Cynortic Water Systems Limited v Saunders Robinson Brown

[2016] NZHC 2605

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2016-409-000111 [2016] NZHC 2605

BETWEEN

CYNORTIC WATER SYSTEMS

LIMITED First Plaintiff

MARK JAMES SULLIVAN AND SUSAN MARY SULLIVAN Second Plaintiffs

AND

SAUNDERS ROBINSON BROWN Defendant

Hearing:	Dealt with on the papers
Counsel:	D G Hurd for First and Second Plaintiffs A Eckford for Defendant
Judgment:	1 November 2016

JUDGMENT OF GENDALL J

[1]      This judgment relates to an application by the plaintiffs for an order regarding inspection of a document for which privilege has been claimed by the defendants.

[2]      The application filed in this Court on 25 August 2016, so far as this judgment is concerned, sought an order that the defendants make available for inspection by the plaintiff document AM1431 in the defendants’ affidavit of documents for which privilege had been claimed.

[3]      That application was opposed by the defendants in a notice of opposition filed 8 September 2016.

[4]      The  document  in  question,  being  document  AM1431  in  the  defendants’

affidavit  of  documents,  has  now  been  provided  to  me  for  consideration.    The

CYNORTIC WATER SYSTEMS LIMITED v SAUNDERS ROBINSON BROWN [2016] NZHC 2605 [1 November 2016]

document is a succession of emails between partners/solicitors in Saunders Robinson

Brown, Solicitors, Christchurch, who are the defendants in this matter.

[5]      In opposing the plaintiff’s request to inspect these particular documents, the defendants claim they are subject to litigation privilege and therefore are not required to be disclosed. As The Evidence Act 2006: Act and Analysis1 notes:

EV56.03  Dominant purpose

The common law of litigation privilege is reflected in the prerequisites set out in ss 56(1) and (2) (of the Evidence Act 2006) namely that preparation for a proceeding must be the “dominant purpose” of activities for which privilege is sought, and the privilege holder must be a party to a current proceeding or must contemplate, on reasonable grounds, becoming a party. It is enough if a person reasonably contemplates becoming a party to an “apprehended” proceeding.

[6]      Here the documents in question relate to an email interchange between the Saunders Robinson Brown solicitors in July 2015, in response to problems raised by Ms S M Sullivan in an email message from her, following what I understand turned out to be the Sullivan interests unsuccessful court proceeding run by the defendants.

[7]      Having  had  an  opportunity  to  consider  the  documents  in  question  I  am satisfied  that  the  parties  to  the  documents  from  Saunders  Robinson  Brown reasonably contemplated at the time the possibility of becoming parties to an apprehended court proceeding to be brought against them by the Sullivans and their interests.  In addition, in my view the interchange in these documents constituted as their “dominant purpose” preparation for the apprehended proceeding and steps that might be taken which were seen to be appropriate.

[8]      I am satisfied therefore that the documents in question being (described as AM1431) do attract litigation privilege here and in terms of s 56 Evidence Act 2006 they are not properly disclosable to the plaintiffs.   Their application to inspect these documents therefore fails.

...................................................

Gendall J

1      The Evidence Act 2006: Act and Analysis (3rd Ed) Mahoney & Ors, Thomson Reuters at para

EV56.03.

Solicitors:

Bill Dwyer, Christchurch

Parker Cowan, Queenstown

Copy to:

David Hurd, Auckland