Attorney-General v Institution of Professional Engineers New Zealand Inc

[2018] NZHC 74

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2015-485-223 [2018] NZHC 74

BETWEEN

THE ATTORNEY GENERAL

Plaintiff

AND

INSTITUTION OF PROFESSIONAL ENGINEERS NEW ZEALAND INC First Defendant

ALAN MICHAEL REAY Second Defendant

Hearing:

27 April 2017

Counsel:

K G Stephen and I M G Clarke for Plaintiff and

First Respondent

H J P Wilson and M J Neill for First Defendant and

Second Respondent

W J Palmer and O D Peers for Second Defendant and

Applicant

Judgment:

8 February 2018

JUDGMENT OF WILLIAMS J

[1]      Dr Reay is an engineer.  The engineering company of which he was principal provided the structural design for the CTV building that collapsed in the 22 February

2011 Christchurch earthquake killing 115 people.  A Royal Commission of Inquiry into the collapse found Dr Reay culpable.   The chief engineer at the Ministry of Business Innovation & Enterprise (MBIE) filed a professional standards complaint with the Institution of Professional Engineers NZ (IPENZ) in relation to Dr Reay’s work on the structural design of the building.

[2]      IPENZ is a voluntary association which operates as the professional body for engineers in this country.  The chief engineer’s complaint alleged that Dr Reay had

THE ATTORNEY GENERAL v INSTITUTION OF PROFESSIONAL ENGINEERS NEW ZEALAND INC [2018] NZHC 74 [8 February 2018]

breached the IPENZ code of ethics.  An Investigating Committee was appointed in accordance with IPENZ’s rules and began an investigation into the complaint. Before the investigation was complete (but after a draft decision had been prepared which recommended that the matter proceed to consideration by a disciplinary committee), Dr Reay resigned his membership of IPENZ.  After receiving legal advice on the question, the investigative committee decided that Dr Reay’s resignation meant it no longer had jurisdiction to deal with the complaint and dismissed it.

[3]      The Attorney General (on behalf of the chief engineer) brought proceedings challenging that dismissal.  He argues that IPENZ still has disciplinary jurisdiction despite Dr Reay’s resignation because Dr Reay was a member when he carried out work on the building.

[4]      In this application, Dr Reay seeks disclosure of any legal advice provided to the Investigating Committee and/or IPENZ on the question of its jurisdiction to hear the chief engineer’s complaint.  The Attorney General and IPENZ are opposed.  The Attorney General says any such opinion(s) are irrelevant to the legality of the dismissal decision and so not discoverable.  IPENZ (while it abides the substantive proceeding) claims legal professional privilege in relation to such advice and appears (in this application only) to protect that privilege.

History

[5]      In  1986,  Dr  Reay’s  company,  Alan  M  Reay  Consultant  Engineer  Ltd, undertook  the  structural  design  of  the  CTV building  in  Christchurch.    Dr Reay supervised a relatively inexperienced member of his staff who did the design work. The building collapsed on 22 February 2011 killing 115 people.

[6]      On 10 December 2012, Michael Stannard, chief engineer at MBIE, laid a complaint with Dr Reay’s professional body, IPENZ, in relation to the collapse of the building.  He alleged that Dr Reay’s poor supervision of the staff member in relation to the structural design of the CTV building had contributed to the collapse and that this had breached IPENZ’s code of ethics.  The chief engineer sought censure of Dr Reay and the imposition of any other disciplinary actions IPENZ considered appropriate.

[7]      Mr Stannard’s complaint was dealt with in accordance with the IPENZ’s March

2010 rules and January 2012 disciplinary regulations.  The rules also include a code of ethical conduct.1  The allegation is the code was breached.

[8]     The IPENZ disciplinary regulations provide for a three-stage complaint procedure.

