High Court rejects challenges to Council’s discovery and denies cross-examination

High Court rejects challenges to Council’s discovery and denies cross-examination of council officers

In a resounding victory for the Marlborough District Council, the recent ruling in Woolley v Marlborough District Council [2023] NZHC 3840 saw the High Court dismiss five different applications brought by the plaintiff, Mr Woolley. The Court’s decision, rejecting challenges to the Council’s discovery process, litigation privilege, and an attempt to cross-examine Council witnesses, was a great outcome for the Council.

Brief background

Over a decade ago the Environment Court found Mr Woolley in breach of enforcement orders related to an uncertified effluent management pond he had constructed on a farm he owned and operated. As a result, Fonterra declined to collect milk from the farm in 2014-2015. Mr Woolley (unsuccessfully) sued Fonterra for the lost milking season. In rejecting his claim, the High Court ultimately attributed his lost profits to his own actions.

Dissatisfied, he is now pursuing legal action against the Council, alleging negligence and tortious interference with his supply contract with Fonterra.

Mr Woolley was unhappy with the Council’s (extensive) discovery and sought additional documentation, bringing five discovery-related challenges. These included requests for further and specific discovery of certain documents, challenging litigation privilege, including arguing that litigation privilege over documents prepared for the purpose of the enforcement proceeding had lapsed at the end of that proceeding, an “unless order”, an order that the Council provide metadata, and an order to cross-examine two Council officers.

As part of this Mr Woolley sought an order requiring the Council to hand over all documents prepared during the prosecution against him in the Environment Court in 2014 and 2015. Mr Woolley urged the Court to adopt the same approach taken in a case by the Canadian Supreme Court, which found that litigation privilege might expire in certain circumstances.

High Court finding

The Court dismissed all five of Mr Woolley’s applications, other than ordering the disclosure of nine documents (out of 29). Regarding litigation privilege, the Court rejected the idea of an ‘ending’, referring to various provisions of the Evidence Act 2006. The Court emphasised the impracticality of documents moving in and out of privilege.

The Court denied his request to cross-examine two Council officers who had sworn affidavits in response to the interlocutory application, as he had failed meet the high threshold required at this interlocutory stage. The Court also rejected Mr Woolley’s request that an independent party should be given access to the Council’s document management database.

The Court highlighted the Council’s expertise in record management and retrieval, observing that councils have statutory obligations under various acts including the RMA, Building Act, LGOIMA, Public Records Act and Local Government Act, and that Councils often provide documents under LGOIMA and in Court related processes.

Key takeaways

This decision provides valuable insights for councils involved in litigation, reinforcing the enduring nature of litigation privilege and that material prepared for litigation in prosecutions, which then become part of a civil claim, should remain privileged. The decision noted the council’s general experience and expertise in record management. It also reiterated a high threshold for allowing cross-examination at the interlocutory stage, providing council and their officers with a safeguard against excessive scrutiny by over-zealous claimants.

Charlotta Harpur, Nick Ravaji and Emma Caro of Rice Speir were pleased to secure this result for the Council.  Leave to appeal has been sought, so we will have to watch this space.

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