WENTWORTH RETREAT (2009) LTD v DELL INC [2018] NZHC 1860

WENTWORTH RETREAT (2009) LTD v DELL INC [2018] NZHC 1860 [25 July 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2016-404-510[2018] NZHC 1860BETWEEN WENTWORTH RETREAT (2009)LIMITED and MARES PROPERTIES (NZ)LIMITEDPlaintiffsAND DELL INCDefendantGRAYS AUCTIONS LIMITEDThird PartyHearing: 25 July 2018Appearances: V Wethey for PlaintiffsW R Potter for DefendantK Burkhart for Third PartyJudgment: 25 July 2018(ORAL) JUDGMENT OF LANG J[as to discovery issues][1] This proceeding relates to a claim for damages arising out of a fire thatoccurred in a lodge in a rural area outside Whangamata. The plaintiffs claim the firewas caused by batteries in a computer manufactured by the defendant and situated inthe property. The defendant denies this is the case. The defendant's briefs of evidenceallege the fire began in another room of the address and was not caused by thecomputer.[2] An issue has arisen in relation to the discovery provided by the defendant. Inthe latest version of its affidavit of documents the defendant has included the followinginformation under Part 2, the section relating to documents for which the defendantclaims privilege:Correspondenceby MeredithConnell and thirdparties for thepurpose of theproceeding.Various Various Section 56[3] The plaintiffs argue they are entitled to know the identity of the third partiesreferred to in the passage set out above. They say they are entitled to that informationso they can either challenge the claim to privilege or make their own enquiries withthe third parties. The plaintiffs believe the third parties may be able to provideinformation helpful to the plaintiffs' case.[4] The defendant resists listing the names of the third parties because it says theclaim to privilege is irrefutable.Decision[5] It is surprising that this issue has not been the subject of more authority. Theonly authority the parties have been able to find on the point is the decision ofAssociate Judge Bell in Guttenbeil v Tower Insurance Ltd.1 In that case a similarsituation arose. The Associate Judge held that the identity of witnesses interviewedby the defendants' investigators was not to be disclosed. His reasoning was as follows:1 Guttenbeil v Tower Insurance Ltd [2012] NZHC 2106.[24] The plaintiffs object that the defendants have not adequately describedstatements obtained from witnesses. The plaintiffs seek identification of allpotential witnesses interviewed by the defendants' investigators. Thedefendants claim privilege for witness statements. I uphold that claim forreasons given later. As litigation privilege attaches to those statements, thedefendants are not required to disclose the identity of witnesses. The plaintiffscannot overcome that by insisting on more detailed descriptions which wouldidentify the witnesses.[6] I propose to adopt the same approach. I see no basis on which litigationprivilege in relation to these documents could successfully be challenged.Furthermore, the only use to which the plaintiffs could put the information is toundertake enquiries that might provide it with further material to support its case. Iconsider the time for such enquiries has now long passed. The plaintiffs have servedtheir evidence, as have the defendants. The only remaining step now to be taken is theservice of reply briefs. These will necessarily respond only to the evidence adducedby the defendant. I consider it would be unfortunate if the pending trial in Octoberwas derailed by further enquiries made by the plaintiffs as a result of informationprovided by the defendant.[7] I therefore decline to require the defendant to list the names of potentialwitnesses as sought by the plaintiff.Orders[8] At the request of counsel I make orders by consent in terms of the jointmemorandum dated 24 July 2018.Costs[9] The defendant seeks costs in relation to today's appearance because it hassucceeded in the only argument the Court was required to determine. I am conscious,however, that the matter first came before the Court because the plaintiffs wereconcerned that the defendant's briefs referred to a large number of documents that hadnot been included in earlier discovery. This resulted in the defendant filing an updatedaffidavit of documents to address the issue.[10] Given the extent to which counsel have been able to reach agreement, I do notconsider it appropriate for an order for costs to be made. There will therefore be noorder for costs.Lang JSolicitors:Fee Langstone, AucklandMeredith Connell, AucklandKennedys, Auckland