James Hardie New Zealand Limited v White [2020] NZCA 142 (5 May 2020)

Last Updated: 21 May 2020

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA69/2020 [2020] NZCA 142

	BETWEEN	JAMES HARDIE NEW ZEALAND LIMITED First Appellant STUDORP LIMITED Second Appellant JAMES HARDIE NZ HOLDINGS LIMITED Third Appellant RCI HOLDINGS PTY LIMITED Fourth Appellant JAMES HARDIE AUSTRALIA PTY LIMITED Fifth Appellant JAMES HARDIE RESEARCH PTY LIMITED Sixth Appellant JAMES HARDIE INDUSTRIES PLC Seventh Appellant
	AND	K L WHITE AND THE PERSONS LISTED IN SCHEDULE 1 First Respondent WAITAKERE GROUP LIMITED Second Respondent METLIFECARE PINESONG LIMITED Third Respondent FOREST LAKE GARDENS LIMITED Fourth Respondent VISION (DANNEMORA) LIMITED Fifth Respondent METLIFECARE COASTAL VILLAS LIMITED Sixth Respondent

Hearing:	21 April 2020
Court:	Cooper, Brown and Goddard JJ
Counsel:	J E Hodder QC, J A McKay and W M Cheyne for Appellants C M Meechan QC, C L Gordon and S M Sharma for Waitakere Respondents B D Gray QC, A J Thorn and R A Havelock for White Respondents
Judgment:	5 May 2020 at 11.00 am

JUDGMENT OF THE COURT

1. The application to adduce further evidence is declined.
2. The appeal is allowed.

100. The JH companies are entitled to one set of costs for a standard appeal on a band A basis, with usual disbursements. We certify for second counsel.

4. Costs in the High Court are to be determined in that Court.

____________________________________________________________________

REASONS OF THE COURT

(Given by Goddard J)

Introduction and summary

[1] The respondents (the claimants) are the past or present owners of buildings which were constructed using exterior cladding products designed, manufactured and sold by the James Hardie Group (James Hardie products). The claimants allege that the James Hardie products were defective. They claim damages in respect of weathertightness problems which they say were caused by those defects.
[2] The claim is brought against seven companies in the James Hardie Group (the JH companies):

• (a) Four operating companies — Studorp Ltd, James Hardie New Zealand Ltd, James Hardie Australia Pty Ltd and James Hardie Research Pty Ltd;
• (b) Three holding companies — James Hardie Industries Plc (JHI: the ultimate parent company of the Group), RCI Holdings Pty Ltd (the immediate parent company of Studorp Ltd), and James Hardie NZ Holdings Ltd (the immediate parent company of James Hardie New Zealand Ltd).

[3] The High Court made a number of orders providing for discovery in these proceedings. In November 2019 the JH companies filed and served an affidavit of documents. The affidavit listed some 28,000 documents in the format prescribed in the High Court Rules 2016 (Rules). The affidavit was affirmed by Mr Alexander Petrie, who is employed by James Hardie Australia Pty Ltd as “Legal Counsel – APAC”. The affidavit records that he is authorised to make the affidavit on behalf of the JH companies.
[4] The claimants say that the JH companies’ list of documents fails to comply with the Rules in a number of respects. This appeal is concerned with the claimants’ complaint that the JH companies have not filed and served separate affidavits of documents listing documents that each company has in its control, or a joint affidavit which identifies which of the JH companies had control of which documents. They say that it is not consistent with the Rules for the JH companies to file a single affidavit on behalf of all of them collectively, which does not identify the documents that each company had in its control before the proceedings were commenced. They complain that the approach adopted by the JH companies has deprived them of information that is relevant to significant issues in the proceedings concerning the liability of each separate company, and in particular, the three holding companies. For example, they have been deprived of information about whether the parent company JHI had received documents relating to customer complaints about the James Hardie products before the proceedings were commenced.
[5] The JH companies say that they are not required to provide discovery on a defendant by defendant basis. Because they have agreed to collaborate in the defence of the proceedings, and share access to documents for the purposes of the proceedings, all the discovered documents were in the control of each defendant company at the time the list was sworn. That is the relevant point in time for the purpose of preparing an affidavit of documents. Nor is there any requirement in the Rules that an affidavit of documents specify when a party giving discovery first obtained control of each of the listed documents.
[6] In the High Court Whata J accepted the claimants’ submission that each defendant was required to identify the documents within its separate control. He made an order requiring:^[1]

That each of the defendants individually file and serve ... sworn affidavits of documents, including all relevant documents, in the control of that defendant ... Alternatively, the defendants file a joint affidavit which includes all relevant documents and identifies which defendants had control of each document.

[7] The defendant companies appeal from that decision.
[8] We consider that the JH companies were right to proceed on the basis that each company had control of all the relevant documents at the time the affidavit of documents was affirmed. Nor do the Rules require a party to specify, in its list of documents, when it acquired control of those documents.
[9] So each company’s list would have been identical. The Rules do not require identical lists to be filed separately by each defendant, in those circumstances, that would serve no useful purpose.
[10] An affidavit of documents serves a limited purpose. So far as discoverable documents that are in the control of a party are concerned, it is a step on the path to production of those documents for inspection. It is not intended to serve a broader evidential purpose in relation to those documents. There are other mechanisms — in particular, interrogatories — to enable a party to obtain information about what documents or information another party had at a particular time, where that is relevant to an issue in the proceedings. That is not the function of an affidavit of documents.
[11] We therefore allow the appeal.

