McCulloch v Quinn
[2012] NZHC 1850
•27 July 2012
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV 2011-404-3508 [2012] NZHC 1850
BETWEEN DONALD ASPINALL MCCULLOCH, NOLA EVANS AND PETER GLYN EVANS
Plaintiffs
ANDBERNARD PAUL QUINN First Defendant
ANDNGATI AWA ASSET HOLDINGS LIMITED
Second Defendant
ANDALLEN PATRICK PETERS Third Defendant
ANDPETERS CAPITAL LIMITED Fourth Defendant
ANDWILLIAM NORMAN BIRNIE Fifth Defendant
ANDSTEPHEN ROBERT NORRIE Sixth Defendant
ANDBIRNIE CAPITAL PROPERTY PARTNERSHIP LIMITED Seventh Defendant
ANDPICASSO NOMINEES LIMITED Eighth Defendant
ANDWILLIAM NORMAN BIRNIE, STEPHEN ROBERT NORRIE AND RICHARD JAMES O'BRYEN HOARE AS
TRUSTEES OF THE PAONEONE SETTLEMENT TRUST NO.5
Ninth Defendant
ANDBJF PROPERTIES LIMITED Tenth Defendant
MCCULLOCH & ORS V QUINN & ORS HC AK CIV 2011-404-3508 [27 July 2012]
Hearing: 20 July 2012
Appearances: G L Turkington for the plaintiffs
Z G Kennedy and M D Pascariu for the second and fourth defendants
R J Hollyman for the fifth, sixth, eighth and ninth defendants
Judgment: 27 July 2012
JUDGMENT OF ALLAN J
This judgment was delivered by me on 27 July 2012 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules. Registrar/Deputy Registrar
Date: ………………….
Counsel: G L Turkington, Wellington: [email protected]
R J Hollyman, Auckland: [email protected]
Solicitors: Minter Ellison, Auckland: [email protected]
Introduction
[1] The plaintiffs are shareholders in the seventh defendant (BCPP). They apply for an order requiring the first to fourth defendants to produce for inspection, all documents relating to the settlement of associated derivative proceedings brought by the first and third defendants (Mr Quinn and Mr Peters) on behalf of BCPP. The plaintiffs also seek disclosure of the Court file in related summary judgment proceedings between the second and fourth defendants (Ngati Awa Asset Holdings Limited and Peters Capital Limited) on the one hand, and the fifth defendant (Mr Birnie) on the other. During the course of the hearing, it emerged that the affidavit of Mr Peters in that proceeding, to which the plaintiffs now seek access, does no more than annex documents which are already the subject of the plaintiffs’ principal application.
Procedural background
[2] The parties have for several years been engaged in protracted and complex litigation. It is convenient to draw largely on a judgement given by Venning J on
23 January 2012 for the relevant background.1 Mr Birnie had an interest in various
property projects. BCPP was the vehicle for those investments. BCPP was divided into A and B shareholdings. The Birnie interests were Group A shareholders. A variety of investors constituted the Group B shareholding: Ngati Awa (controlled by Mr Quinn), Peters Capital (controlled by Mr Peters), the Totara Trust, the late Mr Alan Hubbard and Mrs Hubbard, and Gough Capital Limited.
[3] Group A and B shareholders could each appoint a maximum of four directors to the board of BCPP. A valid resolution required a vote of the majority of directors but had to be supported by at least one director from each shareholding group. The property market deteriorated during 2009. BCPP became entitled to require Mr Birnie and his interests to repay BCPP the sum of $19 million because one of
Mr Birnie’s property projects, in which BCPP had invested, failed to proceed. But a
1 McCulloch v Quinn [2012] NZHC 16.
resolution of the BCPP board to require repayment by Mr Birnie failed because it was not supported by either Mr Birnie or Mr Norrie (the sixth defendant) so there was no vote in favour of the resolution from a Group A director as required.
[4] Subsequently, in December 2009, Messrs Quinn and Peters sought leave pursuant to s 165 of the Companies Act 1993 (the Act), to bring proceedings on behalf of BCPP against Messrs Birnie and Norrie as directors of BCPP.
