Hagaman v Hagaman
[2023] NZHC 1168
•16 May 2023
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2018-409-531
[2023] NZHC 1168
IN THE MATTER of the Estate of Earl Raymond Hagaman BETWEEN
DAMON CARLSON HAGAMAN, JENNIFER LYNN HAGAMAN ELDERS, KIMBERLY RAE HAGAMAN AND KEITH ERIC HAGAMAN
Plaintiffs
AND
LIANNA-MERIE HAGAMAN, GIBRALTAR TRUST LIMITED AND FJB
TRUSTEES LIMITED as trustees of the Naciemento Trust
First Defendants
LIANNA-MERIE HAGAMAN
Second DefendantLIANNA-MERIE HAGAMAN,
GILBRALTAR TRUST LIMITED AND FJBTRUSTEES LIMITED as trustees of the Sequoia Trust
Third Defendants
Hearing: 1 May 2023 Counsel:
A R Galbraith KC and G J D Mander for Plaintiffs
M G Colson KC and J L W Wass for First Defendants J B M Smith KC for Second Defendant
V L Heine KC for Third defendants and for non-party Estate E R Hagaman
Judgment:
16 May 2023
JUDGMENT OF ASSOCIATE JUDGE LESTER
HAGAMAN v HAGAMAN [2023] NZHC 1168 [16 May 2023]
Introduction
[1] This proceeding is set down for a 10-week hearing before Churchman J, commencing on 14 August 2023. The close of pleadings date has long past.
[2] The first issue in this judgment is that on 22 March 2023, the plaintiffs sought leave to file a fourth amended statement of claim. The application is opposed, although the defendants recognise the priority the Court gives to ensuring the true dispute between the parties is the subject of the hearing. They seek that if leave is granted, that it be on certain conditions, including that no further evidence in chief be filed by the plaintiffs (they having filed their briefs some time ago) and that the defendants are entitled to further discovery in respect of the new cause of action.
[3] The second issue relates to a request for further discovery by the plaintiffs; that request being driven by direct and indirect reference to material in evidence filed by the defendants. While a number of the plaintiffs’ requests have been resolved by agreement, some remain.
[4] The third issue concerns an affidavit filed by the late Mr Earl Hagaman (Earl) in Family Court proceedings many years ago. The issue is whether Earl’s reference in that affidavit to legal advice he received to not oppose the application, as opposed to consenting to it, meant he thereby waived privilege in that advice.
[5] The fourth issue is that presently members of the plaintiffs’ legal team have provided formal undertakings to keep confidential, material that has been provided by the defendants in discovery. The plaintiffs seek to expand the number of personnel who can have access to the confidential material on the basis that the named individuals will also give formal undertakings. That application is opposed.
[6] Finally, some case management issues were raised, including a request for a pre-hearing conference with the Trial Judge and the possibility that a brief hearing time may be required in the immediate future to resolve some residual issues. These issues have either been addressed outside of this judgment or will be addressed at a further hearing by telephone scheduled for 17 May 2023.
First Issue: Amendment of pleadings
[7] I am satisfied this is an appropriate case for leave to be granted, albeit on conditions which I will address below.
[8] The amended pleading does not introduce any new factual allegations, relying only on allegations already in the pleadings. The defendants are familiar with those allegations and have responded to them.
[9] Mr Smith KC, counsel for the second defendant, Lianna-Merie Hagaman (Lani), as one would expect, focused on the prejudice his client would face if the application was granted.
[10] Mr Smith submitted that the plaintiffs’ discovery in respect of a part of the existing pleading central to the new cause of action, had not previously been the focus of the defendants’ attention when considering the adequacy of the plaintiffs’ discovery. That part is described by Mr Smith as “foundationally relevant” to the proposed new cause of action. Mr Smith submitted, had it been pleaded, foundationally relevant principles would have been the subject of more focused attention.
[11] The paragraphs in question were also to adopt Mr Smith’s phrase, “foundationally relevant” to the existing cause of action. Frankly, given the hard fought nature of discovery issues in this proceeding, it is hard to accept that a less rigorous approach was taken to what is a pleading of reliance in relation to the existing constructive trust cause of action as opposed to that same pleading being relied on as detriment for the purpose of the new cause of action in proprietary estoppel.
