S v New Zealand Police
[2017] NZHC 1060
•19 May 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2016-404-002150 [2017] NZHC 1060
UNDER the Judicature Amendment Act 1972 IN THE MATTER
of an application for judicial review
BETWEEN
S
First PlaintiffCQ
Second PlaintiffD
Third PlaintiffAND
NEW ZEALAND POLICE First Defendant
DISTRICT COURT AT AUCKLAND Second Defendant
Hearing: 16 May 2017 Appearances:
[Redacted] for First Plaintiff
Third Plaintiff in person
NF Flanagan and TC Clark for First DefendantJudgment:
19 May 2017
JUDGMENT OF DOWNS J
This judgment was delivered by me on Friday, 19 May 2017 at 4.30 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Meredith Connell, Auckland.
Copies to: Plaintiffs
S v POLICE [2017] NZHC 1060 [19 May 2017]
The applications in context
[1] Police seek to strike out what appears to be a judicial review proceeding brought by S, D and CQ. S is a solicitor who faces criminal charges arising out of the sale of two houses. Before laying charges, Police executed a search warrant on S’s firm. S was not present. Another lawyer, D, occupied the same floor. D had his own practice, and acted for S in relation to the criminal investigation. D arrived while the warrant was being executed. D and S later filed this proceeding in relation to the search warrant, joined by CQ, a company. CQ owns the premises occupied by both D and the firm of S. And D is a director of CQ.
[2] Police also seek release of documents held by this Court in connection with the search warrant.
Background
[3] An understanding of the criminal investigation in relation to S is helpful.
[4] The complainant and his wife owned six houses: their home and five investment properties. In March 2016, the pair agreed to separate. The complainant was then in Hong Kong. In May 2016, the complainant engaged lawyers to assist with the division of matrimonial property. His lawyers discovered two of the investment properties had already been sold. The complainant went to the Police.
[5] S acted in both transactions. The client authority in relation to each records S as having witnessed two signatures: the complainant’s and his wife’s. The complainant was in Hong Kong when the first authority was completed on 7 March
2017. The complainant says he has never been to S’s firm, where both documents
were allegedly signed, and is ignorant of both transactions.
[6] Police attempted to speak to S. The full sequence need not be recorded. It is sufficient to observe D insisted upon Police providing S, through D, a set of written questions. Police declined that invitation. The complainant’s lawyers also sought paperwork from S’s firm in relation to the transactions. At least some was provided. The complainant says his apparent signatures in the paperwork are forgeries.
[7] Detective Holland applied to the District Court for a search warrant in relation to S’s files for both transactions. The application sought the original client authority documents, corresponding trust ledger accounts and other documents in connection with the transactions. Legal professional privilege was expressly referred to. So too methodology for its protection:
4.59 I anticipate that there may be privileged material in the files sought. As required by Section 144 Search and Surveillance Act 2012 I will arrange to search the property when [S] or her representative is present. Before commencing the search I will ask her or her representative whether they want to claim privilege or interim privilege in respect of any material.
4.60 If she claims privilege or interim privilege in respect of any material that is not relevant to our search, it will not be seized or searched. If she claims privilege or interim privilege in respect of material believed to be relevant it will be seized and secured in an envelope or suitable container and sealed with tape. The material will then be delivered to the District Registrar at Auckland District Court to enable a claim of privilege to be determined by a Judge.
[8] Judge David Sharp issued a search warrant on 24 August 2016.
[9] The warrant was executed on 31 August 2016. A summary of that event appears at [1]. As observed, S was not present. D arrived during execution, as did two lawyers in S’s firm. W, an employee of the firm, was present throughout. D used his mobile phone to film events for approximately two minutes. The footage was played by consent. D presents as agitated and belligerent. An officer warns him “for obstruction”. D is then told of his rights pursuant to the New Zealand Bill of Rights Act 1990. D twice asks if he is a suspect. An officer tells D he is “detained” pursuant to the search warrant. D alleges he was detained for up to half an hour. D then left—and went to the High Court.