[5] The plaintiffs sought recovery of the sum of $19 million invested by the
Group B shareholders in the relevant project.
[6] The Court granted leave and the litigation passed through its interlocutory stages.2 A fixture for 14 March 2011 was allocated for the trial. By then Ngati Awa and Peters Capital had incurred substantial legal costs. They had also provided the security for costs which BCPP had been directed to provide. The Court directed that the costs outlaid by Ngati Awa and Peters Capital were to be a first charge on the proceeds of the litigation if it was successful.3
[7] Shortly prior to the trial, BJF Properties Limited, a company associated with Mr Birnie’s mother, offered to acquire the shares of Ngati Awa and Peters Capital in BCPP. Negotiations followed. Ultimately the offer was accepted. In consequence, an agreement recording that settlement was executed. It is dated 3 March 2011. The parties were Ngati Awa and Peters Capital as vendors, BJF Properties Limited as purchaser, and Mr Birnie as indemnifier and guarantor. On the same day, the Court was advised by memorandum that the fixture for 14 March 2011 was no longer required. The memorandum read in part:
On 3 March 2011 the Court was advised by memorandum that the fixture was no longer required and that:5
“4. Interests associated with a relative of the first defendant, Mr Birnie, have offered to acquire the shares of [Peters Capital] and [Ngati Awa] in BCPP. That offer has been accepted by [Peters Capital] and [Ngati Awa].
2 Peters v Birnie [2010] NZAR 494; Birnie Capital Property Partnership Ltd v Birnie & Ors HC Auckland CIV-2010-404-3000, 29 July 2010.
3 Birnie Capital Property Partnership Ltd v Birnie & Ors HC Auckland CIV-2010-404-3000,
29 October 2010.
5. As a consequence:
(a) [Peters Capital] and [Ngati Awa] will, subject to pre- emptive rights provided for in the constitution of BCPP, transfer their shares in BCPP to the purchaser (the ninth defendant in these proceedings BJF);
(b) Messrs Peters and Quinn will retire as directors of BCPP; (c) [Peters Capital] and [Ngati Awa] will cease funding the
present litigation on the basis that they no longer have any interest in BCPP;
(d) the defendants have agreed to the release of the security for costs paid by [Peters Capital] and [Ngati Awa] on behalf of BCPP.
6. While [Peters Capital] and [Ngati Awa] will cease funding the case and withdraw from participation, the company’s causes of action will remain extant ...
11. For the sake of completeness, the Court’s attention is drawn to s 168 of the Companies Act which provides that no derivative action may be settled, comprised or discontinued without the approval of the Court. However, approval is not required in this case as the action is not being compromised, settled or withdrawn. BCPP’s claim against the defendants remains extant.”
5 See Amended statement of claim 2 February 2012 at [40].
[8] In broad terms, the agreement required BJF Properties Limited to pay $2 million for the relevant BCPP shares by 3 September 2011. Mr Birnie was to pay additional sums in respect of other matters arising between him and other parties to the agreement. Mr Birnie also guaranteed the obligations of BJF Properties Limited under the agreement.
[9] In terms of the memorandum of 3 March 2011, the Court vacated the
14 March fixture. Although Ngati Awa and Peters Capital had effectively withdrawn from the proceeding, it remained (at least technically) on foot. On 19 April 2011
Ngati Awa and Peters Capital transferred their shares in BCPP to BJF Properties Limited. The derivative proceeding was eventually struck out on 3 May 2012 because none of the remaining B shareholders (including the present plaintiffs) elected to pursue it.
[10] This present proceeding was commenced on 10 June 2011. It was initially intended that it be consolidated with the derivative proceeding, but that proposal has
now been abandoned, and of course the derivative proceedings have since been struck out.