[12] That said, the plaintiffs are seeking an indulgence by this application. Mr Galbraith KC, counsel for the plaintiffs, analysed the statement of claim to support his view that the amended cause of action was already included in the existing statement of claim. Whether that is correct or not, I need not decide for as Mr Galbraith accepted the plaintiffs are, to use his expression; “hoist by their own petard” once leave to amend was sought. In short, once there is an application for leave to amend after the close of pleadings date, the benefit of the doubt in respect of prejudice goes against the applicant.
Further Discovery
[13] I am satisfied the defendants are entitled to call for further discovery to answer the prejudice raised. Mr Smith annexed to his submissions a schedule of further discovery categories which he submitted became relevant as a result of the amended pleading. From discussions at the hearing, those categories were narrowed.
Category Five of Mr Smith’s schedule
[14] Looking back at the categories of tailored discovery, and I here refer to the defendants’ requested additional discovery set out in Annexure A to the plaintiffs’ memorandum of 25 November 2019, there is already overlap between the discovery that has been provided, or at least agreed to be provided, and the discovery sought in Mr Smith’s schedule. Category Five from Mr Smith’s schedule is:
Any correspondence referring to or discussing the plaintiffs’ decision to move to or from New Zealand, or to undertake business enterprises in New Zealand, not already discovered.
[15] The plaintiffs agreed in 2019 to provide all relevant documents and communication concerning Jennifer and Felton coming to New Zealand and their employment arrangements while in New Zealand. The schedule annexed to my judgment of 24 July 2020, dealing with discovery, recorded the plaintiffs’ agreement to discover all Felton’s employment contracts or similar contracts in the United States of America (USA) for the period from 1995 to 2010 and payslips and equivalent information regarding wages and salary received.1 The plaintiffs also agreed to provide, or at least to request, Jennifer and Felton’s residency and visa applications and all associated information in relation to their coming to live in New Zealand. To the extent there are documents or correspondence that have not already been discovered in respect of Category Five, I order the plaintiffs are to provide that further discovery.
1 Hagaman v Hagaman [2020] NZHC 1800.
Category Six of Mr Smith’s schedule
[16] Category Six relates to documents for Damon Hagaman (Damon) concerning or referring to the purpose for which he put money and other assets he received under the 2005 settlement with his late father (Earl) and the financial performance of those business interests and investments since 2005.
[17] Damon settling his dispute with his father in respect of the Dunedin properties is not one of the acts of detriment pleaded in the paragraph said to be “foundationally relevant” to the new cause of action.
[18] Mr Smith submitted that the present day value of assets Damon had built up as a result of the settlement needed to be known in order to compare that value against the current day value of the assets the plaintiffs claim in this proceeding.
[19] Mr Smith submitted there had to be a netting of benefits and losses in respect of the representations/promises asserted by the plaintiffs. In my view, if that exercise is required, it would need to take place as at 2005. The defendants have the ability to make that comparison; they can ascertain the value of the assets at that time which are subject to challenge. If Mr Smith is correct and there is a netting of benefits and losses arising from the promise (Mr Galbraith submitting that exercise is not required) then that can only be as at 2005. It cannot be an exercise that can be carried out as at the date of trial, otherwise, if Damon had unfortunately lost all of the value he received as a result of the settlement, then on Mr Smith’s argument he would have received no benefit. It could not be the case that Damon would have the detriment of having successfully invested the funds when it came to carrying out the balancing exercise Mr Smith advocates, yet not the benefit of losses.
[20]I decline to order Category Six of Mr Smith’s schedule.
Category Seven of Mr Smith’s schedule
[21] Category Seven concerns Keith Hagaman (Keith) and a pleading that as part of his reliance on the representations he says Earl made, that from 2004 he ceased his fulltime property and real estate business in California to spend significant portions of
his time in New Zealand to assist Earl. In his brief of evidence, Keith refers to having “several deals in the hopper”. I am satisfied these documents should be discovered. They probably should have been discovered in any event, albeit in my relatively brief review of the categories of discovery that have been agreed and/or ordered, it is not specifically covered.