Initial investigation

[9]      There is an initial investigation in which a complaints research officer (CRO) considers the complaint and recommends to the Chairperson of Investigating Committees whether the complaint should proceed or be dismissed.2  The grounds for dismissal are provided in cl 8. Those grounds are as follows:

Grounds for not referring complaint to Investigating Committee

The Institution may dismiss a complaint without referring it to an Investigating Committee if the Chairperson of Investigating Committees decides under clause 9 that–

(a)     There is no  applicable ground  of discipline under Rule 11  of  the

Institution; or

(b)     The subject matter of the complaint is trivial; or

(c)     The alleged breach of Rule 4 is insufficiently grave to warrant further investigation; or

(d)     The complaint is frivolous or vexatious or is not made in good faith; or

(e)     The person alleged to be aggrieved does not wish action to be taken or continued; or

(f)     The complainant does not have a sufficient personal interest in the subject matter of the complaint; or

(g)     An investigation of the complaint is no longer practicable or desirable given the time elapsed since the matter giving rise to the complaint.

[10]     In this case, the CRO recommended to the Chair of Investigating Committees that  the  complaint  be  referred  to  an  Investigating  Committee.    The  chair  of

1      Chartered Professional Engineers of New Zealand Rules (No 2) 2002, pt 3.

2      Clauses 7-10.

Investigating   Committees   accepted   that   recommendation   and   appointed   an

Investigating Committee to take the matter forward.

[11]     At the second stage an Investigating Committee is then convened pursuant to cls 11 to 16. It investigates the matter further and decides whether it should be referred to a disciplinary committee or dismissed on one of the grounds provided in cl 8.

[12]     In this case, the Investigating Committee was appointed on 2 August 2013.  It comprised three engineers of long experience and good standing in the profession. The committee interviewed Dr Reay among others, considered other relevant documentary information and then prepared a comprehensive draft determination dated 28 February 2014. It was intended that this be circulated to the relevant parties. But on the same day (it was common ground this was a coincidence) Dr Reay sent a lengthy letter to IPENZ resigning his membership.

[13]     On 11 March 2014, the president of IPENZ then wrote to Mr Stannard and the Investigating Committee members advising them of the resignation and that this triggered an issue of jurisdiction.

Legal advice and Committee decision

[14]     The Investigating Committee then sought legal advice on the question.  This appears to have been provided between 11 and 17 March in an email exchange between the CRO at IPENZ and Mr Jagose, then of Chapman Tripp (but now Jagose J). It is common ground that the purpose of those exchanges was both to obtain and give legal professional advice.

[15]     On 9 April 2014, in a written decision, the Investigating Committee dismissed

Mr Stannard’s complaint pursuant to Reg 8(a).  The grounds for dismissal were as follows:

9.3With this resignation, the role that IPENZ and the IC have had in pursuing its inquiries with regard to Dr Reay’s conduct in respect of his professional involvement with the CTV building is at an end.

9.4The Investigating Committee must either “refer the matter” to a Disciplinary Committee, or “dismiss the matter” on a specified ground.

10.      DETERMINATION

10.1The Investigating Committee has considered the applicable grounds of discipline under the terms of the relevant IPENZ Disciplinary Regulations and the IPENZ Rules.

10.2With  Dr  Reay  having  resigned  his  membership,  no  remaining applicable ground of discipline can be applied.

10.3Consequently, the determination of the Investigating Committee is that both of the complaints be dismissed under the provisions of IPENZ Disciplinary Regulation 8(a), that there is no applicable ground of discipline under Rule 11 of the Institution.

[16]     On 17 April 2014, IPENZ wrote to the Minister of Business, Innovation & Employment, the Hon Maurice Williamson, informing him of “recent legal advice”. The letter indicated that the tenor of the advice was that “we do not have jurisdiction over people who are not members.   This extends to people who were previously members but who have since resigned their membership.” The letter continued:

To our knowledge no other membership organisation has jurisdiction over people who were previously members but who are no longer members, even if they transgressed the rules or carried out activities which were contrary to a membership code of ethics whilst they were members.  Only organisations that are either established under statute or have been granted regulatory powers under statute (e.g. the New Zealand Law Society) have the ability to discipline for misconduct outside of membership and even then, the misconduct must have occurred during their period of membership.”

[17]     IPENZ indicated that the option of refusing to accept Dr Reay’s resignation pending completion of the investigation was considered but, the letter noted, “that is not an option open to us. Under our rules, the member’s resignation is effective on its receipt.”