[10] There, D made urgent oral application for an injunction to restrain the search. Edwards J’s related Minute records D as saying he had arrived at the scene at approximately 11.15 am. The Judge spoke to the Detective Sergeant in charge of the search by telephone, who said the search had been suspended at 11.55 am. The Judge heard further from the parties at 3 pm. Agreement was reached:
(a) Seized material was to be lodged with the High Court immediately.
(b)D and S gave undertakings to provide all outstanding material sought, and to lodge it with the Court.
(c) A timetable provided for the filing of a statement of claim and related pleadings.
(d) Leave was reserved for further directions.
[11] The plaintiffs did not comply with the timetable. A statement of claim was not filed until 29 September 2016, and only after Police had signalled they would seek an “unless order”. When the statement of claim was filed, Police sought particulars on the basis it was “obfuscatory”. A consent order was made for particularisation. On 30 November 2016—and so three months after the search—the plaintiffs filed an amended statement of claim. It is discussed shortly and for ease of reference, referred to as the statement of claim.
[12] S was charged on 1 September 2016, and appeared in the District Court the next day.1 S has applied for a discharge pursuant to s 147 of the Criminal Procedure Act 2011, contending there is inadequate evidence to found conviction. Police submit the documents in this Court’s custody may be relevant to that application and the charges more generally. Hence the application for their release.
The statement of claim
[13] The statement of claim is unusual. Its intituling refers to the Judicature Amendment Act 1972, the Declaratory Judgments Act 1908, and the New Zealand Bill of Rights Act 1990 “et seq”. The cover page then refers to:
… redress in the form of civil causes of action, judicial review, extraordinary remedies, declaratory relief et alia arising from an unlawful application for a search warrant, and illegal raid, a detention contrary to law and other such abuses perpetrated by the government on or a priori 31 August 2016 in relation to New Zealand citizens and corporations present or situated at [an identified address].
1 It is not clear from the papers whether the complainant’s wife has also been charged.
[14] The body of the statement of claim contains 37 paragraphs, some of which conventionally identify a material allegation of fact. But others are more submission. For example, para 22 alleges:
There was no proper basis in law to detain the third plaintiff, and certainly not indefinitely.
[15] There is then a section headed “Further and better particulars”. What follows
is an amalgam of submission and allegation. For example:
· The first plaintiff was initially merely a person of interest, i.e., a material witness, but after she had the temerity to obtain independent legal representation and/or exercise her right to remain silent she then became a suspect. The prosecution is in bad faith insofar as it has been brought as a response to the first plaintiff’s exercise of legitimate rights
/ not on the evidence.
[16] The next section is headed “The other claims”. These are described as “the tort of abuse of process, the tort of malicious prosecution, trespass and false imprisonment”.
[17] The following section purports to identify further particulars. It reads:
(A) ULTRA VIRES,
(B) ERRORS OF LAW,
(C) MISLEADING THE COURT / FAILURE TO TAKE INTO ACCOUNT RELEVANT CONSIDERATIONS,
(D) CONTRAVENTION OF STATUTORY DUTY,
(E) & (F) UNREASONABLE SEARCH AND SEIZURE (x2),
(G) BREACH OF RIGHT AGAINST ARBITRARY DETENTION, (H) BREACH OF THE RIGHT TO COUNSEL, AND/OR
(I) BREACH OF THE RIGHT TO REMAIN SILENT.
[18] Later paragraphs in lower case script arguably connect to the headings in capital letters set out above. So, for example, para (b) says:
The second defendant’s warrant was overly broad and/or not consistent with
§ 102 of the Search and Surveillance Act 2012 and so was an error of law.
[19] But even then, the alleged particulars amount to a series of submissions with little, if any, elucidation of material fact.