[22] I order that discovery is to be provided in respect of Category Seven of Mr Smith’s schedule.
Category Eight of Mr Smith’s schedule - Jennifer’s documents
[23] In respect of Jennifer, documents are sought in relation to her decision to cease developing her interior design business interests in the USA. A similar disclosure is sought in relation to Jennifer and Felton’s construction business; that being referred to in their briefs of evidence, and expenses and losses incurred as a result of leaving New Zealand. It may well be that some of this information has already been discovered given the categories of disclosure I have already referred to but to the extent such documents exist, I order that they should now be discovered.
Category Nine of Mr Smith’s schedule – information relating to Felton’s employment
[24] The last category is information relating to Felton’s employment including his tenure at United Airlines and his expectation that he would become a senior pilot, his request to be placed on furlough from United Airlines, and his attempt to find further employment in the aviation industry, and pay slips.
[25] As I have noted, this category overlaps with categories of discovery that have already been ordered but, again, these relatively focused categories of documents should be disclosed. Mr Smith submitted these documents should be disclosed within 15 working days. Mr Smith explained the need for these documents to assist him in deciding to what extent, if at all, to cross-examine on these issues. These documents are required for cross-examination, Mr Smith does not need them within 15 working days, given the hearing is over three months away.
[26] I order that the documents are to be provided within 30 working days of the date of this judgment.
In summary
[27]Accordingly, I order:
(i)that the application to file the fourth amended statement of claim is granted on the condition that the discovery outlined above is provided;
(ii)that the plaintiffs are not entitled to file any further evidence in chief;
(iii)the defendants are to file an amended statement of defence which may, if they consider it appropriate, raise affirmative defences in relation to the new cause of action. However, the fourth amended statement of defence is only to contain amendments required as a result of the new cause of action, it is not a basis for a wholesale repleading of the defence.
[28] The final condition sought by Mr Smith was that the defendants have leave to make consequential applications including the ability to administer interrogatories and to serve further evidence within 15 working days of the completion of the above discovery.
[29] I do not impose this condition. Mr Smith submitted that discovery was required to assist him in making decisions about cross-examination. The allegations in the statement of claim that are denied or, for which the plaintiffs have been put to proof, have been the subject of the defendants’ evidence in chief. Mr Smith’s position was not that there would need to be a change of pleading in relation to each of the matters alleged by the plaintiffs. That is not surprising. Whether a factual allegation is admitted, denied, or the plaintiffs put to proof, would not depend on whether that allegation was advanced to support one cause of action or another. However, Mr Smith’s submission was that the defendants had the right to make an informed decision about how to cross-examine in relation to the allegation now advanced as examples of detriment as opposed to reliance; hence the need for the further discovery.
[30]Any further application arising from the amendment will require leave.
Second Issue: Plaintiffs’ request for further discovery of documents referred to in defendants’ briefs
[31] This aspect of the plaintiffs’ application relies on a number of rules in the High Court Rules 2016 (the Rules) including;
(i)r 8.7, concerning standard discovery;
(ii)r 8.18, a party’s continuing discovery or obligations;
(iii)r 8.19, concerning particular discovery; and
(iv)r 8.29, which is headed “Order facilitating inspection”.
[32] Mr Colson KC, counsel for the first defendants, in opposing the application, submitted that the defendants have met their obligations under the orders for tailored discovery which were themselves subject to detailed negotiation and/or disputed interlocutories.
[33] Mr Colson submitted there was no principle that simply because a document has been referred to in a brief of evidence, it has to be discovered by the party serving the brief.
[34] In my view, the question of whether a document not previously discovered but referred to in the brief has to be discovered, is answered by reference to r 8.18 of the Rules. This provides:
8.18 Continuing obligations
(1)Each party against whom a discovery order is made has a continuing obligation to give discovery and offer inspection at all stages of the proceeding, even if that party has filed and served an affidavit of documents that complies with this subpart.