[11] On 16 December 2011, Venning J heard an application by the first to fourth defendants for an order striking out the present proceeding on the ground that it did not disclose any reasonably arguable cause of action. In a judgment given on
23 January 2012, Venning J dismissed the application, although he considered that the plaintiffs ought to amend their pleadings.4
[12] The subsequent amended statement of claim now pleads breaches of fiduciary duty in addition to seeking relief under s 174 of the Act. The substance of the plaintiffs’ allegations are that those who brought the derivative proceeding on behalf of BCPP had profited by selling their shares at the expense of that company to which their primary duty was owed. Venning J rejected the contention that the arrangements recorded in the agreement of 3 March 2011 amounted to nothing more than a simple sale of shares. He held that the provisions of s 174 of the Act were
engaged, observing that:5
... The focus should not be on the sale of the shares but rather the result of that sale which was that the derivative proceedings brought in the name of the company were effectively compromised which supports the plaintiffs’ argument that the defendants used the derivative proceedings to their own advantage and thereby unfairly discriminated or prejudiced the plaintiffs.
[13] He later said that:6
... The parties to whom leave was granted to bring the proceedings, Messrs Quinn and Peters, had effectively been bought off by interests associated with, or related to, the defendants to the derivative proceedings.
[14] In that connection, the Judge noted that the consideration for the sale of the shares to BJF Properties Limited was 30 times the true value of the shares in BCPP.7
[15] Having expressed the opinion that the derivative proceedings were effectively
comprised without the Court’s approval, Venning J indicated that the s 174 claim
4 McCulloch v Quinn.
5 At [30].
6 At [32].
might provide an appropriate procedural vehicle for the making of appropriate orders, including those which might have been made under s 167, had an application for court approval been made under s 168 at the appropriate time.8
[16] Section 168 of the Act provides:
168 Compromise, settlement, or withdrawal of derivative action
No proceedings brought by a shareholder or a director or in which a shareholder or a director intervenes, as the case may be, with leave of the Court under section 165 of this Act, may be settled or compromised or discontinued without the approval of the Court.
[17] Venning J directed an amended statement of claim to be filed in order to better reflect the thrust of the plaintiffs’ allegations. That amended statement of claim is dated 2 February 2012. At [39] the plaintiffs plead:
The derivative proceedings were settled on a date unknown to the plaintiffs, but whose terms, as far as may be known (pending discovery), were disclosed by Mr Birnie to the plaintiffs on 4 and 7 March 2011:
39.1Mr Birnie’s mother, a Mrs Barbara Floris, had agreed to liquidate a portion of her investment estate that would pass to Mr Birnie on her death and apply the proceeds to purchase Ngati Awa’s and Peters Capital’s Group B shares at a price of $0.333 per share ($2 million);
39.2a further payment from her of legal expenses incurred by Ngati Awa and Peters Capital of $1 million;
39.3 these two payments were to occur in 6 and 12 months’ time
respectively;
39.4Mr Birnie would pay a further $500,000 in 3 years’ time; Mr Birnie agreed to be a guarantor of his mother’s payments;
39.5 Messrs Quinn and Peters were to resign as BCPP Board members;
39.6the transferee of the Group B shares was the tenth defendant, BJF Properties Ltd (BJF Properties). BJF Properties, Ngati Awa and Peters Capital had agreed to the appointment of a director to be nominated by BJF Properties; and
39.7the hearing of 14 March 2011 was vacated and proceedings adjourned for mention [on] 13 May 2011 pending settlement between all other shareholders and BCPP or the appointment of alternative counsel to those engaged by Ngati Awa and Peters Capital.
[18] In an amended statement of defence, the first to fourth defendants admit selling their shares in BCPP to BJF Properties Limited in terms of the agreement of
3 March 2011. They also admit that the second and fourth defendants ceased funding the derivative proceedings thereafter, and that those proceedings were adjourned in consequence. Otherwise they deny the plaintiffs’ allegations in [39].