[20] The statement of claim ends with a discursive prayer for relief:
i. A judgment in their favour;
ii. An order quashing the processes and/or decisions determined to be contrary to law;
iii. A direction staying the first defendant’s criminal proceedings against the first plaintiff;
iv. A declaration that the first defendant’s repeated attempts to interview the first plaintiff without counsel violated her common law rights to counsel and/or remain silent and/or a Baigent’s declaration that it was in violation rights under § 21, 24(c) and/or 25(d) of the New Zealand Bill of Rights Act 1990.
v. A declaration that the first defendant’s search was not compliant with of
§ 143 of the Search and Surveillance Act 20112 and/or a Baigent’s
declaration that it was in violation of § 21 of the New Zealand Bill ofRights Act 1990;
vi. A Baigent’s declaration that the first defendant breached §§ 18(1), 21 and/or 22 of the New Zealand Bill of Rights Act 1990 in detaining the third plaintiff.
vii. Damages at large;
viii. A permanent injunction enjoining the first defendant from further requiring the first plaintiff to be interviewed without counsel and/or harassing the first plaintiff personally or through her boyfriend et seq;
ix. Costs; and/or
x. Such other relief as seen fit by this Honourable Court.
So what is the claim?
[21] Having now heard from D, who acts for himself, and counsel for S—who is in the same firm as S2—it appears the statement of claim has three core elements, two of which seek relief through judicial review proceedings, and a third, which appears to be an action for public law damages arising out of the same set of facts,
but otherwise unconnected to S or papers seized during the search.
2 Mr Flanagan invited my attention to the apparent lack of independence on the part of counsel. But as he recognised, the issue would only be of concern if S’s claims were not struck out. I assume counsel does not act for S in relation to the criminal charges.
[22] To elaborate, S contends the search warrant:
(a) Was invalid because Police did not inform Judge Sharp of the existence of a second law firm on the same floor. And, because of alleged bad faith. The latter appears to assume Police did not intend to take steps to protect legal professional privilege, even though they told Judge Sharp they would.
(b)Was executed unlawfully and unreasonably, for, even if valid, no representative of S was present when the warrant was executed (contrary to s 143 of the Search and Surveillance Act 2012).
[23] D contends:
(a) He was arbitrarily detained during the execution of the search warrant, presumably contrary to s 22 of the New Zealand Bill of Rights Act
1990. (I say presumably because the statement of claim also refers to s 18(1) of that Act, which affirms “freedom of movement and residence in New Zealand”, and to s 21, which protects against unreasonable search and seizure. It is common ground D was not searched.)
(b) That wrong is actionable for public law damages.3
[24] The balance of the statement of claim is a miscellany of submission and allegation vis-à-vis S. For example, it is said Police “harassed” S by attempting to interview her without the presence of counsel, and Police committed the tort of malicious prosecution by bringing charges against S. The allegations are unsupported by particulars or pleaded fact.
A précis of the respective cases
[25] For Police, Mr Flanagan submits the statement of claim discloses no tenable cause of action and amounts to an abuse of process. He identifies the failings above. Mr Flanagan also invites attention to the confined role of judicial review in relation to criminal proceedings and the collateral nature of this claim to those proceedings. He submits the proceeding discloses no fundamental or jurisdictional error amenable to judicial review.
[26] Counsel for S submits the proceeding is not an abuse of process, but rather a legitimate response by S to protect her rights. She emphasises the high threshold for strike out, and submits there is little difficulty with parallel proceedings in the High Court and District Court.
[27] D stresses the divisibility of his cause of action from those in relation to S. He submits he has a tenable claim against the Police arising out of brief but unlawful detention.
Principle
[28] Strike out principles are well known. The Court of Appeal summarised them in Attorney-General v Prince and Gardner,4 and Elias CJ and Anderson J approved that formulation in Couch v Attorney-General:5
(a) Pleaded facts, whether or not admitted, are assumed to be true. This does not extend to pleaded allegations which are entirely speculative and without foundation.
(b) The cause of action must be clearly untenable.
(c) Strike out is to be exercised sparingly, and only in clear cases.
(d)The strike out jurisdiction is not excluded by a need to decide difficult questions of law or extensive argument.