(2)A party must discover a document if, in the course of complying with an order for tailored discovery, that party becomes aware of a document that is not required to be discovered under the order, but that—
(a)adversely affects that party’s own case; or
(b)adversely affects another party’s case; or
(c)supports another party’s case.
[35] Briefs are required to contain only admissible evidence.2 To be admissible evidence, the material must be relevant.3 If a document is referred to within a brief of evidence and is within the power and control of the party serving that brief then that document is covered by the ongoing discovery obligation, given its reference in the evidence means the party producing the brief accepts the document is relevant – otherwise it should not be referred to. Therefore, the document must be discovered.
[36] In my view, so much is clear when a specific document is referred to. The issue in respect of some of the discovery sought by the plaintiffs is that while a specific document is not referred to, events are referred to where it is reasonable to expect there are documents recording that event. For example, evidence is given of events at a meeting of directors, but the minutes themselves are not referred to; does reference to what a witness observed at a directors meeting as to how decisions were reached or the role of an attendee, mean the party receiving the brief can call for the minutes to be discovered?
[37] Some of the discovery I have ordered to be provided by the plaintiffs falls into this latter category. References to events or circumstances, without referring to specific documents, prompted the defendants to ask for disclosure; for example, Jennifer and Felton’s construction business. However, in respect of material referred to in the defendants’ briefs, they resist disclosure.
[38] Mr Colson referred to Associate Judge Taylor’s decision in Commerce Commission v Viagogo AG.4 Mr Colson relied on [90](a) of that decision where the Judge concluded that the applicant was entitled to limited discovery of what the Judge described as the “Underlying Witness Documents” being specific documents referred
2 High Court Rules 2016, r 9.7(4)(c).
3 Evidence Act 2006, s 7(2).
4 Commerce Commission v Viagogo AG [2022] NZHC 3058.
to by a witness in their evidence. In respect of material not specifically referred to, the Judge said:5
To the extent the witnesses make general, background or contextual comments that do not rely on specific documents, no discovery order is appropriate.
The Judge did not develop reasons for this conclusion.
[39] Ultimately, for there to be an order for further and better discovery, the discovery sought must be proportionate, assuming it has been established the documents are relevant and there are grounds to believe the documents exist.6 Proportionality depends on factors including the volume of documents subject to the request for discovery and the costs of providing it. Such has to be assessed in context. The amounts in issue in this case are substantial. As I have said previously, the case is set down for 10 weeks.
[40] In my view, there is no bright line prohibition on documents that relate to general background or contextual comments not being discovered. The real issue is whether the evidence which points to the existence of documents is relevant to a matter in issue. Will counsel make submissions relying on that evidence, as opposed to the evidence being merely scene setting? If it is the former and if the documents are within the power and control of the party calling the evidence, then those documents should be disclosed. If it is the latter, then requiring disclosure in all likelihood will either not be proportionate or arguably not relate to a matter in issue. It is irrelevant that the grounds for believing documents exist is that they are referred to in a brief or the contents of the brief provide grounds for believing the documents exist. Once the evidence giving rise to the belief documents exist concerns a matter in issue, and those documents are in the control of the party providing the brief, that party can expect to be called upon to produce those documents to allow the opposing party to be able to assess the evidence.
[41]I now turn to the categories of documents sought.
5 Commerce Commission v Viagogo AG, above n 4, at [90].
6 Assa Abloy NZ Ltd v Allegion (NZ) Ltd [2015] NZHC 2760; [2018] NZAR 600 at [14].
Documents in a brief of Mr Dean Humphries
[42] The first categories of documents are in a brief of Mr Dean Humphries produced by the defendants.
[43] Mr Humphries refers to his dealings with Earl in 2015. In effect, Mr Humphries gives evidence that it never occurred to him that Earl may have been losing his mental acuity as asserted by the plaintiffs.
[44] The defendants submit Mr Humphries’ evidence provides his personal impressions and recollections of his dealings with Earl. Mr Humphries’ evidence concerns his involvement with Earl in around 2015 in relation to the divestment of an asset within Earl’s business. Mr Humphries’ evidence is in some ways of a general nature in that he refers to his impression of his meetings with Earl over a number of years but is specific in relation to the 2015 transaction.