[18]     By disclosure dated 4 June 2014, IPENZ provided a copy of that letter to Dr Reay.  A further copy was provided to Dr Reay by way of disclosure by MBIE in an email of 1 July 2014.

Contemporary proceedings

[19]     The proceedings against Dr Reay having been effectively brought to an end, the Attorney General then filed judicial review proceedings arguing essentially that the  Investigating Committee  had  misconstrued  IPENZ’s  rules.    Declarations  are

sought that IPENZ had continuing jurisdiction to deal with the complaint despite Dr Reay’s mid-process resignation.   An order is sought setting aside the original dismissal accordingly.

[20]     It is in the context of that application, that Dr Reay now seeks disclosure of any relevant legal advice either to the Investigating Committee or to IPENZ on the question of jurisdiction.  Specifically, he seeks the disclosure of:

(a)       Category (a): five emails dated between 11 and 17 March 2014 relating to legal advice from Messrs Chapman Tripp Solicitors;

(b)      Category (b):  any further documents by way of legal advice to IPENZ

rather than the committee itself.

[21]     This  is  met  by  two  responses  from  IPENZ.    An  assertion  category  (a) documents are privileged, and a refusal to confirm or deny the existence of category (b) documents.

[22]     It is common ground that I should treat this application as if the category (b)

advice does exist and to resolve the question of privilege on that basis.

Submissions

[23]     The Attorney General takes the high ground.  He argues that this proceeding raises a straight legal question of interpretation of the rules (was Dr Reay a ‘member’ in terms of the IPENZ rules for the purposes of the committee’s investigation), and no legal opinion on that question can be relevant on an application for judicial review because such opinion cannot be of any more help than the submissions of counsel, and in any event, it fails the relevance test in s 7(3) of the Evidence Act 2006.3

[24]     Mr Wilson for IPENZ makes two submissions.   In relation to category (a)

above, he submits that the committee is entitled to the benefit of legal advice privilege

3    Section 7(3) specifies “Evidence is relevant in a proceeding if it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding.”

pursuant to s 54 of the Evidence Act. In relation to category (b) above, he submits that advice (if it exists) given to IPENZ rather than the Investigating Committee, cannot be relevant to review of the dismissal by the Investigating Committee because it cannot have affected the committee’s view of the construction of the relevant rules.

[25]     Mr Palmer, for Dr Reay, argues that the requirements of natural justice override legal professional privilege in the context of disciplinary proceedings undertaken by quasi-judicial bodies; and even if that is wrong, any such privilege had been waived by disclosure of the fact and content of this advice to the relevant Minister eight days after the Investigating Committee’s determination and/or the further disclosure to Dr Reay of that letter on 4 June 2014.4

[26]     Mr Palmer argued further that the relevance argument mounted by the Attorney General adopted too narrow an approach to the concept of error of law as pleaded. The Court’s decision is not a simple binary one of correct or incorrect in law, he submitted.  Rather there is a spectrum of possibilities in judicial review cases from a correctness or hard look approach to a more tolerant or deferential approach depending on the nature and context of the decision under attack.  Most particularly, he argued that the courts will be very deferential in judicial review cases involving private organisations for which the terms of membership and participation are a matter of contract.  In such cases, the answer is not merely black and white but will depend on how hard the court is prepared to look at the question in its context.  In this sense, the argument was review itself is discretionary and the fact that the committee took advice will be relevant to the exercise of that discretion quite apart from any discretion around relief.

[27]     Three issues therefore arise for consideration:

(a)       Is legal advice on whether the regulations applied to Dr Reay relevant to this proceeding for the purposes of discovery?

(b)      If yes, is it nonetheless privileged?

(c)       If yes, did IPENZ and/or the relevant Minister waive privilege by disclosing the substance of the advice?

