Osborne v Worksafe New Zealand
[2015] NZHC 264
•24 February 2015
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2014-485-11211 [2015] NZHC 264
UNDER the Judicature Amendment Act 1972 IN THE MATTER OF
an application for judicial review of decisions under s 185 and s 188 of the Criminal Procedure Act 2011 and s 68 of the Summary Proceedings Act 1957
BETWEEN
ANNA ELIZABETH OSBORNE First Applicant
SONYA LYNNE ROCKHOUSE Second Applicant
AND
WORKSAFE NEW ZEALAND First Respondent
DISTRICT COURT AT WELLINGTON Second Respondent
Hearing: 11 February 2015 Counsel:
P Cranney and S N Meikle for applicants
J Holden and A Boadita-Cormican for respondentsJudgment:
24 February 2015
RESERVED JUDGMENT OF DOBSON J
[1] This proceeding is brought by the widow and mother respectively of two of the 29 men killed in the disaster at the Pike River coal mine near Greymouth on
19 November 2010. They seek judicial review of the decision made by the first respondent (Worksafe) to not offer evidence in relation to informations laid against Mr Peter Whittall under the Worksafe New Zealand Act 2013. Mr Whittall was an employee and officer of Pike River Coal Limited, the operator of the Pike River coal
mine.
OSBORNE v WORKSAFE NEW ZEALAND [2015] NZHC 264 [24 February 2015]
[2] Worksafe has provided discovery of documents relevant to the circumstances in which the decision not to offer evidence was made. That decision was part of an arrangement that included a commitment procured by Mr Whittall for the company’s insurers to make a payment into Court of $3.41 million in reparation to the families of the men who died. Worksafe has waived privilege in the sequence of correspondence entered into between Mr Brent Stanaway, the Crown Solicitor in Christchurch who was prosecuting the informations for Worksafe, and Mr Stuart Grieve QC, counsel briefed to defend Mr Whittall. Worksafe’s waiver of privilege in the exchanges of correspondence occurred after Mr Grieve invited Worksafe to treat privilege as waived in the exchanges, to clarify apparent public misconceptions as to the terms on which the proposals for settlement had been advanced and dealt with.
[3] However, Worksafe has declined to waive privilege in relation to file notes made by Mr Stanaway. The file notes recorded matters discussed in telephone discussions and meetings that he had with Mr Grieve about these prosecutions. The applicants dispute the entitlement of Worksafe to withhold the file notes from inspection. This judgment deals with the issue of whether Worksafe is entitled to assert some form of privilege, or to claim confidentiality in respect of the file notes so as to justify withholding them from inspection.
[4] The present application also raised the discoverability and admissibility of the content of the District Court file, as well as the correspondence that had been exchanged on a without prejudice basis between Messrs Stanaway and Grieve. The parties have agreed a process for the listing of the content of the District Court file, and no orders are required in that regard.
[5] As to the context in which Mr Stanaway came to make the file notes, the disclosed documents show that Messrs Stanaway and Grieve had a series of discussions and exchanges of email correspondence and letters between July and December 2013 on the prospects of resolving the charges that Mr Whittall faced. It is clear that both men undertook the dialogue between them on a “counsel to counsel” basis, involving a clear assumption that the content of those exchanges would remain confidential between them, and would not become admissible in any relevant context thereafter.
[6] The first email discovered is one from Mr Stanaway to Mr Grieve dated
8 July 2013, which records at the outset:
We have discussed counsel to counsel the possibility of you and I (and possibly Stacey Shortall) meeting to attempt a plea arrangement resolution to the charges Mr Whittall faces.1
[7] After more informal exchanges, Mr Grieve’s first letter dated 7 August 2013 was endorsed “without prejudice” and referred to a meeting that had occurred, describing it as being held on “a without prejudice counsel to counsel basis”. The sequence of letters thereafter were all endorsed “without prejudice”, with the exception of an open version of a letter dated 16 October 2013, sent in December
2013
[8] It appears from the correspondence that matters other than those recorded in it were canvassed in the discussions that occurred. For instance, Mr Stanaway’s
20 August 2013 letter made reference to his not being prepared to advance to the Solicitor-General two other conditions which Mr Grieve had referred to in their without prejudice discussions. Further, the Worksafe record of the deliberations leading to the decision includes reference to Mr Stanaway contributing to meetings where Worksafe’s options were discussed. That record refers to a Worksafe meeting attended by Mr Stanaway on 28 November 2013. It included what appears to have been oral advice from Mr Stanaway about matters traversed in a without prejudice conversation with Mr Grieve. That may or may not be referring to matters that were explicitly addressed in the without prejudice exchanges of correspondence. It is reasonable to infer that Messrs Stanaway and Grieve considered themselves free to test possible alternative terms for a mutually acceptable resolution, without the prospect of those options being disclosed to others.
