Financial Markets Authority v Hotchin

[2015] NZHC 243

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-001771 [2015] NZHC 243

UNDER

Sections 55 - 57 of the Securities Act 1978

BETWEEN

FINANCIAL MARKETS AUTHORITY Plaintiff

AND

MARK STEPHEN HOTCHIN First Defendant

GREGORY JOHN MUIR Second Defendant

TIPENE GERARD O'REGAN Third Defendant

BRUCE PATRICK GORDON Fourth Defendant

ERIC JOHN WATSON Fifth Defendant

DENNIS JOSEPH BROIT Sixth Defendant

Hearing:	On the papers
Judgment:	23 February 2014

JUDGMENT OF WINKELMANN J

This judgment was delivered by me on 23 February 2014 at 2.45 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

FINANCIAL MARKETS AUTHORITY v HOTCHIN [2015] NZHC 243 [23 February 2014]

[1]      On 4 November 2014 I issued a judgment in respect of various applications in connection with discovery of the FMA’s documents.  Those included applications by the FMA under ss 69 and 70 of the Evidence Act 2006 that a significant volume of documents not be disclosed.  Having dismissed those applications in relation to some documents, I reserved leave to the FMA to apply for further redactions.  The FMA now applies for redaction in respect of one document.   That redaction is opposed by the defendants.

[2]      I also address in this judgment the FMA’s application under s 69 and 70 that a particular document not be disclosed to the defendants.   Consideration of that document was omitted in my earlier judgment.

[3]      I apologise to the parties for the delay in addressing these additional issues, but the Registry failed to refer counsels’ memoranda to me until early February

2015.

Document not addressed in earlier judgment

[4]      In respect of document HAN150.0075, which appeared in the Judge only bundle, the s 69 application is allowed.  This is an interagency communication of an informal nature.   It contains a frank discussion between these agencies of a type which it is in the public interest be able to occur without concern as to disclosure. The document contains nothing of relevance which is not available in other documents.

Redaction

[5]      The FMA seeks redactions in respect of document HAN150.0127 only.  The

FMA says that the document concerned contains legally privileged material.

[6]      Having considered the document and the proposed redactions in light of the FMA submissions, I am satisfied that rather than merely setting out a plan of action as I had previously indicated, the document also contains summaries of legal advice, and communications for the purpose of giving and taking legal advice.   That is privileged material.

[7]      Accordingly, the redactions requested are ordered.

Timetabling

[8]      The FMA also requested a variation to timetable orders.  Due to the delay in addressing these issues it is better if the timetable is revisited at the next conference in this proceeding, on 24 February 2015.