DN v Family Court at Auckland
[2019] NZHC 2346
•17 September 2019
NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. NO INFORMATION IDENTIFYING THE ANONYMISED PARTIES IS TO BE PUBLISHED.
FOR FURTHER INFORMATION, PLEASE SEE
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2019-404-1087
[2019] NZHC 2346
BETWEEN DN
First Applicant
LN
Second ApplicantAND
FAMILY COURT AT AUCKLAND
First Respondent
SL
Second RespondentKQ
Third Respondent
Hearing: 12 September 2019 Appearances:
D A T Chambers QC for the Applicants
V A Crawshaw QC for the Second Respondent
Judgment:
17 September 2019
JUDGMENT NO 2 OF PALMER J
(Discovery)
The judgment was delivered by me on 17 September 2019 at 3.00pm Pursuant to Rule 11.5 of the High Court Rules
……………………………… Registrar/Deputy Registrar
DN v FAMILY COURT AT AUCKLAND (NO 2) [2019] NZHC 2346 [17 September 2019]
Summary
[1] In challenging a Family Court decision by way of judicial review, the applicants apply for discovery of notes of a lawyer for children in that proceeding of discussions with teachers and a previous lawyer for the children. On the basis of the current pleadings, I do not consider the notes sought are relevant to the issues in the judicial review. I decline the application on that basis.
[2] If the notes were subsequently found to have some relevance to the issues in the proceeding, I consider they would be confidential under s 69 of the Evidence Act 2006 (the Act) and I would direct they not be disclosed. It is important, in order to promote the welfare and best interests of a child, that third parties consulted by lawyer for the child should speak freely and frankly. The lawyer must exercise judgment about what is relevant, appropriate and in the best interests of the child to report. There is significant public interest in maintaining the free flow of information required for the efficacy of the role of lawyer for a child. For that to be outweighed, the countervailing public interest in disclosure would have to be compelling. On the basis of the material currently before me, it is not.
Context
[3] This proceeding is a judicial review of a decision of the Family Court to order a psychological report regarding vulnerable children under s 133 of the Care of Children Act 2004 (COCA). The identities of the parties are suppressed in order not to identify the children. The substantive hearing is set down for 4 December 2019.
[4] The applicants, in three causes of action in their second amended statement of claim, plead the Court’s decision:
(a)was made in error of law by failing to take into account relevant considerations in failing to obtain evidence from the paediatrician and the views of the children;
(b)was made in error of law by relying on the report for the lawyer for the children, the second respondent:1
(i)which recorded ultra vires hearsay evidence from teachers at one of the children’s schools and opinions by the lawyer for the children; and
(ii)which expressed a view that a s 133 report should be ordered, without obtaining the views of the children in direct conflict with the Lawyer for the Child Best Practice Guidelines Practice Note, which was ultra vires; and
(c)breached natural justice by breaching the right to a fair hearing and giving the appearance of partiality, by failing to deal first with an application for recall of a previous, allegedly prejudicial, minute.
[5] The second respondent was appointed as lawyer for the children. The relief sought for the second cause of action is a declaration that actions of the lawyer for the children were ultra vires and the Court’s decision to order a s 133 report should be set aside.
[6] Now, the applicants seek particular tailored discovery and inspection of the lawyer for the children’s “notes and correspondence” of discussions with a previous lawyer for the children in the Family Court proceeding and with teachers of one of the children’s schools, in regard to the Family Court proceeding.
[7] The issues arising here, with which I deal in turn, are whether the notes sought are relevant to the issues in the proceeding and whether they are confidential or privileged under the Act.
1 Second amended statement of claim, 10 September 2019, at [47]–[57].
Are the notes relevant?
