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…

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 Roebuck v Liddle

Details

AGLC: Roebuck v Liddle [2023] NZHC 3149
Case: [2023] NZHC 3149
Decision Date: 9 November 2023

CaseChat Overview and Summary

In Roebuck v Liddle, the plaintiffs, Jason Gregory Roebuck and Victoria Ann Roebuck, sought leave to appeal a decision by Associate Judge Brittain that upheld a claim of privilege by the Hastings District Council regarding an internal communication. The Council opposed the grant of leave. The central issue was whether the plaintiffs had identified an arguable error of law or fact that warranted an appeal. The plaintiffs argued that the dominant purpose of the communication was the issuance of a notice to fix under the Building Act 2004, and they contended that the Council employees who prepared the draft notice were not authorised to seek legal advice. They also claimed that the timing and basis for issuing the notice were crucial to their case.

Associate Judge Brittain examined whether there was an arguable error in applying the dominant purpose test and whether the error was of general or public importance. The judge noted that the applicable legal principles had been drawn from New Zealand authorities, and the plaintiffs had not cited relevant English cases, including R (Jet2.com Ltd) v Civil Aviation Authority, which was not included in their bundle of authorities. The judge concluded that there was no arguable error in upholding the claim of privilege because the draft notice to fix was prepared for the purpose of obtaining legal advice from the Council’s legal advisers. The judge also found that the alleged error was not of general or public importance and did not significantly impact the plaintiffs’ case. Therefore, the judge refused leave to appeal and ordered the plaintiffs to pay the Council's costs on a 2B basis.

Orders