[29] A second thread of principle is also important. Courts have repeatedly held judicial review in the context of criminal proceedings is reserved for exceptional cases. The leading decision is Gill v Attorney-General.6 There, limitations of judicial review in the context of a criminal investigation were seen by the Court of Appeal to be “self-evident”. Judicial review is typically conducted without cross-examination, “hence the Court has restricted fact-finding ability”. So, “judicial review is not the appropriate forum in which to adjudicate upon the strength of a possible criminal case”.7
[30] Gill involved challenge to the validity of a search warrant. The Court considered judicial review in that context would be appropriate only when:8
The defect in the search warrant is of fundamental nature, where the matter could be said to go to the jurisdiction of the issuing officer, or where some other ground of true unlawfulness (such as want of jurisdiction) is established.
[31] The possibility of alternative remedies was seen as another factor favouring restriction of judicial review in connection with criminal cases. A defendant can challenge the legality of a search warrant in the context of the criminal process. Materially, that process provides means to find fact. It also provides rights of appeal in relation to the admissibility of evidence, both before and after trial. And as the Court of Appeal observed, s 30 of the Evidence Act 2006 expressly provides for
improperly obtained evidence. It followed:9
… judicial review will rarely be appropriate where there is a readily available alternative remedy, and in particular the Courts have held they will only intervene in matters which involve the exercise of a prosecutorial discretion or investigative power in exceptional cases.
[32] The Court of Appeal has since affirmed Gill on a number of occasions,10
including this year.11
6 Gill v Attorney-General [2010] NZCA 468, [2011] 1 NZLR 433.
7 At [17].
8 At [20].
9 At [19].
10 See for example Tauber v Commissioner of Inland Revenue [2012] NZCA 411, [2012] 3 NZLR
549 at [20]-[21].
11 Osborne v Worksafe New Zealand [2017] NZCA 11, [2017] 2 NZLR 513.
The claim by S
[33] S’s claim must be struck out for eight interrelated reasons.
[34] First, the pleadings (and related evidence) do not disclose a fundamental defect in relation to the search warrant. The warrant is facially valid. No jurisdictional issue arises or is taken. The warrant application expressly referred to the possibility material may be the subject of legal professional privilege. It identified means for protection of that privilege. And the warrant itself made clear legal professional privilege could be claimed.
[35] Second, consequential error of a jurisdictional order could not be established even if one treats as correct a contention Police failed to inform Judge Sharp of the existence of a second law firm in relation to D. The documents were not sought or seized from D, or sought or seized from D’s firm.
[36] Counsel for S submits the omission is analogous to that in Director of the Serious Fraud Office v A Firm of Solicitors.12 There, the issuing officer was not told the solicitors had been interviewed and agreed to co-operate (by providing the documents sought). The Court of Appeal upheld the High Court’s conclusion this information should have been conveyed to the issuing officer. However, the Court of Appeal did not appear to consider this omission sufficient to render the warrant invalid. Rather, it held the warrant to be invalid for lack of specificity.13 That issue does not arise here. In any event, the omission in Director of the Serious Fraud Office v A Firm of Solicitors was appreciably more serious than the (presumed) omission here.
[37] Third, the allegation of bad faith is without evidential foundation and speculative. The statement of claim is bereft of particulars on this issue—and pleaded fact. It follows there is no presumption this allegation is correct, and
nothing to substantiate it.14
12 Director of the Serious Fraud Office v A Firm of Solicitors [2006] 1 NZLR 586, (2005) 22
CRNZ 94.
13 At [81].
14 Couch v Attorney-General, above n 5.
[38] Fourth, resolution of that issue would require a factual contest, and one ill-suited to judicial review. Detective Holland would need to testify. So too the other officers involved in the search, the employee of the firm present throughout, and the lawyers who arrived later. Cross-examination would be required. And likely determinative. That is true also of the contention no representative of S was present
when the warrant was executed.15
[39] Fifth, S’s central claim is that she had no representative present when the search was conducted. This issue, however, lies towards the boundary of judicial review as it is concerned with the reasonableness of the execution of a search warrant as distinct from warrant validity. In Gill, the Court of Appeal cited three examples of search warrants successfully challenged by way of judicial review:
(a) Auckland Medical Aid Trust v Taylor, in which the warrant was held to be fundamentally defective because it was not issued in respect of a particular offence or with sufficient particularity to inform the searching officer of relevance.16
(b)Tranz Rail Ltd v Wellington District Court, in which the warrant was held to be invalid as it was too widely drawn.17
(c) A Firm of Solicitors v District Court at Auckland, which was mentioned earlier. The warrant was overturned on a number of grounds including (other) material non-disclosure in the application, a lack of specificity, and the absence of a mechanism for dealing with legal professional privilege.
