Heli Holdings Limited v The Helicopter Line Limited

[2015] NZHC 1267

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CIV-2013-425-310 [2015] NZHC 1267

BETWEEN

HELI HOLDINGS LIMITED

Plaintiff

AND

THE HELICOPTER LINE LIMITED First Defendant

AND

TOTALLY TOURISM LIMITED Second Defendant

Appearances:

D J Heaney QC, S J Wethey, A Hough for the Plaintiff

O Wensley, R Cunliffe, T C Weston QC for the Defendants

Date ofRuling:

7 May 2015

RULING OF NATION J

[1]      I have read the briefs of evidence of Mr Murtagh and other experts giving evidence for the defendants.   Mr Murtagh and those other experts give extensive opinion evidence as to the way in which they say the maintenance work performed by Airworks, in relation to the eight helicopters, was deficient and they go on to say that the deficiencies were so serious that, in their view, they justified the defendant in taking the step essentially of grounding the helicopters and bringing their practical relationship with the plaintiff to an end.

[2]      They say that the defendants were justified in no longer relying on Airworks and the plaintiff to do the maintenance work that was required on these helicopters. That relates to the history of dealings with those helicopters to a point before mid

2013.

[3]      The  plaintiff  wishes  to  put  evidence  before  the  Court  that,  despite  Mr

Murtagh  having  those  opinions,  as  a  consultant  responsible  for  organising  the

HELI HOLDINGS v THE HELICOPTER LINE & ANOR [2015] NZHC 1267 [7 May 2015]

helicopter maintenance of other companies, he has recommended or arranged for certain work to be done by Airworks.

[4]      It seems to me that the evidence which Mr Heaney wishes to put before the Court, and it could be done by way of cross examination, could potentially be and is potentially relevant to an issue that the Court is going to have to deal with and I would consider it appropriate for Mr Murtagh to be asked about how he came to recommend, if he did, that Airworks be used in some stage in 2014.

[5]      So, I consider the evidence is potentially relevant to an issue before the Court and I would not be prepared to rule that the evidence is inadmissible at this stage. Just how significant that evidence will be will ultimately be for my determination and much will depend on just how Mr Murtagh came to recommend that Airworks be used.  It may be that, ultimately, it is of little significance but at this stage I cannot say that that is definitely going to be the case.

[6]      The defence say that, even if it does have some relevance, there is going to be significant prejudice; first of all because Mr Murtagh cannot explain to counsel the circumstances in which he came to give that instruction because Mr Murtagh considers  the  arrangements  that  were  made  between  his  client  company  and Airworks,  in  relation  to  this  later maintenance  work,  should  all  be regarded  as confidential.

[7]      I understand his sensitivity about that but, for the Court to deal with this issue on that basis, would require the Court to find that the relationship between Mr Murtagh,  the companies  that  he was  advising  and  Airworks,  in  relation  to  that maintenance work, should be treated as confidential and, associated with that confidentiality should be privilege so that there does not have to be any disclosure of what was involved and what went on.

[8]      I have considered s 69 of the Evidence Act.  I consider this situation is not one where there is confidentiality; it is just a business arrangement between different parties.  I do not think any of the people involved could have thought, in the context

of any of those people being involved in Court proceedings, that in some way what happened there could be treated, and would have to be treated, as confidential.

[9]      I note that neither of the companies concerned has in fact wanted to claim that these communications should be treated as confidential when they have been asked about this by the defendants’ lawyers.

[10]     I am not prepared to proceed on the basis that communications between Mr Murtagh and his client companies and Airworks have to be treated as confidential.  I expect this puts Mr Murtagh in the position of, as a witness, being free to discuss the context in which he came to use or recommend that Airworks be used.  He is really compelled now to have to speak to the lawyers who have engaged him as a witness and, in my view, he is not going to be breaching any legal obligations of confidentiality in doing that.

[11]     Obviously, if he says he does not want to, that is a decision he can make but I do not consider that he is under obligations of confidentiality that give rise to any legal obligations in that regard.

[12]     Mr Weston has also said there is prejudice in that there would need to be further discovery from Airworks in relation to this.

[13]     Given the purpose for which the evidence would be put before the Court, I do not consider there would be significant prejudice in this regard.  Mr Murtagh should be able to explain how he has come to recommend, if he did, that Airworks be used. That is information that he will be able to provide based on his knowledge of what has occurred.  It should not require production of any documents from Airworks for him to be able to provide that sort of evidence.

[14]     At this stage, I am not going to strike out those paragraphs of the evidence which was to be given by Mr Wales and I am not going to rule that the plaintiff cannot put to Mr Murtagh the directive document that has been referred to.

Solicitors:

Heaney & Partners, Auckland

Macalister Todd Phillips, Queenstown