Simunovich Fisheries Ltd v Television New Zealand Ltd
[2008] NZCA 350
•8 September 2008
IN THE COURT OF APPEAL OF NEW ZEALAND
CA447/07
CA584/07
[2008] NZCA 350BETWEENSIMUNOVICH FISHERIES LIMITED, PETER JOHN SIMUNOVICH AND VAUGHAN HILTON WILKINSON
Appellants
ANDTELEVISION NEW ZEALAND LIMITED
First RespondentANDAPN NEW ZEALAND LIMITED
Second RespondentANDBARINE DEVELOPMENTS LIMITED
Third RespondentANDNEIL HUGH PENWARDEN
Fourth Respondent
Hearing:21 and 25 July 2008
Court:Hammond, Chisholm and Miller JJ
Counsel:J G Miles QC, A E L Ivory and M G Keall for Appellants
A R Galbraith QC and T J Walker for First Respondent
B D Gray QC, A L Ringwood and T C Goatley for Second Respondent
J R Billington QC and N C Z Khouri for Third and Fourth Respondents
Judgment:8 September 2008 at 10 am
JUDGMENT OF THE COURT
ATHE APPEAL FROM JUDGMENT NO 7 IS ALLOWED IN PART, WITH THE CONSEQUENCES REFERRED TO IN PARAGRAPHS [102]-[108] AND [126]-[127], AND IS OTHERWISE DISMISSED.
B The appeal from Judgment No 6 is dismissed.
C The appeal from Judgment No 5 is dismissed.
D Counsel may file memoranda as to costs.
____________________________________________________________________
REASONS OF THE COURT
(Given by Miller J)
Table of Contents
Para No
Introduction [1]
JUDGMENT NO 7 [12]
The pleadingsThe second amended statement of claim [13]
TVNZ’s defence [18]
APN’s defence [30]
Barine’s defence [38]The issues for decision [39]
Is s 8(3)(b) available to the respondents? [45]
Section 38 and particulars of true facts [54]
The repetition and conduct rules [60]The parties’ positions [61]
The repetition rule [63]
The conduct rule [75]Do the repetition and conduct rules apply to a plaintiff’s tier 2 imputation? [80]
Relevance of third party statements to plea of truth [81]
The Evidence Act 2006 [83]
The balance between freedom of expression and protection of reputation [88]
Conclusions [93]
Is there an exception for judicial decisions? [95]
Section 38: facts and circumstances [100]
Application of principles to the pleadings [102]
(i) TVNZ [105]
(ii) APN [107]
(iii) Barine [108]The respondents’ obligation to plead facts in support of honest opinion [109]
The legislation [114]
The issues [119]
Whether respondents may plead the opinions or assertions of others [120]
Whether respondents may plead facts not referred to in publication [124]
Application of principles to the pleadings [126]Decision [128]
JUDGMENT NO 6
The discovery application [129]
Category 5 [134]
Category 26 [143]
Decision [148]
JUDGMENT NO 5 [149]
The appeal [156]
Were the draft scripts prepared for the purpose of obtaining legal advice? [159]
Are copies of non-privileged documents privileged in the hands of
legal advisors? [161]
Would disclosure of the draft scripts evidence a privileged
communication? [170]
Decision [172]
COSTS [173]Introduction
[1] Before us are appeals from three interlocutory judgments in this proceeding for defamation and malicious falsehood.
[2] The appellants (the plaintiffs in the High Court) are a fishing company, which held or acquired during the 1990s substantial rights to fish for scampi, and its directors. We will call them “Simunovich” unless it is necessary to distinguish among them. The third and fourth respondents (“Barine”) are a competitor and its director. The second respondent (“APN”) publishes the New Zealand Herald, while the first respondent (“TVNZ”) is a state-owned broadcaster operating the Television One channel.