Relevant law of discovery
[8] Under r 8.19 of the High Court Rules 2016, I may order particular discovery and inspection if it appears to me there are grounds for believing a party has not discovered documents that should have been discovered. Documents ordered to be discovered must be relevant to the issues in the proceeding.2
Submissions
[9] Ms Chambers QC, for the applicants, submits the notes are plainly relevant to assessing the overall credibility of the lawyer for the children’s report and the Family Court’s reliance on it. She submits the notes are relevant to the issue of where the disputed information in the report came from, which is relevant to a pleading in the judicial review proceeding.3 She also submits they are relevant to the basis on which the lawyer for the children reached her view that a s 133 report should be ordered. She submits it makes a difference to the reliability of the report. She submits adverse comments about the applicants must be highly relevant to the proceeding as the report would be even more fundamentally flawed than currently alleged. She concedes whether the report is ultra vires does not depend on what is in it but if the notes reveal what was reported was never said, the report is even less reliable and further outside the role of lawyer for the children. She also completely agrees there is no obligation to include in the report everything the lawyer for the children was told; but the allegation here is the report was based on incorrect information. Ms Chambers says the applicants consider statements made to the lawyer for the children by the teachers, reported to the Family Court, are hopelessly inaccurate. She submits the applicants asked for the notes in the Family Court but the Court did not deal with the issue.
[10] Ms Crawshaw QC submits the evidence has no relevance in terms of the definition of that in s 7(3) of the Act, of having a tendency to prove or disprove anything of consequence to the determination of the proceeding. She submits none of the notes pertain to the claims made in the pleadings against the lawyer for the child.
2 For example, Robert v Foxton Equities Ltd [2014] NZHC 726, [2015] NZAR 1351 at [8].
3 Second amended statement of claim, 10 September 2019, at [49](b).
She submits whether the report included hearsay is a legal question and whether a s 133 report was necessary in the lawyer for the children’s view is reflected in the report itself. She submits the pleadings do not claim there are major errors in the lawyer for the children’s report. In the absence of relevance to the pleadings, Ms Crawshaw submits this is a fishing expedition into which the Court should be loath to enter. She points out lawyer for a child may consider it is in the best interests of the child not to include in their report some views they receive. In the Family Court, Ms Crawshaw says there was only an informal request for the notes, which was not dealt with by the Court because it was not before the Court.
Decision on relevance
[11] The notes are clearly not relevant to the first cause of action which challenges the Family Court’s decision for failing to obtain evidence from the paediatrician and the views of the children. The notes are also clearly not relevant to the third cause of action, concerning the right to a fair hearing and the appearance of partiality by the Judge. Neither are the notes relevant to whether a statement in the report for the lawyer for the children was hearsay or opinion evidence. Those are legal questions about the statements in the report. And the claim that the report is ultra vires, because the lawyer for the children did not obtain the views of the children, cannot depend on the content of the report, as Ms Chambers concedes, let alone the material on which it was based.
[12] The notes, and where disputed information came from, will not elucidate the issues the High Court has to decide. The notes do not have any tendency to prove or disprove anything of consequence to the determination of this proceeding. On the basis of the current pleadings, I cannot see how the notes are relevant. I do not need to inspect the notes in order to come to that conclusion. I dismiss the application on that basis.
Are the notes confidential or privileged?
[13] While my conclusion on relevance is sufficient to dispose of the application, I go on to consider how issues of confidence or privilege would apply, in case the information in the notes is subsequently found to have some relevance.
Law of privilege and confidentiality
[14] A person who obtains professional legal services from a legal adviser has privilege in respect of any of that person’s confidential communications with the legal adviser, in specified circumstances, under s 54 of the Act. The privilege does not extend to communications with third parties, so s 54 does not apply here.4
[15] Under s 56 of the Act, a party to a proceeding has privilege in respect of “a communication between the party’s legal adviser and any other person” as well as “information compiled or prepared by … the party’s legal adviser”. The communication or information must have been “made, received, compiled, or prepared for the dominant purpose of preparing for a proceeding …”. If the proceeding is under the COCA, and is not a criminal proceeding, then under s 56(3), a judge may override that privilege in respect of any information the judge specifies, if satisfied it is in the best interests of the child to do so
[16] Section 69 of the Act confers on me a discretion to weigh competing interests in considering the disclosure of confidential information. The predecessor section, s 35 of the Evidence Amendment Act (No 2) 1980 (the 1980 Act), was described by Cooke J (as he then was) as “a characteristic piece of statutory law reform in the New Zealand tradition … [i]dentifying an area as having problems not lending themselves to solution by fixed rules, the legislature has conferred a discretion on the Court to weigh the competing public interests bearing on each particular case, having regard to broad criteria”.5 The same is true of the current section. Of course, the Court’s discretion must be exercised according to law.
