Renner v Renner - [2014] NZHC 1743

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2013-470-569 [2014] NZHC 1743

BETWEEN
IAN RODNEY RENNER

Plaintiff

AND

CATHERINE MAY RENNER Defendant

Hearing: 23 July 2014

Appearances:

C F Murphy for Plaintiff
D P Weaver for Defendant

Judgment:

23 July 2014

ORAL JUDGMENT OF ASSOCIATE JUDGE BELL

Solicitors:
Mackenzie Elvin, Tauranga, for Plaintiff
Lyon O’Neale Arnold Lawyers Ltd, Tauranga, for Defendant

Counsel:
D P Weaver, Barrister, Tauranga, for Defendant

RENNER v RENNER [2014] NZHC 1743 [23 July 2014]

[1] The matter for decision is the plaintiff’s claim to privilege in two documents, AAA.248 and AAA.249 in Mr Renner’s second discovery affidavit. These are a letter from Mr Renner’s lawyers to counsel of 20 September 2011, and a response of
21 September 2011.

[2] The plaintiff has claimed litigation privilege under s 56 of the Evidence Act

2006. There were proceedings on foot at the time. FM Custodians Ltd had sued Mr and Mrs Renner under guarantees. The advice of counsel was relevant to matters in issue in that proceeding. Although it was not expressly claimed in the affidavit, I also find that the letters were subject to privilege under s 54 of the Evidence Act. Advice given by one lawyer to another on a matter in which the lawyer receiving the advice is acting for a client can be subject to the privilege for communicating legal advice.

[3] Mrs Renner says that while the documents would ordinarily be subject to privilege, the privilege has been waived under s 65 of the Evidence Act:

65 Waiver

(1) A person who has a privilege conferred by any of sections 54 to 60 and 64 may waive that privilege either expressly or impliedly.

(2) A person who has a privilege waives the privilege if that person, or anyone with the authority of that person, voluntarily produces or discloses, or consents to the production or disclosure of, any significant part of the privileged communication, information, opinion, or document in circumstances that are inconsistent with a claim of confidentiality.

(3) A person who has a privilege waives the privilege if the person—

(a) acts so as to put the privileged communication, information, opinion, or document in issue in a proceeding; or

(b) institutes a civil proceeding against a person who is in possession of the privileged communication, information, opinion, or document the effect of which is to put the privileged matter in issue in the proceeding.

(4) A person who has a privilege in respect of a communication, information, opinion, or document that has been disclosed to another person does not waive the privilege if the disclosure occurred involuntarily or mistakenly or otherwise without the consent of the person who has the privilege.

(5) A privilege conferred by section 57 (which relates to settlement negotiations or mediation) may be waived only by all the persons who have that privilege.

[4] To support the claim of waiver, Mrs Renner relies on an email which Mr Renner’s lawyers sent to FM Custodians Ltd on…

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.

Continue reading Renner v Renner

Details

AGLC: Renner v Renner [2014] NZHC 1743
Case: [2014] NZHC 1743
Decision Date: 23 July 2014

CaseChat Overview and Summary

In the High Court of New Zealand, Associate Judge R M Bell addressed the case of Renner v Renner, where Ian Rodney Renner sought privilege over two documents in his second discovery affidavit, AAA.248 and AAA.249. These documents, a letter from Mr Renner’s lawyers to counsel dated 20 September 2011 and a response dated 21 September 2011, were central to the dispute regarding the privilege claimed under the Evidence Act 2006. Catherine May Renner argued that the privilege had been waived under section 65 of the Act, relying on an email sent by Mr Renner’s lawyers to FM Custodians Ltd on 22 September 2011. The court considered whether the privilege had been waived either by disclosure under section 65(2) or by putting the communication in issue under section 65(3)(a).

The court examined the principles established in Houghton v Saunders, focusing on whether the conduct was inconsistent with maintaining confidentiality and whether it could lead to injustice if the privilege were upheld. The analysis included whether the disclosure of the existence of a document containing advice was sufficient to waive the contents of the document. The court determined that the disclosure of some content of the privileged document did not necessarily amount to implied waiver but depended on fairness and the circumstances of the case. Given the context and the relevance of the privileged communication to the case, the court concluded that there had not been any waiver under section 65 of the Evidence Act. The court also considered the potential for future waiver but ruled on the current state of the case.

In its final orders, the court granted Mr Renner the costs of the interlocutory application, fixing them on a 2B basis, allowing him to recover costs under steps 24 and 26.

Orders