Background

The proceedings

[12] As noted above, the claim relates to the James Hardie products: exterior cladding products which the claimants say the JH companies manufactured, supplied and/or promoted under the brand names “Harditex”, “Monotek” or “Titan”. The claims relate to approximately 1,246 properties clad with James Hardie products. The claimants say the James Hardie products are defective in a number of respects, and these defects have resulted in weathertightness problems in these 1,246 properties. Of those, 1,236 are residential homes, five are commercial buildings and five are retirement villages. One set of proceedings (the Waitakere proceedings) relates to the five retirement villages. The other 1,241 buildings are the subject of the White proceedings.
[13] The claims are brought in negligence, under the Consumer Guarantees Act 1993, and under the Fair Trading Act 1986.
[14] As noted above, the claim is brought against seven JH companies, including the ultimate parent company JHI and two other holding companies.
[15] The High Court has directed that there will be a staged trial, with Stage 1 directed to the following issues:

• (a) who was responsible for the design/manufacture/sale of the James Hardie products and related product information;
• (b) whether the James Hardie products were defective;
• (c) whether the defendants knew/ought to have known about any defects; and
• (d) whether the defendants breached any common law and/or statutory duties in respect of the James Hardie products or James Hardie product information.

[16] As that list of issues indicates, one of the key issues in dispute is which (if any) of the JH companies are liable in respect of the claims concerning the James Hardie products. The three holding companies say that they were not involved in the manufacture and supply of the James Hardie products, and cannot be liable for any defects in those products or in information relating to those products. James Hardie NZ Holdings Ltd and RCI Holdings Pty Ltd applied for summary judgment. JHI objected to the jurisdiction of the New Zealand courts to determine the claim against it. The application for summary judgment, and JHI’s protest to New Zealand jurisdiction, were unsuccessful.^[2] This Court held that there are arguable claims against the three holding companies, which need to be determined at trial.

The discovery process

[17] Discovery in these proceedings has been a protracted and contentious process. On a number of occasions, the High Court made orders in relation to tailored discovery, specifying various categories of documents that the JH companies are required to discover and a timetable for provision of that discovery.
[18] The JH companies provided a number of unsworn affidavits of documents, and provided informal discovery of various tranches of documents, between December 2018 and October 2019. A final affidavit of documents dated 5 November 2019 was affirmed on behalf of all the JH companies by Mr Petrie. That affidavit included a list of documents in the format prescribed in the Rules.^[3] It lists more than 28,000 documents: some 12,000 electronic documents and 16,000 hard copy documents.
[19] The claimants wrote to the JH companies’ solicitors setting out a number of concerns in relation to that affidavit of documents. They made applications for further discovery orders. The issue with which this appeal is concerned is the White claimants’ application for an order that:

... each of the [JH companies] must individually file and serve a sworn affidavit of documents ... which ... includes all relevant documents which were in that defendant’s control prior to being included in the discovery process conducted by the defendants’ solicitors on their joint behalf and for which the defendants do not claim privilege or confidentiality ...

[20] In the alternative, they sought a joint affidavit that specifies:

... for each document, which of the defendant(s) had control of the document prior to it being included in the discovery process conducted by the defendants’ solicitors on their joint behalf.

[21] Similarly, the Waitakere claimants sought an order requiring a further affidavit to be filed that “should identify which documents were provided by which defendant”.

High Court Rules in relation to discovery

[22] Part 8 of the Rules is concerned with discovery and inspection of documents, interrogatories, and notices to admit facts. These are the three principal mechanisms by which a party to proceedings can obtain disclosure of relevant documents and information held by other parties, to assist its preparation for trial.
[23] Subpart 1 of pt 8 is concerned with discovery and inspection. Rule 8.1 defines “discovery order” to mean “an order that requires each party to a proceeding to discover the existence of documents to every other party” (emphasis added).
[24] Rule 8.2 requires the parties to co-operate to ensure that the processes of discovery and inspection are proportionate to the subject matter of the proceeding, and facilitated by agreement on practical arrangements. Rule 8.3 provides that as soon as a proceeding is reasonably contemplated, a party or prospective party must take all reasonable steps to preserve documents that are, or are reasonably likely to be, discoverable in the proceeding.
[25] Rule 8.5 provides that a Judge must make a discovery order for a proceeding unless the Judge considers that the proceeding can be justly disposed of without any discovery. Discovery orders may require either standard discovery or tailored discovery.^[4]
[26] Standard discovery requires each party to disclose the documents that are, or have been, in that party’s control and that are:^[5]

(a) documents on which the party relies; or

(b) documents that adversely affect that party's own case; or

(c) documents that adversely affect another party's case; or

(d) documents that support another party's case.

[27] Rule 8.8 provides that tailored discovery must be ordered when the interests of justice require an order involving more or less discovery than standard discovery would involve.
[28] Rule 8.10 sets out the obligations of a party ordered to make tailored discovery:

8.10 Obligation of party ordered to make tailored discovery

Tailored discovery requires a party against whom it is ordered to disclose the documents that are or have been in that party’s control either in categories as indicated in clause 3(2) of Part 1 of Schedule 9 or under some other method of classification that facilitates the identification of particular documents.

[29] Rule 8.12 provides (so far as relevant):

8.12 Orders that may be made

(1) At the case management conference the Judge may, under rule 8.5, make—

(a) an order dispensing with discovery; or

(b) an order for standard discovery; or

(c) an order for tailored discovery, setting out categories (by, for example, subject headings and date periods) or another method of classification by which documents are to be identified.

(2) The discovery order may—

(a) incorporate the listing and exchange protocol set out in Part 2 of Schedule 9; or

(b) vary that protocol; or

(c) contain other obligations that are considered appropriate.

(3) The discovery order may include specific directions as to the manner of discovery.

...

[30] The content and format of the affidavit of documents that each party must file and serve are addressed in rr 8.15 and 8.16, which provide:

8.15 Affidavit of documents

(1) Each party must file and serve an affidavit of documents that complies with this rule, subject to any modifications or directions contained in a discovery order.

(2) In the affidavit of documents, the party must—

(a)  refer to the discovery order under which the affidavit is made; and

(b)  state that the party understands the party's obligations under the order; and

(c)  give particulars of the steps taken to fulfil those obligations; and

(d)  state the categories or classes of documents that have not been searched, and the reason or reasons for not searching them; and

(e)  list or otherwise identify the documents required to be discovered under the order in a schedule that complies with rule 8.16 and Part 2 of Schedule 9; and

(f)  state any restrictions proposed to protect the claimed confidentiality of any document.