[19] For completeness, it is to be noted that BJF Properties Limited failed to pay the $2 million to Ngati Awa and Peters Capital, and that on 7 February 2012, those companies issued summary judgment proceedings against Mr Birnie pursuant to the deed of guarantee and indemnity. On 11 June 2012, Associate Judge Faire stayed the summary judgment proceedings until 31 July 2012 in order that a fresh summary judgment application might be made in the present proceeding: Ngati Awa Asset
Holdings Ltd v Birnie.9
The issue for determination
[20] In an affidavit of documents sworn on 12 July 2012, Mr Peters claims litigation privilege on behalf of the first to fourth defendants for certain documents listed in part two to the schedule of the affidavit. In respect of seven documents, dated between 18 January 2011 and 18 February 2011, Mr Peters claims privilege on the basis that they consist of:
...without prejudice email correspondence about the possibility of an agreed resolution of the share sale.
[21] In respect of certain further documents, dated between 25 February 2011 and
9 Mary 2011, litigation privilege is claimed on the ground that the documents consist of:
... without prejudice email correspondence regarding the preparation of the share sale and purchase agreement, and related security and other documentation.
[22] The plaintiffs do not accept the claim to litigation privilege to have been validly made and seek an order directing that the documents concerned be produced for inspection by the plaintiffs. Essentially, the plaintiffs’ argument is that any
privilege the communications in question might enjoy under s 57(2) of the Evidence Act 2006 is “trumped” by s 168 of the Act. Mr Turkington argues that the Court in its supervisory role under s 168 is entitled to know the basis upon which a settlement or compromise was reached. The situation is analogous, he argues, to the acknowledged exceptions to privilege entitlements and that as a matter of public policy, the first to fourth defendants ought not to be entitled to maintain their claimed privilege in the documents concerned.
Discussion
[23] Litigation privilege is the subject of s 57(2) of the Evidence Act, which provides:
57 Privilege for settlement negotiations or mediation
...
(2) A person who is a party to a dispute of a kind for which relief may be given in a civil proceeding has a privilege in respect of a confidential document that the person has prepared, or caused to be prepared, in connection with an attempt to mediate the dispute or to negotiate a settlement of the dispute.
[24] Section 57(3) provides that privilege does not apply to the terms of an agreement settling a dispute or evidence necessary to prove the existence of such an agreement in a proceeding in which the conclusion of such an agreement is in issue.
[25] Mr Turkington cites the recent decision of the Court of Appeal in Sheppard Industries Ltd v Specialized Bicycle Components Inc.10 In that case, the principal issue was whether the parties had reached a binding oral settlement agreement, so the facts were not on all fours with the present case. But the Court of Appeal judgment is nevertheless helpful because it traverses the circumstances in which exceptions to the provisions of s 57(2) will be recognised, beyond those expressly referred to in s 57(3).
[26] Section 67(1) of the Evidence Act provides that a judge must disallow a claim of privilege if satisfied that there is a prima facie case that the communication or
information was for a dishonest purpose or to facilitate the commission of an offence. But the Court expressly noted that the common law provided a number of further exceptions to the privilege.11
[27] Arnold J delivering the judgment of the Court of Appeal, engaged in an extended discussion of the decision of the Supreme Court of the United Kingdom in Oceanbulk Shipping and Trading SA v TMT Asia Ltd.12 There, Lord Clarke identified nine situations in which evidence of without prejudice communications was admissible. They were:
(a) when the issue is whether the communications resulted in a settlement agreement;
(b)to show that a settlement agreement should be set aside on the ground of misrepresentation, fraud or undue influence;
(c) where something said in the course of the settlement discussions is said to give rise to an estoppel;
(d)where the exclusion of the evidence would act as a cloak for perjury, blackmail or other serious impropriety;
(e) to explain delay or apparent acquiescence;
(f) where there is an issue as to whether a party has acted reasonably to mitigate loss;
(g) where an offer has been made “without prejudice except as to costs”
(the Calderbank offer exception);13
(h) where rectification is sought in respect of a settlement agreement; and
11 At [15](c).
12 Oceanbulk Shipping and Trading SA v TMT Asia Ltd [2010] UKSC 44, [2011] AC 662.
13 Calderbank v Calderbank [1975] 3 All ER 333 (CA).
(i)where communications in the course of negotiations will assist in the interpretation of the settlement agreement.14
[28] Arnold J appears to have accepted (at least implicitly) in Sheppard Industries that an alleged breach of the Fair Trading Act 1986 might also qualify for inclusion in the list.15
[29] Mr Turkington submits that the Court’s jurisdiction under s 168 of the Act creates an analogous exception on public policy grounds, enabling the Court (and in this case, a potentially affected shareholder) to obtain access to the full terms of a settlement including the surrounding circumstances. He says:
Section 168 is emphatic in its terms that no proceeding may be settled, compromised or discontinued without leave of the Court. How else may the Court approve a compromise unless it is permitted to examine the basis upon which it is reached?