[9] In defending Worksafe’s entitlement to withhold Mr Stanaway’s file notes, Ms Holden argued, first, that the content of the file notes was not relevant, or alternatively that they were subject to litigation privilege, as codified in s 56 of the
Evidence Act 2006 (the Act).
1 Ms Shortall was Mr Grieve’s instructing solicitor.
[10] Ms Holden conducted the argument without specific reference to the content of the file notes. She was prepared to make copies available for my consideration in light of the argument, should that be considered necessary. Mr Cranney urged me to inspect the file notes. Having reflected on the matters traversed in argument, I consider that the issue is appropriately determined without inspecting the file notes in question.
[11] Worksafe denied that the file notes were relevant to the issues raised by the judicial review because the relevant decision was made in reliance on the exchanges of correspondence. The decision-maker did not see the file notes so they could not form any part of the decision-maker’s consideration. Privilege had been waived on a limited basis in relation to the correspondence that contained the proposals which arose out of the discussions. Accordingly, any notes of those more informal aspects could not be relevant to the challenge to the lawfulness of the decision that was made by Worksafe.
[12] I am not satisfied that the file notes are irrelevant on the grounds that Ms Holden advanced. As noted above, the record of the deliberations leading to Worksafe’s decision includes reference to Mr Stanaway reporting the content of without prejudice discussions, and there is at least the prospect that Mr Stanaway’s dialogue with the decision-maker may have traversed matters not reflected in the correspondence.
[13] From the applicants’ perspective, there is also a prospect that the informal dialogue between counsel may have acknowledged factors that could have influenced the decision, but which were not reflected in the correspondence. From Worksafe’s perspective that would render such matters irrelevant because they did not influence the decision-maker. However, from a broader perspective the failure of the decision-maker to have regard to any such matters might provide support for the applicants’ argument as to the alleged unreasonableness of the decision that was made. Accordingly, I am not prepared to find that the notes of conversations relating to the correspondence can be excluded from what might be relevantly discoverable.
[14] An alternative basis for withholding the file notes from discovery is that they are covered by the privilege for preparatory materials in proceedings. The relevant part of s 56 of the Act provides as follows:
56 Privilege for preparatory materials for proceedings
(1) Subsection (2) applies to a communication or information only if the communication or information is made, received, compiled, or prepared for the dominant purpose of preparing for a proceeding or an apprehended proceeding (the “proceeding”).
(2) A person (the “party”) who is, or on reasonable grounds contemplates becoming, a party to the proceeding has a privilege in respect of—
(a) a communication between the party and any other person:
(b) a communication between the party’s legal adviser and any
other person:
(c) information compiled or prepared by the party or the party’s
legal adviser:
(d) information compiled or prepared at the request of the party,
or the party’s legal adviser, by any other person.
[…]
[15] “Proceeding” is broadly defined in s 4 of the Act as meaning a proceeding conducted by a Court. Given the different scope in the following section, where privilege is confined to civil proceedings, it can be inferred that s 56 was intended to apply to both civil and criminal proceedings. The learned authors of The Evidence Act 2006: Act and Analysis suggest that the exclusion from s 57 of privilege for settlement negotiations in relation to criminal proceedings followed a Law Commission recommendation. That stance dated from the Commission’s preliminary paper in 1994 when the practice of plea bargaining was not a formally
recognised process in New Zealand.2 The authors go on to state:3
If, as is likely, s 57 is determined to have no application to settlement negotiations conducted in criminal proceedings, lawyers may have to rethink current practices. At present it is common for defence lawyers who are seeking to resolve criminal charges before trial to communicate with the police or Crown counsel on a “without prejudice” basis. Such
2 Richard Mahoney and others The Evidence Act 2006: Act and Analysis (3rd ed, Brookers, Wellington, 2014).
3 At [EV57.06(1)].
communications are conducted on the assumption that no evidence could be given of their contents. If s 57 has achieved its intended result, this assumption of inadmissibility is misguided.
[16] Given changes in criminal procedure, and the current recognition that it is appropriate (if not necessary) for prosecuting and defence counsel to discuss the options for resolution other than by trial, the policy rationale for excluding privilege in respect of without prejudice discussions intended to resolve criminal proceedings no longer exists. The 2013 review of the Act includes a recommendation that the “without prejudice” privilege provided for in s 57 should extend to communications
of the same type in criminal proceedings.4
[17] I consider there are strong public policy grounds for upholding the confidentiality of conversations that those practising at the criminal bar consistently treat as confidential and inadmissible when they are conducted on a “counsel to counsel” basis in attempts to resolve criminal charges. However, I am not satisfied that protection of the confidentiality of such conversations can properly be achieved by interpreting s 56 as applying to the present circumstances.