[45] In respect of the 2015 transaction, the plaintiffs say that Mr Humphries’ evidence is relevant to the assertion that Earl continued to be mentally sharp. The plaintiffs seek discovery of letters, emails and documents signed by Earl, including any powers of attorney, in order that they can test Mr Humphries’ evidence.
[46] Mr Humphries also refers to the last time he saw Earl on 25 October 2016, which was at a meeting of the Scenic Hotels’ Board at which a senior representative of a bank attended. Mr Humphries says that while Earl had deteriorated physically, he mentally saw no change in him. The defendants have agreed to provide the minutes of this meeting on 25 October 2016. No order in that regard is required.
[47] Any documents relating to Earl’s alleged loss of acuity should have been discovered in any event. Mr Humphries is a valuer and I doubt documents that he holds as valuer are in the power and control of the defendants.
[48] The scope of the discovery sought by the defendants is narrow, relating only to the 2015 transaction referred to at para 11 of Mr Humphries’ brief. Given that narrow scope and given that any evidence relating to Earl’s capacity should have already been
disclosed, I direct the defendants are to address the discovery sought by the plaintiffs on this issue in the list of documents that I am going to direct.
Documents referred to in the brief of evidence of Mr Thomas
[49] The next category of documents referred to are those in the brief of Mr Thomas.
[50] Mr Thomas is a director of Dunedin Casinos Limited. He refers to Board of Directors’ meetings attended by Earl. The tenor of Mr Thomas’ evidence was that Earl was the decision maker for the Hagaman interests.
[51] Mr Thomas’ evidence is relevant to the capacity issue. I am satisfied this material is relevant given the defendants consider Mr Thomas’ evidence as to what happened at those meetings as regards Earl’s role, to be relevant; that is why it is in his brief. The documents are within the power and control of Lani. I order that discovery of the minutes from the time that the plaintiffs plead that Earl started to lose capacity, is to be provided. If that date cannot be agreed then counsel can refer that issue to me.
Copies of DVDs of depositions
[52] The next category of documents relates to copies of DVDs of depositions provided by Earl in respect of a claim made against him by his previous wife.
[53] The assertion on behalf of the defendants is that providing copies of the DVDs would be “burdensome and disproportionate”. I do not accept that assertion. If it is a question of cost, then the reasonable costs of duplicating the DVDs is to be met by the plaintiffs.
[54] I order that the defendants are to provide copies of all DVDs of the deposition that they hold. I was told during the hearing that there is no issue with the availability of the DVDs. Copying them will not be technically difficult. This order is subject to the condition that the plaintiffs meet the reasonable costs of the copying.
Copies of the financial accounts for the Scenic Trust
[55]The plaintiffs seek copies of the financial accounts for the Scenic Trust.
[56] In this case the plaintiffs assert that the Naciemento Trust was established by Earl for their benefit but that Earl, contrary to assurances he made to them, saw to it they were removed as beneficiaries of that Trust and ultimately that those assets ended up for the benefit of his New Zealand children and/or Lani. The plaintiffs say Earl also set up the Scenic Trust for the benefit of his New Zealand children. However, all Earl’s children, that is both the plaintiffs and his New Zealand children, were beneficiaries of each Trust.
[57] Mr Galbraith wants to know the value of the assets in the Scenic Trust to put in context the decision made to remove the plaintiffs as beneficiaries of the Naciemento Trust. The value available to the New Zealand Children under the Scenic Trust would, in my view, be a factor relevant to the removal decision.
[58] The plaintiffs seek the annual financial statements for the Scenic Trust and Wavell Resources from 2000 until 2014. That date range is too long. Given the purpose for which Mr Galbraith submits the material is relevant, it is the accounts of the Scenic Trust as at the dates of the resolutions to remove the plaintiffs as beneficiaries of the Naciemento Trust that are relevant to the issue he wishes to explore.
[59] I order that discovery of the annual financial statements for the Scenic Trust for the financial years covered by the dates of the resolutions to remove the plaintiffs as beneficiaries of the Naciemento Trust are to be discovered.
