorded :[1] A hearing was convened today in order to discuss outstanding issues in relation to non-party discovery. These can be summarised as follows :(i) Telephone records[2] Mr Siemer has not yet inspected a number of telephone records held by Ferrier Hodgson. These were not deposited with the Court as directed in my Minute dated 17 September 2004. Ferrier Hodgson were reluctant to part with possession of the records because of their fear that Mr Siemer would attempt to contact clients whose telephone numbers appear on the records. [3] It has now been agreed that three digits will be deleted from each of the telephone numbers referred to in the records. Mr Hunt will then deposit the records with the Registrar of this court no later than 9.30am on Monday 8 November 2005. Mr Siemer is then to inspect the records and is to highlight those records in respect of which he wishes to obtain a copy. He shall be entitled to take notes of the date and time of each of the telephone calls in respect of which he wishes to obtain a copy. (ii) Electronic records printed from database[4] These have been put together in a bundle and will be deposited with the Court no later than 8 November 2004. They will remain in the custody of the Court together with the other documents that have already been deposited.(iii) Logs of emails and faxes sent[5] At this stage Mr Siemer does not wish to obtain these.(iv) Telstra Clear records[6] These are available but will be costly to capture. Mr Siemer does not wish to incur the expense of obtaining these records at this time.(v) Ferrier Hodgson's electronic database[7] Mr Siemer does not accept that the text of emails sent between November 2000 and November 2001 will be difficult to obtain. In particular, he does not accept that it will be necessary to restore backup tapes in order to obtain access to the text of those emails. [8] Mr Siemer is to instruct his own expert and that expert is to liaise with Ferrier Hodgson's in-house computer expert, Ms Judy O'Callaghan. Mr Siemer's expert should be in a position to contact Ms O'Callaghan during the week commencing 8 November 2004 and to complete his or her inquiries within approximately 10 days of that date. Any further affidavits by Mr Siemer and/or his expert regarding this issue should be filed and served by 22 November 2004. Any affidavits in response are to be filed by 27 November 2004.Next event[9] A further hearing will be held on 29 November 2004 at 3 pm (one hour allocated). The purpose of that hearing is to consider compliance with the above directions, to ascertain whether any further directions need to be given in relation to the emails and to finally consider the issue of costs. [10] I record that today's hearing has occupied one hour.[22] Prior to the conference on 29 November 2004, Mr Hunt filed a memorandum noting the deposit of the telephone records with the Court, differentiating between those to which the non-parties accepted the plaintiffs were entitled to access and those where access was contested. Ferrier Hodgson had discovered records for the relevant periods but if the plaintiffs wanted more discovery they should specify what was required and "confirm he will pay for the associated costs". After commenting on other aspects, it sought orders that Stiassny/Ferrier Hodgson had complied with all their obligations and sought an order for the plaintiffs to meet the costs. [23] Mr Siemer had lodged a letter with the Court on 9 November 2004 saying the phone records had not been deposited as ordered though he had inspected a number of documents that day. An affidavit of 29 November said the non-parties had failed to discover details from a number of meetings involving the non-parties andMr Fardell and documents relating to a communication about 20 February 2004. That was followed by a memorandum dated 25 November 2004 saying :THIS IS THE PLAINTIFFS fourth appearance in this non-party discovery application. At each appearance the Associate Judge has used the occasion to remind the Plaintiffs that they are increasing their costs to the non-party and their solicitors by their continued pursuit. These statements are not lost on the non-party's solicitors and the Plaintiffs consider that the non-parties resistance to proper discovery and ultimate non-compliance is the result.The memorandum went on to assert failures by the non-party to discover telephone records as a result of "deliberate deception regarding the availability" of the same, an assertion that the non-party has "falsified contemporaneous notes" of 15 December 2001 and May 2001 and failed to discover any record of a meeting on 19 February 2001, a demand letter of 23 February 2001 and a number of facsimiles and concluded :The Plaintiffs record they are frustrated that after so many appearances they have been thwarted in their discovery attempts and now consider this discovery application is futile, the continued pursuit of which will serve only to infringe upon their necessary preparations for trial. The Plaintiffs request the Court simply rule that the non-party is not in compliance of its discovery order so that all parties can move on. This will no doubt be a matter for consideration with respect to the question of costs.[24] Lang J's Minute of the hearing on 29 November 2004 dealt with the competing assertions that discovery by the third parties was or was not complete. It is unnecessary to quote the Minute in full but it dealt with the claims of incomplete discovery of telephone records by saying that records outside periods in the original application could be provided "but at a further cost" to Mr Siemer, going on to say that "Mr Siemer has elected not to take this issue further." [25] The suggested falsification of the contemporaneous notes was not a matter the Judge could decide on the minimal records before him, an observation that also applied to the suggested failure to discover notes concerning the 19 February 2001 meeting where the non-parties said no notes had been taken. The demand letter was said to be in the bundle of documents deposited with the Court so that, through computer records, Mr Siemer had obtained a copy. The non-parties were ordered to search their records within 14 days, at their cost, to endeavour to ascertain a faxed letter of 20 February 2001. Given that all documents were deposited in the Court inaccordance with the Judge's direction – though late – he held it was not appropriate to take that matter further. He was satisfied the non-parties had provided complete discovery of their Telecom records. The Telstra Clear records were available but at a "substantial" cost and the Judge recorded that "Mr Siemer has not been prepared to commit himself to meeting that cost" so the records had not been supplied. [26] The Judge said he would determine the costs of the application on the papers following submission of the invoices. [27] In a memorandum of 2 December 2004 Mr Hunt advised the 20 February 2001 fax had been misfiled by Ferrier Hodgson and lodged a copy in Court. He again submitted copies of the invoices for a ruling. [28] The plaintiffs, however, filed a memorandum on 3 December 2004 saying:"The Plaintiffs' position was and continues to be that the non-party is in contempt of the Court's discovery orders and therefore is not entitled to any payment. Four appearances before this Court have given the non-party plenty of opportunities to provide proper discovery. The Plaintiffs never agreed, and never would have agreed, to allow the non-party to provide only the discovery of their choosing - which has clearly been the case to date. While Michael Stiassny is not a litigant in this proceeding Your Honour is keenly aware that he is the wolf that the Defendant allegedly threw the Plaintiffs significant investment to. It has been accepted that Mr Stiassny and the Defendant have a long personal and business association that was never disclosed to the Plaintiffs. Under these circumstances, the non-party's selective discovery as demonstrated to the Court is particularly egregious and prejudicial. We note again for the record: 1) There was more than the singular failure to disclose facsimiles as mentioned in Your Honour's minute of 30 November 2004. Because the Court refused to compel the non-party to provide a properly numbered list or appear for examination after their discovery failures were first identified to the Court, as the Plaintiffs petitioned, the Plaintiffs were unable to properly reference all these failures to the Court but did make it known that this 20 February 2004 [sic.] facsimile to the Defendant was just one example.2) The Court was informed of the non-parties discovery of falsified contemporaneous notes. In the face of such deliberate deception by the non-party, the Court's refusal to compel a properly numbered and sworn list, examination of the non-party or sealing of the discovery – actions all requested by the Plaintiff – made it clear tothe Plaintiffs that the Associate Judge was not prepared to compel the non-party to provide proper and full discovery and that there would be little point in pursuing it.3) The non-party has previously charged the Second Plaintiff for over 1,700 photocopies during their receivership of the Second Plaintiff. The discovery on deposit with the Court is wholly inconsistent with this level of duplication. It perhaps gives an insight into the way in which the receiver bolsters his charges.4) The Telecom invoice for January 2001 provided in the non-parties discovery – which has now vanished from the Court – was not a cell phone record as claimed by Mr Peter Hunt in Court on 29 November 2004. Further this misrepresentation by Mr Hunt could not be