[18] Two difficulties with that approach arise. First, the rationale for the privilege codified in s 56 is to protect a litigant from any obligation to disclose preparatory materials to opposing parties in the proceeding to which the preparatory materials relate. This rationale requires the references to communications with “… any other person” in s 56(2)(a) and (b) to be read as relating to communications with any person other than the opposing parties. I am satisfied that that qualification on the terms is warranted. When a party to litigation makes deliberate communication with opposing parties or those acting for them, but wishes to address matters on a without prejudice basis, then the separate privilege recognised in s 57 arises.
[19] Assuming the scope of s 56 is to be approached in this way, then it would be artificial, and falling outside the policy justification for the privilege, to treat a
communication with the opposing party as covered by the s 56 privilege.
4 Law Commission The 2013 Review of the Evidence Act 2006 (NZLC R127, 2013) at [10.92].
[20] There is a second possible limitation on the s 56 privilege which would prevent it applying in the present case. That is the prospect that this form of privilege comes to an end when the proceeding to which the preparatory work relates has been disposed of.
[21] The Supreme Court of Canada has found that litigation privilege comes to an end once the litigation that created the privilege has been determined.5 This was followed by the High Court in Snorkel Elevating Work Platforms Ltd v Thompson before the introduction of the Evidence Act 2006.6 In unrelated litigation, the Court of Appeal granted leave to appeal on this point, but the appeal was not pursued.7 On a separate occasion, the Court of Appeal recognised that the prospect of a s 56 privilege terminating in these circumstances was “an interesting question”, but it was
not determined.8
[22] Certainly, in the different context of solicitor/client privilege, the adage remains that “once privileged, always privileged”, so that unless privilege of that type has been waived, documents subject to it remain privileged in all circumstances.9 Because the rationale for these different forms of privilege are different, the persistent character of solicitor/client privilege does not necessarily justify the same rule applying to litigation privilege.
[23] If indeed this form of privilege does come to an end, then it could not avail Worksafe in the present circumstances given that the District Court prosecutions are at an end.
[24] The alternative is for Worksafe to invite a parallel approach to be applied in reliance on the protection for confidential communications recognised in s 69 of the
Act, as follows:
5 Blank v Canada (Minister of Justice) 2006 SCC 39, [2006] 2 SCR 319 at [36].
6 Snorkel Elevating Work Platforms Ltd v Thompson [2007] NZAR 503 (HC) at [13].
7 Reid v New Zealand Fire Service Commission [2010] NZCA 133, (2010) 19 PRNZ 923 at [19]–
[22].
8 A v Attorney-General [2009] NZCA 490 at [27].
9 B v Auckland District Law Society [2004] 1 NZLR 326 (PC) at [44].
69 Overriding discretion as to confidential information
(1) A direction under this section is a direction that any 1 or more of the following not be disclosed in a proceeding:
(a) a confidential communication: (b) any confidential information:
(c) any information that would or might reveal a confidential source of information.
(2) A Judge may give a direction under this section if the Judge considers that the public interest in the disclosure in the proceeding of the communication or information is outweighed by the public interest in—
(a) preventing harm to a person by whom, about whom, or on whose behalf the confidential information was obtained, recorded, or prepared or to whom it was communicated; or
(b) preventing harm to—
(i) the particular relationship in the course of which the confidential communication or confidential information was made, obtained, recorded, or prepared; or
(ii) relationships that are of the same kind as, or of a kind similar to, the relationship referred to in subparagraph (i); or
(c) maintaining activities that contribute to or rely on the free flow of information.
(3) When considering whether to give a direction under this section, the
Judge must have regard to—
(a) the likely extent of harm that may result from the disclosure of the communication or information; and
(b) the nature of the communication or information and its likely importance in the proceeding; and
(c) the nature of the proceeding; and
(d) the availability or possible availability of other means of obtaining evidence of the communication or information; and
(e) the availability of means of preventing or restricting public disclosure of the evidence if the evidence is given; and
(f) the sensitivity of the evidence, having regard to—
(i) the time that has elapsed since the communication was made or the information was compiled or prepared; and
(ii) the extent to which the information has already been disclosed to other persons; and
(g) society’s interest in protecting the privacy of victims of
offences and, in particular, victims of sexual offences.
(4) The Judge may, in addition to the matters stated in subsection (3), have regard to any other matters that the Judge considers relevant.
(5) A Judge may give a direction under this section that a communication or information not be disclosed whether or not the communication or information is privileged by another provision of this subpart or would, except for a limitation or restriction imposed by this subpart, be privileged.