[40] All involved error on the face of the warrant. And warrant invalidity. The
examples underscore the Court of Appeal’s emphasis upon fundamental or
15 While the statement of claim alleges S did not appoint a representative for the purpose of the search, the statement of defence filed by the Police asserts an (identified) person from her firm was present throughout. No statement of reply has been filed. Rule 5.63(2) of the High Court Rules provides a positive allegation in a statement of defence “is treated as … admitted” when not denied.
16 Auckland medical Aid Trust v Taylor [1975] 1 NZLR 728 (CA).
17 Tranz Rail Ltd v Wellington District Court [2002] 3 NZLR 780 (CA).
jurisdictional error, and the general undesirability of judicial review as other than exceptional in this area.
[41] In Director of the Serious Fraud Office v A Firm of Solicitors, no issue of reasonableness in connection with the warrant’s execution was raised on the pleadings. The point was, however, mentioned in argument. The Court of Appeal observed:18
… a finding that a search was unreasonable … is normally a prelude to a decision as to the admissibility of the evidence gained from the search at trial.
A little later, the Court said reasonableness “does not appear to us to be directly relevant to the issue raised by the firm’s judicial review application, namely whether the warrant was invalid.”19 It declined to determine that issue.
[42] Sixth, assessment of reasonableness in the context of s 21 of the New Zealand Bill of Rights Act is an intensely fact-specific exercise. Again, judicial review is an inappropriate mechanism for that.
[43] Seventh, S has alternative remedies, and all within the criminal process. In the context of an admissibility challenge, S may dispute the validity of the search warrant, and whether it was executed reasonably. As observed earlier, admissibility determinations attract rights of appeal, before and after trial.
[44] Eighth, the balance of the statement is an untenable scattergun pleading unsupported by particulars or material pleaded fact. In Commissioner of Inland Revenue v Chesterfields Preschools Ltd, the Court of Appeal succinctly identified the key elements of a statement of claim in accordance with the High Court Rules:20
The procedural requirements for statements of claim are spelled out in the
HCR. For present purposes r 5.17 (distinct matter to be stated separately), r
5.26 (statement of claim to show nature of claim) and r 5.27 (statement of claim to specify relief sought) describe the key principles. In summary they are:
18 Director of the Serious Fraud Office v A Firm of Solicitors, above n 12, at [130].
19 At [131].
20 Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2
NZLR 679 at [84].
· The pleading must be accurate, clear and intelligible.
·Sufficient particulars must be given to enable the defendant to be fairly informed of the case to be met.
·While adequate particulars are required, the statement of claim must not stray into setting out the evidence relied upon.
· Separate causes of action must be separately stated.
· The pleading should set out all the elements of the cause of action
(in this case misfeasance).
·The relief sought must be clearly pleaded in respect of each cause of action and, where there is more than one plaintiff and multiple defendants, the relief sought by each plaintiff against each defendant must be clearly stated.
[45] The statement of claim falls well short of these requirements. And as observed, the remaining claims are unsupported by particulars or material pleaded fact. They are an abuse.
[46] To summarise, S’s claims in relation to the search warrant are not, in the language of Gill, of a “fundamental nature, where the matter could be said to go to the jurisdiction of the issuing officer, or where some other ground of true unlawfulness (such as want of jurisdiction) is established”. Judicial review is not the appropriate mechanism to resolve these claims, and there is no need for a collateral attack upon the criminal process in order to preserve S’s rights. S will have her day in court—but in the correct one. The balance of the statement of claim constitutes an abuse of process. All of S’s claims are struck out as clearly untenable.