disproved because he had previously been allowed to retrieve the phone record discovery from the Court – this despite the Plaintiffs informing the Court of the phone record deficiencies on 9 November 2004, while the phone records were still in possession of the Court.5) The affidavit filed with the Court by the Plaintiff on 29 November demonstrates Mr Hunt deliberately lied about the unavailability of the local call detail by the non-party. After this lie was exposed, the cost of providing this detail by Telstra went from no cost to over $4,400. On 29 November 2004 Mr Hunt told Your Honour that this cost discrepancy was due to the array of people at Telstra the non- party was in discussion with over the availability of this detail and the conflicting representation as to costs from these various people. It is a matter of record that this representation by Mr Hunt is in direct conflict with Exhibit 'A' in the affidavit by Mr Alan Garrett dated 8 October 2004. In light of these repeated deceptions by the non-parties solicitor the Plaintiffs had no confidence in ever obtaining a full disclosure on the phone records sought and do not consider that it is proper in these circumstances for any costs to be awarded.6) The non-party charged the Second Plaintiff for 7.3 hours of 'meetings' between the First Plaintiff and the Defendant for the week of 23 February 2001 yet discovered no documentary evidence of these meetings other than their fee charges. Again, the Court's refusal to compel the non-party to provide a sworn list or appear to be examined over this possible failure left further uncertainty over the completeness of the non-party discovery, was prejudicial to the Plaintiffs case and served as another reminder to the Plaintiffs that pursuit of proper discovery from the non-party was a futile exercise.7) Lastly, there is the outstanding issue of costs which the non-parties have submitted to the Court. We have to question why the non- parties solicitors think it proper to submit such outrageously inflated invoices to the Court for approval – arguably 10 times what would be proper had the non-party properly complied with discovery in a timely manner. Close examination of the invoices prove the time spent by the non-party and their solicitors had little to do with the discovery actually requested and provided and much more to do with an orchestrated effort to thwart proper discovery and run up fees. This serves as further evidence of the intimidating andbelligerently defiant tactics by the non-party and his solicitors, extensively documented in the numerous affidavits by the Plaintiffs and various witnesses on file with the Court. The attempts to inflate the fees should be dealt with severely and the parties left to bear their own costs.(b) Judgment under review[29] Lang J's reserved judgment of 14 March 2005 summarised the history of the application as follows (paras [2]-[5]):[2] [The plaintiff] sought access to a wide range of documents likely to be relevant to this aspect of the claim. These included not only Ferrier Hodgson's files relating to the receivership but also all other documents (including correspondence, telephone records and electronic records) likely to show the existence, and strength, of any relationship between Mr Fardell and Ferrier Hodgson. [3] The application was initially opposed, principally on the ground that the non-parties were unclear as to the scope of discovery that was sought. Ultimately, however, the non-parties agreed to co-operate in providing discovery of all of their files in relation to the receivership. These included all files notes and communications between Mr Stiassny and Mr Fardell. They also agreed, sometimes with the assistance of directions given by the Court, to provide most of the other material sought by the first plaintiffs. At the hearing on 27 August 2004 I ordered discovery to be given by the non-parties in terms that were designed to minimise the cost of complying with the order. These orders were supplemented by directions given at later hearings. [4] At the hearing on 27 August 2004 Mr Hunt also sought an order requiring the first plaintiffs to pay the reasonable costs incurred by the non-parties. I did not accede to that request at the time, but I recorded in a minute dated 30 August 2004 that Mr Siemer had undertaken to pay the amount ultimately determined by the Court (and subject to any rights of review and/or appeal) to be payable to the non-parties. [5] Further hearings were held on 26 October and 29 November 2004. These dealt with further issues raised by Mr Siemer, as well as complaints made by him regarding the adequacy of compliance by the non-parties with the Court's orders.[30] The judgment then summarised the costs sought and noted that R 303 gives the Court power, if it thinks fit, to order applicants to pay non-parties from whom discovery is sought "the person's expenses (including solicitor and client costs) of and incidental to the application and in complying with any order made".[31] In reliance on relevant authority, Lang J held that the "intention is to reimburse the non-party for all his expenses and not merely his solicitor and client costs" including "a reasonable amount for time and labour expended in complying with the order" (at para [11] citing AMP Society v Architectural Windows Limited[1986] 2 NZLR 190, 203, Berryman Properties Limited v Colonial Mutual General Insurance Co Ltd (1987) 1 PRNZ 196, 197, McGechan on Procedure paras HR203.01, 303.03, p 1-1524,1525). [32] The Judge went on to note that "full recovery of costs is not, however, automatic" because the Court must decide whether the costs claimed are reasonable (at para [12]). [33] He dealt first with the legal costs incurred by Ferrier Hodgson, ordered that the account for photocopying of $249.92 was reasonable and should be paid without deduction and then noted the claim that McElroys' invoices were for fees charged solely for the time spent by partners and staff, principally Mr Hunt, on the file with time records having been provided. He approved Mr Hunt's hourly charge-out rate of $300 and said (at paras [18]-[21]):[18] I am also satisfied that it was necessary for a person of Mr Hunt's seniority to be involved in virtually all facets of the application for and compliance with the order for non-party discovery. The application involved difficult issues, many of which continued to develop and broaden in scope after the initial orders were made. [19] In addition, the non-parties and their advisers cannot be criticised for adopting a cautious approach in their dealings with Mr Siemer. They would have appreciated from the outset that Mr Siemer was likely to insist that every aspect of the Court's order was complied with. For that reason they were justified in ensuring that the nature and scope of the proposed order were clear. [20] The non-parties' concern regarding the scope of the order warranted the filing of documents in opposition to the application. Thereafter, however, the application was not opposed and orders were made that protected the interests of the non-parties (and their clients) so far as that was possible. [21] The non-parties cannot in my view be criticised for the manner in which they dealt with the initial application.[34] Turning to the non-party's costs of compliance by way of legal costs, the Judge noted that the application was opposed because of the breadth of the ordersoriginally sought, the large number of documents which needed review, the "very time-consuming task" in obtaining telephone records from an outside agency and camouflaging client details from internal telephone records, time spent in preparing the documents for inspection, correspondence from the plaintiffs which "continued to raise further issues and thereby potentially widen the scope of discovery" involving the viewing of ten large files and the "very serious" allegations made against the non-parties including "over-charging, making misleading representations" (at para [23]). Then, after noting that he had been unusually closely involved with the proceeding, he held (at paras [25]-[27]):[25] I record also that I was concerned from the outset that in pursuing the application for non-party discovery the first plaintiffs were potentially exposing themselves to a very large award of costs. I raised this issue on several occasions with Mr Siemer. I stressed to him the importance of ensuring that he co-operated in the discovery process so that it was completed at a minimum of cost. Given the amount that is now claimed, it is obvious that my initial concern was justified. [26] I accept that the summary provided by McElroys explains why the final claim for legal costs is so large. Mr Hunt has been required to deal with a discovery exercise that was complex, time consuming and difficult. He was required to supervise the collation of a wide range of documents from both internal sources and external agencies. He had to protect the confidentiality of Ferrier Hodgson's clients. He had to give consideration to the legal and practical ramifications of electronic discovery. He had to arrange for some documents to be delivered to the Court and for others to be inspected at his office by Mr Siemer. He also had to deal with the demands and complaints made by Mr Siemer. Many of Mr Siemer's complaints were very serious, and had to be given careful consideration. I am therefore not surprised that compliance with the orders has led to substantial legal costs being incurred. [27] Viewing the matter overall, I am not able to say that McElroys' charges are unreasonable. I have a residual concern, however, that Mr Hunt's dealings with Mr Siemer may have led him to be "over cautious" to some degree. This may be reflected, for example, in the fact that considerable time has been spent in reviewing (and re- reviewing) records. It is possible that some of these attendances may not have been strictly necessary. On this point I am prepared to give the first plaintiffs the benefit of any doubt that may exist. To recognise this factor I therefore propose to allow reimbursement of the costs charged by McElroys in full, subject to a deduction of 15 per cent in the total fee charged (exclusive of GST). The non- parties are also entitled to be reimbursed for GST on the final fee, together with disbursements as already invoiced by McElroys.