(3) The affidavit may be in form G 37.

(4) Each party must file and serve the affidavit of documents within such time as the court directs or, if no direction is made, within 20 working days after the date on which the discovery order is made.

8.16 Schedule appended to affidavit of documents

(1) The schedule referred to in rule 8.15(2)(e) must, in accordance with that discovery order, list or otherwise identify documents that—

(a)  are in the control of the party giving discovery and for which the party does not claim privilege or confidentiality:

(b)  are in the control of the party giving discovery for which privilege is claimed, stating the nature of the privilege claimed:

(c)  are in the control of the party giving discovery for which confidentiality is claimed, stating the nature and extent of the confidentiality:

(d)  have been, but are no longer, in the control of the party giving discovery, stating when the documents ceased to be in that control, and the person who now has control of them:

(e)  have not been in the control of the party giving discovery but which that party knows would be discoverable if that party had control of them.

(2) Subject to Part 2 of Schedule 9, documents of the same nature falling within subclause (1)(b), (d), or (e) may be described as a group or groups.

(3) The description of documents for which privilege is claimed under subclause (1)(b) must be sufficient to inform the other parties of the basis on which each document is included in a group under subclause (2).

(4) The schedule must include documents that have previously been disclosed under rule 8.4.

(5) The schedule need not include—

(a)  documents filed in court; or

(b)  correspondence that may reasonably be assumed to be in the possession of all parties.

[31] The term “control” is defined in r 1.3:

control, in relation to a document, means—

(a) possession of the document; or

(b) a right to possess the document; or

(c) a right, otherwise than under these rules, to inspect or copy the document

[32] Form G 37 in sch 1 to the Rules is the prescribed form for an affidavit of documents. Paragraph 7 requires the deponent to state that “In Part 1 of the Schedule, I list the documents that are in my control and for which I claim neither privilege nor confidentiality”. It speaks in the present tense: on the face of it, this is a statement about the documents in the control of the deponent at the time the affidavit is made. Likewise, para 8 in relation to privileged documents, and para 9 in relation to confidential documents, are phrased in the present tense. Paragraph 10 is concerned with documents that were, but are no longer, in the control of the party. It reads:

In Part 4 of the Schedule, I list documents that are no longer in my control and state when, to the best of my knowledge and belief, each document ceased to be in my control and the persons who, to the best of my knowledge and belief, now have control of each document.

[33] This paragraph reflects the language of r 8.16(1)(d). It requires the deponent to address when a document ceased to be in the deponent’s control. There is no equivalent provision in r 8.16 or in form G 37 in relation to when a document came into the deponent’s control.
[34] Schedule 9 to the Rules makes detailed provision for the format of a list of documents. That schedule identifies the format of the list, including the required columns and the information to be included in each column. Clause 6 of sch 9 provides:

6 Protocol requirements

(1) Parties are required to—

(a) list documents, providing the following detail for each document:

(i) document ID:

(ii) date:

(iii) document type:

(iv) author:

(v) recipient:

(vi) parent document ID:

(vii) privilege category; and

(b) exchange documents electronically by way of—

(i) a single, continuous table or spreadsheet, with each column exclusively containing the detail from paragraph (a); and

(ii) multi-page images in PDF format (or another format if agreed).

(2) Parties should endeavour to apply the specific details in clauses 7 to 11 to ensure consistency for listing and exchange.

(3) Any technical terms have the meanings set out in the glossary in Part 3.

[35] The prescribed detail that must be listed for each document does not include particulars of when (or how) a document came into the control of the party.
[36] Clause 8 of sch 9 addresses a number of specific issues in relation to how documents should be discovered. Clause 8(1) explains how duplicate documents should be dealt with in the list:

(1) The following applies in relation to duplicate documents:

(a) parties must take reasonable steps to ensure exact duplicate documents are removed from the discovered documents:

(b) a copy or version of a document containing a material modification or an obliteration or other marking must be treated as a separate document:

(c)   an email and attachment are to be considered a duplicate only if the entire email and attachment document group is contained elsewhere:

(d)   a document attached to a document group is not to be classed as a duplicate if it is contained as a stand-alone document elsewhere:

(e)   parties should discuss the method of de-duplication at an early stage.

[37] The purpose of this requirement is to ensure that the same document is listed only once. It does not require a document to be treated as a separate document because it was stored in a different location, or it came into the control of the party giving discovery at a different time.
[38] Rule 8.24 specifies who can swear an affidavit of documents. The Judge who makes the discovery order can specify who must make the affidavit of documents. If the Judge does not specify the person or the group or class of persons to make the affidavit, then if the person required to make discovery is a corporation, the affidavit must be sworn by a person who meets the requirements of r 9.82. Rule 9.82 provides:

9.82 Affidavits made on behalf of corporation

A person may make an affidavit on behalf of a corporation or body of persons empowered by law to sue or to be sued (whether in the name of the body or in the name of the holder of an office) if the person—

(a) knows the relevant facts; and

(b) is authorised to make the affidavit.

High Court judgment

[39] The Judge considered that “the starting point for the analysis is the plain words of r 8.15”, which provides that each party must produce an affidavit of documents.^[6] Under r 8.24, if that person is a corporation, only a person who knows the relevant facts and is authorised to make the affidavit may do so. So, the Judge said:^[7]

The logical implication of this clear scheme is that each defendant is required to file and serve an affidavit of documents and that affidavit has to be sworn by someone who knows the relevant facts and is authorised to do so.