The claim by D
[47] I reach a different conclusion in relation to D’s claim, even though it is bald, poorly pleaded and partially buried by scattergun pleading. D was told he was detained during the search. It is trite Police enjoy no general power of detention.
[48] The Search and Surveillance Act 2012 provides powers of detention incidental to search. So, for example, s 118 of that Act provides:
118 Powers of detention incidental to powers to search places and vehicles
(1) If any constable or other person, or a person assisting any constable or other person, exercises a search power in relation to a place or vehicle, that constable or other person may, for the purposes of determining whether there is any connection between a person at the place or in or on the vehicle and the object of the search, detain any person—
(a) who is at the place or in or on the vehicle at the commencement of the search; or
(b) who arrives at the place or stops at, or enters, or tries to enter, the vehicle while the search is being carried out.
(2) A person may be detained under subsection (1) for any period that is reasonable, but not for longer than the duration of the search.
(3) A detention of any person commences under subsection (1) when the constable or other person exercising the search power directs that person to remain at the place or in or on the vehicle and ends when that person is told by the constable or other person, or a person assisting the constable or other person, exercising the search power that he or she is free to leave the place or vehicle.
(4) Reasonable force may be used for the purpose of effecting and continuing any detention under subsection (1).
(5) For the purposes of subsection (1), other person means a person to whom section 115(2) applies.
[49] D has filed an affidavit in which he says he felt he could not leave because of Police conduct, which he specifies. D says he was detained for approximately half an hour. On his account, s 118 is not clearly engaged.
[50] Two different threads of case law comprise arbitrary detention jurisprudence. The first, typically in the context of Police questioning of a suspect, adopts a mixed objective/subjective test in which a detainee’s reasonably held belief of detention constitutes detention when induced by Police conduct.21 Relevant factors include the nature, purpose, extent and duration of any constraint. The second thread holds substantial unlawful deprivation of an individual’s personal liberty gives rise to
arbitrary detention.22
21 Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (2nd ed, LexisNexis, Wellington, 2015) at [19.6.2].
22 Police v Smith & Herewini [1994] 2 NZLR 306 (CA) at 316.
[51] Material facts identified by D in his affidavit should, of course, have been pleaded in the statement of claim. However, the statement of claim could be amended. If amended, an arguable claim for arbitrary detention contrary to the New Zealand Bill of Rights could be identified. This is not to hold the claim is strong, or that D’s agitation and belligerence could not explain and ultimately justify any detention, assuming detention is established. But these are trial issues. So too possible discrepancy as to timing; that recorded in Edwards J’s Minute appears to be inconsistent with that advanced by D.
[52] In short, D’s claim for arbitrary detention is not so clearly untenable as to be struck out, but the cause of action requires substantial re-pleading. D is to file and serve an amended statement of claim—confined to this cause of action—by 31 May
2017. The amended statement of claim must identify an address for service. It is not open to D to insist on personal service as he did in the (amended) statement of claim.23
CQ
[53] For completeness, CQ has no independent cause of action. And no real interest in these events. The fact no one appeared for it confirms as much.
Release of the documents
[54] Edwards J reserved leave for directions in relation to the seized documents. Police obtained leave to inspect them. And now seek their release. Mr Flanagan submitted if the strike out application succeeded in relation to S—as it has—the documents should be released as a matter of course. That does not follow. While it is correct S has no tenable claim before this Court, it does not follow the documents could not be privileged.
[55] In the alternative, Mr Flanagan submitted the documents did not attract privilege. He contended the documents were “land transfer documents, which do not
relate to the provision of legal advice”. As will become apparent, that submission is
23 See r 6.20 of the High Court Rules.
overbroad but largely correct. I reviewed the documents with the parties’ consent.24
They are not voluminous.