[35] The Judge then turned to Ferrier Hodgson's costs claim, approved the $176.00 claimed for support staff, accepted that senior staff were required to deal with the matter and then reminded himself of the necessity to ensure the charge-out rate ordered was reasonable. The Judge referred to his considerable experience of accounting firms' fees through regular approval of liquidators' remuneration. The charge-out rate claimed of $310.00 per hour was "likely to contain an element of profit" which went beyond R 303 leading the Judge to conclude (at para [38]):[38] In my view the sum of $10,100 exclusive of GST would provide Ferrier Hodgson with reasonable reimbursement for its expenses in complying with the order. It reflects 56.9 hours by senior staff (at the rate of $175 per hour) together with the time spent by support staff. I make an order accordingly. Ferrier Hodgson is also entitled to GST on that sum, together with disbursements as already invoiced.[36] The judgment concluded with Lang J reserving leave to both parties to "file memoranda in the event that any difficulty should be encountered in converting my decision to arithmetical figures". It does not appear that either party ever sought leave in that regard, even despite what appears to be clear arithmetical error in the judgment.(c) After 14 March 2005[37] At about that time the file was assigned jointly to Lang and Williams JJ. The latter arranged a telephone conference on 2 March 2005 at which the four day fixture for the substantive proceeding then set to commence on 4 April 2005 was vacated and the Registry was asked to allocate a ten day fixture. The minute recorded the plaintiffs' attempts to engage counsel to represent them at the substantive hearing. Directions were made to lead to two fixtures for outstanding interlocutory matters. [38] By the time of a conference held on 27 April 2005 the substantive claim had been allocated a fixture for 10 days beginning on 7 November 2005. That day's minute recorded that a formal application would be required if the plaintiffs wished to have Lang J recused from further involvement in the case. Timetable orders were made and the question of a fixture for the review of Lang J's judgment was set for reconsideration at a conference on 17 May 2005. That followed the filing ofmemoranda by Mr Siemer expressing concern at the prospect of Lang J hearing the plaintiffs' application to commit the defendant for contempt (or arrest) and a memorandum on behalf of the defendant seeking orders barring search of the Court file and expressing concerns about misuse of discovered documents. [39] Those latter issues – and others – were addressed by the parties in memoranda filed on 13 and 16 May 2005. However, since those focused principally on issues between the parties, they are irrelevant for the present purposes. [40] It is, however, pertinent to note that in the minute issued on 19 May 2005 concerning discussions at a conference two days earlier, a direction was made for a half day fixture for the hearing of the plaintiffs' review application on a date to be allocated by the Registrar. Timetable orders were made in relation to the substantive hearing and the fixture for the contempt application. [41] On 23 May 2005 the plaintiffs filed a request that they be permitted to video tape the contempt proceedings against the defendant. That was opposed and the application declined by Lang J in a decision on the papers delivered on 14 June 2005. [42] On 17 June 2005, Lang J heard a number of issues relating to the adequacy of the defendant's discovery and an application for further discovery. All those applications were dismissed in a reserved judgment delivered on 22 June 2005. [43] On 30 June 2005 (date stamped by the Court 4 July 2005), the plaintiffs sought adjournment of the substantive fixture. That was opposed and dismissed in the plaintiffs' absence in a minute delivered on 12 July 2005. [44] The plaintiffs experienced further difficulties in arranging representation. It is unnecessary for present purposes to recount those difficulties, save to note that in a minute issued on 26 August 2005 of a conference held on 16 August 2005, the plaintiffs' application to vacate the substantive fixture was again declined as was a further application filed on 29 August 2005 and declined, in a conference convened urgently prior to Mr Siemer's return overseas, on 1 September 2005.[45] The fixture was, however, vacated at a telephone conference on 28 September 2005, partly because the plaintiffs wished to bring a further application for discovery, but principally because the plaintiffs had been unable to obtain legal representation despite their efforts in that regard and notification to them at an early stage of the claim that, although they were free to act for themselves at the hearing, they would be unable to represent Paragon. The proceeding was stayed until the plaintiffs or counsel instructed to act for them notified the Court the plaintiffs had legal representation. [46] The plaintiffs' further discovery application was heard on 10 November 2005 but dismissed in a judgment delivered on 21 November 2005 other than requiring Mr Fardell to file a further affidavit covering the matters set out in the judgment. However, the defendant died on 11 December 2005 when the affidavit was in draft but unsworn. [47] The position by the end of 2005 was therefore that the claim was formally stayed – other than to the extent that Mr CS Henry had advised Mr Siemer on 10 November 2005 that he was willing to accept instructions:Subject to the anticipated trial being scheduled to permit adequate time for me to become fully acquainted with the details of the case and to prepare for trial, and subject also to our agreement on the terms of representation.[48] In those circumstances, whilst it is regrettable that the Registry had not allocated the directed fixture for the review application, the attentions of the parties and Williams J had been distracted by the numerous other issues concerning the substantive claim briefly summarised above. The Registry's failure to allocate a fixture for the review application is the more regrettable since it came to notice during preparation of this judgment that, when Mr Hunt filed a memorandum on 9 February 2006 seeking a fixture for both the review application and the plaintiffs' application to transfer the review application directly to the Court of Appeal, he attached a number of letters from his firm to the Registry between 26 April 2005 and 22 November 2005 seeking a fixture for the review application. It seems those letters were not actioned by the Registry or were not able to be actioned due to Williams J's other commitments. Other reasons may include the factors appearing in para [5] of the Minute of 28 November 2006:Williams J understands the Registry has allocated a fixture for the recusal application for early 2007. The delay in hearing the matter is regrettable, particularly having regard to the date of the substantive fixture. It is, however, inevitable given the parties' indication that at least a half day will be required to hear the matter. Hearings of 1-1½ hours starting at 8:30am or 9:00am can be accommodated by Judges around their other sitting commitments, but longer fixtures require to be allocated by the Registry schedulers. That almost inevitably involves delays in hearings, particularly with files assigned to particular Judges.[49] That memorandum resulted in a telephone conference on 9 March 2006. It was preceded by the filing of memoranda with that from Mr Siemer commenting on a number of issues between the parties but including the following passages referable to the review application: the plaintiffs have now been waiting a year, and have filed two separate applications, to get their appeal of Master Lang's unconscionable third party discovery judgment heard – with no hearing date in sight. Master Lang refused to allow numbering of discovery documents of the third party Michael Stiassny in this case – this despite strong evidence being presented that proper discovery was not being provided. He chose instead to blame the plaintiffs for pointing out the obvious discovery failures. The plaintiffs have a digital videotape of the document inspection that will prove hugely embarrassing to this court considering the fact that Master Lang refused proper discovery, particularly now that Stiassny is suing the plaintiffs for over a million dollars. Then there is the issue that the plaintiffs specifically requested Your Honour inspect the Stiassny/Fardell financial payments/exchanges to determine relevance to discovery in these proceedings only to be lectured on the lawyer client privilege of Stiassny and Fardell, with the reserved ruling requiring the plaintiffs must make yet another application to see this done. Notwithstanding all this, the third party wants the $29,678 that Master Lang ruled the plaintiffs should pay them for discovery despite clear evidence that some charges