Relevance

[28]     In his argument that legal advice on the construction of the IPENZ rules was strictly irrelevant in this case, Mr Stephen placed great store in the rule in s 7 of the Evidence Act that only relevant evidence is admissible. The term ‘relevant’ is defined in s 7(3) as evidence that has “a tendency to prove or disprove anything that is of consequence to the determination of a proceeding.” If that is the correct standard then Mr Stephen has a point, Mr Jagose’s view of matters can prove nothing of consequence in this proceeding.   But in my view that focus is too narrow.   Admissibility and discoverability are related concepts but they are not the same. A party will be required to discover a relevant document even if it is inadmissible. Relevance in the context of admissibility is about proof as the s 7(3) definition demonstrates.  But relevance in ordinary usage has a wider meaning – viz something that is directly connected, related or pertinent to “the matter in hand”.5

[29]     Plainly documents that contain legal advice in relation to the controversy between the parties has always been considered to be sufficiently relevant to require such advice to be listed in the receiving party’s list of documents.  That is so not because such advice would tend to prove anything of consequence in the proceeding, but because it will be relevant in that wider common usage sense.  If that were not the case, there would be no point in the concept of legal advice privilege. Such documents would not be discoverable at all. In truth, a legal opinion to a client indicating that her case is very weak may not tend to prove or disprove anything in the case, yet still be strategically devastating, and so in a broad sense, relevant in the dispute.

[30]     In this case, the controversy is whether Dr Reay’s resignation meant the Investigating Committee no longer had jurisdiction to inquire into the complaint by the chief engineer.  It is, I think, common ground, that this was the focus of the legal advice. An opinion or opinions plainly relied on by the committee must therefore be

relevant in the sense that term applies to discovery.  That is in accordance with the multiple tests in r 8.7 of the High Court Rules 2016,

[31]     At the very least, the possibility cannot be discounted that reliance on legal advice (even if found to be wrong) will go to whether a discretionary remedy should be granted, even accepting that the New Zealand authorities generally run counter to such a suggestion except in exceptional circumstances.6   And as Dobson J noted in Hager v Attorney-General, it is not generally appropriate in the context of an interlocutory discovery application to pre-empt a substantive challenge by concluding at that early stage that the grounds raised have no chance of success.7

[32]     I should also refer to the decision of the English Court of Appeal in R v Panel on Takeovers And Mergers, ex-parte Datafin.8   That decision related to a private self- regulating association which devised and operated the City Code on Takeovers And Mergers.  The challenge related to a decision of the Panel in relation to a particular takeover.  Sir John Donaldson MR had this to say about the Panel’s interpretation of the rules by which it operated:9

When it comes to interpreting its own rules, [the Panel] must clearly be given considerable latitude both because, as legislator, it could properly alter them at any time and because of the form which the rules take, i.e. laying down principles to be applied in spirit as much as in letter and specific situations. Where there might be a legitimate cause for complaint and for the intervention of the court would be if the interpretation was so far removed from the natural and ordinary meaning of the words of the rules that an ordinary user of the market could reasonably been misled.  Even then it by no means follows that the court would think it appropriate to quash an interpretive decision of the panel. It might well take the view that a more appropriate course would be to declare the true meaning of the rule, leaving it to the panel to promulgate a new rule accurately expressing its intentions.

[33]     In short, he considered, even on strict matters of  interpretation, the self- regulating nature of the Panel meant the courts will show deference. I am not required to make a finding on the point given my broad view of the relevance test, but even if

I am doubtful of the correctness of Mr Palmer’s submission that on a question of

6      See reference Just One Life Ltd v Queenstown lakes District Council [2004] 3 NZLR 226 (CA) at

[39].

7      Hager v Attorney-General [2014] NZHC 3293 at [28]-[29].

8      R v Panel on Takeovers And Mergers, ex-parte Datafin [1987] 1 All ER 564.

9      At 579.

interpretation there is still a spectrum of reviewability, it must be said that this proposition is not without support in a leading case.  It will not be for me to pre-empt that submission on the substantive issue, by excluding at this early stage, any prospect of it succeeding.

[34]     I find therefore that the opinion is discoverable unless privilege can be claimed.

Legal advice privilege or natural justice?

[35]     Section 54(1) of the Evidence Act relates to privilege for communications with

legal advisers. And provides as follows:

(1)       A person who requests or obtains professional legal services from a legal adviser has a privilege in respect of any communication between the person and the legal adviser if the communication was—

(a)      intended to be confidential; and

(b)      made in the course of and for the purpose of—

(i)       the person requesting or obtaining professional legal services from the legal adviser; or

(ii)      the legal adviser giving such services to the person.

