Glaister v Harris [2014] NZHC 1285 (9 June 2014)

Last Updated: 17 June 2014

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV-2014-412-000049 [2014] NZHC 1285

BETWEEN	GEORGE PETER GLAISTER Plaintiff
AND	SONIA LEE HARRIS Defendant

Hearing:	5 June 2014
Appearances:	D R Tobin for Plaintiff R Kelly for Defendant
Judgment:	9 June 2014

JUDGMENT OF ASSOCIATE JUDGE OSBORNE

_{as to initial disclosure}

The issues

[1] The Court is called upon to determine an apparently novel issue as to whether a plaintiff who applies for summary judgment must comply with the requirements of initial disclosure under r 8.4 High Court Rules. If there is such a duty, there is a consequential issue as to what was required by way of initial disclosure in this case.

Background

[2] The plaintiff (Mr Glaister) applied for summary judgment when he issued this proceeding against the defendant (Ms Harris).

[3] Mr Glaister’s application was accompanied by an affidavit in support, in

which he exhibited (in addition to the statement of claim) two documents.

[4] Mr Glaister did not, after filing his proceeding, serve on Ms Harris a bundle of principal documents as referred to in r 8.4(1) High Court Rules.

GLAISTER v HARRIS [2014] NZHC 1285 [9 June 2014]

Initial disclosure under the High Court Rules

The constitution of r 8.4 on its face

[5] Initial disclosure of a party’s principal documents is provided for in r 8.4

High Court Rules which states:

8.4 Initial disclosure

(1) After filing a pleading, a party must, unless subclause (2) applies, serve on the other parties, at the same time as the service of that pleading, a bundle consisting of—

(a) all the documents referred to in that pleading; and

(b) any additional principal documents in the filing party's control that that party has used when preparing the pleading and on which that party intends to rely at the trial or hearing.

(2) A party need not comply with subclause (1) if—

(a) the circumstances make it impossible or impracticable to comply with subclause (1); and

(b) a certificate to that effect, setting out the reasons why compliance is impossible or impracticable, and signed by counsel for that party, is filed and served at the same time as the pleading.

(3) A party acting under subclause (2) must, unless the other parties agree that initial disclosure is not required, or that a longer period is acceptable, either serve the bundle referred to in subclause (1) within

10 working days from the service of the pleading or apply for a variation of that requirement within that period.

(4) If a party fails to comply with subclause (1) or (3), a Judge may make any of the orders specified in rule 7.48.

(5) Despite subclause (1), a party does not need to disclose any document in which the party claims privilege or that a party claims to be confidential.

(6) Despite subclause (1), a party does not need to disclose any document that either—

(a) is the subject of a claim of public interest immunity; or

(b) is reasonably apprehended by the party to be the subject of such a claim.

(7) Despite subclause (1), a party does not need to include in a bundle served by that party any document contained in a bundle already

served by any party or any document attached to an affidavit already filed in court.

(8) The bundle of documents may be served either electronically or as a bundle of copies in hard copy form.

(9) If an amended pleading is filed prior to the making of a discovery order, this rule applies to that amended pleading if it either—

(a) refers to documents not referred to in any earlier pleading filed by the party who files the amended pleading; or

(b) pleads additional facts.

[6] Although this current rule (and other substantial amendments in relation to discovery) came into effect on 1 February 2012¹, the central issue raised in this case appears to be novel.

[7] Counsel before this hearing filed written submissions on the point and spoke to those submissions at the hearing. They were unable to refer me to any decisions in which this point has been directly addressed² and the research which I have had carried out has not uncovered any decision. I therefore deal with matters in terms of the High Court Rules themselves.

[8] I turn to the provisions of r 8.4 itself.

[9] In its terms, r 8.4(1) imposes an obligation as to initial discovery upon every party after it files a pleading. The duty is (subject to exceptions set out in succeeding sub-rules) to provide a bundle consisting of the documents referred to in the pleading and additional principal documents as defined in r 8.4(1)(b).

[10] The authors of McGechan on Procedure assume in their commentary in relation to summary judgment applications that initial disclosure is still required

_{when a pleading is accompanied by a summary judgment application. They state:}³

¹ _{High Court Amendment Rules (No 2) 2011 (SR 2011/351), r 4.}

² The requirements of initial disclosure were raised by counsel for the respondent in Lal v Sovereign Assurance Company Limited [2013] NZHC 2660 (as recorded in the judgment at [36](i)) but the judgment does not directly address the respondent’s contention that there ought to have been initial disclosure under r 8.4.

³ McGechan on Procedure (looseleaf ed, Brookers) at [HR 8.5.02].