their solicitors have submitted to the Court do not even pertain to this case. If anything, this scam is further evidence of the pattern of inflated overcharging that is at the centre of our case with Stiassny. The plaintiffs' application to transfer the appeal of Master Lang's judgment on the third party costs is expected to require 2-3 hours. In addition to Justice Williams being part of the delay in having this matter heard, they request this application also be heard by an impartial judge from outside Auckland. If the trial was ordered today in the wake of this cesspool of discovery and rule failures, it is submitted that any judgment going against the plaintiffswill have little chance of being upheld on appeal. For this reason alone, the plaintiffs would agree with the defendants' grounds that this is "an embarrassment to the defendant and is causing delay". The defence can search for arcane rules or exceptions to rules in seeming justification for their efforts but rules that do not apply evenly and serve merely to defeat justice are drivel. The plaintiffs respectfully submit that no greater disrespect can be shown to this Court and the cause of justice than to deceive or otherwise deliberately promote falsehoods to Your Honour and this Court. The plaintiffs have not lied to or misled this Court. The same cannot be said about the defence and third party. It is submitted that by aggressively perpetrating frauds upon this Court, the defence and third party have made it clear how little regard they hold for the cause of justice in general and this institution in particular.[50] The Minute of the 9 March conference: a) Noted Mr Henry was no longer acting for the plaintiffs; b) Made a formal order substituting Mrs Fardell as executrix of Mr Fardell's estate as defendant in the claim; c) Directed the Registry to allocate a one day fixture for the hearing of the review and transfer applications; d) Directed the Registry to allocate a one day fixture for the hearing of the defendant's stay rescission and dismissal application; e) Commented on the plaintiffs' suggestion that Williams J voluntarily recuse himself from further involvement in the claim and the case be assigned to a Wellington or Christchurch Judge. [51] Because, obviously, the application to transfer the review application into the Court of Appeal needed to be heard and determined before the review application itself, a fixture was made for the former for 19 June 2006. [52] On 10 April 2006 Mr Siemer filed a memorandum saying:"In the interests of ensuring justice and accuracy, the plaintiffs wish to inform the Court that they will be videotaping the hearing of their application to transfer their 21 March 2005 appeal of Master Lang's14 March 2005 judgment to the Court of Appeal, recently set down for 19 June 2006 before Justice Williams. This action is deemed necessary due to Justice Williams' insistence upon hearing the matter despite His Honour being largely responsible for the plaintiffs' inability to have this judgment appeal application heard in over a year -–and this is one of the reasons given in the plaintiffs' application to now transfer the matter to the Appeal Court. Moreover, the incontrovertible fact is that Hugh Williams' Minutes so far in this case are at odds with the well-known and documented facts presented to him. His Honour's inaccurate and blinkered accounts have universally been to the detriment of the plaintiffs and of assistance to the defendant – the defendant being a fellow Queens Counsel who recently committed suicide after years of deceiving his clients. In providing this Memorandum, the plaintiffs respectfully submit that there is no honour in a judge with a personally vested interest in the outcome of an application hearing the matter. And it is submitted that there is nothing disrespectful in anyone pointing out such a situation. That Justice Williams himself sees no conflict in his continued participation should be alarming to the most forgiving litigant.[53] After Mr Hunt's view had been obtained, the Court issued a minute on 5 May 2006 saying videotaping would be considered at the hearing on 19 June 2006 but the plaintiffs could expect dialogue "concerning any copying and usage the plaintiffs wish to make of their proposed videotaping". The order was granted on 19 June 2006 subject to conditions. [54] The transfer application was dismissed in a reserved judgment delivered on 18 July 2006 and the Registry was then directed to set down the review application for a half day fixture at a time which suited all those involved. [55] In the meantime, in a further reserved judgment delivered on 18 July 2006, the defendant's application for rescission of the stay was granted and the Registry was directed to arrange a two week fixture for the substantive hearing as soon as could conveniently be arranged. [56] Those applications were heard on 19 and 26 June respectively and delivery of those judgments delayed until shortly before Mr and Mrs Siemer's return from overseas so as to ensure the plaintiffs had sufficient time to take any further action concerning those decisions they thought appropriate.[57] Those participating in a telephone conference on 22 August 2006 were advised by Mr Siemer that an appeal had been filed against refusal of the transfer application and that Mr B Henry had been instructed on that matter. No copy of any notice of appeal was on the file. Mr Siemer's memorandum for that conference said the transfer judgment lent support to Lang J's review judgment because:(4) Williams J's comments in support of the ruling currently under active appeal – but contained in his judgment dated 18 July 2006 – purport to rely upon specific legal precedent he then went so far as citing in defence of the judgment under appeal, despite his conclusions falling outside the purview of the hearing AND despite an incontrovertible record that showed the plaintiffs were denied a numbered discovery list of any kind and were denied a sworn list of any kind from the non-parties. (5) Furthermore, these conclusions were offered by Williams J despite not one, but two separate applications by the plaintiffs for non-party discovery, in circumstances where the Court: (a) had prior recognized that the non-party discovery was relevant and the plaintiffs were entitled to it, (b) had prior recognised that relevant non-party discovery was nonetheless NOT being provided, and (c) had prior acknowledged there was a history of conflict and suspicion between the parties. (6) Moreover, these judicial actions that fail to acknowledge the established facts and relevant laws suggest there is an ongoing cost to all parties, including the Court itself, in maintaining the status quo in the conduct of these proceedings. (7) The plaintiffs respectfully submit that the distortion of justice in this case has become so vulgar as to negate even a remote appearance of justice being possible without strident intervention from the Court itself.[58] The Minute of that conference noted that making of a substantive fixture would need to await resolution of the plaintiffs' representation question. [59] After noting the lack of any formal notification of an appeal against the transfer judgment and after Mr B Henry had advised he was not instructed in the matter, the Registry was directed on 1 September 2006 to arrange a fixture for the review hearing.Submissions on Review Application[60] Mr Siemer commenced his submissions at the 2 October 2006 hearing by saying the Court was well aware that Mr Stiassny and Ferrier Hodgson would have been defendants in this claim had they and Mr Fardell not "unduly coerced a legal absolution from prosecution for their alleged misconduct in the receivership of Paragon", a submission he supported with reference to issues in the substantive claim. The submissions then asserted that Williams J "repeatedly refused to hear the review application" and "was attempting to unjustly bury" the same. [61] Mr Siemer then dealt with aspects of the transfer refusal judgment, describing as a "utter load of rubbish" the citations in that judgment of Hunyady v Attorney- General [1968] NZLR 1172 and Attorney-General v Wang NZ Ltd (1990) 2 PRNZ 245. Those references were the basis for Mr Siemer's earlier submissions in memoranda that the transfer refusal judgment lent support to Lang J rulings. Mr Siemer's submissions continued by asserting that the transfer refusal judgment "set the precedent that unnumbered and unsworn lists of documents constitute proper discovery". It was pointed out to Mr Siemer at that stage of the presentation of his submissions that the references had been included to give an indication to the plaintiffs as lay litigants that an argument may have been available to them on the non-party discovery application which had not hitherto been pursued. [62] The submissions then stated:The facts known to Williams prior to his spurious 18 July 2006 ruling, included:1) The non-parties were specifically excluded from providing proper discovery by Master Lang, Lang exempting them both from swearing and from numbering a list. 2) The plaintiffs had filed two separate applications for proper discovery from the non-parties, specifically asking for a numbered and sworn list and specifically noting that key documents were missing from the exempted non-parties 'discovery'. 3) The court record is clear that the non-parties failed in their legal obligations to provide proper discovery, that Master Lang was repeatedly notified of this failure and that the Lang Court itself wasin agreement that relevant documents were not provided as originally ordered. 