[25] Given the advantages of encouraging full and frank exploration of options in plea bargaining discussions, it is arguable that the public interest in disclosure of the file notes in this proceeding is outweighed by the public interest in preventing harm to dealings of the same kind that arise in the relationship between prosecuting and defence counsel. To cast doubt on the confidentiality of that practice would have a chilling effect, lessening its utility.
[26] Mr Cranney accepted the public interest in supporting the confidentiality of such counsel to counsel discussions. However, he argued that this case fell outside the scope of discussions that legitimately deserve encouragement. His argument was that principled plea bargaining discussions necessarily involved trading off a preparedness to plead guilty to some charges, in return for the prosecution agreeing not to proceed with others. A necessary premise was some acknowledgement of wrong-doing on behalf of the defendant in respect of the conduct that had caused the charges to be laid in the first place.
[27] Mr Cranney intends to argue in this judicial review that Worksafe’s decision not to offer evidence on any of the charges brought against Mr Whittall fell outside all the parameters for principled plea bargaining because there was no offer on behalf of Mr Whittall to acknowledge responsibility for any of the charges. Instead, Mr Whittall had insisted on maintaining his innocence, coupled with an arrangement to procure the payment of a substantial sum of money.
[28] Mr Cranney’s argument may ultimately succeed, but it is inappropriate at this stage to overrule a claim to retain confidentiality in the notes of counsel to counsel discussions, on the basis that the argument must inevitably succeed. It is premature to rule against Worksafe that the negotiations conducted in this case fell outside the scope of principled plea bargaining, so as to deprive the file notes of the protection of confidentiality that would cover them, in case it is ultimately held that the discussions did come within the scope of principled plea bargaining.
[29] The discussions in issue were conducted by senior criminal practitioners. There is no suggestion that they undertook the informal discussions other than in good faith and genuinely believing that this aspect of their communications would remain confidential. Something more would be needed, such as grounds for alleging that the communications lacked good faith, before determining at this stage that counsel’s endeavours on this occasion fell outside the permissible parameters of principled plea bargaining.
[30] Mr Cranney accepted that, given his access to the exchanges of correspondence, he has sufficient evidence to advance the argument that the negotiations in this case fell outside the parameters of principled plea bargaining. Neither of us know the topics recorded in Mr Stanaway’s notes. Accordingly, it is speculative to consider whether any additional arguments might become available to the applicants for their criticisms of Worksafe’s decision, by reference to additional matters that are recorded in the file notes. I am not persuaded that the prospect of additional helpful content is sufficient to justify overriding the confidentiality that counsel reasonably assumed would pertain to this aspect of their communications.
[31] In considering the status of such informal notes of counsel to counsel discussions, the Court needs also to be mindful of two further prospects. First, Mr Stanaway may have combined a record of the discussions with Mr Grieve with informal notes for his own purposes as to legal issues arising out of them. Such content would be subject to legal professional privilege. I had to consider this point
in relation to file notes maintained by Crown Law solicitors in the case of Reid v
Crown Law Office where I commented as follows:10
… Those producing a record in summary form, be it a file note, informal email or in other forms, where the purpose of doing so is to assist in the preparation of the case for a litigant, should have the confidence of knowing that any component that reflects or hints at work done or the priorities in preparation of the litigant’s case will remain confidential, and need not be shared with the opposing parties on discovery. That means that a liberal approach should be adopted to the recognition of notes of communications with opposing parties as being likely to contain material for which privilege can be claimed. …
[32] Secondly, the notes may recall concessions that Mr Grieve was prepared to make on either the facts or the law, only for the purposes of the counsel to counsel discussions that were taking place. Where the assumed confidentiality of any such concessions was being breached by what is, from Messrs Grieve and Whittall’s perspective, a side wind, there may be natural justice obligations arising to afford Mr Whittall and his counsel an opportunity to be heard. Certainly, a record of any discussions by Mr Grieve would likely be something in which Mr Whittall could assert privilege, and it is not for Mr Stanaway to waive that.
[33] Neither concern was raised in the course of argument in this case. The prospect of such considerations arising is, however, an additional factor in respecting the confidentiality of such files notes, unless the competing interests are much nearer to evenly balanced than I discern them to be in this case.
[34] The application for disclosure of Mr Stanaway’s file notes is dismissed.
[35] If counsel cannot agree on the costs consequences, I will receive memoranda on that topic, but I am not to be taken as encouraging that course.
Dobson J
Solicitors:
Simon Meikle, Wellington for applicants
Crown Law, Wellington for respondents
10 Reid v Crown Law Office HC Wellington CIV-2008-485-1203, 21 April 2009 at [42].
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