[17] Under s 69(2) of the Act, I may direct that any confidential communication or information not be disclosed whether or not it is privileged under subpart 8 of part 2 of the Act or would be privileged except for a restriction imposed by that subpart. This power is available:
4 Elisabeth McDonald and Scott Optican Mahoney on Evidence: Act & Analysis (Thomson Reuters, Wellington, 2018) at [EV56.02](1).
5 R v Howse [1983] NZLR 246 (CA) at 251.
if the Judge considers that the public interest in the disclosure in the proceeding of the communication or information is outweighed by the public interest in—
(a)preventing harm to a person by whom, about whom, or on whose behalf the confidential information was obtained, recorded, or prepared or to whom it was communicated; or
(b)preventing harm to—
(i)the particular relationship in the course of which the confidential communication or confidential information was made, obtained, recorded, or prepared; or
(ii)relationships that are of the same kind as, or of a kind similar to, the relationship referred to in subparagraph (i); or
(c)maintaining activities that contribute to or rely on the free flow of information.
[18] When considering whether to make such a direction, under subs (4) and (3) respectively, I may have regard to any matters I consider relevant and I must have regard to the following factors:
(a)the likely extent of harm that may result from the disclosure of the communication or information; and
(b)the nature of the communication or information and its likely importance in the proceeding; and
(c)the nature of the proceeding; and
(d)the availability or possible availability of other means of obtaining evidence of the communication or information; and
(e)the availability of means of preventing or restricting public disclosure of the evidence if the evidence is given; and
(f)the sensitivity of the evidence, having regard to—
(i)the time that has elapsed since the communication was made or the information was compiled or prepared; and
(ii)the extent to which the information has already been disclosed to other persons; and
(g)society’s interest in protecting the privacy of victims of offences and, in particular, victims of sexual offences.
[19] The Evidence Act does not define what is “confidential”. In R v X (CA553/2009), a majority of the Court of Appeal held that the test for confidentiality
under s 69 was an objective one: whether a person in the position of the person who disclosed the information would have a reasonable expectation of confidentiality.6
[20] In 2000, in R v H, a full bench of five of the Court of Appeal considered an application in a criminal proceeding to call evidence from a lawyer for child appointed in a Family Court proceeding under s 30(1)(b) of the Guardianship Act 1968, the predecessor to s 7 of the COCA.7 The Court considered the application of s 35 of the 1980 Act and the purpose of appointment of lawyer for a child. Richardson P said, for the Court:
[22] Relevant features for present purposes are (1) counsel acts as legal representative and at any Court hearing presents submissions and may cross- examine and call evidence as in other litigation but reports to the Court and, while obviously respecting wishes the child expresses, does not receive instructions as such and exercises an independent judgment as to what is in the best interests of the child; (2) the corollary is that the child's participation in the Court-directed process is not wholly voluntary; and (3) it is understood that communications from the child to counsel may be relayed to the Court and made known to the parties. While akin to a solicitor-client relationship it has special statutory features which necessarily preclude or limit the full application of conventional legal professional privilege . . .
[23] We consider that matters of confidence arising from a s 30(1)(b) appointment should ordinarily be approached under the balancing provisions of s 35 of the Evidence Amendment Act with recognition given to the fact that the relationship between counsel and child is closely analogous to that of solicitor and client. In the present case that is the appropriate course to follow.