4) Lang had acknowledged at the onset that distrust between the plaintiffs and non-parties was mutual – yet he still repeatedly exempted the non-parties from proper discovery that even he had ruled as relevant. This background further demonstrates that because Williams J is not accountable to anyone, he has chosen to shove the fact that he can pervert the law and is personally above the law in everyone's face.[63] The submissions then continued, in what was said to be "righteous indignation":"Granting Williams J every benefit of doubt, the plaintiffs initially considered that Williams J was innocently biased; i.e. he simply could not fathom that Robert Fardell and Michael Stiassny were guilty of such blatant deception alleged to have resulted in an untold loss of jobs and to the Country, as well as the financial losses to the plaintiffs. Not that this would excuse the conduct of a judge who is supposed to be open-minded and equitably apply the law, but it would nonetheless be a human frailty that was understandable. But when it became obvious that this was not the case (note: Williams has been involved in the case for a year and a half and has spent countless hours pouring [sic] over the file), the plaintiffs are justified to be repulsed. This is truly an example where one can show no greater respect for the rule of law and the Courts than to show contempt for a judge who has fundamentally acted unlawfully, breached his oath of office and betrayed his Country and its citizens in the process."[64] The submissions then commented on discovery by the defendant and further personal observations about the Judges involved in the interlocutory stages of this case. As those issues do not bear on the merits of the review application, they are put to one side. [65] Also to be taken into account on the review application is an affidavit sworn in support by Mr Siemer on 21 March 2005 which, in essence, rehearsed the history of the non-party discovery application before Lang J and exhibited a number of the documents filed by the plaintiffs and earlier reviewed. The affidavit did, however, say that as a result of the four appearances up to and including 29 November 2004 "it became apparent to me that Master Lang was not prepared the entertain the prospect that third party and their counsel were not abiding by the discovery requirements" and continued:7) My conclusion was reinforced by Master Lang's refusal to: (a) Require the third party to properly number and swear his documents. (b) Allow the plaintiffs to examine Mr. Stiassny under oath regarding detailed discrepancies in the discovery when they became apparent. (c) Allow sealing of the third party discovery after the third party discovery deficiencies were identified. All of the above actions having been requested of the Master by the plaintiffs. 8) As a result, the plaintiffs abandoned any hope of obtaining proper discovery from the third party on 29 November 2004. [66] It is also pertinent to include the following passage from Mr Siemer's affidavit:11) I take issue with a number of the statements made in Master Lang's judgment as they deviate from the known facts. In particular – (i) Master Lang speaks of "allegations" raised by the Plaintiffs that Mr Stiassny had overcharged them for fees previously when he acted for the Plaintiffs. In point of fact, Mr Stiassny has already admitted in writing to overcharging the Plaintiffs more than $10,000 in fees. (ii) Master Lang speaks of "allegations" raised by the Plaintiffs that the Defendant had a close association with Mr Stiassny and acted for Mr Stiassny while he acted for the Plaintiffs. In point of fact, the Defendant has now admitted to this and has also admitted to not disclosing this fact to the Plaintiffs while he was acting for them in matters dealing with Mr Stiassny. (iii) The third party application for discovery was not opposed, as the third party withdrew their opposition prior to hearing. Their demand for pre-payment of $14,000 in fees into a nominated trust account was also unsuccessful. Master Lang nonetheless cited the third party's unsubstantiated and unsuccessful initial opposition as one reason to increase the cost award against the plaintiffs. (iv) When discrepancies in the discovery process adopted by the third party were pointed out at the hearings and these discrepancies were required to be put right, Master Lang warned the plaintiffs that this would be increasing their costs rather than express appropriate concern over the discrepancies. This was particularly disconcerting to theplaintiffs because the misrepresentations from the third party or their advisers were at the root of the discrepancies. (v) The third party repeatedly withheld and impeded the discovery of relevant records. [67] The affidavit then gave examples of such issues as the Telstra Clear and photocopying costs and exhibited an invoice from the photocopying firm showing it had provided 1371 copies when the plaintiffs only sought 111. Thus, Mr Siemer said, the allowance by Lang J of $249.92 for photocopying as "the actual costs incurred" by the non-parties solicitors meant Lang J "fell prey to an obvious and monstrous deception by third party counsel". He said that Messrs Hunt and Stiassny had invoiced the plaintiffs for 3239 copies, the cost of providing which was also allowed by Lang J, Mr Siemer suggested incorrectly. [68] He averred that Lang J was wrong in accepting Mr Hunt's charge-out rate of $300 per hour because that "clearly incorporates a large element of profit" and disputed that the work required the attention of a partner in a law firm. The affidavit also suggested Lang J failed to address the costs issue in an objective way including that the third party "never compiled a numbered and sworn list of discovery and were specifically exempt from this customary requirement by Master Lang at the start". Though noting the plaintiffs took issue with a number of other aspects of the costs judgment, the affidavit declined to raise these on review and concluded:20) It is my view that the exorbitant charges by the third party's representatives and the third party themselves were a calculated strategy to "anchor" their charges, submitted with the expectation these would be cut back but still receiving vastly in excess of what was reasonable even if they had abided by the discovery order. The Plaintiffs consider that the Master had been hoodwinked and has not correctly exercised his discretion particularly in light of the demonstrated actions of the third party in deceiving the Court, prolonging matters and indeed failing to provide proper discovery.[69] Mr Hunt's submissions were incorporated in his submissions on the transfer application but he elaborated on them on 2 October. [70] He submitted the plaintiffs bore the onus of demonstrating that Lang J wrongly exercised his discretion in making the orders under review and had failed so to do. Lang J, he submitted, gave proper regard to the rules, referred to relevantauthorities, carefully reviewed the reasonableness of the claimed charges and correctly noted that his close involvement since the claim's commencement gave him a singular advantage in considering the third party costs issue. He referred to passages in Lang J's judgment recording his warnings to the plaintiffs that their demands risked a substantial order for costs and submitted that discovery was time consuming, difficult and complicated by the plaintiffs' demands and complaints. [71] Mr and Mrs Siemer's commitments required them to leave the hearing shortly after midday on 2 October 2006 but, on 6 October they emailed, with leave, further submissions to the Court. In those submissions they again disputed that there was any "agreement" between the plaintiffs and Mr Stiassny/Ferrier Hodgson in the way recounted by Lang J in his minutes. Mr Siemer again emphasised that at each appearance before Lang J the "plaintiffs repeatedly requested proper discovery and were very frustrated by their inability to obtain it". The submissions continued:Aside from the fact that a refusal in itself to grant proper discovery is reasonable cause to suggest bias by a judge, that AJ Lang also repeatedly warned the plaintiffs to 'cooperate' (as the non –parties' counsel pointedly confirmed) when it is the non-parties' cooperation that was required, demonstrates how fundamentally skewed AJ Lang's approach was in favour of the non-parties.a submission supported by reference to what they understood was part of Lang J's professional experience. [72] The memorandum then dealt with Lang J's observations derived from his lengthy association with the claim, suggesting that Mr Stiassny/Ferrier Hodgson were "de facto co-defendants" and again raising the relationship between Messrs Stiassny and Fardell and criticising Mr Stiassny's actions during the Paragon receivership. The submissions also again challenged aspects of the discovery provided to suggest of Mr Stiassny/Ferrier Hodgson that there was "reasonable cause to suspect they were acting dishonestly and could not be trusted on discovery matters". The Judge's warnings of the costs result was said to be "pure folly" against a submission that he should have been insisting on the discovery the plaintiffs were entitled to instead of "stressing (indeed ignoring) the need of the non- parties to comply". It suggested that the "non-parties repeatedly exploited this expressed attitude of Lang J by obstructing discovery, making the process muchmore difficult than it was or needed to be, increasing appearances and delaying the proceedings", examples of which were the deletion of the three digits from the phone records and the change in the cost of providing the Telstra Clear records from free to $6728.70. [73] On the "agreement" issue, the submission said:Mr. Hunt, counsel for the non-parties, was empathetic [sic.] in his submissions that the plaintiffs had consented to the non-parties providing theunsworn and unnumbered and unlisted 'discovery' that they did, going so far as to give evidence from the bar that he witnessed the plaintiffs consent to this in court. This is a profane submission of evidence by Mr. Hunt that the plaintiffs allege Mr. Hunt knows to be untrue. In response, the plaintiffs twice asked Williams J for an oral ruling in relation to Mr. Hunt being held accountable to this evidence. The plaintiffs questioned AJ Lang's order immediately and directly from the start, asking how the plaintiffs could be assured the non-parties would provide all their documents without having to swear or number them, particularly in light of the plaintiffs' (and Court's) knowledge that the non- parties were still refusing to disclose documents they acquired in non-party Stiassny's role as receiver of the second plaintiff, a receivership that had long ago been revoked b y the Court. AJ Lang's response was a curt "This is my order". The plaintiffs are willing to provide a sworn affidavit to this account and are insisting that Mr. Hunt provide a sworn affidavit to confirm the evidence he gave from the bar that the opposite was true on this contentious and very important contradiction.