RHH Limited v Anderson [2018] NZHC 2045 (9 August 2018)

Last Updated: 20 August 2018

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-2066 [2018] NZHC 2045

BETWEEN	RHH LIMITED First Plaintiff JOSEF CHRISTOPHER ROBERTS Second Plaintiff
AND	SANDRINE ANDERSON First Defendant HELICE PROPERTIES LIMITED Second Defendant

Hearing:	9 August 2018 at 2:15pm
Appearances:	K Davenport QC and P Devereux for the Plaintiffs L Taylor QC and E Watt for the Defendants
Judgment:	9 August 2018

ORAL JUDGMENT (No.3) OF ASSOCIATE JUDGE R M BELL

Plaintiffs’ application for interrogatories

Solicitors:

Corporate Counsel (P Devereux), Parnell, Auckland, for the Plaintiffs

Grove Darlow & Partners (TJG Allan/SF Powrie), Auckland, for the Defendants Haigh Lyon (B Molloy), Auckland, for Ms Miriam Roberts

Copy for:

Kate Davenport QC, Auckland, for the Plaintiffs Les Taylor QC, Wellington, for the Defendants

Robert Hollyman, Auckland, for Ms Miriam Roberts, non-party

RHH LIMITED v ANDERSON (No.3) [2018] NZHC 2045 [9 August 2018]

[1] This decision is on the plaintiffs' application for leave under r 7.7 of the High Court Rules to apply for the defendants to answer interrogatories after the close of pleadings date. The rule says:

No statement of defence or amended pleading or affidavit may be filed and no interlocutory application may be made or step taken after the close of pleadings date without the leave of a Judge.

[2] The close of pleadings date was 23 July 2018. On 2 August 2018, the plaintiffs filed an application for the defendants to answer interrogatories. On 3 August 2018, I directed that the application was to be heard today.

[3] The plaintiffs served a notice to answer interrogatories on 29 June 2018. That was the same day they filed an amended statement of claim. The notice required the defendants to answer within 14 working days. The time for complying with the notice accordingly expired on 19 July 2018. The defendants filed a statement of defence to the new statement of claim on 13 July 2018, but did not respond at all to the notice to answer interrogatories. No correspondence from solicitors has been put in evidence. It is common ground that there was no formal answer to the notice. At a hearing on 30 July 2018, counsel for the plaintiffs advised me that there was an outstanding interrogatories matter.

[4] I give some of the procedural background. At the start of the proceeding I directed both parties to complete discovery by 28 February 2018. The plaintiffs indicated that they would apply for non-party discovery. I directed that any interlocutory applications were to be filed and served by 16 March 2018, with notices of opposition to be filed by 29 March 2018. I directed that any further interlocutory applications would be heard at the same time as the application for non-party discovery. That was in my minute of 8 December 2017. In my minute of 15 December 2017, I gave trial directions with the close of pleadings dated fixed at 23 July 2018.
[5] The defendants filed an affidavit of documents in February 2018. The plaintiffs queried the adequacy of their discovery. The defendants filed a further affidavit of documents during April 2018. The plaintiffs applied for further discovery against the defendants in April 2018. Hearing directions were given during May 2018 and the application was called on 30 July 2018.

[6] On 30 July 2018 other interlocutory business required attention. The application for further discovery was adjourned and was heard and decided this morning. The plaintiffs applied for non-party discovery against Ms Miriam Roberts. On that application, I gave a decision on 30 July 2018 in favour of the plaintiffs. The plaintiffs also applied for an order that the evidence of Ms Gomes be taken before the substantive hearing. That was abandoned when I required the plaintiff to proceed on that application.

[7] I consider the leave application on the tough-minded basis that there may be merit in the plaintiffs' application for the defendants to answer interrogatories. If there were no merit in their application, I could hear the application and dismiss it without any prejudice to the plaintiffs. Accordingly, the application for leave ought properly to be decided on the basis that, if the application had been brought in time, the defendants might be required to give answers. While I have had a preliminary indication of the issues that might be raised on the application to answer interrogatories, I have not heard detailed arguments on each interrogatory.

[8] The interrogatories run (a) to (z) but there are sub-questions as well. Mr Taylor advises that there are, in all, 91 questions, but some of them require answers only if there is an affirmative answer to an earlier question.