Because the summary judgment procedure is designed to provide a fast-track route to judgment, it is not possible in the ordinary case to complete the discovery process before the summary judgment hearing. Initial disclosure will be required under r 8.4, however.

[11] The authors of McGechan on Procedure refer to no authority on the point.

[12] There is some further commentary support, beyond that in McGechan, for the comprehensive application of the initial disclosure regime. Asher and Fogarty JJ, writing extra-judicially, observed in relation to initial disclosure:⁴

All parties filing their pleadings must serve on the other parties a bundle of the documents referred to in the pleading and any additional principal documents.

[13] Fogarty and Asher JJ were throughout High Court representatives on the Rules Committee and largely responsible for the consultation process in relation to the issues and the proposed amendments. Their observation that the initial disclosure regime applied to “all parties filing their pleadings”, without reference to an exception as significant as summary judgment applications would be, undermines the suggestion that there would have been no legislative intent to create a comprehensive regime.

[14] The authors of Sim’s Court Practice⁵ make no comment as to whether the initial disclosure regime applies to cases commenced with a summary judgment application.

[15] Although r 8.4 in its terms appears to have application to every plaintiff, including one who commences litigation with a summary judgment application, Mr Tobin submitted that r 8.4 should not be so construed. He identified two arguments against the literal interpretation of r 8.4(1).

The relevance of r 8.4(7) to constitution of r 8.4 as a whole

[16] An applicant for summary judgment must file and serve a supporting affidavit.⁶

⁴ Asher and Fogarty JJ, “Introduction” in D Friar, A King and L O’Gorman (eds) New Discovery

_{Rules NZLS/CLE Ltd, Wellington, October 2011) at 1.}

⁵ Sim’s Court Practice (online looseleaf ed, LexisNexis).

[17] Rule 8.4(7) provides one of the exceptions to the requirement of service of a bundle by way of initial disclosure under r 8.4(1). Under r 8.4(7) the bundle does not have to include any document attached to an affidavit already filed in Court.

[18] The fact that r 8.4(7) expressly deals with documents introduced through affidavit tends to suggest that the draftsperson had in mind proceedings which may be accompanied by an interlocutory application at the time of commencement. Such is often the case in relation to summary judgment applications and applications for interim injunctions.

[19] When r 8.4(1) and r 8.4(7) are read together, as they must be for construction purposes, the conclusion that r 8.4(1) should not be read down is strengthened. At one point in his oral submissions, Mr Tobin suggested that the imposition of the initial disclosure regime would require an applicant to duplicate documents in that an applicant would not only exhibit principal documents but would then have to provide copies in an initial disclosure bundle. Such an unnecessary duplication is avoided by r 8.4(7). The applicant for summary judgment will have to produce by way of an initial disclosure bundle only such principal documents as he or she chooses to leave out of the affidavit in support.

Discrepancy between treatment of plaintiff and defendants

[20] I recognise that the construction which I give to r 8.4 – whereby it applies to anyone who files a pleading (including an applicant for summary judgment) – means that the rule does not apply to a defendant who applies for defendant’s summary judgment under r 12.2(2) High Court Rules but elects, pursuant to r 12.10, not to file a statement of defence. Equality of treatment would suggest that an applicant/defendant ought not to be treated differently to an applicant/plaintiff. In other words, a respondent/plaintiff might reasonably be expected to receive the same benefits of initial disclosure as a respondent/defendant. The most plausible inference is that the Rules Committee may not have turned its attention to this rather unusual consequence of r 12.10 whereby a defendant may elect initially not to file a statement of defence. The difference of treatment is something which the Rules

Committee might now appropriately consider. The present, apparent anomaly in relation to an applicant/defendant does not justify any reading down of the application of r 8.4 as it stands.

Is r 12.4(4) a code in relation to the documents to be provided on a summary judgment application?

[21] Mr Tobin invokes the provisions of r 12.4(4) High Court Rules, which provides in relation to summary judgment applications:

(4) The party making the application must file and serve on the other party the following documents:

(a) an interlocutory application on notice in form G 31: (b) a supporting affidavit:

(c) if the party is a plaintiff applying at the time the statement of claim is served,—

(i) a notice of proceeding in form G 13; and

(ii) a statement of claim:

(d) if the party applying is a defendant applying at the time the statement of defence is served, a statement of defence.

[22] Mr Tobin noted the absence of any reference in r 12.4(4) to service of a bundle by way of initial disclosure.

