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Crisford v Haszard

Crisford v Haszard

Case [2000] NZCA 73 1 June 2000

Litigation Privilege

Admissibility of Evidence

Discovery & Disclosure

Civil Litigation & Procedure

Evidence Law

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA 63/00

BETWEEN	JOHN ANTHONY CRISFORD
Appellant

AND	MURRAY HAYDEN HASZARD and GRAY COOPER TREADWELL
Respondents

Hearing:	17 May 2000
Coram:	Richardson P Gault J Thomas J
Appearances:	G J Judd QC for Appellant R J Asher QC and P J P Grace for Respondents
Judgment:	1 June 2000

JUDGMENT OF THE COURT DELIVERED BY RICHARDSON P

This interlocutory appeal concerns the applicability of litigation privilege in a novel situation. In essence, the question is whether a litigant can be denied inspection of a tape-recording (and transcript of the recording) of a conversation between the litigant and a third party where, unknown to the litigant, the third party was taping the conversation surreptitiously at the behest of the solicitor for the other side.

The factual background

Mr J A Crisford, the present appellant, is plaintiff in proceedings commenced in the High Court at Auckland in 1998 against a number of defendants including Mr M H Haszard, a director and shareholder in Binary Research Limited, a computer software maker. Mr Crisford claims to have commissioned Mr Haszard to make a software programme and to an entitlement arising from the sale of the copyright in the programme which, when developed, was sold to an American company for US$27.5m. Mr Crisford's affidavit of discovery includes, amongst documents relating to matters in question between the plaintiff and the defendants in the possession or power of the plaintiff:
SECOND PART
1Tape recording of telephone conversations between Linda Harris and Haszard in January 1999.
2Transcript of above.
The plaintiff objects to produce the documents listed in this Part ON THE GROUNDS that they are privileged, in that they were brought into being for the purpose of submission to the plaintiff's legal advisers to enable them to conduct and advise regarding the litigation.
The affidavit also lists separately "undated ... Notes made by Linda Harris of conversations between herself and Murray Haszard relating to the plaintiff and his affairs".
Mr Haszard regarded Ms Harris as a friend. He telephoned her some time in January 1999. He arranged to speak to her about the litigation. He rang back. In the meantime she had spoken to the plaintiff who had taken her to his solicitor. The solicitor asked her to tape the conversation to record any statements which Mr Haszard might make to her which could be of value in the litigation and provided her with a tape recorder and tape.
Mr Haszard was not told the conversation was being recorded. He says that had he been aware of that he would not have continued the conversation. He says it quickly became clear that Ms Harris was not prepared to appear as a witness for the defendants and that she put to him a number of allegations made by the plaintiff.
The application for inspection of the tape and transcript was opposed on the ground that documents were privileged.

The judgment of Potter J

The argument for the plaintiff was that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Crisford v Haszard

Details

AGLC: Crisford v Haszard [2000] NZCA 73
Case: [2000] NZCA 73
Decision Date: 1 June 2000

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal from Mr John Anthony Crisford, who sought inspection of a tape recording of a conversation between Linda Harris and Mr Murray Hayden Haszard, who was a director and shareholder in Binary Research Limited. The conversation was recorded without Mr Haszard's knowledge at the request of Mr Crisford's solicitor. Mr Crisford claimed that the recording was privileged, while Mr Haszard argued that it should be disclosed as it was a conversation between parties, not protected by privilege. The primary judge held that the recording was not privileged as it was a conversation between parties, and the rationale of litigation privilege did not extend to protecting tape recordings of conversations. Mr Crisford appealed the decision, arguing that the recording was privileged as it was prepared for the dominant purpose of conducting litigation and that it did not fall within the recognised heads of litigation privilege. Mr Haszard contended that the recording was not privileged as it was merely an electronic replica of a non-privileged conversation and that the rationale of the principle that communications between opposing parties are not privileged applied in this case.

The Court of Appeal considered the principles of pre-trial disclosure and litigation privilege, which are directed towards the same end: the public interest in the administration of justice. The Court noted that litigation privilege applies to communications between a legal professional adviser and a third party and between a client and a third party made with a view to obtaining information to be submitted to a legal professional adviser. However, the Court concluded that recording a non-privileged conversation on tape does not change the nature of the resulting "document" to attract privilege. Furthermore, the Court held that no communication made by an opposing party can be confidential, and there is insufficient exercise of skill, selection, effort, or judgment to come within the rationale for litigation privilege.

The appeal was dismissed with costs to the respondents.

Orders