[9] The question is whether the court should be dealing with an interrogatories application after the close of pleadings date when the plaintiffs delivered a notice to answer interrogatories before the close of pleadings date but close to it. My concern is that the court is being required to deal with many interlocutory matters after the close of pleadings date. That concern relates not just to this case but to other cases I have had to deal with recently, where there seems to be a tendency for interlocutory applications to be brought when the case has reached an advanced stage. The close of
pleadings date has a clear purpose. It is to ensure that the pleadings have been completed and all interlocutory matters have been completed, so that the parties can concentrate on preparing for the hearing; drafting evidence and delivering it, preparing chronologies, preparing lists of documents for the common bundle. That is demanding work which requires clear time and attention. It should not be subject to disruption from interlocutory matters.

[10] There may be slippage in complying with timetabling directions. That happened in this case. The date I set for filing interlocutory applications has been ignored. There was still time to apply up to the close of pleadings date.

[11] The plaintiffs say that there was a blatant failure by the defendants to respond to the interrogatories notice. Mr Taylor says that a statement of defence was delivered about the same time, and that gave the plaintiffs pleaded particulars of many of the matters which were the subject of interrogatories. That is only a partial answer, of course. Ms Davenport responds that interrogatories result in verified answers and that pleadings are not a substitute. Moreover, the pleadings do not cover everything sought in the interrogatories.

[12] Interrogatories are not an invariable step in proceedings. Many counsel find that they can run a case adequately without delivering interrogatories. Often the exchange of evidence will provide answers, especially, with pre-trial exchanges of evidence. That is to be considered when an application is made after the close of pleadings date.

[13] This morning I directed the defendants to file and serve a further affidavit of documents and gave them an opportunity to make further discovery. Mr Taylor indicated that supplementary documents have come to hand which are being considered for discovery. In short, the defendants have already been required to attend to interlocutory matters after the close of pleadings date. The suggestion that they may be required to answer interrogatories adds a further burden. Mr Taylor advises that he is to begin a lengthy civil trial next week. That is likely also to add to prejudice to the defendants.
[14] In my judgment, the plaintiffs were taking a chance in delivering interrogatories on 29 June 2018, only some four weeks before the close of pleadings date. It was optimistic on their part to expect that they would receive adequate answers. It is more likely than not that, even if the defendants had answered them, there would be queries and challenges very much along the same lines as the objections raised to the interrogatories now. In short, it seems inevitable that the plaintiffs would have to face up to an application to deal with interrogatories, even if they were only incompletely answered.

[15] The plaintiffs had the opportunity to deliver interrogatories earlier in the case. An appropriate time would have been from mid-April onwards after they received the defendants' supplementary affidavit of documents and at about the time as they applied for further discovery. By that stage they would have been able to establish that there was further information which they sought and they could have requisitioned for it then by way of a notice to answer interrogatories. A notice delivered at about that time would allow interrogatories to be dealt with in much the same way as the application for further discovery. As it is, dealing with interrogatories now is disruptive for the case. The defendants already have a burden added today, their further discovery. Timetabling directions have been adjusted to allow them to make that further discovery and for the plaintiffs to respond in time. There is added inconvenience if the defendants are also required to answer interrogatories. That must be disruptive to both sides when preparing evidence.

[16] The matter is a balancing exercise. The plaintiffs have properly pointed to the clear failure of the defendants to respond at all to the interrogatories application. But the plaintiffs have left their interrogatories late. They delivered them when the close of pleadings date was close. As they have left it late, it would be improper now to allow them to pursue the application to deliver interrogatories.

[17] I accordingly dismiss the application for leave under r 7.7 of the High Court Rules.

Costs

[18] At the end of the hearing on the application for further discovery Ms Davenport sought costs. I said to counsel that I would consider costs at the end of the day. Mr Taylor QC submits that the costs on the further discovery application ought to be reserved and seeks costs on the leave application. It is best that counsel file fuller memoranda setting out their arguments as to costs. I direct Ms Davenport to file her memorandum as to costs by 16 August 2018, and Mr Taylor to file his memorandum in reply by 23 August 2018. I will consider costs on the papers.

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Associate Judge R M Bell