THODE and v TURNERS AND GROWERS HORTICULTURE LIMITED [2018] NZHC 890

THODE and v TURNERS AND GROWERS HORTICULTURE LIMITED [2018] NZHC 890

Dismissal: Mr Malone's affidavit of 23 March 2018 removed the premise for relief under r9.75; in any event the court would decline to exercise its discretion to compel attendance or an affidavit because no special circumstances were shown, discovery is a standard application governed by proportionality and reasonable search obligations, and an Associate Judge must avoid making coercive declarations that would exceed jurisdiction.

Citation
[2018] NZHC 890
Parties
Plaintiff: Robert William Thode; Plaintiff: Olesen Trustees (2011) Limited as trustees of the Robert Thode Family Trust; First Defendant: Turners and Growers Horticulture Limited; Second Defendant: ENZA Fruit New Zealand International Limited; Third Defendant: T&G Global Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
1 May 2018
Procedural Posture
Civil Claim (contract, Negligence, Fair Trading Act) / Interlocutory — Application Under R9.75 and Further Discovery (r8.19)
Outcome
Application under r9.75 dismissed; costs to defendants
Legal Topics
Interlocutory Application, Affidavits and Compelled Examinations, Standard Discovery, Proportionality, Jurisdiction of Associate Judge, Costs
Civil Procedure Discovery Contract Tort Negligence Fair Trading Act Intellectual Property (plant Variety Rights) Confidentiality Law Interlocutory Application +5 more

Case Brief

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Parties

Robert William Thode

Plaintiff

Olesen Trustees (2011) Limited as trustees of the Robert Thode Family Trust

Plaintiff

Turners and Growers Horticulture Limited

First Defendant

ENZA Fruit New Zealand International Limited

Second Defendant

T&G Global Limited

Third Defendant

Procedural Posture

Civil Claim (contract, Negligence, Fair Trading Act) / Interlocutory — Application Under R9.75 and Further Discovery (r8.19)

Legal Issues

  1. 1 Whether court can order a third party to make an affidavit or attend for examination under r9.75
  2. 2 Whether Mr Malone's affidavit of 23 March 2018 satisfies the need for information for the discovery application
  3. 3 Whether an Associate Judge may make declaratory/coercive orders amounting to injunctions

Ratio Decidendi

Dismissal: Mr Malone's affidavit of 23 March 2018 removed the premise for relief under r9.75; in any event the court would decline to exercise its discretion to compel attendance or an affidavit because no special circumstances were shown, discovery is a standard application governed by proportionality and reasonable search obligations, and an Associate Judge must avoid making coercive declarations that would exceed jurisdiction.

Court Disposition

Application under r9.75 dismissed; costs to defendants

Orders

  • Application under r9.75 dismissed
  • Costs awarded to defendants; allowance for one counsel only; if counsel cannot agree costs, parties may file memoranda