[36]     If the tests in paragraph (a) and (b) are met, s 53(1) provides that the person who has the privileged communication referred to in s 54 has the right to refuse to disclose that communication in any proceeding.

[37]     Though not strictly relevant in this case, reference should also be made for the purpose of framing the discussion in its wider context, to s 9(2)(h) of the Official Information Act 1982.   This provides that the maintenance of legal professional privilege is a good ground to withhold official information unless s 9(1) applies. That subsection relevantly provides that notwithstanding legal professional privilege, if “the withholding of that information is outweighed by other considerations which render it desirable, in the public interest, to make that information available,” there is no good reason to withhold it.  Examples of public interest override are provided in

Roth and Taylor’s text on access to information.10

10     Paul Roth and Graham Taylor Access to information (2nd ed, Lexis Nexis, Wellington, 2017) at

3.10.5.

[38]     More generally, Professor Joseph speaks in his leading text of a high “duty of candour” owed by decision-makers exercising public authority in relation to the provision of relevant background documents to the decision.11    This duty requires decision-makers whose decisions are challenged to collate and disclose the decision- making “record” in an appropriate affidavit.  Professor Joseph does accept however that this duty arises from the requirements of good practice rather than any “legally compellable obligation”.12   There is thus, in this area, generally speaking, an inherent tension between public obligations of disclosure and private rights of confidentiality or privilege.

Relevant case law

[39]     The cases  have not  been  consistent.    Early decisions  in  the professional standards area were generally sympathetic to disclosure either as best practice (reflective of the Joseph approach) or as a legally enforceable obligation.  In Wislang for example Speight J took the view that it would have been appropriate for counsel for the Manawatu Medical Practitioners’ Disciplinary Committee to reduce his legal advice to that lay panel to writing and provide it, at the same time, to the applicant. But the Judge did not accept there was any firm obligation to do so.13

[40]     By contrast, in Duncan v Medical Practitioners’ Disciplinary Committee,14

Jefferies J found there was an obligation to disclose written legal advice given to the committee but not to Mr Duncan.  The Judge however declined to grant a remedy for this admitted breach as the advice was not of a kind that could have made any difference to the decision, at least not in a manner prejudicial to the applicant. And in McDonald v Hubbard, a lay arbitrator who obtained legal advice on a question of contractual interpretation and then advised the parties that he had done so, while recording that it was consistent with his own view of the matter, was held “although with some reluctance” to have breached natural justice.  The arbitral award was set

aside pursuant to s 12 of the Arbitration Act 1908.15

11     Philip  Joseph  Constitutional  and  Administrative  Law  in  New  Zealand  (4th   ed,  Brookers, Wellington, 2014) at 22.14.

12     At 22.14.

13     Wislang v Medical Practitioners’ Disciplinary Committee [1974] 1 NZLR 29 (SC).

14     Duncan v Medical Practitioners’ Disciplinary Committee [1986] 1 NZLR 513 (HC).

15     McDonald v Hubbard High Court Greymouth M4/86, 29 October 1986.

[41]     Similarly, and more recently in 2005, the Australian Federal Court of Appeal in Baker v University of Ballarat held:16

It is generally a breach of natural justice to obtain legal advice on points of substance without informing the parties.

[42]     By contrast, most more recent New Zealand cases and indeed all cases after the enactment of the Evidence Act 2006 give priority to legal professional privilege (including in quasi – judicial contexts). Tau v Durie for example (a 1996 case), related to an opinion provided by counsel to the Chairperson of the Waitangi Tribunal.17  The plaintiff sought disclosure. McGechan J held the opinion to be privileged on ordinary principles of evidence.   In Edwards v Toime,18  a divisional panel of the Court of Appeal19 considered whether a Crown Law Office opinion given to the Registrar of Electors  on  the issue in  the substantive proceeding was  subject  to  legal  advice privilege. The Court held:20

Legal advice obtained by an official exercising administrative functions is subject to legal professional privilege, and natural justice considerations will not generally override that privilege.

[43]     Three further cases warrant brief mention.

[44]     In Accountants First Ltd v Commissioner of Inland Revenue, Simon France J considered the privilege status of legal advice given by an in-house IRD lawyer to a delegate of the Commissioner of Inland Revenue in relation to a proposal to remove the applicant’s tax agent status.21     The Judge found that the advice was plainly privileged.

