Roebuck v Liddle

[2023] NZHC 3149

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2021-441-74

[2023] NZHC 3149

BETWEEN

JASON GREGORY ROEBUCK and VICTORIA ANN ROEBUCK

Plaintiffs

JASON GREGORY ROEBUCK, VICTORIA ANN ROEBUCK and

PETER ROEBUCK as trustees of the Tahi Trust
Second Plaintiffs

AND

ROBERT JAMES LIDDLE

First Defendant

AMANDA ELIZABETH LIDDLE
Second Defendant

HASTINGS DISTRICT COUNCIL

Third Defendant

Hearing:

On the papers

Appearances:

J L Bates for Plaintiffs

J K Goodall KC and S P Farnell for Third Defendant

Date of Judgment:

9 November 2023

JUDGMENT OF ASSOCIATE JUDGE BRITTAIN

This judgment was delivered by me on 9 November 2023 at 2 pm, pursuant to r 11.5 of the High Court Rules

Solicitors:

Registrar/Deputy Registrar Date:

Brown & Bates Ltd, Napier for the plaintiffs Rice Speir, Auckland for third defendant

ROEBUCK v LIDDLE [2023] NZHC 3149 [9 November 2023]

AND

SIGMA CONSULTING ENGINEERS LIMITED

Fourth Defendant

REDHEAD ARCHITECTURE LIMITED
Fifth Defendant

FORMWORKS HB LIMITED
Sixth Defendant

HARDCORE CONCRETE LIMITED
Seventh Defendant

M J FOGARTY PAINTING & DECORATING LIMITED

Eighth Defendant

WYNANDS MASONRY LIMITED

Ninth Defendant

REALDEAL ROOFING LIMITED
Tenth Defendant

HAWKES BAY MEMBRANE SOLUTIONS LIMITED

Eleventh Defendant

MITCHELL LEITZ
Twelfth Defendant

WYNANDS MASONRY (2015) LIMITED

Thirteenth Defendant

ANTHONY JOHN MICHAEL WYNANDS

Fourteenth Defendant

GA SCARFE BUILDER LIMITED
Fifteenth defendant

GRAHAM ALAN SCARFE

Sixteenth Defendant

Introduction

[1]    The plaintiffs, Mr and Mrs Roebuck, seek leave to appeal my judgment dated 28 August 2023 (the judgment),1 upholding a claim of privilege by the third defendant, Hastings District Council (the Council), regarding one of its internal communications. The Council opposes a grant of leave.

[2] The background is set out in the judgment, and need not be repeated. The communication in question is an email from one Council staff member to two other staff members, attaching a draft notice to fix under s 164 of the Building Act 2004.

[3]    In the judgment, I determined that the draft notice to fix was prepared for the purpose of being laid before the Council’s legal advisors for advice and that the draft arose out of the relationship between solicitor and client. Accordingly, I upheld the claim of privilege under s 54 of the Evidence Act 2006.

Legal principles

[4]    Pursuant to s 56(3) of the Senior Courts Act 2016, Mr and Mrs Roebuck are required to obtain the leave of this Court in order to pursue an appeal against my judgment upholding the Council’s claim of privilege.

[5]    The rationale behind the requirement for leave is simple: it serves as a filtering mechanism, ensuring that neither unmeritorious appeals of interlocutory orders, nor appeals against insignificant interlocutory orders, are allowed to proceed so as to delay unnecessarily the proceedings in which the orders are made.2

[6]    The approach to an application for leave, and the principles governing its grant or refusal, are well-established:

(a)a high threshold exists;

(b)the applicant must identify an arguable error of law or fact;

1      Roebuck v Liddle [2023] NZHC 2350.

2      Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [13].

(c)the alleged error should be of general or public importance warranting determination or otherwise of sufficient importance to the applicant to outweigh the lack of general or precedential value;

(d)the circumstances must warrant incurring further delay; and

(e)the ultimate question is whether the interests of justice are served by granting leave.3

[7]    The threshold for leave may be lower in respect of a judgment that in a practical sense finally determines a proceeding.4

[8]    In the event leave is refused, Mr and Mrs Roebuck are not barred from later raising their intended appeal point in an appeal against the substantive High Court decision in the proceeding.5

Mr and Mrs Roebuck’s argument

[9] Mr and Mrs Roebuck submit that the decision upholding the claim of privilege was wrong because the dominant purpose of the email and draft notice to fix was, in fact, the issuance of a notice by the Council under s 164 of the Building Act.

[10]   Mr and Mrs Roebuck argue that it is a prerequisite to legal advice privilege that the Council employees who prepared the draft notice to fix were authorised to seek legal advice, and that there was insufficient evidence for such a finding.

[11]   It is contended that the timing and issuing of the notice to fix, and the basis for it, is of the utmost importance to Mr and Mrs Roebuck’s case.

[12]   Mr and Mrs Roebuck submit that the intended appeal gives rise to questions of law of general or public importance, regarding the application of the dominant purpose test.

3      Tomar v Tomar [2021] NZCA 419 at [6].

4      See Simons v ANZ Bank New Zealand Ltd [2022] NZHC 2842 at [7]; Singh v Body Corporate 207650 [2023] NZHC 1269 at [13]; and D v RMC [2023] NZHC 1931 at [16].