[40] As the Judge acknowledged, these rules must be applied in a way that avoids unnecessary duplication and cost. For that reason, a single affidavit may be filed on behalf of several defendants with a common interest, where no useful purpose would be served by requiring each of them to produce the same or a similar affidavit.^[8]
[41] The Judge set out his conclusions as follows:

[32] But here, where possession of documentation is itself directly relevant to a key issue in dispute, a party is entitled to the literal enforcement of rules 8.15 and 8.24, assuming for that purpose it is reasonably possible to do so. In this regard, the defendants have always maintained that the third, fourth and seventh defendants have no connection whatsoever to the manufacture of the allegedly defective products. That being the case, the principle of common interest stated by Associate Judge Bell is not obviously applicable. Illustrative perhaps of that separation, the defendants’ proposed timetable for discovery referred to each of the defendants.

[33] As noted, Mr McKay’s secondary argument is that the documents are now in the collective control of the defendants, because each of the defendants consents to that collective possession. This is then said to mean that the defendants are complying with rule 8.15 because they are literally in control of all documents. Further disaggregation by defendant is therefore not required.

[34] For my part I find that approach to be at best discordant with the evident object of rule 8.15 to secure discovery by “each” party. At worst, in a case like the present involving claims of knowledge of defects by all defendants, such an approach could be said to be a device to avoid transparent discovery. While I make no finding that that is the defendants’ purpose here, I prefer a construction of rule 8.15 and 8.16 which secures the clear and transparent discovery by a party to litigation of relevant documents in their control or documents that have been in their control.

[35] Turning then to reasonableness, it is necessary to acknowledge the very large discovery task undertaken by the defendants and the vast pools of documents that they have had to discover. Had this been a case where there was no pleaded issue as to the responsibility of specified defendants, I would not have been minded to require each defendant to provide an affidavit of documents in their control. But not only is the issue pleaded, it has already been subject to substantial litigation before this Court, the Court of Appeal and the Supreme Court. To my mind, against that background, it would do serious damage to the integrity and efficacy of the discovery process to permit collective discovery, the effect of which is to then require the plaintiffs to embark on a process of identification and attribution by defendant of those documents.

[36] In this regard Mr Petrie’s opinion that identification of the documents by each defendant is “totally impractical and probably impossible” is not substantially helpful to me. While it is not for me to set out the type of evidence that a party should produce in order to avoid its ordinary discovery obligations, evidence as to how the hard copy or electronic documents were originally catalogued for storage purposes should be adduced. That evidence would need to clearly show that no such cataloguing by defendant took place in order to sustain the impossibility claim. Similarly, insofar as concerns documents stored on servers, clear evidence from a suitably qualified expert as to the ability to identify which of the defendants is the source or otherwise in control of the document, is to be expected if the claim to impossibility is to be sustained. Moreover, Mr McKay accepted, unsurprisingly, that each of the defendants has a pool of documents over which they have control. It would be remarkable if that were not the case. Therefore, better evidence than a bare assertion of impossibility is required before this Court can reasonably accept that identification of documents by defendant is not reasonably possible. Nor is Mr Petrie’s evidence to be accepted at face value when it appears no attempt has, in fact, been made to identify the documents in the control or possession of each defendant, because the defendants believed only collective discovery was required.

(Footnotes omitted).

[42] The Judge was satisfied that the order sought by the plaintiffs should be made. He said that a genuine effort must be made to identify the documents in the control of each defendant unless that proves impossible in part or in whole.^[9]
[43] The terms of the order made by the Judge were set out at [6] above. It was common ground that although the order does not specifically refer to a point in time at which each company had control of documents, the purpose of the order was to require the provision of information about which companies had control of listed documents prior to the discovery process (or perhaps, prior to the proceedings being contemplated by the JH companies).
[44] The JH companies sought, and the Judge granted, a stay of the order pending determination of this appeal.^[10]
[45] On 3 April 2020 the Judge delivered a judgment determining a number of other outstanding discovery issues. The Judge made various orders and timetable directions, including requiring the JH companies to provide more detail in the author and recipient fields of their list of documents by, where possible, identifying the individual author and/or recipient of a document as well as the corporate author and recipient.^[11]

Application to adduce further evidence

[46] The JH companies sought leave to adduce further evidence on appeal by placing before us two affidavits that were filed in the High Court in support of an application for stay of the High Court judgment. The application to adduce further evidence was opposed by the claimants. They said that if it was granted they wished to adduce evidence in reply in the form of a number of affidavits recently filed by them in the High Court in connection with the discovery process.
[47] We advised counsel at the outset of the hearing of this appeal that we did not consider that the further affidavits that the JH companies wished to adduce would assist us to determine the issues raised by this appeal. Mr Hodder QC, counsel for the JH companies, accepted that the affidavits were not important to his argument. The application to adduce further evidence is therefore declined.

Submissions on appeal

JH companies’ submissions

[48] The JH companies say that the Judge erred in principle in finding that it was necessary for each of them to give discovery separately of the documents that were in their control prior to the discovery process. They say that each of the defendants had “control” of all of the relevant documents, as that term is defined in the Rules, as a result of the agreement they had entered into to collaborate in the proceedings, including the discovery exercise, and to provide each other with access to all of their documents for that purpose.
[49] In addition, the JH companies say that any discovery order must reflect the underlying principle of proportionality between the cost of the discovery exercise and the potential benefit of the discovery sought. In this case, there was little or no benefit from requiring the list of documents to identify historic control of particular documents, and doing so would be very burdensome and costly.

Claimants’ submissions

[50] The claimants supported the judgment of the High Court. They submitted that:

• (a) The order is a procedural order made in the exercise of a discretion. It was within the scope of the orders which the Court may make under the Rules.
• (b) The order was consistent with the purpose of the discovery rules and with the purpose of the Rules as a whole.
• (c) The JH companies have failed to demonstrate that the High Court Judge made an error of law or principle or that the order is plainly wrong.
• (d) On the contrary, the order was necessary to meet the objectives of the Rules and to prevent the discovery process from being undermined.