[74] The submission then recounted the passages recording "agreement" in Lang J's minutes disputing the plaintiffs agreed to any of those issues. The plaintiffs contended that the non-parties breached the "agreed" arrangements in any event. The memorandum then was extensively critical of the judgment's comments concerning the cost of providing the Telstra Clear records and a number of the Judge's observations but since those passages largely consist of speculation and personal criticism, there is no need to discuss them on a review application such as this. The submissions concluded:The plaintiffs note the repeated comments of Williams J in support of unsworn, unnumbered and unlisted discovery in this case. There was some discussion of this at the hearing on 2 October 2006, with Williams J reaffirming that this may be appropriate and the non-parties arguingoverwhelming evidence is required to show that this illegal and improper discovery wasn't what all parties wanted and had agreed to. This understandably scares the plaintiffs and they submit that it should scare everyone. If this judge wishes to re-affirm that parties who have acted so blatantly have been exempted from providing legal and proper discovery and still failed to minimally live up to the spirit of an overly generous agreement they had with a sympathetic judge, and then get awarded an unfathomable sum as reward for this abomination, then everyone who has faith in the courts as a fair and legitimate means of dispute resolution must look for more just means. Given the fundamental nature of discovery to not only this proceeding but every proceeding, the plaintiffs hereby request an order to immediately stay these proceedings if the findings of the judge go against them in this application, in order they might immediately appeal to the Court of Appeal and await a definitive judgment from the higher court on this issue.[75] At the end, Mr Siemer said there was an excerpt from a website attached – but it was not received by the Court. [76] On 9 October 2006 Mr Hunt also emailed further submissions in reply saying that he would, if necessary, swear an affidavit replying to that offered by Mr Siemer but suggesting such was unnecessary since the plaintiffs had full access to all documents which would have been in the sworn list and the documents were lodged in Court. He made the point that the review focuses on the quantum of costs ordered, not whether a sworn list should have been filed. Indeed, he submitted, had such a list been required the costs may have been greater. He disputed whether the plaintiffs were entitled to put further evidence before the Court on the review. He referred to documents on the Court file to refute the assertions of dishonesty, increased appearances and intentional delay. [77] On the Telstra Clear costs question, he pointed to an exhibit put before the Court by a Ferrier Hodgson employee establishing, he said, that it was Telstra Clear which changed its position on costs. He relied on a lengthy series of emails which passed between Ferrier Hodgson and Telstra Clear in August/September 2004 dealing, first, with whether the phone records still existed and were capable of discovery and, secondly, the cost. That culminated in Telstra Clear advising on 27 September that "approximately 450 tapes needed to be brought in from offsite" and that it would take "someone at least five days to process those tapes and we will need to add at least a couple of days for the analysis", and a further email on29 September in which Telstra Clear advised their charges would be $4418.40 if only the phone records for 1 November 2000-31 August 2001 were discovered or $2310.30 if the choice was the last six weeks of 2000 and 15 July 2001-15 August 2001 or 15 July 2001-15 August 2001 only.Discussion and Decision[78] Three broad comments are warranted. [79] The first is that it is commonly the case that resistance is encountered when companies or individuals who are not parties to litigation are required by a Court's order to discover documents in their possession and permit inspection of what is usually their private property, often by strangers. Having no stake in the outcome of the claim, they also object to having to meet the cost of taking legal advice as to their obligations and spending time and, therefore, money in complying with them. That is doubtless the reason why R 303 mandates a more generous approach to the question of parties to litigation meeting discovery costs of non-parties (including the non party's legal costs) than the approach which applies to discovery between parties themselves. Indeed, orders under R 302 are commonly made on undertakings by the party seeking discovery from a non-party to meet the non-party's reasonable costs, including their legal costs. [80] That observation is only partly applicable in the present instance. Given Mr Stiassny's receivership of Paragon Oil and the association said to have existed between Mr Fardell and him, it was always probable that discovery would be sought from Mr Stiassny/Ferrier Hodgson even if, as the plaintiffs' application said, they were only seeking discovery from the non-parties to "assist in quantifying the losses claimed as a result of the defendant's actions", not on the substantive issues between the parties. [81] Given that background, it was also always probable that discovery by Mr Stiassny/Ferrier Hodgson and inspection would be conducted in a more tense and suspicious atmosphere than the resistance commonly encountered when third parties are required to make discovery in claims unrelated to them. Mr Stiassny/FerrierHodgson were always likely to be at pains to ensure that, on legal advice, they would discovering only those documents which were properly discoverable while the plaintiffs, particularly given their attitude as shown in the documents on the file, were always likely to take the view that Mr Stiassny/Ferrier Hodgson were complicit in the actions alleged by the plaintiffs against the defendant and thus be insistent on discovery as wide-ranging as they could obtain. [82] Leading on from that, such resistance could only be expected to stiffen in circumstances where the failure or refusal of a party or non-party to comply as fully and quickly with another party's demands (and changing demands) is stigmatised not just as such a failure but as contumelious, even unlawful, conduct and described in terms such as those repeatedly employed by Mr Siemer, samples of which appear in the citations from documents filed by him cited earlier in this judgment. [83] The third broad observation is that, like any discovery, what is required to be discovered by parties and non-parties alike is conditioned by relevance to the matters in issue in the claim. And relevance in its turn is conditioned by the parties' pleadings. [84] In that regard, although the plaintiffs in an amended claim lodged on 7 November 2005 endeavoured to broaden the issues between themselves and the defendant, at the time the discovery application against Mr Stiassny/Ferrier Hodgson was before the Court, the plaintiffs' claim was the one filed on 2 August 2004. So far as the receivership of Paragon was concerned, it alleged the defendant advised the appointment of Mr Stiassny as receiver for reasons set out in the claim and asserted that Mr Fardell was in breach of his duty to the plaintiffs for failing to advise of, or take, means alternative to receivership which may have resolved the impasse between Paragon shareholders as opposed to the allegedly negligent advice to appoint a receiver. That was coupled with a claim that the defendant perpetuated the plaintiffs' losses by "working in an undisclosed conflict of interest capacity in matters against the receiver" and failing to disclose information to the plaintiffs.