[Original emphasis]
[30] It is convenient to set out the helpful summary of the relevant principles provided by Randerson J in Westgate Transport Ltd v Methanex New Zealand Ltd:16
[20] The general principles applicable to the privilege arising from without prejudice communications are not in issue. They may be summarised for present purposes as follows:
[a] The privilege is substantially based upon public policy considerations. Parties should be encouraged to settle their disputes without litigation and they should be free from concern that offers or statements made in the course of negotiations for settlement may be used against them at trial: Cutts v Head [1984] 1 All ER 597, 605-
606 per Oliver LT, cited with approval by the House of Lords in
Rush & Tompkins Ltd v GLC [1988] 3 All ER 737, 739.
[b] Whether communications are protected as being "without prejudice" depends on the intention of the parties which may be inferred where not expressly stated. The application of the rule is not dependant on the use of the phrase "without prejudice": Rush & Tompkins Ltd v GLC at 740.
[c] There is authority for the proposition that where an initial letter forming part of a series of negotiations is marked "Without Prejudice", privilege attaches to the rest of the letters in that series.
14 Oceanbulk at [24]-[26].
15 Sheppard Industries at [24].
16 Westgate Transport Ltd v Methanex New Zealand Ltd (2000) 14 PRNZ 81 (HC).
However, the ultimate issue is one of intention in the circumstances of the case. In Cheddar Valley Engineering Ltd v Chaddlewood Homes Ltd [1992] 4 All ER 942, the Court adopted the approach that in such a situation, the without prejudice status continues unless and until a sufficient warning is given that dealings are on an open basis. While this may be a useful and convenient rule in practice, it must in my view come back to a question of intention.
[d] The privilege extends not only to offers made in the course of negotiations, but also to statements made which are reasonably incidental to the litigation: Field v Commissioner for Railways for New South Wales (1957) 99 CLR 285, 292. However, statements which have no bearing on the negotiations will not be protected: D F Hammond Land Holdings Ltd v Elders Pastoral Ltd (1989) 2 PRNZ
232, 236 (CA).
[e] When determining the extent and existence of the privilege, the Court takes an objective view of what formed part of the settlement negotiations or was reasonably incidental thereto rather than the subjective expectations of the parties: Field v Commissioner for Railways for New South Wales (above) and Waerenga Forest Partnership v P F Olsen & Co Ltd (1999) 12 PRNZ 561, 565-566.
[f] The general rule is that communications made on a without prejudice basis renders those communications inadmissible in any subsequent litigation connected with the same subject matter, whether between the same or different parties within the same litigation: Rush & Tompkins Ltd v GLC at 741.
[g] The rule is not absolute and there are exceptions where the justice of the case requires. Some of the exceptions are referred to by Lord Griffiths in Rush & Tompkins Ltd v GLC at 740. None are relevant to the present litigation.
[h] A distinction is sometimes drawn in the cases between the discovery and production of documents claimed to be subject to without prejudice privilege and their admissibility in evidence. However, in general, the material which is the subject of the privilege should be protected both from discovery and production as well as being rendered inadmissible in evidence: Rabin v Mendoza and Co [1954]
1 All ER 247 (CA). Even as between parties to without prejudice communications, they are not entitled to discovery against one
another: Rush & Tompkins Ltd at 743.