[51] Counsel for the claimants were constrained to accept in the course of argument that (for the reasons we explain below) a party must list in their affidavit of documents all relevant documents that are in their control at the time the affidavit is made. The affidavit cannot omit documents that come into the party’s control after the proceedings begin, but before the affidavit is made. It follows that each of the JH companies was required to list all documents to which it had access as a result of arrangements entered into by those companies for the purposes of the proceedings. The thrust of the claimants’ argument therefore became that the affidavit(s) of documents needed to identify which documents were in the control of each of the JH companies before the proceedings were commenced. They emphasised the obligation in r 8.3 to preserve documents which applies at that point in time, and said that those documents needed to be identified separately from documents received in the course of the proceedings.
[52] Mr Gray QC, counsel for the White claimants, submitted that it was open to the Judge to make an order requiring provision of information about which companies had control of documents prior to the discovery process under r 8.12(1)(c). This information was, he said, “another method of classification by which documents are to be identified”.
[53] In response to questions from the Court about where such information would be included in a list of documents that complied with sch 9, Ms Meechan QC, counsel for the Waitakere claimants, said that this information should be included in the narrative of the affidavit rather than in the list. Rule 8.15 requires the affidavit to include particulars of the steps taken by the party to fulfil its discovery obligations. Ms Meechan submitted that this requires the party to identify the sources from which documents were obtained. In particular, the party should specify which documents they obtained from their own records, and which they obtained as a result of access to other entities’ documents in the course of the proceedings.

Analysis

[54] We accept the claimants’ submission that the order is a procedural order made in the exercise of a discretion under the Rules. The Rules give the Court a broad discretion on the appropriate directions to make in relation to tailored discovery. The criteria for a successful appeal from a discretionary decision of this kind were summarised by the Supreme Court in Kacem v Bashir as:^[12]

• (a) error of law or principle;
• (b) taking account of irrelevant considerations;
• (c) failing to take account of a relevant consideration; or
• (d) the decision is plainly wrong.

[55] As the claimants submit, this Court exercises particular restraint in relation to appeals from case management decisions, including in relation to discovery.^[13]
[56] We also accept the claimants’ submission that the Rules must be interpreted in light of their overall objective, which is “to secure the just, speedy and inexpensive determination of any proceeding or interlocutory application”.^[14]
[57] Against that backdrop, we consider that the issues raised by this appeal are best addressed under four headings:

• (a) What documents was each JH company required to list in its affidavit of documents?
• (b) Was each JH company required to include in its affidavit of documents information about when it obtained control of the documents it listed?
• (c) In light of the answer to the first two questions, did the JH companies’ filing of a single joint affidavit of documents, which did not identify which companies controlled the listed documents before the proceedings were contemplated, comply with the Rules?
• (d) If the affidavit did comply with the Rules, was it nonetheless appropriate for the High Court to make a further discovery order requiring provision of information about which documents were in the control of each JH company before the proceedings were contemplated?

What documents was each JH company required to list in its affidavit of documents?

[58] Rule 8.15 requires each party to file an affidavit of documents. The affidavit of documents must “list or otherwise identify the documents required to be discovered under the order in a schedule that complies with rule 8.16 and Part 2 of Schedule 9”.^[15] The schedule must list or identify documents that “are in the control of the party giving discovery”, distinguishing between documents for which no claim of privilege or confidentiality is made, documents for which privilege is claimed, and documents for which confidentiality is claimed.^[16] It must also list or identify documents which “have been, but are no longer, in the control of the party giving discovery, stating when the documents ceased to be in that control, and the person who now has control of them”.^[17]
[59] That language is echoed in form G 37, which requires the deponent of the affidavit of documents to state that they have listed in (for example) Part 1 of the Schedule to the affidavit “the documents that are in my control and for which I claim neither privilege nor confidentiality”. As noted above, the affidavit is required to speak in the present tense: the deponent must make a statement about the documents in the control of the party giving discovery at the time the affidavit is made. Those are the documents that that party is able to produce, and can be required to produce subject to any claims for privilege or confidentiality.
[60] Similarly, when r 8.16(d) and form G 37 refer to documents which have been, but are no longer, in the control of the party giving discovery, the point in time for assessing whether the document comes within this category is the time when the affidavit is made. These are documents that may be relevant but that the party giving discovery can no longer produce. Instead, that party must identify who now has control of those documents, to enable the opposing parties to seek discovery and production of the documents from that other person.^[18]
[61] It would be inconsistent with the Rules for a party filing an affidavit of documents to exclude from that affidavit documents which have come into its control after the commencement of the proceedings, but before completion of the discovery affidavit. The affidavit must be up-to-date. The reference to “control” is not a reference to control of the documents at some earlier time. The requirement in r 8.3 to preserve discoverable documents in a party’s control at the time that proceedings are contemplated serves an important function in ensuring that all parties, and the court, are not deprived of access to relevant documents. But r 8.3 does not establish a temporal cut-off point for discovery, with documents received after that point in time excluded from the discovery process.
[62] Where two or more defendants agree to collaborate on discovery, instruct the same solicitors, and make all relevant documents available to each other for the purposes of the proceedings, it seems clear that each controls all of those documents. It may well be that each of them has possession of the documents through the jointly retained solicitors for the purpose of limb (b) of the definition of “control” under r 1.3. In any event, each has a right, as a result of the agreement they have entered into, to inspect or copy the documents: so each has control of those documents by virtue of limb (c) of the definition.
[63] In the present case, the JH companies are coordinating their defence of the proceedings, and the management of the extensive process of discovery required in the proceedings. They have authorised a single internal lawyer to manage the exercise on their joint behalf. They have instructed the same firm of solicitors. That joint approach is implicit in the affidavit of documents, and confirmed by their internal counsel in his evidence filed in opposition to the claimants’ application.
[64] It follows that each of the JH companies was not only permitted, but required, to list all of the documents to which it had access under that arrangement. It would have been inconsistent with the Rules for one of the JH companies to omit from its affidavit of documents the documents of which it obtained control in the course of the proceedings. Each was required to list the same set of documents.