[85] On the basis of that pleading, the area of relevance of documents held by Mr Stiassny/Ferrier Hodgson was somewhat limited by comparison with the overall ambit of the claim. [86] Despite that, there should have been little difficulty in discerning that the records held by Mr Stiassny/Ferrier Hodgson in relation to Paragon's receivership were relevant, but since the receivership lasted only from 15 December 2000 to 18 July 2001, the period of relevance would have been largely confined to those few months, plus, probably, brief periods either side. [87] The upshot of all of that, so far as the present application is concerned, is that although R 303 indicates that Mr Stiassny/Ferrier Hodgson should be able to recover their expenses, including legal costs of complying with the order for non-party discovery, the singular circumstances of this claim mean caution should be exercised in approaching recovery. While the non-parties were entitled to be cautious about discovery and also entitled to continuing legal advice as to their obligations, in the circumstances of this matter as between the plaintiffs and Mr Stiassny/Ferrier Hodgson there was little impetus for Mr Stiassny/Ferrier Hodgson and their solicitors to deal with discovery as rapidly and economically as many third parties and their solicitors would do. As against that, as the history earlier recounted shows, what Mr Siemer regarded as the proper ambit of discovery by the non-party altered and broadened through the history of the matter before Lang J. [88] That said, however, the plaintiffs' submissions go much further than is justified in suggesting that the non-parties should be regarded as "de facto co- defendants" and the application, as part of the review, that the non-parties meet the plaintiffs' costs of the non-party discovery application and compliance, goes well beyond that again, is clearly not contemplated by R 303 and is contrary to the principle underlying third party discovery and orders for costs in favour of lay litigants. The Court declines to make such an order. [89] The judgment under review being a reasoned one following a defended hearing and a number of appearances, it is well settled that it is for the plaintiffs, as with any appellate decision, to show that the decision was wrong in the sense that itlacked evidential foundation, took account of irrelevant considerations or failed to take relevant matters into account, was based on an error of law or was "plainly wrong" in the balancing exercise undertaken as part of the Judge's discretion (Midland Metals Overseas Pty Ltd v Christchurch Press Co Ltd (2002) 16 PRNZ 103, 111, para [13], Alex Harvey Industries Ltd v Commissioner of Inland Revenue(2001) 15 PRNZ 361, McGechan on Procedure, para HR 61C.01(a), p 1 - 340). [90] It is convenient first to examine Ferrier Hodgson's two accounts. The earlier is for $9418.88 including disbursements and GST for attendances from 10 August 2004-30 September 2004 and the latter is for $10,800.90 including disbursements and GST for the period 4 October 2004-26 November 2004. Lang J noted in his judgment the total hours and amounts charged for Mr Stiassny/Ferrier Hodgson's manager and practice manager over both accounts: manager (26.5 hours $8215), practice manager (30.4 hours $9424) and support staff (1.8 hours $176). The Judge noted that the charge-out rates for both the manager and practice manager were $310 per hour. What he allowed was the full time claimed but reduced the hourly rate to $175 per hour, the lowest figure in the range of charge-out rates known to him for senior accounting firm managers in Auckland at the time. A significant portion of the time would appear to have been occupied in reviewing the various Court documents during the period, including memoranda by Messrs Siemer and Hunt, but what would appear to have been a much larger proportion of time was occupied in the extensive enquiries with Telstra Clear and review of the receivership files. [91] The second account largely covers attendances in relation to the plaintiffs' application for further and better discovery. Again, the smaller proportion of the time would appear to have been occupied in reviewing Court documents and giving instructions to counsel with the remainder occupied in conducting electronic searches on the firm's computers to locate and then print all electronic documents, compare them with the firm's files and organise inspection. It is not difficult to accept, as Lang J did, that significant amounts of time would have been occupied in those exercises.[92] Further, the plaintiffs have had the advantage of the charge-out rate allowed being reduced by over 40% to the bottom of the range regarded by the Judge as appropriate for senior managers – not principals - in accounting firms in Auckland. [93] As to the number of hours expended, whilst the recovery of the receivership files and preparing them for discovery and inspection should have utilised only a comparatively small period of time as is demonstrated by the modest amount of receivership documents deposited in Court, recovering telephone records, to the extent they are not reflected in hard copies on files, can be a time-consuming and therefore expensive task. Whilst that applies to any organisation which has dealings with a large number of others which is required to isolate telephone communications with a particular individual, it applies with especial force to institutions such as banks, and telecommunication providers which have vast numbers of electronic communications with very large numbers of people. Recapture of records of communications for particular individuals in those circumstances is especially lengthy and accordingly costly. Professional firms are in a somewhat similar position. That that is the case is demonstrated by any number of Anton Pillar or similar applications where wrongful appropriation of computer records is asserted. In Auckland, quite often the person authorised by the Court to recapture such material is Mr Watt, whose evidence for the plaintiffs on their preservation application against the defendant supports the views just expressed. It is additionally supported by perusal of the email correspondence between McElroys and Telstra Clear culminating in the Telstra Clear estimate of costs of recapture earlier mentioned. [94] However, since the costs allowed by Lang J to Mr Stiassny/ Ferrier Hodgson include only that firm's time involved in endeavouring to meet their obligation to discover relevant material and not the costs of the Telstra Clear aspect, the only impact that aspect of the matter has on the review application is on the time charged by Mr Stiassny/Ferrier Hodgson over discovery, including the Telstra Clear contact issue as allowed by Lang J. Even allowing all of that, however, it remains difficult to see why Mr Stiassny/Ferrier Hodgson should have utilised a total of 58.7 hours in dealing with the non-party discovery application. The overall question is what,against that background, would be a reasonable amount for the plaintiffs to be ordered to pay. [95] The Judge allowed $10,100 plus GST and disbursements for Mr Stiassny/Ferrier Hodgson's costs. In fact, his allowance of 56.9 hours x $175 per hour plus the junior staff charge of $176, comes to $10,133.50 so, though modest, the plaintiffs have had the additional value of a small rounding down. The sum allowed plus disbursements totals $10,258.14 to which GST ($1282.27) needs to be added. to give the a total allowed by the Judge for Mr Stiassny/Ferrier Hodgson's expenses under R 303 of $11,540.41. [96] McElroys' costs in the account of 30 September 2004 were $8956.50 plus GST ($1119.56) plus disbursements of $730.35 giving a total of $10,806.41. The account of 26 November 2004 was for $7350 plus GST ($918.75) plus disbursements of $250, giving a total of $8518.75. In each case, the firm supplied Lang J with its costing ledger showing the charge-out rates for Mr Hunt at $300 per hour, and Ms Greenslade and Mr Keall at substantially lower hourly rates. [97] The first point to be noted is that the time records for the 30 September account actually total $9436.50 as contrasted with the $8956.50 actually charged. [98] The next point is to note that the 30 September account covers both Court appearances and the preparation of Court documents and discussions with Ferrier Hodgson, particularly relating to their telephone records and the checking of files to decide on issues of privilege and relevance. The charging records include an attendance on Mr Siemer and "organising copies of documents" by a junior staff member for over 1:40 hours on 14 September and subsequent attendances in that regard. The time records do, however, include a number of relatively brief charges for such matters as "file review" and "file management". The time records include a summary of which at least the charges for attendances, document preparation, hearings and consultation with the client would appear appropriately charged. Those items total $5055.