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Shannon v Shannon

Shannon v Shannon

Case [2005] NZCA 91 3 May 2005

Appeal

Jurisdiction

Legal Privilege

Admissibility of Evidence

Res Judicata

Unconscionable Conduct

Civil Litigation & Procedure

Property Law

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA192/04
BETWEENALAN LINDSAY SHANNON

First Appellant
ANDFOREST PARK (NEW ZEALAND) LIMITED

Second Appellant
ANDFOREST PARK FP2 LIMITED

Third Appellant
ANDFOREST PARK HOLDINGS LIMITED

Fourth Appellant

ANDCHRISTINE ROBYN SHANNON

First Respondent
ANDCHRISTINE FORBES

Second Respondent

Hearing:10 February and 3 March 2005

Court:Glazebrook, Hammond and O'Regan JJ
Counsel:A P Duffy QC for Appellants

H M Aikman and J J Manning (on 10 February 2005 only) for First Respondent
M S Anderson for Second Respondent (leave to withdraw granted on 10 February 2005)

Judgment:3 May 2005

JUDGMENT OF THE COURT

ATHE APPEAL AGAINST POTTER J’S REFUSAL OF THE APPELLANTS’ APPLICATION FOR WAIVER OF THE FIRST RESPONDENT’S PRIVILEGE IN THE CAVEAT PROCEEDINGS IS DISMISSED.
BCOSTS OF $4,000 ARE TO BE PAID TO THE FIRST RESPONDENT BY THE SECOND, THIRD AND FOURTH APPELLANTS, PLUS REASONABLE DISBURSEMENTS, TO BE SET BY THE REGISTRAR IF THE PARTIES CANNOT REACH AGREEMENT.

REASONS
(Given by Glazebrook J)
Table of Contents
Introduction  [1]
The legislation  [4]
The judgment under appeal  [5]
Forest Park group’s submissions  [16]
The respondents’ submissions  [24]
Issues  [31]
What is the “putting in issue” exception?  [32]
Is there a “putting in issue” exception in New Zealand?  [36]
Should a “putting in issue” exception be introduced?  [40]
Does s 146 require privilege to be waived?  [50]
Has there been a waiver of privilege in this case?  [55]
Conclusion and costs  [67]
Introduction
[1]        Proceedings relating to the division of Mr and Mrs Shannon’s relationship property are to be heard in May 2005. At the same time, a claim by the Forest Park group of companies against Mrs Shannon and her solicitor Ms Forbes is to be heard. Those companies are claiming compensation, under s 146 of the Land Transfer Act 1952, relating to caveats they say were lodged without reasonable cause by Ms Forbes, on the instructions of Mrs Shannon, against certificates of title of properties registered in the names of companies in the Forest Park group. Mrs Shannon and Ms Forbes deny that the caveats were wrongfully lodged.
[2]        For the purposes of the s 146 claim, the Forest Park group seeks to inspect privileged communications between Mrs Shannon and Ms Forbes concerning instructions given to Ms Forbes relating to the lodging of the caveats. By judgment of 16 August 2004, Potter J dismissed the application for disclosure of these privileged communications. She held both that the privileged communications were not discoverable under a “putting in issue” exception to legal privilege and that Mrs Shannon had not waived privilege. Mr Shannon and the Forest Park group appeal against this decision.
[3]        Potter J’s judgment also struck out the pleadings in proceedings filed by Mr Shannon alleging that a judgment of Cartwright J (as she then was) dealing with the date of Mr and Mrs Shannon’s separation had been obtained by fraud. Mr Shannon’s appeal on that issue was dismissed in our judgment of 14 April 2004.
The legislation
[4]        Section 146 of the Land Transfer Act provides as…

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 Shannon v Shannon

Details

AGLC: Shannon v Shannon [2005] NZCA 91
Case: [2005] NZCA 91
Decision Date: 3 May 2005

CaseChat Overview and Summary

In Shannon v Shannon, the Court of Appeal of New Zealand addressed an appeal against the refusal of the appellants' application for waiver of the first respondent's privilege in caveat proceedings. The appellants, a group of companies, sought compensation from the first respondent, Christine Robyn Shannon, and her solicitor, Christine Forbes, for caveats they claimed were lodged without reasonable cause against properties registered in the names of the appellants' companies. The appellants sought to inspect privileged communications between Mrs Shannon and Ms Forbes concerning the instructions given to Ms Forbes relating to the lodging of the caveats.

The Court of Appeal held that there is no "putting in issue" exception to legal professional privilege in New Zealand. The Court considered that such an exception would involve a balancing exercise that the Privy Council in B v Auckland District Law Society had already performed. The Court also noted that the Law Commission's draft Evidence Code recommended a limited form of the "putting in issue" exception, but its introduction should be left to Parliament.

The Court further held that section 146 of the Land Transfer Act does not require the waiver of legal privilege in this case. The inquiry for a court in any s 146 action is whether, on the objective facts as found to exist at the time the caveat was lodged, that caveat was lodged without reasonable cause. This inquiry does not depend on the instructions given to any solicitor involved. The Court also considered that there has been no actual or implied waiver of privilege in this case.

The Court dismissed the appeal against Potter J's refusal of the application for waiver of privilege. Costs of $4,000, plus reasonable disbursements, were awarded to the first respondent, to be paid by the second, third, and fourth appellants.

Orders