Was each JH company required to include in its affidavit of documents information about when it obtained control of the documents it discovered?

[65] Counsel for the respondents accepted in the course of argument that the prescribed form for a list of documents in sch 9 does not contemplate provision by the party giving discovery of information about when control of documents was first obtained by that party. That is plainly right. Schedule 9 sets out detailed rules about the form and content of the list of documents. None of the prescribed particulars relates to when (or how) the party giving discovery obtained control of the listed documents.
[66] Nor do we consider that this information must be provided in the body of the affidavit sworn on behalf of a party giving discovery. The particulars of the steps that the party has taken to fulfil its discovery obligations which are required by r 8.15(2)(c) relate to the practical steps taken to locate the documents — what sources have been accessed, and how the process of identifying the documents required by the court’s order has been undertaken. Rule 8.15 does not require a party to explain how, where or when it located each of the listed documents, or to link specific documents (or groups of documents) to the step (or steps, where copies of a document are found in multiple locations) through which that document was located. In particular, it strains the language of the rule to read it as imposing a requirement to separate out documents obtained before and after proceedings were contemplated, or to provide details of how the documents were stored and organised before proceedings were contemplated.
[67] The Rules clearly impose an obligation to specify when a party giving discovery ceased to have control of potentially discoverable documents. There is no equivalent provision in relation to when control was obtained, or the details of how documents were held, stored or arranged before the proceedings were under way. The Rules are highly prescriptive in relation to what must be addressed in the affidavit of documents and attached list of documents. If information of the kind sought by the claimants was required, the Rules would expressly provide for it.
[68] To the contrary, the approach contemplated by the Rules involves preparation of a single list with duplicate documents removed. If, for example, a document is located in working files maintained by several employees and in a central storage facility, it should only be discovered once. The fact that there were duplicates need not be disclosed, and who held those duplicates need not be disclosed. That information is not relevant to the discovery process: it is sufficient that the existence of the document is disclosed, one copy of the document is listed with sufficient information to identify it for the purposes of production, and that copy can (if not privileged) be requested, produced and inspected.
[69] The absence of provision for disclosure of the date when control of documents was obtained, or of the source of those documents, is not surprising. Provision of such information would not serve any useful purpose in the context of the process of discovery and inspection. The provision of an affidavit of documents is a step in the process of identifying all documents that exist and are discoverable because they fall within the scope of a standard discovery order or tailored discovery order, and which the party giving discovery:

• (a) has in its control, and can produce for inspection; or
• (b) has in its control, but objects to producing for inspection; or
• (c) does not have in its control, so is unable to produce for inspection.

[70] Hence the definition of a discovery order in r 8.1 as an order that requires each party to a proceeding to discover the existence of documents to every other party. The focus is on what relevant documents exist, and whether those documents can and will be produced by the party giving discovery.
[71] The purpose of an affidavit of documents was described by Tompkins J in Guardian Royal Exchange Assurance of New Zealand Ltd v Stuart as follows:^[19]

An affidavit of documents serves two objects. For documents discovered in the first part of the first schedule, it enables disclosure of their nature and significance so that the party seeking discovery can decide whether to seek production. It also enables the Court to order their production and to ensure that such order is enforced.

For documents discovered in the second part it enables the party seeking discovery to become aware of the documents for which privilege is claimed and to judge whether that claim should be challenged. This object will only be achieved if the documents are described with sufficient particularity.

[72] The provision of a list of documents is a step along the path to production of documents which a party giving discovery has in its control and is willing to produce. It confirms the existence of those documents, and identifies them in sufficient detail to facilitate their production.^[20] It also facilitates the review of claims for privilege. The affidavit is not intended to serve any broader evidential function. In particular, the affidavit is not required to set out the time when each document came into the possession of the party giving discovery, or the process by which that occurred, for the simple reason that this would not advance any discovery-related purpose. The goals referred to by Tompkins J in Guardian Royal Exchange Assurance of New Zealand Ltd v Stuart can be achieved without additional information of that kind.
[73] Mr Gray put some emphasis on the reference in r 8.10 to disclosing documents in the categories indicated in cl 3(2) of sch 9 “or under some other method of classification that facilitates the identification of particular documents”. He also referred to r 8.12(1)(c), which provides for a tailored discovery order to set out “categories (by, for example, subject headings and date periods) or another method of classification by which documents are to be identified”. He submitted that these rules contemplate an order being made for the provision of more detailed particulars in relation to listed documents, where that is relevant to issues in the proceeding.
[74] However read in context we consider that it is clear that rr 8.10 and 8.12(1)(c) are concerned with the process of searching for discoverable documents, not with the particulars of those documents to be provided in the discovery affidavit. A tailored discovery order must identify the categories of documents to be searched for and discovered. That may be done by reference to the specific categories identified in cl 3(2)(a)(i) of sch 9 (subject matter, date range, types of documents, and key individuals) or some other categories. The focus is on specification of criteria for the search, not on what goes in the resulting affidavit of documents. The party giving discovery must locate the documents that meet the specified criteria, using methods and strategies determined in accordance with cl 3(2)(a)(ii) of sch 9. The documents located through this process are listed as contemplated by r 8.16, form G 37 and pt 2 of sch 9. The listed (non-privileged) documents are then produced and inspected.
[75] Mr Gray’s submission that additional particulars can be required under r 8.12(2)(c), which permits a discovery order to contain other obligations that are considered appropriate, is not relevant to the question of whether the November 2019 discovery affidavit complied with the Rules. No order had been made under r 8.12(2)(c) requiring the provision of such particulars before the November 2019 affidavit was made and filed. We return below to the question whether the order made in the High Court judgment could have been made under this provision.
[76] Nor does r 8.15(2)(c) assist the claimants. That limb of r 8.15 is concerned with the document location process. The document location process needs to be described in sufficient detail that the party receiving discovery is assured that the categories specified in the tailored discovery order have been applied, and the methods and strategies specified in that order have been followed. If insufficient detail of these matters is provided in an affidavit of documents, the deponent can be required to file a further affidavit providing more detail about the document location process and verifying that the process set out in the court’s order has been followed. But r 8.15(2)(c) does not require a party giving discovery to provide additional information about when a document that is listed came into its control: that is not the purpose of this provision, or of the discovery rules more generally.
[77] Mr Gray submitted that in a case where historical control of documents is relevant to an issue for trial, information in documentary form that sheds light on this issue would be discoverable. We agree. So for example a party may be required to give discovery of documents that shed light on when information was provided by one company to another, or of organisational charts setting out which individuals were employed by which companies, and for which other companies they also performed functions. But we do not accept his submission that “[e]qually” it is consistent with the purpose of discovery to require information about historical control of documents to be generated by the party giving discovery, and included in their affidavit of documents. As we have explained, it is not the function of an affidavit of documents to provide evidence about the discovered documents: rather, it is a mechanism for ensuring the identification and (where appropriate) production for inspection of existing documents.
[78] Counsel for the claimants also submitted that the specific location and context of documents may in some cases be relevant to an issue at trial. The context in which a document is placed may affect an assessment of its relevance. We agree. Where, for example, it is relevant to an issue in dispute to know which documents were in a particular box or file, or for that matter, the order of documents on a particular file, an order can be made for the discovery of the documents contained in that box or file.^[21] The obligation under r 8.3 to preserve documents will, in cases where the existence and nature of such compilations is relevant, extend to preserving those compilations. But it does not follow that contextual information about every document must be provided whenever standard discovery or tailored discovery is ordered. That is not contemplated by the default rules that apply to those exercises. A specific order would need to be sought requiring discovery of the compilation in question under rr 8.12(1)(c) or 8.19.
[79] It follows that the JH companies were not required to include in the affidavit(s) they filed in November 2019 information about when they acquired control of the documents listed in those affidavit(s). In particular, they were not required to specify whether they had control of listed documents before the proceedings were commenced, or before the discovery process.

