Robertson v Auckland Council - [2014] NZHC 422

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2005-404-7348 [2014] NZHC 422

UNDER The Public Works Act 1981

BETWEEN J A ROBERTSON & ORS Plaintiffs

ANDAUCKLAND COUNCIL Defendant

CIV-2005-404-1881

BETWEEN P D M SPENCER-WOOD Plaintiff

ANDAUCKLAND COUNCIL Defendant

CIV-2005-404-7350

BETWEEN D J McCORMICK Plaintiff

ANDAUCKLAND COUNCIL Defendant

CIV-2005-404-7095

BETWEEN THE ROYAL NEW ZEALAND FOUNDATION FOR THE BLIND & ORS
Plaintiff

ANDAUCKLAND COUNCIL Defendant

CIV-2005-404-4351

BETWEEN I B FLAVELL & ANOR Plaintiff

J A ROBERTSON & ORS v AUCKLAND COUNCIL [2014] NZHC 422 [6 March 2014]

ANDAUCKLAND COUNCIL Defendant

CIV-2005-404-4250

BETWEEN C W WILLIAMS & ANOR Plaintiff

ANDAUCKLAND COUNCIL Defendant

CIV-2005-404-7351

BETWEEN D M STEWART Plaintiff

ANDAUCKLAND COUNCIL Defendant

Hearing: 24-28 February, 3-6 March 2014

Appearances: C Carruthers QC, W L Aldred and P Cassin for plaintiffs
M Casey QC and K Scott for defendants

Judgment: 6 March 2014

JUDGMENT OF FOGARTY J

Solicitors/Counsel:
Colin Carruthers QC., Wellington
Wendy Aldred, Wellington
Paul Cassin, Auckland
M Casey QC, Auckland
Buddle Findlay, Auckland G Hall

[1] During the course of the trial I have raised a question as to whether or not the defendant has waived privilege in respect of legal advice given to the Waitakere City Council. It occurred during the delivery of the evidence of Mr G R Wakefield who was at material times the corporate secretary and corporate solicitor of the Waitemata City Council and its successor, the Waitakere City Council.

[2] In the course of his evidence, Mr Wakefield was addressing the acquisition of the Te Atau land in 1990 at which time the Minister Transport resolved a dispute between Ports of Auckland and the Council as to the future ownership of this land.

[3] Moving on to 1996, he referred to an agenda item which was before the Council on the question of transferring land from the Council to its property owning company, Waitakere Property Ltd (WPL).

[4] In the course of his evidence he addressed the agenda record before the Council on 24 April 1996. This was preparatory to and was followed by a resolution by the Council vesting the land in the WPL, but at the same time resolving that in the event that s 40 of the Public Works Act 1928 be deemed at any time for any application to the lands concerned, that the Council considers in the information available to it that it would be impracticable, unreasonable, or unfair, to offer to sell the land to any person from whom it was acquired, or any successor to that person, and further that there has been a significant change in the character of the land for the purposes of public work for which it was acquired.

[5] The agenda item backgrounding that is in a passage set out in paragraph 7.12 of Mr Wakefield's evidence, being a copy of material in the agenda materials before the meeting:

The lands concerned were acquired by agreement by the former Auckland Harbour Board in the early 1950s and have been vested in Council since local Government…

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: [2014] NZHC 422
Decision Date: 6 March 2014

CaseChat Overview and Summary

The case of Robertson v Auckland Council involves multiple plaintiffs bringing claims against the Auckland Council in the High Court of New Zealand. The primary dispute revolves around the Public Works Act 1981, specifically concerning the ownership and disposition of certain lands. The plaintiffs argue that the Auckland Council has failed to comply with the obligations under the Public Works Act in relation to these lands. The Auckland Council, on the other hand, denies any breach of the Act and contends that the plaintiffs' claims are unfounded. The court had to decide whether the Auckland Council had waived its legal advice privilege by presenting certain legal opinions in its evidence.

The legal issue at the heart of this case was whether the Auckland Council had waived its privilege over legal advice by disclosing certain legal opinions in its evidence. This question arose when a council official presented an agenda item that included a passage which seemed to be legal advice. The plaintiffs argued that this disclosure constituted a waiver of privilege, while the Council resisted this claim. The court had to determine if the Council's conduct was consistent with maintaining the privilege under the Evidence Act 2006, particularly section 65(3)(a) which deals with the circumstances under which privilege may be waived.

The court ruled that the Auckland Council had not waived its privilege over the legal advice at the point of the hearing. The judge relied on the principles established in Astrazeneca Ltd v Commerce Commission, which emphasized that relevance alone does not lead to a waiver of privilege. The judge noted that the Council had provided assurances that it did not rely on the legal opinions in justifying its conduct and that there was no evidence of reliance at that stage of the trial. The court also considered that while the disclosure might be relevant, it did not amount to an assertion of reliance on the legal advice or an attempt to inject the substance of the advice into evidence. Therefore, the judge concluded that there was no waiver of privilege and reserved the matter for further consideration if new grounds for waiver arose during the trial.

Orders