[21] In that case, the Court held there was clearly a “special relationship” between counsel for the child and the child.8 The disclosure required of the child, of information which would be part of the lawyer’s report to the Court, “could not possibly justify the conclusion that, even if capable of doing so, the child had waived any confidentiality otherwise attaching to what was not relayed to the Family Court”. The balancing required by s 35 was said to be “heavily in favour of maintaining confidentiality” and outweighed any fair trial considerations.9
6 R v X (CA553/2009) [2009] NZCA 531, [2010] 2 NZLR 181 at [45], [47], [48], [61].
7 R v H [2000] 2 NZLR 257 (CA)
8 At [32].
9 At [34].
[22] In recommending s 69, the Law Commission intended it to be of broader application than its predecessor.10 It recommended the section provide for judges to balance competing interests and, using the example of confidential communications with counsellors, it said:11
There will be occasions when it is vital that such information be before a court, for example, where the welfare of a child is at stake. … But there are other cases where the same information can readily be obtained without breaching the confidence of the relationship. Or it may be that the information is not of great significance to any important issue in the case. There is a clear case for balancing the potential harm caused by breaching confidence, against the need for the information in the proceedings. The alternative would be to allow counsel for either party to insist on disclosure simply on the grounds that the information is, or may be, “relevant” to the case according to a very low standard of what is relevant.
[23] The Commission envisaged that it was better to look at the nature of the information for which protection is sought, and the importance of protecting it in the circumstances of the case, rather than occupations or interests alone.12
Submissions
[24] Ms Chambers submits it would be hopeless to argue the notes are privileged. She submits a lawyer for the child is appointed by the Court for the purpose of safeguarding the welfare of the children. She submits any litigation privilege in the notes is waived by the filing of a memorandum relying on the statements made, and there is no privilege in the notes of discussions with the former lawyer for the children. She submits s 54 of the Act cannot apply because this is not a case of a person obtaining professional legal services.
[25] Ms Chambers relies on M v L which emphasises the importance of confidence in a confidential relationship, in the context of production of counselling notes.13 She submits the evidence-gathering process for a report to the Court, as here, is in a different category. She submits I should not look at the notes to decide relevance as it
10 Law Commission Evidence: Reform of the Law (NZLC R55 vol 1, 1999) at [304].
11 Law Commission Evidence Law: Privilege (NZLC PP23, 1994) at [387]. The Commission departed from the proposals in its Preliminary Paper 23 about privilege in its final Report 55, at [249]. But it does not appear to have resiled from its views about confidentiality. The draft section in Preliminary Paper 23 is very similar to s 69.
12 Law Commission Evidence Law: Privilege (NZLC PP23, 1994) at [392]–[393].
13 M v L [1999] 1 NZLR 747 (CA).
is for the applicants and counsel to decide the importance of what is in the notes. She distinguishes R v H because that concerns comments by the relevant child. Even if s 69 applies to the discussions with the previous lawyer for the children, she submits an incorrect report, based on discussion with a previous lawyer for the children who stepped down because of a complaint to the Law Society, puts it in a different category. I note the previous lawyer rejected the complaints against her but elected to withdraw because of her concern the complaint process was impacting detrimentally on the children.14 Ms Chambers submits the notes cannot be confidential or result in any harm because the comments are already included in the report. And if there is any confidentiality, Ms Chambers submits fairness weighs overwhelmingly in favour of discovery. She submits it is in the public interest that there must be incentives to make sure the role of lawyer for a child is performed with discipline, professionalism and accuracy.
[26] Ms Crawshaw submits any privilege attaches to the children, not the parents. She rests her opposition to the application on confidentiality under s 69. Ms Crawshaw submits it would be grossly inappropriate for a parent to have access to a lawyer for the child’s file. She submits the notes are confidential under s 69 of the Act and the case for their release is weaker than in the criminal context in R v H. She submits there are good policy reasons why the notes ought not be released to the parents, if they are relevant: if what lawyer for a child records is discoverable by parents, or another party to the litigation, that could defeat the purpose of the role of lawyer for child under s 9B of the Family Court Act 1980 and the independence of their role. However, for the purpose of resolving the issue, she invites me to examine the requested notes, under r 8.25 of the High Court Rules 2016, and determine whether or not they are relevant. She is concerned the issue not derail the timetable for the proceeding.