[45]     Martinovich v Commissioner of Inland Revenue, related to the tax status of the proceeds of share sales.22   The Commissioner obtained legal advice from the IRD’s

in-house legal team, the effect of which was to cause the Commissioner to concede

that the proceeds of share sales were not income but capital. Ms Martinovich, though

16     Baker v University of Ballarat (2005) 225 ALR 218 at 239.

17     Tau v Durie [1996] 2 NZLR 190 (HC).

18     Edwards v Toime [2008] NZCA 411.

19     Glazebrook, Fogarty and McKenzie JJ.

20 At [42].

21     Accountants First Ltd v Commissioner of Inland Revenue [2014] NZHC 1723.

22     Martinovich v Commissioner of Inland Revenue [2014] NZHC 1357.

the beneficiary of that concession, then sought judicial review of the Commissioner’s decision to claim privilege in relation to the legal advice to which I have referred. This is somewhat analogous to the present case before me in which Dr Reay seeks a copy of a document supportive of his position.

[46]     Fogarty J took the following view:23

The law of solicitor/client privilege applicable to the Commissioner, is the common law. It is the same law that applies in commerce and to any disputes between private persons.  …  So far as possible, I think that the common law on solicitor/client privilege should be applied in respect of the Commissioner. That is also my understanding of the general body of the case law on this subject.

[47]     Finally, I mention the decision of Keane J in Bain v Minister of Justice in which the Attorney-General successfully claimed privilege in relation to an opinion provided to him and the Minister of Justice by the Solicitor-General.24   Keane J discussed the English   “duty  of   candour”   decisions.      He   referred   particularly   to   that   of Lord Donaldson MR in which his lordship noted that judicial review must be an open process “which falls to be conducted with all the cards upward on the table.”25   But Keane J nonetheless considered the UK position to be distinguishable because judicial review is only available with leave.  The Judge concluded that the duty of candour does not require privileged documents to be discovered:26

The Minister, by consenting to the tailored discovery order, an order acceptable to Mr Bain, has met the threshold the duty of candour that Cooke J identified [in EDS v South Pacific Aluminium Ltd [1981] 1 NZLR 146 (CA)]; the indispensable bench mark for which has to be the standard duty to make discovery under the High Court Rules.

Conclusion

[48]     This survey of the authorities demonstrates a pattern.   The earlier cases, a number of which involved professional body disciplinary proceedings, adopted a natural justice conceptual framework.    Indeed,  they did not  even mention legal

professional privilege.  But after the enactment of the Evidence Act in 2006, s 54 has

23 At [41].

24     Bain v Minister of Justice [2013] NZHC 2123.

25     R v Lancashire County Council ex-parte Huddleston [1986] 2 All ER 941 (CA) at [30].

26 At [43].

come to predominate. It does not seem to matter that the later cases involved decisions by public sector executive agencies or (in the pre-2006 case of Tau) a tribunal.  If anything, essentially private professional bodies such as IPENZ whose members’ primary nexus with the organisation is contractual, have a greater claim to privilege than truly public sector discretion holders exercising statutory powers. The existence in relation to public officials of s 9(2)(h) allowing for the override of legal advice privilege and the absence of a similar broad exemption for non-public sector bodies in s 54, confirms that there is now no basis upon which the Investigating Committee can be denied the full benefit of s 54.

[49]     The category (a) legal opinions are privileged accordingly.  I will return to the category (b) legal opinions below.

Waiver

[50]     As I have noted, Dr Reay argues that, even if the advice is subject to legal professional privilege, that privilege was waived when IPENZ wrote to the Minister on 17 April disclosing the substance of the advice, and/or when IPENZ and MBIE disclosed that letter to Dr Reay himself. The principles associated with implied waiver of privilege are straightforward even if their application is rather less so.  As McGechan J noted in Tau v Durie:27

A party cannot expect to put forward the existence of legal opinion, with an inference invited as to favourable content, or part of a legal opinion which is favourable, and refuse to disclose the opinion document, or the remainder of it, so enabling the position to be checked. If a party positively advances it, the party must disclose it.  Mere passing mention in pleadings may not suffice to call the doctrine into place.   I agree immediately that the assertion of the existence of legal opinion by a plaintiff and the simple admission or denial of its existence by a defendant ordinarily would not require the defendant to disclose.   There are questions of degree.   I do not accept there is some inexorable standard which arises from perceived need for invariable certainty.