[99] A similar analysis of the 26 November 2004 account shows the time recorded exclusive of GST totalling $7230 against the $7350 charged. The detailed time records show most of the time utilised was in preparing Court documents and discussing issues with the client. Virtually all of the attendances in the second account were by Mr Hunt. From the summary, the charges for attendances on the client, preparation of Court documents, preparation generally and correspondence with the clients appear to be largely claimable. They total $5550. [100] The costs charged by McElroys exclusive of GST and disbursements totalled $16,306. The Judge allowed 85% of that or $13,860.10 because of what he described as his residual concern at that firm being "over cautious" to an extent. [101] The central question on McElroys' costs is, therefore, whether the plaintiffs have demonstrated that the Judge's allowance of $13,860.10 exceeds what is reasonable for an allowance for the non-party's legal fees as against the broad assessment just undertaken that at least $10,605 appears justified. [102] Although acknowledging that in the difficult circumstances it cannot be a precise assessment - though based on relevant documents - this Court's view is that a further discount of 10% would not be unreasonable, that is to say to allow McElroys' costs at 75% of the total, $12,229.87, and the review application is allowed to that extent on that aspect of the matter. The further reduction is to take account of the unusual situation of Mr Stiassny/Ferrier Hodgson in relation to this claim by contrast with the usual position of non-parties required to give discovery and to recognise further that, although they may have seemed not unreasonable at the time given the circumstances of this matter and the broad observations earlier made, McElroys' accounts give something of an impression that rather more time and seniority was expended by the firm on this matter than was objectively reasonable or necessary. [103] Reverting to Mr Stiassny/Ferrier Hodgson's costs, the Court takes the same view as in relation to McElroys' costs. As mentioned, there was no economic imperative for the non-parties to deal with the discovery application as efficiently as possible and, having regard to the background, it is not unreasonable to conclude that the non-parties, too, were what Lang J described as "over-cautious" in complying.In that light – though again incapable of exact calculation - the Court's view is that Mr Stiassny/Ferrier Hodgson's costs should also be reduced to 75% of the 56.9 hours claimed at $175.00 per hour plus the junior staff member ($176.00) thus resulting in an allowance of $7600.13 plus GST and disbursements. [104] The remaining issue relates to the disbursements, principally McElroys' charges for photocopying of a total of $1083.82 being $637.40 in the 30 September account, $196.50 in the 26 November account, and the separate invoice of 11 October 2004 mentioned in Lang J's judgment ($249.92). [105] As mentioned, the plaintiffs' objection on this score is that they requested only a small number of photocopies and were charged for many more. The photocopying firm's invoice 20445 for $249.92 was for 13,771 copies. The plaintiffs say they asked for 111. The non-parties say they charged 30¢ per page. $33.30 is allowed. [106] It would appear that a fairly large proportion of the photocopying occurred because, once the discoverable records were ordered to be deposited with the Court, the non-parties and their solicitors photocopied the whole of that material in order to have a duplicated file for reference purposes. That does not seem unreasonable – but, if they wished to charge the plaintiffs for so doing, they should have made it plain that in order to deposit the files they would be photocopying them and claiming that cost under R 303. Not having done so, the Court's view is that they should not now be permitted to recover that cost from the plaintiffs, however reasonable it was for them to undertake the photocopying exercise. [107] Other aspects of the photocopying, however, are clearly recoverable. They include the copies requested by the plaintiffs and such matters as photocopying exhibits for affidavits, memoranda and the like. [108] Nonetheless, despite a considerable amount of material on the file referring to photocopying, it is, at the end, a comparatively minor aspect of the application and the appropriate result would appear to be, though again not exactly calculable, toallow the $33.30 and halve the balance of the amount charged for photocopying. A total of $575.21 is allowed for photocopying plus the other disbursements claimed. [109] Both Mr Stiassny/Ferrier Hodgson and McElroys are entitled to recover GST on the sums allowed.Result[110] In the result, therefore, the review application is allowed to the extent that the plaintiffs are to pay 75% of the hours claimed at $175.00 per hour plus the junior staff member ($176.00) of Mr Stiassny/Ferrier Hodgson in complying with the order for non-party discovery, that is to say the sum of $7600.13 plus GST and disbursements, and by reducing recovery of McElroys' costs as their solicitors to 75% of the amount claimed, namely $12,229.87 plus photocopying of $575.21, plus the other disbursements claimed, plus GST. [111] One further matter remains. [112] It is the question of the provision by Mr Stiassny/Ferrier Hodgson of a verified affidavit of documents. [113] Judging the matter on the memoranda, minutes and other documents earlier reviewed, it would appear that the lack of any verified list of documents featured more prominently in this review application than may have been the case during the non-party discovery application itself though, to be fair, the lack of an affidavit of documents was mentioned by the plaintiffs in their initial application and before Lang J on a number of occasions. For instance, the lack of an affidavit from Mr Stiassny was the principal reason why he could not be cross-examined as to the adequacy of discovery as the plaintiffs sought. [114] It is, however, critical to note that, despite the attention given to the adequacy of the non-parties' discovery – particularly by the plaintiffs - the sole issue for determination in this judgment is to review Lang J's costs allowance. No party eversought review of the orders and directions Lang J made concerning non-party discovery itself. [115] Despite that, though the adequacy of the discovery given by Mr Stiassny/Ferrier Hodgson, including the provision of an affidavit of documents, is outside the ambit of a review of an order for costs of compliance with non-party discovery, the Court has power under R 302(2) to direct the filing of an affidavit and there would appear to be nothing in R 61C or the Judicature Act 1908, s 26P precluding the making of an order for such an affidavit on review. Indeed, s 26P(1)(b) expressly gives the Court power to make "such order as may be just" on a review application, And the issue of the lack of an affidavit of documents and what was said to be the failure of Mr Stiassny/Ferrier Hodgson to number or paginate them bulked so large in some of the documents leading up to this hearing and the hearing itself that the Court considers it just to give the plaintiffs the option of the filing of such an affidavit if such has not already occurred. The view is taken that the plaintiffs are entitled to a statement on oath by or on behalf of the non- parties that the documents disclosed to the plaintiffs are all those relevant to the issues between the parties. [116] However, two matters need to be noted in that regard. [117] The first is that in order to permit them to comply with their discovery obligations in their claim against the plaintiffs, it was necessary to make an order permitting Mr Stiassny/Ferrier Hodgson to uplift the documents deposited in Court as a result of Lang J's order in the matter under review. One consequence of that, as Mr Hunt said, was that the plaintiffs in this claim would receive a verified list of documents with the documents paginated in the normal way (or the way sanctioned in Hunyady and Wang). [118] Secondly, if such a verified list of documents has not already been furnished to the present plaintiffs in the claim against them by Mr Stiassny/Ferrier Hodgson, and were the Court now to order Mr Stiassny/Ferrier Hodgson to provide a verified list in this claim enumerating and paginating all documents, that would result in further cost to the non-parties and further legal fees which they would be entitled torecover from the plaintiffs. Given the history of non-party discovery discussed in this judgment and the position the claim has reached, that is likely to be regarded as unacceptable to all those involved in this matter. [119] However, recognising that the verified list of documents filed or to be filed by Mr Stiassny/Ferrier Hodgson in their claim against the plaintiffs is not, technically, part of this file and also recognising the plaintiffs' concerns in this claim as to the lack of a verified list of documents, the Court's orders are accordingly as follows. These orders render redundant any need to deal further with disputes over the "agreement" issue and what may have been said to Lang J on the topic. The orders are: a) At the plaintiffs' option an affidavit by or on behalf of the non-parties is to be filed and served verifying broadly that the documents discovered by them to the plaintiffs to date are all those discoverable as relevant to the issues between the parties; or b) Also at their option, the plaintiffs may require the non-parties to file and serve a verified list of documents complying with R 302(2). c) The plaintiffs are to indicate within 10 working days of delivery of this judgment which of the above options they choose. d) If they choose option (a), the affidavit is to be provided without further allowance for the costs of the non-parties or their solicitors. e) If they choose option (b), the plaintiffs need to recognise that further time, perhaps significant further time, may be required from the non- parties and their solicitors and accordingly a claim for further costs may be made. Leave is reserved to those parties to apply if the plaintiffs choose that option. [120] Each side having been partially successful, the costs of this application are to lie where they fall...WILLIAMS JSolicitors:Heaney & Co (Helen Rice) P O Box 105-391 Auckland Email: hmr@heaneyco.com McElroys, P O Box 835 Auckland Email: peter.hunt@mcelroys.co.nz)Copy for:A A Lusk QC, P O Box 1379 Auckland Email: aalusk@xtra.co.nz Mr and Mrs V R Siemer, 27 Clansman Terrace, Gulf Harbour, Auckland – Fax: 09 428 2521 Email: vsiemer@hotmail.com Ms Iutita Esekiulu, Case Officer, Auckland High Court (Email: Iutita.Esekiulu@justice.govt.nz )A N N E X U R E S(21 pages)