[31] The disputed documents are not before the Court. Mr Kennedy explained from the Bar that, as might be expected, they relate to the negotiation of the settlement agreement and then to issues surrounding the preparation of supporting security documents. However, the settlement agreement itself has been produced. The plaintiffs have copies of it. It is a very detailed documents running to 26 clauses and covering four pages of single-spaced typing. On its face, it records in considerable detail the bargain reached between the parties. There is currently no
suggestion that the documents in dispute are required in order to assist in the interpretation of the agreement. Rather, as I understand it, the claim is that the emails might contain material that goes to the motive of the parties, or records some collateral understanding not appearing in the settlement agreement itself.
[32] Mr Turkington submits that, on public policy grounds, the Court ought to be provided with every document that might bear upon the exercise of its jurisdiction under s 168 of the Act. Mr Kennedy argues that the section is not engaged but, having regard to Venning J’s tentative conclusion that it was, I proceed for present purposes on the basis that the plaintiffs will be able to maintain an argument to that effect.
[33] The public policy requirement encapsulated in s 57 of the Evidence Act is that parties who enter into genuine negotiations with a view to settling disputes, are entitled to be confident that their communications during settlement negotiations will be held by the courts to be privileged and confidential. There is a plain exception where fraud or dishonesty is involved. Other exceptions have been identified over time, as the Court of Appeal has noted in Sheppard Industries. But in my view, great care is needed when it is suggested that the class of recognised exceptions ought to be expanded. On the information available to the Court, the case falls short of falling within the recognised exceptions on grounds of fraud or dishonesty. The agreement itself is before the Court. It will no doubt form the foundation of the plaintiffs’ claim that, by entering into the agreement, the first to fourth defendants had preferred their own interests to those of BCPP in breach of a duty to that company owed by Messrs Quinn and Peters. So the documents in dispute are not essential to the running of the plaintiffs’ case. The wider consequences of granting the application must also be considered. In effect, Mr Turkington asks the Court to conclude that, by reason of its supervisory jurisdiction under s 168, the Court is entitled (and ought) to call for production of all relevant documents, whether privileged or not. To accede to that argument would be to leave open the possibility of similar applications in any case where the dispute before the Court entailed the exercise of a discretionary or supervisory jurisdiction.
[34] Resorting to broad public policy considerations might well give rise to consequences well beyond the facts of this case and the s 168 jurisdiction. I do not consider that a case has been made out for the production of the disputed documents, unless the plaintiffs can make out any one or more of the further grounds relied upon.
[35] First, it is said on behalf of the plaintiffs that the first to fourth defendants are not in a position to rely on litigation privilege because the privilege was that of BCPP and not of the first to fourth defendants.
[36] Mr Turkington submits that the derivative proceedings were being conducted by Messrs Quinn and Peters on behalf of BCPP, which was the true plaintiff. It is not therefore open to the first to fourth defendants to endeavour to maintain the privilege. I am unable to accept that submission. The emails concerned were part of a negotiation of the terms of a settlement agreement. The Court is told that they were exchanged on a without prejudice basis. The negotiations were intended to be confidential and made for the purpose of settling civil claims between Ngati Awa and Peters Capital on the one hand, and Mr Birnie and his interests, on the other. The settlement was achieved by an agreement for the sale of shares in BCPP to BJF Properties Limited, in consequence of which Mr Birnie and his interests acquired the interests of the vendors in the extant derivative proceeding.
[37] Mr Kennedy submits that, at least in part, the allegedly excessive consideration paid under the settlement agreement reflects the assessed value of the derivative proceedings, which were not abandoned but remained available for any other shareholder to pick up. The settlement agreement did not involve BCPP as a party. It was concerned solely with the separate interests of certain shareholders in BCPP.
[38] In my opinion, that argument must be correct. It is not tenable to suggest that the litigation privilege associated with the negotiation of the settlement agreement was that of BCPP and not of the first to fourth defendants. I accept that there is an argument that Messrs Quinn and Peters had obligations in respect of the conduct of the derivative proceedings, but that is quite a different matter from the question of
litigation privilege in respect of an agreement affecting shareholder rights and relationships, and not directly touching upon the rights of BCPP.