[23] Mr Tobin noted that the authors of Civil Procedure: District Courts and Tribunals did not suggest (at least at that point of their commentary) that initial disclosure is required on summary judgment applications. Furthermore, Mr Tobin referred to commentary in Civil Procedure: District Courts and Tribunals⁷ which states:

As the summary judgment procedure is designed to be a speedy means of resolving disputes, discovery is usually not appropriate. On occasion, the Court has allowed discovery in summary judgment. Generally, however, it is available only in exceptional circumstances: DFC NZ Ltd v Tapp (1991) 3

PRNZ 543 (HC).

[24] Mr Tobin submitted that against this background, the correct construction of the High Court Rules is that r 12.4(4) operates in summary judgment cases so as to exclude what would otherwise be a requirement of initial disclosure.

[25] Implicit in Mr Tobin’s submission on r 12.4(4) is a proposition that the sub- rule is a comprehensive code as to what must be done by an applicant when making a summary judgment application.

[26] I do not consider r 12.4(4) can properly be read in the way Mr Tobin submits.

[27] In its terms, r 12.4(4) is a statement as to the Court documents which must be filed and also served on the opponent. The function of those Court documents is to put the applicant’s case before the Court and the opponent and to inform the opponent as to its rights. Rule 12.4(4) does not purport to deal with other subject matter dealt with elsewhere in the High Court (or other) Rules. For instance, it does not deal with the filing fees which an applicant must pay to the Registrar (dealt with in High Court Fees Regulations). Nor does it deal with the evidence a plaintiff must file if exercising the option under r 5.1(3) High Court Rules as to the Registry in which to file a proceeding. These obligations apply to proceedings commenced with a summary judgment application. The fact that the initial disclosure requirement is contained outside r 12 does not establish that it is a rule which does not apply to proceedings which are accompanied by a summary judgment application.

Does the “mischief rule” require that r 8.4 be read down?

[28] Mr Tobin submitted alternatively that an application of what was traditionally referred to as the “mischief rule” requires that r 8.4(1) not apply when a plaintiff pursues summary judgment. The authors of Statute Law in New Zealand⁸ recognise that the mischief rule is in accord with the modern purposive approach to interpretation.⁹ As the authors note, however, the traditional “rules” come nowhere close to adequately explaining the interpretation process and at times the literal and

_{mischief rules can seem to be in conflict.}

⁸ J F Burrows and R I Carter (ed) Statute Law in New Zealand (4^th ed, Lexis Nexis, Wellington,

2009).

[29] I am not persuaded that anything in the apparently clear words of r 8.4 creates a particular difficulty if applied to proceedings accompanied by summary judgment applications. I recognise, as observed by the authors of Statute Law in New Zealand, that provisions which seem perfectly clear in the abstract sometimes dissolve into uncertainty in the face of an unforeseen fact situation,¹⁰ but the occurrence of summary judgment applications cannot on any approach be characterised as unforeseen situations. As Ms Kelly observed, the introduction of sweeping changes to the rules as to disclosure of documents followed a lengthy period of consideration

by the Rules Committee and consultation with interest groups including the Judges and the profession. The fact that proceedings and pleadings would be filed, accompanied by summary judgment applications, could not have escaped the attention of those involved in the consideration of new rules.

[30] There is no compelling reason to resort to the mischief rule or, more generally, a purposive approach to interpretation which might cut across the plain words of r 8.4(1).

[31] That said, I will examine briefly the mischief as Mr Tobin invited me to find it.

[32] Mr Tobin identified as a central mischief which led to the new discovery rules the huge amounts being spent on discovery for a number of reasons including the expansive discovery required under the Peruvian Guano test.¹¹ The causes of unacceptably high discovery costs (including the Peruvian Guano test) were documented by the authors of the NZLS/CLE seminar “New Discovery Rules” in their October 2011 booklet.¹² As David Friar summarised it in his chapter “The need for reform”:¹³

The new discovery rules are designed to reduce disproportionate costs and delays caused by discovery, and reduce the tactical use of discovery.

¹⁰ _{At 179, n 40.}

11. Compagnie Financière et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55 (CA) at 63.
12. D Friar, A King and L O’Gorman (eds), New Discovery Rules, (NZLS/CLE Limited, Wellington, October 2011).

[33] In his subsequent chapter, dealing specifically with initial disclosure, Mr Friar observed, with reference to the report of the Australian Law Reform Commission, in turn citing the Victorian Law Reform Commission, that:¹⁴

The purpose of initial disclosure is to give the parties an early opportunity to consider the strength of the other party’s position, help narrow the issues in dispute, and facilitate an early settlement where appropriate.

[34] I reject the invitation of Mr Tobin, when he invites the Court to conclude that there was a mischief (responded to by the Rules Committee) which drove both the introduction of an initial disclosure regime and the reforms relating to subsequent discovery (through orders or otherwise).

