NZH Limited v Ramspecs Limited - [2015] NZHC 2396

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-2563 [2015] NZHC 2396

BETWEEN
NZH LIMITED

First Plaintiff

TRANSPORT HYDRAULIC SOLUTIONS NZ LIMITED Second Plaintiff

TRANSPORT HYDRAULIC SOLUTIONS (GLOBAL) NZ LIMITED Third Plaintiff

AND

RAMSPECS LIMITED First Defendant

GAVIN BROKENSHIRE Second Defendant

R A MCLEAY Third Defendant

NUPHLO PUMPS LIMITED Fourth Defendant

Hearing: 14 August 2015

Appearances:

C L Elliott QC and B R Webster for Plaintiffs H L Thompson for First to Third Defendants S Aymeric for Fourth Defendant

Judgment:

1 October 2015

JUDGMENT OF M PETERS J

This judgment was delivered by Justice M Peters on 1 October 2015 at 5 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date: ...................................

NZH LIMITED v RAMSPECS LIMITED [2015] NZHC 2396 [1 October 2015]

[1] This judgment determines whether documents in the control of the Plaintiffs

(“NZH”) and the Fourth Defendant (“Nuphlo”) are privileged.

[2] The particular issue which arises is whether the privilege provided for in s 56

Evidence Act 2006 (“Act”), referred to as “litigation privilege”, survives the determination of the proceeding which gave rise to the privilege in the first instance.

[3] NZH and Nuphlo have asserted that Nuphlo has “litigation privilege” in documents prepared for the dominant purpose of an earlier proceeding brought by Nuphlo against the First to Third Defendants (“Ramspecs”, “Mr Brokenshire” and “Mr McLeay”, together the “Defendants”) and others (“Nuphlo’s proceeding”).

[4] The Defendants submit that such privilege came to an end when Nuphlo discontinued its proceeding in October 2014.

[5] For reasons set out below, I consider that Nuphlo continues to have litigation privilege in the relevant documents. That said, I am not satisfied that the privilege has properly been claimed in respect of all documents sought to be withheld and I make directions as to that matter at the end of this judgment.

Background

[6] Nuphlo designs and manufactures pumps. NZH designs and supplies hydraulic systems which incorporate those pumps. The two companies enjoy a close relationship and, although a defendant to this proceeding, Nuphlo is supportive of NZH’s case.

[7] The Defendants are in competition with NZH.

[8] Nuphlo commenced its proceeding in February 2014, alleging breach of copyright and breach of confidence. The parties settled that proceeding in October
2014, following which Nuphlo discontinued.

[9] Nuphlo is a party to this proceeding because s 124(1) Copyright Act 1994

(“Copyright Act”) provides:

124 Exercise of concurrent rights

(1) Where proceedings for infringement of copyright brought by the copyright owner or an exclusive licensee relate (wholly or partly) to an infringement in respect of which the copyright owner and the exclusive licensee have concurrent rights of action, the copyright owner or, as the case may be, the exclusive licensee may not, without the leave of the court, proceed unless the other is either joined as a plaintiff or added as a defendant.

[10] Had Nuphlo complied with s 124, NZH would have been joined as a party to Nuphlo’s proceeding. Although Mr Messenger of Nuphlo describes s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NZHC 2396
Decision Date: 1 October 2015

CaseChat Overview and Summary

In the High Court of New Zealand, NZH Limited, Transport Hydraulic Solutions NZ Limited, and Transport Hydraulic Solutions (Global) NZ Limited filed a lawsuit against Ramspecs Limited, Gavin Brokenshire, R A McLeay, and Nuphlo Pumps Limited. The primary issue was whether the litigation privilege claimed by Nuphlo and NZH for certain documents survived the termination of the initial proceeding that gave rise to the privilege. The defendants argued that once the initial proceeding was concluded, the privilege ceased to exist. However, the court held that the litigation privilege continued as the current proceeding and the initial proceeding were part of the same legal combat, sharing the same parties, issues, and purpose.

The court analyzed the provisions of the Evidence Act 2006 and found that the privilege applied to communications or information prepared for the dominant purpose of the proceeding, actual or apprehended. The court also considered the rationale behind the privilege, which was to maintain a zone of privacy during the ongoing litigation. The court found that the privilege should not be terminated when either of the proceedings concluded, as it would breach the reasonable expectation of privacy in the ongoing proceedings. The court declined to make the orders sought by the defendants and requested a conference with counsel to discuss the proper claim of privilege and any relevant documents pertaining to the defendants' collusion argument.

This case highlights the importance of understanding the scope and application of litigation privilege in multiple related proceedings and the need for careful documentation and claim of privilege by the parties involved.

Orders