Did the filing of a single affidavit comply with the Rules?

[80] For the reasons set out above, each of the JH companies was required to list all of the documents in its control at the time of giving discovery, and was not required to identify when, or how, each of those documents came into its control. The arrangements entered into by the JH companies to collaborate in the provision of discovery meant that each company controlled all relevant documents. Accordingly, at the time of discovery, each was required to provide an identical list. No useful purpose would have been served by each company providing a separate identical list.
[81] We agree with the Judge that the rules in relation to discovery should be applied in a way that avoids unnecessary duplication and cost. A single affidavit can be filed on behalf of more than one party where no useful purpose would be served by requiring each of those parties to produce an affidavit, in particular where those affidavits would all attach identical lists.
[82] Mr Petrie has affirmed that he is authorised by each of the JH companies to swear the affidavit of documents on its behalf. That is not, and could not sensibly be, challenged by the claimants. It follows that each of the JH companies has discharged its obligation to provide an affidavit of documents for the purposes of discovery. The provision of a single affidavit of documents on their joint behalf, attaching a single list of documents, was consistent with the requirements of the Rules.

Was it nonetheless appropriate for the High Court to make the discovery order?

[83] The claimants submit that even if the November 2019 affidavit complied with the Rules, it was open to the Judge to make an order under r 8.12(2)(c) requiring additional particulars of the documents to be provided. They say that tailored discovery may be ordered where the interests of justice require an order involving more discovery than a standard discovery would involve.
[84] The claimants emphasise that the responsibility of each of the named defendants for the alleged defects in the James Hardie products is a live issue in this proceeding. It will be necessary for the High Court to determine questions about the involvement of each company, in particular, JHI, the holding company, in the design, manufacturing and marketing activities that are the focus of the proceedings. The question of what each company knew about the alleged defects in each of the relevant products will also be important at trial. So, the claimants say, this is a case in which it was appropriate for the High Court Judge to require the affidavit of documents to provide information about which companies held which documents prior to the discovery process.
[85] This argument faces the difficulty that the claimants’ application in the High Court was not made in reliance on r 8.12(2)(c). The Judge did not make any reference in his judgment to r 8.12. This is in effect, a fresh application for an order under r 8.12(2)(c), made for the first time in this Court.
[86] Putting to one side the question of whether such an application should be entertained, the simple answer is that the order sought by the claimants is inconsistent with both the text and the purpose of the discovery rules.
[87] The reference to tailored discovery potentially involving more discovery than the standard discovery does not assist the claimants. Rule 8.8 contemplates that a broader range of documents may need to be provided pursuant to a tailored discovery order than would be required under a standard discovery order. It is concerned with the breadth of the discovery exercise, and what documents must be disclosed, not with the provision of additional information about those documents.
[88] Rule 8.12(2)(c) gives the High Court a broad discretion to include in a discovery order any obligations apart from those identified in pt 8 or sch 9 of the Rules that are designed to ensure that the discovery process is conducted in a manner consistent with the objectives of the Rules, and achieves its dual purposes of:

• (a) facilitating production of discoverable documents in the control of a party that are not privileged; and
• (b) disclosure of the existence of other potentially discoverable documents that are not in the control of the party giving discovery.

