Clerk of the House of Representatives v Witcombe

[2008] NZCA 538

IN THE COURT OF APPEAL OF NEW ZEALAND

CA669/2008
[2008] NZCA 538

BETWEENCLERK OF THE HOUSE OF REPRESENTATIVES

Applicant

ANDALAN WITCOMBE

Respondent

Hearing:2 December 2008

Court:Glazebrook, Robertson and Arnold JJ

Counsel:P J Gunn for Applicant

G C Davenport for Respondent

Judgment:8 December 2008 at 10.00 am

JUDGMENT OF THE COURT

AThe application for leave to appeal is granted on the questions of law set out at [3].

B        Costs are reserved.

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REASONS OF THE COURT

(Given by Glazebrook J)

[1]       The applicant seeks leave to appeal against the part of the interlocutory judgment of Witcombe v Clerk of the House of Representatives EmpC WC17/08, WRC 12/06 26 September 2008 where Chief Judge Colgan held that, while the applicant is entitled to claim legal professional privilege in respect of copies of preliminary draft employment investigation reports sent to her legal advisers, she is not entitled to claim legal professional privilege in relation to the originals or other copies of those draft reports retained by the applicant or otherwise not sent to her legal advisers.

[2]       We accept the applicant’s submission that the extent of legal professional privilege in employment cases is a matter of general public importance.  We also consider that this case raises important issues relating to the limits of the decision of this Court in Simunovich Fisheries Ltd v Television New Zealand Ltd [2008] NZCA 350.

[3]       The application for leave to appeal is granted on the following questions of law:

(a)Did the Chief Judge misconstrue the test for litigation privilege and/or legal advice privilege?

(b)Did the Chief Judge misapply the test in Simunovich?

[4]       Costs are reserved.

Solicitors:
Crown Law Office, Wellington
McBride Davenport James, Wellington for Respondent