Clerk of the House of Representatives v Witcombe

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.
____________________________________________________________________
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

CaseChat Overview and Summary

The case of Clerk of the House of Representatives v Witcombe involves an application for leave to appeal against a decision made in an interlocutory judgment. The applicant in the case is the Clerk of the House of Representatives, and the respondent is Alan Witcombe. The primary dispute concerns the extent of legal professional privilege that the applicant can claim in respect of preliminary draft employment investigation reports sent to her legal advisers. Specifically, the issue is whether the applicant is entitled to claim legal professional privilege in relation to the originals or other copies of those draft reports that were not sent to her legal advisers.

The legal issues that the Court of Appeal was required to decide were whether the Chief Judge had misconstrued the test for litigation privilege and/or legal advice privilege, and whether the Chief Judge had misapplied the test established in Simunovich Fisheries Ltd v Television New Zealand Ltd. The Court concluded that the extent of legal professional privilege in employment cases is a matter of general public importance and that the case raises significant issues relating to the limits of the decision in Simunovich.

The Court of Appeal granted the application for leave to appeal on the specified questions of law, finding that the case indeed raised important issues regarding the interpretation and application of legal professional privilege in employment cases. The Court determined that the questions of law were significant enough to warrant an appeal. Costs were reserved for a later determination.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established