[89] The affidavit of documents required by sub-pt 1 of pt 8 of the Rules does not serve a broader evidential purpose. It would not be appropriate for orders to be made under r 8.12 in order to require a party giving discovery to provide additional evidence relating to the discovered documents.
[90] We also see real difficulty in requiring a person swearing an affidavit of documents on behalf of a corporation to provide historical information of this kind. Often these matters will not be within their knowledge. Different documents will have been received by different people on different dates. In many cases this will not be apparent from the face of the document. It would be unworkable and unfair to require the person swearing an affidavit of documents to address these issues.
[91] We accept the claimants’ argument that it may be important to establish when responsible officers of a particular JH company had knowledge of various facts, or received various documents and reports. If the history of dealings with a particular document or category of documents is important, that may be an appropriate matter to explore through interrogatories under sub-pt 2 of pt 8 of the Rules. Any such interrogatories can be appropriately framed to ensure that they focus on when relevant officers of the relevant company received, or became aware of, particular documents or particular information contained in those documents.
[92] We observe that these are different and more focussed inquiries than whether the company had “control” of the document in the sense that is relevant for discovery purposes at the time that proceedings were first contemplated. A company may well have control of a document in this sense even though none of the officers of that company, whose knowledge is relevant for the purposes of the substantive claim, has seen the document. For example, the document may be in the physical possession of support staff responsible for storing physical records on behalf of several group companies. An IT executive employed by the company may have access to the document and be able to inspect it and copy it, because they have access to all electronically stored information of the group. It is difficult to see how control of the document by the company in this sense would inform any substantive issue at trial. And we doubt that it will often be the case that control of a document at the point in time immediately before proceedings were contemplated is relevant to an issue in the proceedings. Here, for example, the argument that JHI had a duty to warn purchasers of the James Hardie products about the alleged defects, and failed to do so, raises issues about what JHI knew about any defects prior to the time when the products were sold and used in the construction of the relevant buildings. What JHI knew when the proceedings were filed in 2015 seems unlikely to be relevant to any issue in this proceeding.
[93] We also observe that the question of who had knowledge of particular documents, and when, is likely to arise in relation to a subset of the more than 28,000 documents that have been discovered to date. It is not in our view proportionate, or consistent with the objective of the Rules, to require historical control information to be provided in relation to all 28,000 documents. Rather, in relation to the subset of documents for which this matters, it may be appropriate to administer suitably focussed interrogatories. It would be difficult for the JH companies to resist appropriately framed interrogatories seeking additional information about flows of documents and information between group companies, given the importance of this issue and the absence of any information that might shed light on these issues in the JH companies’ affidavit of documents. It would also be difficult to resist requests for discovery of documents that shed light on what information was held by particular companies at relevant times, such as lists of relevant files (or boxes of files) held in a particular file room or a particular third-party archive. Targeted requests for discovery of particular compilations of documents — for example, the contents of specific archive boxes — might also be appropriate. In all of this, the touchstones will be relevance to the issues in dispute, and proportionality.
[94] Counsel for the claimants expressed considerable frustration in relation to the timeliness with which their queries about discovery have been responded to by the JH companies. They say that the responses they have received have been both slow and inadequate, and this has necessitated multiple interlocutory applications. Even if those concerns are well-founded, that would not mean that the discovery rules should be deployed to serve a function for which they were not designed. Rather, other more appropriate and more targeted mechanisms should be invoked to seek to fill the information gaps identified by the claimants.

Conclusion

[95] We conclude that the JH companies were not required by the Rules to file separate affidavits of documents identifying which documents were in their control prior to the discovery process or prior to the proceedings being contemplated. Nor were they required to provide a joint affidavit (or affidavits) which identified which of the JH companies had control of which document prior to the discovery process or prior to the proceedings being contemplated. It was consistent with the text and purpose of the Rules concerning discovery for the JH companies to file a single joint affidavit listing all documents in their joint control, without particulars of when each company acquired control of the listed documents.
[96] We do not consider that it would be consistent with the scheme of sub-pt 1 of pt 8 of the Rules to make an order under r 8.12(2)(c) requiring information to be provided in an affidavit of documents about which companies had control of the listed documents prior to the discovery process, or prior to the proceedings being contemplated. Requiring additional information of that kind to be provided in relation to all the listed documents is not consistent with the scheme and purpose of the discovery regime in sub-pt 1 of pt 8.

Result

[97] The application to adduce further evidence is declined.
[98] The appeal is allowed.
[99] The JH companies are entitled to one set of costs for a standard appeal on a band A basis, with usual disbursements. We certify for second counsel.
[100] Costs in the High Court are to be determined in that Court.

Solicitors:
Chapman Tripp, Auckland for Appellants
MinterEllisonRuddWatts, Auckland for Waitakere Respondents
Adina Thorn Lawyers, Auckland for White Respondents

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^[1] White v James Hardie New Zealand (No 5) [2019] NZHC 3459 [High Court judgment] at [1] and [37].

^[2] White v James Hardie New Zealand [2017] NZHC 2105. James Hardie Plc v White [2018] NZCA 580, [2019] 2 NZLR 49. Leave to appeal to the Supreme Court declined: James Hardie Industries Plc v White [2019] NZSC 39.

^[3] High Court Rules 2016, r 8.15 and sch 9.

^[4] Rule 8.6.

^[5] Rule 8.7.

^[6] High Court judgment, above n 1, at [30].

^[7] At [30].

^[8] At [31].

^[9] At [37].

^[10] White v James Hardie New Zealand (No 6) [2020] NZHC 216.

^[11] White v James Hardie New Zealand (No 7) [2020] NZHC 685.

^[12] Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32].

^[13] Houghton v Saunders [2019] NZCA 506 at [50]–[51].

^[14] High Court Rules, r 1.2.

^[15] Rule 8.15(2)(e).

^[16] Rule 8.16(1)(a), (b) and (c).

^[17] Rule 8.16(1)(d).

^[18] If the other person is a party, then the documents can be sought from that party through discovery in the ordinary way. If the other person is a non-party, discovery can be sought under r 8.21.

^[19] Guardian Royal Exchange Assurance of New Zealand Ltd v Stuart [1985] 1 NZLR 596 (CA) at 607.

^[20] As required by High Court Rules, r 8.27.

^[21] See for example American Home Products Corp v Novartis Pharmaceuticals UK Ltd (No 2) [2001] EWCA Civ 165, [2001] FSR 784 at [34]; Three Rivers District Council v Governor and Company of the Bank of England (No 4) [2002] EWCA Civ 1182, [2003] 1 WLR 210 at [38], [44]–[45].