WORK v IAG NZ LTD [2023] NZHC 1154

WORK v IAG NZ LTD [2023] NZHC 1154 [15 May 2023]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2019-404-1267[2023] NZHC 1154BETWEEN PETER ALLAN WORK ANDROBYN MARGARET WORKPlaintiffsAND IAG NEW ZEALAND LIMITEDDefendantOn the PapersCounsel: J P Wood for PlaintiffsP J Gunn for Commissioner of PoliceJudgment: 15 May 2023JUDGMENT OF ISAC J[Non-party costs application]The costs application and submissions[1] This judgment concerns an application for costs made by the Commissioner ofPolice in relation to a subpoena issued by the plaintiffs. The purpose of the subpoenawas to require the production of an unredacted version of a document that was alreadyin evidence.[2] In this proceeding Mr and Mrs Work seek to enforce a contract of insurance inrelation to a house that was destroyed in a fire in 2013. The insurer, IAG, opposes theclaim, alleging that Mr Work was responsible for the fire and that he knowingly misledits subsequent investigation. The matter was heard in Wellington over four weeksbetween 13 February and 10 March 2023 and judgment is yet to issue.[3] The common bundle contained redacted entries from a detective's notebook ofhis enquiries during the night of the fire. This included a record of a conversation thedetective had with a person living near the location of the fire. Duringexamination-in-chief, the notebook entry was put to a witness called by Mr andMrs Work. The implication of the line of questioning was that the witness haddeliberately started the fire. I raised a question with counsel about the address, whichhad been redacted along with the name of the person spoken to, and its potentialrelevance to an issue in the trial.[4] Subsequently, counsel for the plaintiffs served the Commissioner with asubpoena requiring his attendance at the hearing in order to produce an unredactedcopy of the detective's notebook entries. The Commissioner responded with anapplication to have the subpoena set aside. The primary concern was the privacyinterests of the individuals who were identified in the redacted entries, and theappropriateness of serving a subpoena on the Commissioner in the circumstances.[5] In the end the Commissioner's application was not determined. On 7 March,notwithstanding his opposition to the subpoena, the Commissioner helpfully made thecomplete notebook entries available to the Court so I could assess the relevance of theredacted entries. Having reviewed the document, I concluded that the assessment ofrelevance was a matter for counsel and their clients. In a ruling of 10 March 2023, Iordered release of the unredacted document to the parties and their expert witnessesonly, and made confidentiality orders permanently suppressing their contents.1[6] The Commissioner now seeks costs on a 2B basis of $8,006.50 against theplaintiffs in relation to their use of the subpoena procedure. The Commissionersubmits the approach taken by the plaintiffs was an abuse of process and ignoredappropriate mechanisms through which the document could legitimately have beensought.1 Work v IAG New Zealand Ltd (Ruling (No 4) of Isac J) HC Wellington CIV-2019-404-1267,10 March 2023.[7] The Works say that the Commissioner's costs should lie where they fall. But,having been put to the trouble of defending the Commissioner's application for costs,they in turn seek costs of $956 for filing a memorandum in opposition. They submitthat they had no choice but to issue the subpoena after their efforts to obtain thedocument informally were unsuccessful. The plaintiffs criticise the Commissioner's"adversarial and technical" stance, and his failure to adopt a pragmatic approach toresolving the matter. They say the Commissioner is not entitled to costs incircumstances where the application to set aside the subpoena was neither heard nordetermined, and the notebook entries were eventually provided as sought.Consideration[8] This was a matter that should have been capable of an informal resolution.Serving a subpoena on the Commissioner to produce a notebook entry that he did notpersonally create or have custody of was, with respect, the thermonuclear option. Theplaintiffs' attempts to obtain the unredacted document informally appear to have beenlimited to a brief email sent to the Police Records Department. The request, dated27 February 2023, was in these terms:We represent the plaintiffs in a High Court trial in Wellington that commencedon the 13th and is scheduled to run to the end of next week. And in issue in thetrial is the attached document which are redacted pages of the notebook ofDetective Barnes from 22 to 23 Nov 2013. We urgently require an unredactedcopy by tomorrow if not today.[9] The Records Department responded at 1 pm the same day. Unsurprisingly,given the lack of context or explanation for the request, and the obvious concerns aboutthe privacy interests of members of the public spoken to by Police, the request wasdeclined.2 Less than half an hour later, the plaintiffs' issued a subpoena (by email) onthe Commissioner.[10] In terms of informal steps to obtain Police agreement, as Mr Gunn for theCommissioner pointed out, counsel for the plaintiff could have contacted the Policelegal team in the first instance. And while it may have been open to issue a subpoenaduces tecum had informal agreement been impossible, the more appropriate procedure2 It is evident from the Department's response that it had treated the plaintiffs' request as a requestunder the Official Information Act.in my view would have been to apply for non-party discovery under r 8.21 of theHigh Court Rules 2016, where it is common for the non-party's costs to be paid by theapplicant.[11] Notwithstanding these concerns, and what I accept was an unnecessary burdenon the Commissioner of Police, I am not satisfied that it is appropriate to order costsagainst the plaintiffs, albeit by a narrow margin. Ultimately the application to set asidethe subpoena did not require a hearing or determination. Notwithstanding the concernsover the approach adopted by the plaintiffs, it would not be appropriate in my view toundertake a merits-based assessment of the application in order to determine whetherit would, or would not, have been successful.3[12] Nor do I consider, for the reasons set out above, that it would be appropriate togrant costs in favour of the plaintiffs in relation to the Commissioner's application forcosts.Conclusion and result[13] The Commissioner's application for non-party costs against the defendants isdeclined. Costs are to lie where they fall.Isac JSolicitors:Court One, Auckland for PlaintiffsCrown Law, Wellington for Commissioner of Police3 Generally, the Court will not speculate on the merits of a case that it has not heard for the purposeof determining costs: see for example r 14.8(1) of the High Court Rules 2016; Winton v Winton[2018] NZHC 486 at [22]; Alarm New Zealand Ltd v 15 Hopetown Ltd [2016] NZHC 2080 at[18]; Kenealy v Morton-Jones [2015] NZHC 297 at [9]; MV Celebre Ltd v Airwork FlightOperations Ltd [2015] NZHC 1400 at [11]–[13]; Powell v Hally Labels Ltd [2014] NZCA 572 at[24]; Commercial Factors Ltd v Veda Advantage (NZ) Ltd HC Auckland CIV-2010-404-6798,21 June 2011 at [5]; and Kroma Colour Prints Ltd v Tridonicatco NZ Ltd at [12].