Metlifecare Retirement Villages Limited (Originating Application) [2022] NZHC 1646

Metlifecare Retirement Villages Limited (Originating Application) [2022] NZHC 1646 [13 July 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2022-404-1127[2022] NZHC 1646UNDER The Evidence Act 2006AND THE HIGH COURT RULES 2016IN THE MATTER OF An application by METLIFECARERETIREMENT VILLAGES LIMITED forleave to serve a New Zealand subpoena inAustraliaAPPLICANTOn the papers: At AucklandJudgment: 13 July 2022JUDGMENT OF POWELL JThis judgment was delivered by me on 13 July 2022 at 11.30 am pursuant toR 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Solicitors:MinterEllisionRuddWatts (J Miles QC / J Cooper QC), Auckland[1] The applicant, Metlifecare Retirement Villages Limited ("MLC"), seeks leaveto issue subpoenas for six witnesses based in Australia.[2] MLC is the plaintiff in proceedings against James Hardie New Zealand Ltd,Studorp Ltd (formerly known as James Hardie & Coy Pty Ltd/James Hardie BuildingProducts Ltd) and James Hardie NZ Holdings Ltd (CIV-2015-404-3080) in relation toalleged defective building products provided by the defendants.[3] According to the evidence provided by MLC the significance of each of thewitnesses for whom a subpoena is sought is as follows:David Kenrick WORLEYMr Worley was general manager of James Hardie New Zealand during therelevant period from 1997 to 2001. Documents indicate that Mr Worley hadoversight of the New Zealand business and issues relevant to the claim suchas production, product issues and sales. Two defendants, who between themundertook the New Zealand business (and thus were overseen by Mr Worley),were responsible for manufacturing, promoting (including supporting theinstallation of) and selling Harditex and Monotek to the market.Mr Worley will also be able to give evidence as to the operation the NewZealand business including whether it was run autonomously or managedoffshore. This is relevant to the issue of duties owed by the James Hardiedefendants located overseas. MLC's claim includes a pleading that the roleplayed by these overseas defendants in the operation of the New Zealandbusiness meant that they owed a duty of care in relation to the supply of therelevant product to MLC's retirement villages by the New Zealand business.James GLEESONMLC believe Mr Gleeson held various senior roles within James Hardieincluding as product development manager in Australia and later as the AsiaPacific research and development manager. Mr Gleeson had a key role inresearch and development within the James Hardie Group, particularly inrelation to the testing and development of Harditex and Monotek.Mr Gleeson will also be able to give evidence about how, as a matter of fact,product design and development for the James Hardie Group was managedgiven his involvement with the fibre cement technology network team (amanagement team responsible for research and development). This willinclude whether technical support and/or technical information was providedto the New Zealand business unit. This is relevant to the issue of duties owedby the overseas James Hardie defendants. In addition, Mr Gleeson was amember of the Australia New Zealand Management Team from 2003 – 2004.He will be able to give evidence as to the operation the New Zealand businessincluding whether it was run autonomously or managed offshore. This is againrelevant to the issue of duties owed by the overseas James Hardie defendants.John Leonard MOLLERMr Moller was the executive vice president of Asia Pacific from 2000 to 2002.In this role, he was responsible for the management of the fibre cementbusinesses in Australia, New Zealand and the Philippines. He had generaloversight of the New Zealand business. Mr Moller will also be able to giveevidence as the operation of the New Zealand business including whether itwas run autonomously or managed offshore. Mr Moller was also a memberon the James Hardie Group's senior leadership team (termed the groupmanagement team). Mr Moller was appointed to manage key areas of NewZealand's weather tightness issues. This occurred in December 2002. This isrelevant to the issue of duties owed by the overseas James Hardie defendants,who had operational control, and the James Hardie defendants' knowledgeabout product performance.Noel E. THOMPSONMr Thompson was the head of research and development from 1994 to 2001and accordingly, played a key role within that team. This included in relationto the testing and development of Harditex and Monotek – the two productsat issue in this claim. MLC understands that nearly all of James Hardie'sresearch and development, until at least 2001, was carried out at Rosehilllocated in Sydney, Australia. This was led by Mr Thompson. The technicalperformance of Harditex and Monotek (and the testing or lack thereof) areimportant to MLC's case.Mr Thompson will also be able to give evidence about how, as a matter of fact,product design and development for the James Hardie Group was managed,particularly given his involvement with the fibre cement global managementteam and the global fibre cement network team. This will include whethertechnical support was provided to the New Zealand business unit. This isrelevant to the issue of duties owed by the overseas James Hardie defendantsand the entities which MLC believe held 'superior knowledge' in relation tothe product supplied to MLC's retirement villages by the New Zealandbusiness (which is relevant to establishing that a duty of care was owed toMLC by the overseas James Hardie defendants in relation to the supply of thatproduct).Robert (Bob) Houltby MARKHAMMr Markham was general manager of the James Hardie New Zealand businessduring the relevant period from 1997 to 2001. As a result, Mr Markham hadoversight of the New Zealand business and issues relevant to MLC's claimsuch as – production, product issues and sales. Two defendants, who betweenthem undertook the New Zealand business, were responsible formanufacturing, promoting (including supporting the installation of) andselling Harditex and Monotek to the market. Mr Markham will also be ableto give evidence about the operation of the New Zealand business includingwhether it was run autonomously or managed offshore. This is relevant to theissue of duties owed by the overseas James Hardie defendants.Timothy DABBSMr Dabbs has participated in initial correspondence with [MLC's solicitors]regarding his employment with James Hardie during the relevant time periodof 1995 to 2000. This involved a detailed discussion of testing carried out byMr Dabbs during his employment, which demonstrated durability failures inthe fibre cement products that are the subject of MLC's case. Thiscorroborates MLC's understanding of the James Hardie defendants'knowledge about product performance. Mr Dabbs is also able to giveevidence as to the communication and operation of the various James Hardieentities, which is relevant to the issue of duties owed by the overseas JamesHardie defendants. His evidence is therefore significant to MLC's case.For the reasons above, MLC considers it is essential to MLC's case in theProceeding that the Witnesses give evidence at the trial.[4] Having considered the application and the draft subpoenas provided I amsatisfied that leave should be granted to enable service in Australia. In particular, theapplication and supporting evidence addresses all relevant matters set out in s 154 ofthe Evidence Act 2006 and r 9.60 of the High Court Rules 2016, including therequirement that the application is made without notice. The roles at relevant times ofeach of the proposed witnesses, each of whom is over 18, means that their evidence islikely to be significant in the context of the substantive proceedings, while, andconsistent with other litigation,1 the nature of the proceedings and the number ofdocuments means that giving evidence remotely is likely to be problematic.[5] Leave is accordingly granted to serve New Zealand subpoenas on the followingwitnesses in Australia:(a) David Kenrick Worley;(b) James Gleeson;(c) John Leonard Moller;(d) Noel E. Thompson;(e) Robert (Bob) Houltby Markham; and1 See Fickling Ltd v Currie HC Auckland CIV-2011-404-3355, 23 June 2011 at [17]–[18], whereWhata J indicated that in proceedings of both procedural and substantive complexity, oraltestimony in person may be ordered rather than by way of video link.(f) Timothy Dabbs._______________________________Powell J