[56] Section 54 of the Evidence Act 2006 relevantly provides:
54 Privilege for communications with legal advisers
(1) A person who requests or obtains professional legal services from a legal adviser has a privilege in respect of any communication between the person and the legal adviser if the communication was—
(a) intended to be confidential; and
(b) made in the course of and for the purpose of—
(i) the person requesting or obtaining professional legal services from the legal adviser; or
(ii) the legal adviser giving such services to the person.
(1A) The privilege applies to a person who requests professional legal services from a legal adviser whether or not the person actually obtains such services.
[57] Most of the documents held by this Court could not attract a claim for legal professional privilege for a variety of reasons:
(a) Many are communications between S and third parties, and so not between S and her client. In this category is correspondence between S (and S’s firm) and at least one bank, real estate agents, the
purchasers’ lawyers and so on. So too the settlement statements.
24 On 17 May 2017 counsel for S sent the following email in response to my Minute asking if there was any objection to my inspection of the documents:
“In principle I do not have any objection to His Honour looking at the documents, however, I
wish to make two points:
1. Firstly, it is Counsel’s view that the documents do not make a difference because his Honour accepted at the hearing yesterday that the pleaded facts are taken to be true. In any event, we understand that the first defendant is not arguing that the documents will make a difference.
2. Secondly, I respectfully submit that if the documents can potentially affect his Honour’s decision and if the decision will be adverse to my client then I respectfully request the opportunity to be heard on this issue pursuant to rule 7.43 of the High Court Rules 2016.”
I did not inspect the documents until I had determined the strike out application in relation to S. Counsel had an opportunity to be heard on the issue of privilege at the hearing. Indeed, that was its purpose. Instead, counsel submitted there should be a further hearing.
(b)None of these communications was intended to be confidential as between S and her client. They could not: S was corresponding with others.
(c) The client authority documents record the associated transaction “will become a matter of public record upon registration”. And these documents are amenable to LINZ audit. So, the confidentiality prerequisite for privilege is absent. In any event, S released the client authority documents to the complainant’s lawyers, thereby waiving any potential privilege. And, it is all but certain s 67 of the Evidence Act applies. It requires a Judge to disallow a claim of privilege if satisfied:
… there is a prima facie case that the communication was made or received, or the information was compiled or prepared, for a dishonest purpose or to enable or aid anyone to commit or plan to commit what the person claiming the privilege knew, or reasonably should have known, to be an offence.
[58] A handful of documents could conceivably attract privilege, such as two deeds prepared in connection with the transactions. However, S released these and other documents to the complainant’s lawyers, thereby waiving any potential privilege.25
[59] The only documents in relation to which privilege may be able to be sustained are:
(a) An email from S to her client dated 19 April 2016. (b) A “new client form”.
(c) An agreement for legal services between S and the complainant’s
wife.
(d) An authority to act dated 2 November 2015.
25 These are listed in the affidavit in support of the search warrant application.
(e) An authority to disperse money dated 11 November 2015. (f) An authority to disperse money dated 9 November 2015.
[60] All appear to be communications (in some sense) between S and her client in connection with the provision of professional legal services. But, s 67 may apply. However, whether these documents are privileged (and whether s 67 applies) is more appropriately determined by the District Court in connection with the criminal charges.
Costs
[61] Police sought indemnity costs. If these or lesser costs are pursued, further submissions are required within seven working days. S and D must respond within seven days thereafter.
Orders
[62] In summary:
(a) The strike out application in relation to S is granted. All of S’s claims
are struck out.
(b) The strike out application in relation to D is dismissed. However, D
must file and serve an amended statement of claim by 31 May 2017: (i) Confined to a cause of action for arbitrary detention.
(ii) Containing (and maintaining) an address for service.
(c) The documents identified at [59] are to be transferred to the District Court and held by the Registrar of that Court as potentially attracting legal professional privilege. But all other documents are to be released by the Registrar of this Court to the Police.
(d)If privilege is contended for in relation to the documents at [59], that issue is to be determined by the District Court in connection with S’s criminal charges.
(e) Costs memoranda are to be filed and served in accordance with [61].
……………………………..
Downs J
4
3
1