Ophthalmological Society of New Zealand Inc v Commerce Commission

The case of Ophthalmological Society of New Zealand Inc v Commerce Commission involved the Ophthalmological Society of New Zealand Inc as the plaintiff and the Commerce Commission as the defendant. The dispute centred around issues of legal privilege and the circumstances under which such privilege could be considered waived. The matter was heard in the High Court of New Zealand, where the plaintiff sought to prevent the disclosure of certain documents on the basis that they were protected by legal privilege. The central legal issues that the court had to decide were whether the plaintiff had effectively waived its legal privilege over the documents in question and, if so, under what circumstances such a waiver could be inferred.

The court delved into the principles of implied waiver of privilege, examining the established tests and precedents from both Australian and New Zealand cases. The High Court of New Zealand, following the Australian High Court’s decision in Mann v Carnell, reiterated that waiver is determined by an inconsistency between the client's conduct and the maintenance of confidentiality. The court further clarified that the test of fairness is not an overriding principle but is relevant only in the context of perceived inconsistency. The court referenced several cases to illustrate how the principle of implied waiver operates. In Equiticorp Industries Group Ltd v Hawkins, the court held that privilege was waived when the client selectively used parts of a privileged document to support their case, thereby abusing the privilege. Similarly, in Cory-Wright and Salmon Ltd (in receivership and liquidation) v KPMG Peat Marwick, the court held that waiver occurs when the use of protected material leads to unfairness if not disclosed to the opposing party.

After reviewing these precedents, the court concluded that the plaintiff had indeed waived its privilege by using a privileged document in a manner that was inconsistent with maintaining the confidentiality of the privilege. The court found that the selective use of the document in opposition to an application for security for costs constituted an abuse of privilege. Consequently, the court ruled that the plaintiff had effectively waived its legal privilege over the documents in question. This decision underscored the importance of ensuring that privileged material is not used in a way that would lead to perceived unfairness if not disclosed to the opposing party.