[60] I decline to order discovery of the value of Wavell Resources resources as the value of that entity is not directly relevant to the point Mr Galbraith wants to explore.
Categories 9, 14 and 15.
[61]I deal with discovery of three categories of documents together being;
(i)Category 9, from the plaintiffs’ discovery application, that is, documents relating to Lani’s negotiations with CERA;
(ii)Category 14, that is, Lani’s documents relating to her negotiations with Brian Green Property Group in November 2009 and with McDonalds in April 2010; and
(iii)Category 15, documents evidencing Lani co-ordinating maintenance at Annex Road.
[62] Mr Burgess, in his evidence when recounting his decision to remove Damon, Keith and Jennifer as beneficiaries, says that one of the factors he took into account was that Lani had contributed a great deal of time and effort to the Naciemento Trust and its assets, that she was actively involved in the acquisition of some of the assets, and that she had significantly contributed to the administration, operation and maintenance of those assets. Mr Burgess says:
Together with Earl, she had worked very hard. By comparison, from what I had seen and been told by Earl, Damon, Keith and Jennifer had done much less.
[63] Lani was a trustee of the Naciemento Trust so it may well be thought that the work Mr Burgess describes Lani as undertaking, was part and parcel of her obligation as a trustee. That will be an issue for trial but it is clear that the decision to remove Damon, Keith and Jennifer as beneficiaries of the Naciemento Trust (that being at the heart of their complaint in this proceeding) was, at least from Mr Burgess’ point of view, influenced by the work he considers Lani had undertaken in respect of Trust assets. This is work Lani describes in her affidavit, she does so because she considers it relevant.
[64]I am satisfied this material is relevant and should be discovered. Accordingly,
I order that the above categories are to be discovered.
Category 25
[65] Category 25 concerns a document for which privilege has been waived but which nonetheless has a partial redaction. I understand counsel wish to address that matter between them but with leave to seek a direction if required.
Category 29A
[66] The next category is 29A, being updated accounts for companies formerly owned by the Naciemento Trust. I agree this is simply updating discovery.
[67] The original order for discovery made on 24 July 2020 was for discovery of annual financial statements from incorporation to the present day. The obligation to provide ongoing discovery means that financial accounts through to the latest set are to be provided and I so order.
Category 30: Waiver of legal advice
[68] Category 30 is the waiver of legal advice in Earl’s 19 December 2008 affidavit, that is dealt with separately below.
Category 32
[69] The last category is 32 which, as I understand it, is not necessary given the direction made in relation to the information concerning Scenic Trust.
Third Issue: Waiver of privilege
[70] As noted in the introduction to this judgment, the plaintiffs obtained through discovery orders, an affidavit sworn by Earl in December 2008. The affidavit was sworn in an application made to the Family Court by Lani to have her relationship property agreement with Earl set aside and for orders for the division of property. Earl’s affidavit explains his attitude to the application. Earl accepted everything Lani said in her affidavit and concluded his affidavit by saying:
For reasons which my legal advisers have explained to me, it is not appropriate in this case that I formally consent to the making of [the orders sought] but I do not oppose them being made.
[71] Having obtained this affidavit, the plaintiffs submit that the above passage amounts to a waiver of privilege by Earl, relying on ss 65(2) and 65(3)(a) of the Evidence Act 2006, which provide:
(2)A person who has a privilege waives the privilege if that person, or anyone with the authority of that person, voluntarily produces or discloses, or consents to the production or disclosure of, any significant part of the privileged communication, information, opinion, or document in circumstances that are inconsistent with a claim of confidentiality.
(3)A person who has a privilege waives the privilege if the person—
(a)acts so as to put the privileged communication, information, opinion, or document in issue in a proceeding; or
[72] Whether a significant part of privileged material has been disclosed is a matter of substance, not quantity.7
[73] Earl’s affidavit does not contain disclosure of a “significant part” of advice he received. Given the nature of Lani’s application, it was necessary for Earl to have independent advice in relation to the application. All Earl’s affidavit confirms is that he received advice, but the advice is not disclosed.
[74] Section 65(3)(a) of the Evidence Act is engaged if a party puts the relevant communication “in issue” in a proceeding.
