Woolley v Marlborough District Council

• Jurisdiction: New Zealand
• Judge: Cull J
• Judgment Date: 07 November 2025
• Neutral Citation: [2025] NZCA 589
• Year: 2025
• Court: Court of Appeal
• Docket Number: CA749/2024

Between

Philip John Woolley

Appellant

and

Marlborough District Council

Respondent

[2025] NZCA 589

Court:

Mallon, Powell and Cull JJ

CA749/2024

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

Civil Procedure — appeal against decisions declining orders for further and better discovery — meaning of “reasonable search for documents” — four stage approach for further discovery — High Court Rules 2016

The issue was whether the Council had complied with its discovery obligations.

The held that the Council's searches were not reasonable. Rule 8.14 HCR (extent of search) provided that a party must make a reasonable search for documents within the scope of the discovery order. What amounted to a reasonable search depended on the circumstances, including the following factors: the nature and complexity of the proceeding; the number of documents involved; the ease and cost of retrieving a document; the significance of any document likely to be found; and the need for discovery to be proportionate to the subject matter of the proceeding.

Under r8.19 HCR (order for particular discovery against party after proceeding commenced), a party may apply for further discovery if it believed another party had not discovered documents that should have been discovered. The four-stage approach in Assa Abloy New Zealand Ltd v Allegion (New Zealand) Ltd [2015] NZHC 2760, [2018] NZAR 600 was followed: are the documents sought relevant and, if so, how important will they be; are there grounds for belief that the documents sought exist? That would often be a matter of inference. How strong was that evidence? Was discovery proportionate, assessing proportionality in accordance with Part 1 Discovery Checklist in the High Court Rules. Weighing and balancing those matters, in the Court's discretion applying r8.19 HCR an order appropriate. When determining whether there are grounds to believe that a party has not discovered documents that should have been disclosed, the court has regard to affidavit evidence, pleadings, and the circumstances of the case

The Council's keyword searches were unduly narrow given the multiple descriptors used for the farm and the possibility of misspellings. Examples of undiscovered but relevant documents demonstrated that important material may have been missed. The HC's reliance on findings from earlier litigation was misplaced; those findings were neither binding nor determinative in the context of conspiracy and interference claims. The Court ordered initial searches using the appellant's broader list of terms, with scope for refinement.

The appeal was allowed. Orders made requiring broader searches of Council systems, a further affidavit of documents from the Council's law firm, and disclosure of metadata for specified documents.

Counsel:

P A Morten and M A Robertson for Appellant

N Ravaji and A C Harpur for Respondent

• A The application to adduce further evidence is granted.

• B The appeal is allowed.

• C The respondent is to make further and particular discovery in terms set out at [105] of this judgment.

• D The High Court costs orders on the Main Judgment and Metadata Judgment are set aside.

• E The respondent must pay the appellant costs for a standard appeal on a band A basis and usual disbursements. Costs in the High Court are to be determined by that Court in light of this judgment.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Cull J)

Table of contents

	Para No.
Introduction	[1]
Background	[3]
Judge's findings	[5]
Relevant discovery rules	[9]
Fresh evidence	[14]
Issues	[16]
Overview	[17]
Issue One: searches of the Council's database	[19]
Background	[19]
Judge's decision	[20]
Parties' submissions	[26]
Discussion	[29]
Conclusion	[37]
Issue Two: files from Radich Law	[38]
Background	[38]
Judge's decision	[43]
Discussion	[46]
Conclusion	[50]
Issue Three: documents held by engineering consultant	[51]
Background	[51]
Judge's decision	[52]
Parties' submissions	[55]
Conclusion	[57]
Issue Four: Four categories of metadata	[58]
Location of the soil sample	[61]
Interference and conspiracy allegations	[64]
1. Site visit notes and farm inspection reports	[71]
2. Soil sample test results	[81]
3. Abatement notices	[89]
4. Public notification decision	[94]
Conclusion	[100]
Overview summary	[101]
Result	[103]

Introduction

1 This appeal concerns the scope of discovery in proceedings claiming damages for tortious interference in contractual relations (two causes of action), intention to injure by unlawful means (unlawful means conspiracy), negligence and breach of statutory duty.