5      Senior Courts Act 2016, s 56(6).

Discussion

Arguable error

[13]   Counsel for Mr and Mrs Roebuck seeks a review of the legal principles applicable to legal advice privilege, including:

(a)whether the dominant purpose test applies to claims of legal advice privilege;

(b)whether the privilege in respect of communications between an employee of a corporation and the corporation’s lawyers only attract privilege if the employee is specifically tasked with seeking and receiving legal advice on behalf of the corporation; and

(c)the correct approach to multi-addressee emails, from and to both lawyers and non-lawyers.

[14]   The Council submitted that a requirement for evidence that employees were either tasked with or had the authority of seeking or receiving legal advice on behalf of a corporate is not settled law in England.6 The Council says that the issue of multiple addressees does not arise in the present case because all the addressees to the email were Council employees.

[15]   Counsel for Mr and Mrs Roebuck relied on a decision of the English Court of Appeal in R (Jet2.com Ltd) v Civil Aviation Authority,7 where the Court held that the dominant purpose test applies to claims of legal advice privilege.8

[16]   In the judgment, my statement of the applicable legal principles drew upon New Zealand authorities:

[15]      In terms of legal advice privilege under s 54 of the Act, an issue can arise regarding the purpose of draft documents prepared by a party and sent to

6      Citing R (Jet2.com Ltd) v Civil Aviation Authority [2020] EWCA Civ 35, [2020] 2 WLR 1215; and Director of the Serious Fraud Office v Eurasian Natural Resources Corp Ltd [2018] EWCA Civ 2006, [2019] 1 WLR 791.

7      R (Jet2.com Ltd) v Civil Aviation Authority, above n 6.

8 At [94].

the party’s legal adviser for advice. Draft documents may still attract the privilege,9 even though the ultimate purpose of the document is independent of the need for legal advice. For example, draft transaction documents are created for the ultimate purpose of documenting a transaction, yet when they are passed between client and solicitor for legal advice they are privileged.

[16]      However, the position may be different if a draft document prepared by a party is not prepared for the purpose of being laid before the legal advisor for advice. In that case, the draft may not arise out of the relationship of solicitor and client, and subsequent production of the draft document to the legal advisor may not therefore attract legal advice privilege for the draft.10

[17]     Counsel for the plaintiffs’ written submissions for the hearing on 21 August 2023 did not cite R (Jet2.com Ltd) v Civil Aviation Authority, and that case was not included in the plaintiffs’ bundle of authorities for the hearing. However, as recorded in the judgment, I assessed the claim for privilege in respect of the email and draft notice to fix on the basis that the dominant purpose test applied.11

[18]     During  argument  on  the  application  for  leave,  Counsel  for  Mr  and   Mrs Roebuck accepted that if the dominant purpose of the first draft of the notice to fix was to obtain legal advice before the notice was finalised and put into public circulation, then legal advice privilege applies.

[19]     I had the benefit of reading the email between the Council staff and the attached draft notice to fix. Those documents were not available to counsel for the plaintiffs. The context behind the email and draft notice to fix was confirmed in the “notice to fix timeline form”, as recorded in the judgment.12 This context is undisputed.

[20]     Having read the email and the draft notice to fix, and as confirmed in the notice to fix timeline form, I held that the draft notice had been prepared for the purpose of being laid before the Council’s legal advisor for advice and circulated to Council staff for their review before forwarding to Council’s lawyers.13 I cannot identify any arguable error in my decision to uphold the claim of privilege.

9      Kupe Group Ltd v Seamar Holding Ltd [1993] 3 NZLR 209 (HC) at 213.

10     Simunovich Fisheries Ltd v Television New Zealand Ltd [2008] NZCA 350 at [159]–[160].

11     Roebuck v Liddle, above n 1, at [26].

12 At [24].

13     At [23] and [26].

[21]     The documents in question do not advance Mr and Mrs Roebuck’s case, and disclosure would reveal legal advice provided to the Council by inferences drawn from any differences between the draft notice to fix and the final form of the notice that was issued.

General or public importance

[22]     The state of New Zealand law in respect of legal advice privilege is not the basis of the alleged error in the judgment. The alleged error relates to the application of the dominant purpose test to the facts. The alleged error itself is not of general or public importance warranting an appeal in this case.

Importance to the applicants

[23]     The draft notice to fix was circulated on 3 July 2020, and the final form of the notice was issued on 8 July 2020 after legal advice was obtained. All parties then acted on the notice as issued. Mr and Mrs Roebuck are unable to articulate why the draft notice to fix is significant in this case

[24]     I cannot see how the form of the draft notice, which remained an internal document for five days, is material to Mr and Mrs Roebuck’s allegations of negligence in respect of the construction of the floor slab of the house. The date that the notice was drafted and the date it was issued are facts that the plaintiffs can establish from other evidence without requiring production of a copy of the draft notice and email between Council staff.

Do the circumstances warrant incurring further delay?

[25]     The proceedings are set down for trial in February 2025. The plaintiffs’ evidence is due to be served by 16 April 2024. If an appeal proceeded, then the pre- trial timetable might need to be amended. I do not consider this factor to be significant.

Interests of justice

[26]     The draft notice to fix, and the internal email between Council staff before legal advice was sought in respect of the draft, have no probative value at trial. The interests

of justice, and indeed the interests of Mr and Mrs Roebuck, are best served by this matter proceeding to trial without the cost and delay of an appeal on an insignificant interlocutory ruling.

Result

[27]Leave to appeal is refused.

[28]The plaintiffs shall pay the third defendant’s costs on a 2B basis.

Associate Judge Brittain