[75] I do not accept the defendants have put Earl’s legal advice in issue. The affidavit was ordered to be produced against objection. The defendants do not rely on the affidavit and they have not put it in issue. Accordingly, there is no “issue” raised by the defendants which would require examination of the advice. That the plaintiffs have suspicions as to what motivated the advice not to oppose the application, rather than it to be consented to, is not relevant to waiver. This aspect of the application by the plaintiffs is declined.
[76] I was only asked to consider this privilege issue on the basis of waiver. In my judgment of 15 July 2021, I ruled on the extent to which Earl’s executors could assert
7 Bete Fog Nozzle Inc v Delavan Ltd (2008) 19 PRNZ 439 (HC) at [23].
Earl’s privilege as against the plaintiffs in this case, pursuant to s 66(3) of the Evidence Act .8 An appeal against that decision was abandoned.
[77] It is not immediately apparent to me how, given the 15 July 2021 judgment, Earl’s estate can maintain privilege in the advice referred to by Earl.
Fourth Issue: Confidentiality and undertakings
[78] The defendants’ concerns in respect of confidentiality, are subject to a judgment of mine issued on 30 September 2021.9
[79] As recorded in that judgment, at the commencement of that hearing I suggested an appropriate approach might be to require the plaintiffs’ legal team to provide written undertakings that they would keep discovery material provided by the defendants, confidential.10 Ms Anderson KC, then appearing, was prepared to agree to that because, as I observed, no doubt that was what the solicitors involved intended to do anyway.
[80] I observed that requiring solicitors to provide a written undertaking to the Court that they will maintain as confidential, material obtained through the discovery process, reinforced an important obligation. Breach of the undertaking would have serious consequences for the solicitor involved. In that judgment, I directed that the then two solicitors involved were to provide written confidentiality undertakings, to be drafted by Ms Anderson.
[81] The plaintiffs’ legal team, with the prospect of a 10 week hearing fast approaching, sought that the confidential directions made by the Court in the past, including the one just referred to, be extended to other members in the plaintiffs’ legal team, all within the same firm. The provision of undertakings was a compromise solution suggested by me. It was intended to provide some comfort to the defendants. The undertakings have not been breached. The undertakings were not intended to hamstring the plaintiffs’ preparation.
8 Hagaman v Hagaman [2021] NZHC 1782.
9 Hagaman v Hagaman [2021] NZHC 2594.
10 At [32].
[82] Mr Wass, counsel for the first defendants who presented submissions in opposition to the application, frankly, faced an uphill battle given there is no suggestion that any of the undertakings given to the Court have been breached and there is no evidence of grounds for concern that any of the named individuals would not comply with the undertakings.
[83] Lani’s concerns to maintain the confidentiality of the discovery material is genuinely held but absent grounds for concern that formal undertakings would not provide sufficient protection, I am satisfied that there is no reason not to make the order sought at para 1.1 of the plaintiffs’ application dated 24 March 2023, save that the individual named at para 1.1.5 is omitted from the order. I order accordingly.
[84] No doubt, Mr Galbraith will reinforce to all concerned, the significance of the undertaking they are now to give.
Associate Judge Lester
Solicitors:
Duncan Cotterill, Christchurch (for Plaintiffs)
Cameron & Co, Christchurch (for Second Defendant) Meares Williams, Christchurch (for First Defendant) South Law, Dunedin (for Third Defendants)
Copy to counsel:
A R Galbraith KC, Barrister, Auckland (on behalf of Plaintiffs)
M G Colson KC, Barrister, Wellington, (for First Defendants in relation to joint interest privilege issues)
J B M Smith KC, Barrister and J W Wass (for First and Second Defendants in relation to s 66(4) Evidence Act 2006 issue)
O W Jacques, Barrister, Wellington (for First and Second Defendants in relation to s 66(4) Evidence Act 2006 issue)
J L W Wass, Barrister, Wellington (for First and Second Defendants in relation to s 66(4) Evidence Act 2006 issue)
V L Heine KC, Barrister, Wellington (for non-party Estate E R Hagaman)
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