2 Mr Woolley appeals two separate judgments of Associate Judge Paulsen. We refer to them as the Main Judgment 1 and the Metadata Judgment. 2 Mr Woolley contends that the Judge erred in finding that the Marlborough District Council (the Council) has complied with its discovery obligations under the High Court Rules 2016 (HCR). The Council opposes the appeal.

Background

3 The factual background was summarised in the Main Judgment, which we gratefully adopt: 3

[10] In 2010, Mr Woolley was granted resource consent for a dairy operation at Glenmae. The resource consent contained a condition requiring a certificate from the designing engineer of the effluent system to confirm it was installed and functioned according to the approval. No effluent was to be discharged until the certificate was received by the Council.

[11] In 2012, Mr Woolley designed and built two effluent ponds himself. An engineer did not certify the ponds. In June 2013, the Council applied to the Environment Court for an enforcement order which was granted on 4 April 2014. Mr Woolley was ordered to cease operating the milking sheds on Glenmae until the effluent disposal system had been certified. The engineer's certificate was to be provided to the Council and the Environment Court by 6 June 2014. On 9 June 2014, the Environment Court refused an application by Mr Woolley for an extension of time to comply with the enforcement order. In July 2014, Mr Woolley and his contract milker started milking cows using the milking shed on the property in breach of the enforcement order.

[12] Mr Woolley was contracted to Fonterra for the supply of milk from Glenmae. He says Fonterra, under pressure from the Council, refused to collect his milk. In addition, his contract milker terminated its contract milking agreement in mid-September 2014 on the ground that Mr Woolley's actions prevented milking.

[13] On 5 September 2014, Opus International Consultants Ltd (Opus) certified compliance with the enforcement order, but the Council refused to accept the certificate and receivers and managers were appointed over Mr Woolley's assets on 24 November 2014.

[14] On 27 November 2014, the Council filed charges against Mr Woolley in the District Court for breaches of the enforcement order. On 24 July 2015, Judge Smith convicted Mr Woolley of breaching the enforcement order, 4 and on 14 August 2015 Mr Woolley was sentenced. 5

[15] In 2018, Mr Woolley commenced proceedings against Fonterra, alleging it was in breach of its supply contract by refusing to collect milk from Glenmae. 6 His claim was dismissed in the High Court, 7 and an appeal to the Court of Appeal was also dismissed. 8

4 Mr Woolley then commenced proceedings against the Council, seeking damages under five causes of action. In the course of these proceedings, Mr Woolley believed the Council was not complying with its discovery obligations. He applied to the High Court for orders. The Main Judgment, which determined that application, sets out these events: 9

[1] … [Mr Woolley] is seeking damages from the Marlborough District Council (the Council) in respect of events that occurred between 2014 and 2015. There are five causes of action in the statement of claim, namely:

• (a) tortious interference by the Council with Mr Woolley's supply contract with Fonterra Co-operative Group Ltd (Fonterra);

• (b) tortious interference with Mr Woolley's milking contract with the CN and DV Perrott Partnership;

• (c) wrongful combination to injure Mr Woolley by multiple means;

• (d) negligence; and

• (e) breach of statutory duty.

[2] Associate Judge Johnston directed the parties to provide standard discovery. The Council's affidavit of documents was filed in December 2020. … On 28 February 2022, an amended affidavit of documents was filed.

[3] Mr Woolley is not satisfied the Council has complied with its discovery obligations. In December 2022, he made an application for orders setting aside claims to privilege and particular discovery, which the Council opposed. That application came before me on 22 May 2023, but was adjourned part heard. The hearing resumed on 30 October 2023. In between times, Mr Woolley filed an amended application, the Council filed an amended notice of opposition along with several further affidavits, and Mr Woolley applied for leave to cross-examine Council witnesses, which I declined. 10

[4] In his amended application, Mr Woolley is seeking the following orders:

…

(c) that the Council provide further and better discovery in respect of categories of documents identified in pt 2 and pt 3 of sch A to his amended application (the pt 2 and pt 3 documents);

…

[6] The Council's stance is that it has gone to considerable lengths to respond to challenges to its discovery by Mr Woolley, … and it has complied with its discovery obligations.

…

[8] In respect to the pt 2 and pt 3 documents, the issues are:

• (a) whether the Council has undertaken a sufficient search to locate documents within the scope of the discovery order; and

• (b) if not, whether further discovery ought to...