[35] I adopt Mr Friar’s characterisation as to the primary purposes of initial disclosure. The pleading party is putting its principal documents on the table, with all that that enables in terms of narrowing issues in dispute and facilitating settlement. The disproportionate nature of what had become the traditional discovery process (the mischief identified by Mr Tobin) is primarily dealt with by the later rules (r 8.5 and following) which provide for discovery orders on a different approach to that which had applied under the Peruvian Guano test.

[36] Mr Tobin submitted that if the r 8.4 regime as to initial disclosure is to be applied to summary judgment applicants, the unacceptable burden of discovery under Peruvian Guano will now continue to fall on summary judgment applicants. I reject that submission as it incorrectly equates what is involved in giving initial disclosure with what will usually be the greater requirements of discovery pursuant to orders, whether by way of standard or tailored discovery. The benefits of initial disclosure apply as much when a plaintiff seeks summary judgment as when the plaintiff does not.

[37] Accordingly, an examination of the mischief identified by Mr Tobin does not lead to a conclusion that r 8.4 should be interpreted more narrowly than its little

_{construction suggests.}

¹⁴ At 35, n 146.

Application of the initial disclosure regime to this case

[38] Although r 8.4(1) imposes the initial disclosure obligation on the party filing a pleading, the decision-making involved in the process will almost invariably fall upon counsel (precisely because it is counsel who will have prepared the pleading in terms of r 8.4(1)(b)).

[39] Mr Tobin frankly conceded that because he had taken the view that the initial disclosure requirement did not apply to this summary judgment applicant, he was not required to consider what documents beyond those attached to Mr Glaister’s affidavit might appropriately be included in a bundle by way of initial disclosure.

[40] In the course of his submissions, and having received from me a tentative indication that Mr Glaister was bound by the initial disclosure regime, Mr Tobin volunteered, in the event the Court was prepared to grant a short adjournment, to review Mr Glaister’s documents with a view to providing a bundle by way of initial disclosure.

[41] I am advised by counsel that they have informally discussed two categories of documents which Ms Harley identifies as being covered by initial disclosure requirements. I refrain in this judgment from any analysis of those items as they are not the subject of evidence.

[42] I will be adjourning the proceeding as requested by Mr Tobin. I anticipate that through the cooperation which counsel have foreshadowed any remaining issues as to initial disclosure will fall away.

[43] In the event that there is any remaining issue, Ms Harris will have her rights under r 8.4(4) to request the making of an order under r 7.48. If Ms Harris were to seek such an order, I require that the factual basis of any such request be supported by affidavit evidence.

Costs

[44] Counsel have responsibly cooperated in filing brief written submissions and in having the oral submissions on this matter quickly dealt with in the context of a List. Ms Harris has succeeded in establishing that Mr Glaister was bound by the initial disclosure regime. There will have been costs thrown away through the preparation of those brief submissions and Ms Kelly’s brief appearance for oral submissions.

[45] It is appropriate that costs should follow the event.¹⁵ It is appropriate to categorise the proceeding (which involves enforcement of a contract) as a proceeding of average complexity and therefore a Category 2 proceeding.¹⁶ The reasonable time for attendances is band A, as a comparatively small amount of time was reasonable.¹⁷

[46] I allow two items as applicable under Schedule 3 High Court Rules, namely Item 24 for preparation of written submissions, (0.5 days) and Item 26 for appearance at a hearing measured in quarter days (0.25 days).

[47] I will accordingly be making an order for costs of $1,492.50 to be paid to the defendant in any event.

Orders

[48] I order:

(a) The plaintiff is to complete his obligation of initial disclosure within

10 working days;

(b) Leave is reserved to the defendant to request an order or orders pursuant to r 8.4(4) if the plaintiff fails to comply with his obligation

_{of initial disclosure within 10 working days;}

¹⁵ _{High Court Rules, r 14.2(a).}

¹⁶ _{Rule 14.3(1).}

¹⁷ Rule 14.5(2)(a).

(c) The plaintiff is to pay to the defendant in any event the sum of

$1,492.50 in relation to the cost of submissions and hearing of the initial disclosure issues to date.

Next conference

[49] I adjourn the proceeding to a conference by telephone (Associate Judge Osborne) at 2.30 pm, 10 July 2014. Counsel are to file five working days before that conference a memorandum as to proposed directions in relation to the interlocutory application and the proceeding generally.

Associate Judge Osborne

Solicitors:

Rodgers Law, Dunedin

Polson McMillan Lawyers, Dunedin