[51]     These ideas are reflected in s 65(2) of the Evidence Act:

A person who has a privilege waives the privilege if that person, or anyone with the authority of that person, voluntarily produces or discloses, or consents to the production or disclosure of, any significant part of the privileged communication, information, opinion, or document in circumstances that are inconsistent with the claim of confidentiality.

27     See n 13 at 194.

[52]     There have been cases where the disclosure of the essence of privileged legal advice was found not to be inconsistent with the maintenance of its confidentiality.28

But these are exceptions.

[53]     In this case, IPENZ disclosed to the Minister and then subsequently to Dr Reay the fact that legal advice had been obtained, the conclusion in that advice and (I infer) aspects of its reasoning – for example, the distinction between statutory regimes such as that in relation to lawyers, and non-statutory regimes such as that in relation to engineers.

[54]     I have little difficulty in concluding that taken in context, this amounted to a voluntary disclosure of the essence of the opinion and so is inconsistent with the maintenance of a claim of confidentiality.  It makes no difference that the disclosure was initially to the Minister alone.  The letter was not expressed to be confidential in any way. There were no conditions of that nature in IPENZ’s disclosure to the Minister and both IPENZ and the Minister then disclosed the letter to Dr Reay any way.

[55]     I find that privilege was waived accordingly at least in relation to the category

(a) advice.

Category (b) – legal advice to IPENZ

[56]     Dr Reay claims there are further documents by way of legal advice to IPENZ (rather than the Investigating Committee itself which, in this judgment I have called category (b) documents).  IPENZ neither confirms nor denies the existence of such documents, claiming that any advice to IPENZ is irrelevant given the proceedings are effectively against a decision of the Investigating Committee not IPENZ.  I do not consider matters to be as simple as that.  The first defendant is IPENZ rather than the members of the Investigating Committee.  The inference is irresistible that if such advice was received by IPENZ, it was discussed with the committee.  The letter to Minister Williamson confirms at the very least that there was a discussion between

IPENZ and the Committee over the category (a) advice.  Indeed, as far as I can tell, it

28     See Wislang v Medical Practitioners Committee, above n 13, at 194.Bete Fog Nozzle Inc v

Delavan Ltd (2008) 19 PRNZ 439 (HC) at [23] and Carter v The Coroner’s Court [2015] NZHC
1467.

was IPENZ’s CRO who arranged for the provision of the category (a) advice.  In this matter, the border between IPENZ and the Investigating Committee was porous if it existed at all.

[57]     While relevant however, any such advice will be privileged unless waiver is demonstrated.  It is not clear on the face of the letter to the Minister whether it refers to the category (a) advice alone or to a collation of the advice (if any) given to IPENZ and the Investigating Committee.  Any such additional advice (assuming it exists) should be disclosed to the Court for that assessment to be made.

[58]     I would be obliged if counsel would provide that material within five working days hereof. I will then make such directions as are necessary on consideration of that additional material.

Conclusions and disposition

[59]     I have found that the category (a) advice to the Investigating Committee and any other legal opinions on the subject to IPENZ are relevant in these proceedings for the  purposes  of  discovery.    I have  found  further  that  they  are  subject  to  legal professional privilege.  I have then found that privilege in respect of the category (a) advice was waived.

[60]     The category (a) advice to the Investigating Committee must be provided to Dr Reay accordingly. Any other legal advice on the same subject provided to IPENZ must be provided to the Court within five working days so that I can assess whether privilege in respect of any such material (if indeed it exists) was also waived.

[61]     Dr Reay will be entitled to costs. If the parties cannot agree, brief memoranda

(no more than three pages) may be filed.

Williams J

Solicitors:

Crown Law, Wellington for Plaintiff

Kensington Swan, Wellington for First defendant

Buddle Findlay, Christchurch for Second defendant