James Hardie New Zealand Ltd v White
| Jurisdiction | New Zealand |
| Judge | Goddard J |
| Judgment Date | 05 May 2020 |
| Neutral Citation | [2020] NZCA 142 |
| Court | Court of Appeal |
| Docket Number | CA69/2020 |
| Date | 05 May 2020 |
Cooper, Brown and Goddard JJ
CA69/2020
IN THE COURT OF APPEAL OF NEW ZEALAND
I TE KŌTI PĪRA O AOTEAROA
Civil Procedure — appeal against a High Court decision which ordered seven companies in the James Hardie group to individually file and serve sworn affidavits of documents within their separate control — the companies had agreed to collaborate in the defence of the proceedings and share access to documents — discovery requirements — whether each company was required to individually file and serve sworn affidavits of documents — High Court Rules 2016
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
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A The application to adduce further evidence is declined.
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B The appeal is allowed.
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C 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.
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D Costs in the High Court are to be determined in that Court.
(Given by Goddard J)
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.
The claim is brought against seven companies in the James Hardie Group (the JH companies):
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(a) Four operating companies — Studorp Ltd, James Hardie New Zealand Ltd, James Hardie Australia Pty Ltd and James Hardie Research Pty Ltd;
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(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).
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.
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.
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.
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.
The defendant companies appeal from that decision.
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.
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.
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 documentsWe therefore allow the appeal.
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.
The claims are brought in negligence, under the Consumer Guarantees Act 1993, and under the Fair Trading Act 1986.
As noted above, the claim is brought against seven JH companies, including the ultimate parent company JHI and two other holding companies.
The High Court has directed that there will be a staged trial, with Stage 1 directed to the following issues:
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(a) who was responsible for the design/manufacture/sale of the James Hardie products and related product information;
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(b) whether the James Hardie products were defective;
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(c) whether the defendants knew/ought to have known about any defects; and
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(d) whether the defendants breached any common law and/or statutory duties in respect of the James Hardie products or James Hardie product information.
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.
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.
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 documentsThe claimants wrote to the JH companies' solicitors setting out a number of concerns in relation to that affidavit of documents....
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