Hall v Attorney-General [2012] NZHC 357 (6 March 2012)

Last Updated: 15 March 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2006-404-3321 [2012] NZHC 357

BETWEEN JOHN HALLIDAY HALL Plaintiff

AND THE ATTORNEY-GENERAL Defendant

Hearing: 6 March 2012

Appearances: Mr A Commons for Plaintiff

Mr H Hancock and Ms G Gardner for Defendant

Judgment: 6 March 2012

ORAL JUDGMENT OF ASSOCIATE JUDGE DOOGUE [Dismissing application and ordering Costs]

Counsel:

Hornabrook Macdonald Lawyers, P O Box 91845, Auckland

(Counsel: Chancery Street Chambers: Paul Dale / Andrew Commons)

_{Crown Law Office, P O Box 2858, Wellington}

HALL V THE ATTORNEY-GENERAL HC AK CIV-2006-404-3321 [6 March 2012]

[1] This long-running litigation has come before me once again – this time for an order for strike out for failure to comply with an order for discovery.

[2] The issue that has led to difficulty in this case stems from the fact that the Crown at an earlier stage in the litigation agreed to disclosure of certain categories of documents described as a class. One of the classes of documents was that the Crown agreed to give discovery of was described in the following terms:

Disclosure of the instructions and documents with regards to the negotiations entered into by the Crown’s agents in 2007 to sell the balance of the Hall West block to Eastward Farms Limited.

[3] The plaintiffs awaited but did not receive discovery of documents in this category. That was because the Crown found out that there were no documents in this category. They informed the plaintiffs of this fact and of the large scale searches that had been carried out of the remaining documents in the Crown’s custody and control.

[4] The plaintiff still continued up until the hearing today to enforce the order to discover the documents which the Crown said it did not have. It was apparent that the principal ground that the applicant/plaintiff relied upon was that it was inherently unlikely that there would be no such documents.

[5] In order to short circuit matters I heard evidence from Mr Scofield one of the Crown’s deponents and directed that he be subject to cross-examination by Mr Commons for the plaintiff. This unusual procedural step seemed to offer the promise of getting to the heart of the issues between the parties quickly.

[6] Mr Scofield gave evidence before me and he was not moved in his contention that there were no further documents and what is more he suggested that the basis upon which the plaintiff reached its inference that there must be documents arose from a misunderstanding about how the various Government agencies, Transit, Linz and the Crown Law Office progressed public works claims of this kind.

[7] Mr Commons for the plaintiff/applicant has now accepted that it cannot obtain strike out or alternative orders. The application should be dismissed and I so

order. I can only add that it seemed obvious to the Court, after hearing the evidence, that the Crown’s position had been correct throughout and that there was no basis for making the orders which the plaintiff sought.

[8] The Crown now seeks costs. Under the rules the presumption is that a party who fails in an interlocutory application must pay the costs. I see no reason to depart from such an approach in this case. Mr Hancock for the Crown says that it would be just in this case for solicitor/client costs to be directed together with disbursements for travel for two Crown counsel to attend this hearing today.

[9] Mr Commons on the other hand said that while an order for costs is opposed the quantum of any order if made should be as per the schedules to the rules.

[10] The costs in this case relate to responding to the application, preparing affidavits in opposition, formulating drafting and filing submissions, preparing for the hearing and of course appearing here today. Mr Hancock tells me that the solicitor/client costs incurred are of the order of $5,000.

[11] While there ought to be an order for costs, I accept that up until a certain point at least the plaintiff conducted himself reasonably in pursuing the apparent non-existence of documents that were originally thought to be in the defendant’s possession. But I am also of the view that by the time the matter came to hearing the pursuit of the documents ceased to be reasonable.

[12] When I read some of the material in preparation for this hearing, it seemed reasonably plain that what had occurred was that the Crown had assumed there were documents in the categories by which discovery was defined but that having carried out what indeed seemed to be very exhaustive searches in furtherance of its obligations the Crown discovered that there were no such documents. It was not reasonable in those circumstances for the plaintiff to push ahead on the basis of what can only be seen as a slender inference supporting the suggestion that there were such documents in existence. Looking at it another way there was never any chance that orders striking out etc were going to be made on the facts of this application once the Crown had explained its position exhaustively in the affidavits which it

filed. So while the Crown may have been incautious when it originally agreed to the terms of the consent discovery order, well before the hearing today it had clarified the position. I consider that the defendant’s explanation of matters ought to have been accepted and the application discontinued.

[13] For the foregoing reasons, my view is that the plaintiff ought to be directed to pay one half of the Crown solicitor/client costs up to a sum not exceeding $2,500, and costs are to be verified by invoices supplied to the plaintiff’s counsel. I consider that it was not unreasonable for two Crown counsel to attend today’s hearing, although I accept that Ms Gardner’s attendance was essentially as a “archivist” who has detailed knowledge of the case and the file. But given the volume of the material and the history of the matter her travel to Auckland was warranted. Therefore I

_{order that the plaintiff is to pay the costs of the travel for both counsel.}

J.P. Doogue

Associate Judge