[39] In my view, the relevant privilege was that of the first to fourth defendants and, in consequence, they are accordingly entitled to seek to maintain it. BCPP cannot have held the privilege. The first to fourth defendants were negotiating the sale of shares in that company and therefore could not have been negotiating as agents for BCPP.17
[40] The second question concerns Mr Birnie’s stance. Mr Hollyman indicates that Mr Birnie and his interests waive their privilege in the relevant documents. But it is common ground that the privilege concerned is that of all of the parties to the negotiation, so it may be waived only by all the persons who enjoy the privilege.18
The first to fourth defendants wish to maintain it.
[41] Thirdly, Mr Turkington relies on Cas (Nominees) Ltd v Nottingham Forest PLC.19 There, the Judge concluded that shareholders are entitled to see legal advice that the board of the company obtained at the time a transaction was embarked upon, when the company is a defendant in a proceeding only in a nominal capacity so that it will be bound by any court orders made. Mr Turkington says that, by analogy, the plaintiffs should also have access to the relevant documents because BCPP is a nominal plaintiff whose guardian is the court under s 168.
[42] However, I agree with Mr Kennedy that Cas (Nominees) Ltd turns on a quite different point, namely whether a large company was exempt from a requirement to give notice to shareholders in certain circumstances. The decision of the Court turned on its conclusion that the company was equally bound by the rule in the same way as smaller companies. It is not authority for the proposition that, as a general rule, shareholders ought to be able to see documents notwithstanding a privilege enjoyed by the company itself. I am therefore of the opinion that the plaintiffs are not
entitled to view the relevant emails on the basis for which Mr Turkington contends.
17 Cf New Zealand Institute of Chartered Accountants v Clarke [2009] 3 NZLR 264 (HC).
18 Evidence Act 2006, s 65(5).
19 Cas (Nominees) Ltd v Nottingham Forest PLC [2001] 1 All ER 954 (ChD).
[43] Finally, Mr Hollyman argues in his written synopsis that whatever privilege was formerly available in the relevant emails has been waived by the first to fourth defendants because they have put the information contained in the disputed emails in issue in this proceeding. That is because they have portrayed the offer to purchase their shares as wholly unrelated to, and separate from, attempts to settle the derivative proceeding.
[44] Section 65(3) of the Evidence Act 2006 provides that a person who has a privilege waives the privilege if the person:
... acts so as to put the privileged communication, information, opinion, or document in issue in a proceeding ...
[45] In Astrazeneca Ltd v The Commerce Commission, Pankhurst J observed that:20
... Waiver occurs where a party both asserts reliance upon the privileged communication and also seeks to inject the substance of the communication in evidence. At that point an abuse of the privilege exists. The claimant cannot have the benefit of reliance upon the substance of the advice and still seek to shield that advice from disclosure to the other side.
[46] Similarly, as Mr Hollyman submits, a party cannot put the substance of a privileged document in issue during the course of submissions without waiving the relevant privilege. But it is important to remember that:21
... The mere relevance of a privileged communication to an issue in the case provides no basis for waiver. Even a party’s asserted reliance upon a privileged communication is generally insufficient.
[47] Mr Hollyman suggested during the course of argument that Mr Kennedy had (perhaps inadvertently) waived the privilege simply by referring to the existence of the documents and their purpose during the hearing of the present application. That cannot be right: neither the pleadings of the first to fourth defendants, nor any affidavit filed on their behalf, puts the substance of the disputed emails in issue. To accept Mr Hollyman’s argument would be to prevent any party from resisting an
application for production where privilege was claimed, because, to advance the
20 Astrazeneca Ltd v The Commerce Commission (2008) 12 TCLR 116 (HC) at [39].
21 At [39].
argument would, of itself, constitute a waiver. I do not regard Mr Kennedy’s brief summary of the subject matter of the emails as being sufficient to amount to a waiver. Nor do I consider the pleadings to do so.
Result
[48] I am not persuaded that privilege in the relevant emails has been lost, or that it would be proper to direct production of the documents notwithstanding the existence of litigation privilege.
[49] Accordingly the plaintiffs’ application is dismissed.
[50] The first to fourth defendants are entitled to costs. Counsel may file memoranda if they are unable to agree.
C J Allan J
2
4
1