Decision on confidentiality
[27] I treat this issue as a matter of confidentiality rather than privilege. The Court of Appeal in R v H held “matters of confidence arising from” appointment of a lawyer for a child “should ordinarily be approached under the balancing provisions of” the
14 Minute of Judge L de Jong, 9 October 2018, at [19].
predecessor to s 69. The broadening of the provision through the enactment of s 69 reinforces that. The position of lawyers for children is “akin” to, but not quite the same as that of a solicitor in terms of their privileged relationship with a client. Complicating issues arise such as: who could waive privilege; whether children are necessarily parties to a proceeding; the impact of statutory duties in s 9B of the Family Court Act 1980; and the nature of the lawyer’s relationship with the Court who appoints them. Such issues continue to mean that ordinarily, as the Court of Appeal in R v H held, the disclosure of information related to a lawyer for a child should be considered under s 69 rather than as a matter of privilege. That is the case here.
[28] I proceed on the basis the information sought is confidential under s 69. I consider a reasonable teacher would only expect a lawyer for a child, appointed by the Court under statute, to communicate information to the Family Court that the lawyer considers appropriate or necessary to communicate, having regard to the best interests of the child. I do not consider a consulted teacher would reasonably expect everything they said to a lawyer for a child to be disclosed to the Court and the parties to the litigation. They would reasonably rely on the lawyer for the child to exercise judgement in that regard, in the best interests of the child. The same is true for notes of handover discussions between an outgoing lawyer for a child and an incoming lawyer for the same child.
[29] The circumstances in which a lawyer for a child reports to the Family Court will often, perhaps usually, be emotionally fraught, for parents and children and, sometimes for others consulted, including teachers and even some lawyers for children. The relationship between lawyer for a child with third parties they consult is no doubt less special than that with the child. Material that ought to come to a Court’s knowledge only as evidence should not be in a report by a lawyer for a child.15 But I agree best practice requires a lawyer for a child to ensure that all factors relevant to the child’s welfare and best interests are before the Court which appointed them, under statute.16 The purpose of such consultations must be to act in a way the lawyer
15 Family Court Caseflow Management Practice Note: Appendix 2 (Judge L Ryan, Principal Family Court Judge, March 2015) at [8.3].
16 Lawyer for the Child: Best Practice Guidelines (New Zealand Law Society, ratified 23 February 2018) at [5.4]. The Guidelines are invoked by the Family Court Caseflow Management Practice Note: Appendix 2, above n 15, at [6.4].
considers promotes the welfare and best interests of the child. It is important for that purpose that third parties consulted by a lawyer for a child speak freely and frankly. The lawyer for the child must exercise judgement about what is relevant, appropriate and, as Ms Crawshaw submits, in the best interests of the child to report.
[30] Here, if the notes are subsequently found to have some relevance to the issues in this proceeding, their likely significance for the Court’s decision would be slight. The nature of the confidence between the teacher or previous lawyer who disclosed information and the lawyer for the child was for the purpose of promoting the welfare and best interests of the children. For the raw information which the lawyer for the children gathered and assessed in reporting to the Family Court to be easily available to family members in a judicial review proceeding such as this would be likely to harm the efficacy of the role of lawyer for a child. There is significant public interest in maintaining the free flow of information required for the efficacy of the role of lawyer for a child. This is a public interest recognised in s 69(2)(b)(ii) and (c) of the Act.
[31] For that to be outweighed, the countervailing public interest in disclosure of a communication or information would have to be compelling. On the basis of the material currently before me, it is not and I would direct they not be disclosed. I consider the public interest in disclosure would be outweighed by the public interest in preventing harm to the relationships between the lawyer for the children and those from whom she gathered information, and in maintaining the activities of other lawyers for children that rely on the free flow of that information.
Result
[32] I decline the application for discovery and inspection of the notes of the lawyer for the children.
Palmer J
Counsel/Solicitors:
Lady Chambers QC, and S G Coles Barrister, Auckland Duncan Cotterill, Auckland V A Crawshaw QC, Auckland Crown Law, Wellington
A C M Fisher QC, and K E Swadling Barrister, Auckland Armstrong Barton, Whanganui S P Jerebine, Barrister, Auckland Heimsath Alexander, Auckland
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