[3] The allocation of scampi fishing rights was the subject of several proceedings between 1993 and 2002, resulting for present purposes in three judgments of the High Court and one of the Court of Appeal. Each criticised the Ministry of Fisheries in differing ways for its management of the fishery. In one of them, Official Assignee v The Chief Executive of the Ministry of Fisheries [2002] 2 NZLR 722 (CA), Thomas J held (at [97]) that Simunovich in particular had benefited from the Ministry’s unlawful and unfair decisions.
[4] On 24 April 2002, the Right Honourable Winston Peters delivered a speech in the House of Representatives, claiming that Ministry officials were guilty of corrupt practices in their management of the fishery. It appears that his speech was based in substantial part on detailed affidavits and briefing notes provided by Barine in a quest for an official investigation. The deponents included former officials, former Simunovich employees, and other fishers such as Mr Penwarden, the fourth respondent. They alleged that Simunovich had engaged in many unlawful fishing practices over a long period and on a large scale. For example, it was said that since about 1989 Simunovich had instructed its skippers to misreport catch species and quantities to maximise the quota that Simunovich would be entitled to claim when scampi was brought under the quota management system, and had engaged in other unlawful practices such as dumping lower value species. The deponents alleged that Ministry officials had actively assisted Simunovich in its efforts to exclude others from the fishery, facilitated its unlawful practices, and refused to investigate cogent allegations against it.
[5] The allegations resulted in several inquiries. At the instance of the Ministry and subsequently the Solicitor-General, a barrister, Peter Andrew, reported on 15 August and 2 October 2002 into allegations of corruption against two named Ministry officials. On 30 October 2002, the Primary Production Select Committee resolved to hold an inquiry into possible corruption at the Ministry. It reported in December 2003. On 14 November 2002, the State Services Commissioner appointed another barrister, Helen Cull QC, to inquire into the management of the scampi fishery. She reported on 25 May 2004.
[6] In the meantime, on 29 October 2002 TVNZ screened an “Assignment Special” programme on Television One, while it is said that the Herald published ten related articles between 4 May 2002 and 1 February 2003. These publications, together with the Barine affidavits and briefing notes, are the subject of the proceeding. It is said that each of them was capable of carrying one or more of five defamatory meanings imputing dishonest and corrupt conduct to Simunovich. To a number of these meanings TVNZ, APN, and Barine variously plead truth and honest opinion.
[7] Damages of some $30 m are claimed. Much of that sum comprises special damages representing economic loss said to result from Simunovich concentrating on the inquiries at the expense of the fishing business.
[8] Judgment No 5, delivered on 10 July 2007, dealt with TVNZ’s claim to legal professional privilege for the surviving copies of draft scripts of the Assignment programme, which were held by TVNZ’s solicitors, Simpson Grierson. Allan J upheld the claim to privilege.
[9] Judgment No 6, delivered on 3 August 2007, concerned the respondents’ applications for further and better discovery covering some thirty categories of documents relating to the economic loss claims. Those applications substantially succeeded.
[10] In his Judgment No 7, also delivered on 3 August 2007, Allan J addressed Simunovich’s challenge to the truth and honest opinion defences. Simunovich’s principal complaint was that the respondents pleaded the opinions and allegations of third parties as facts in support of the defences. The Judge held that the opinions of others could be pleaded as “circumstances” under s 38 of the Defamation Act 1992 but not as primary facts.
[11] It is convenient to deal with Simunovich’s appeals against each of the judgments in descending numerical order.
JUDGMENT NO 7
[12] It is necessary to refer to the structure and some illustrative detail of the claim and the defences to explain Simunovich’s appeal. We do so (at the invitation of counsel and without objection) by reference to Simunovich’s second amended statement of claim and amended statements of defence filed following Allan J’s judgment. The Judge required that the amended statements of defence separate particulars into facts on the one hand, and circumstances on the other, but they are otherwise little altered from those considered in the High Court.
The pleadings
The second amended statement of claim
[13] The second amended statement of claim, dated 17 October 2005, is a lengthy and complex document. It pleads eight causes of action. Each is particularised by reference to four schedules; they detail respectively statements taken from the Assignment programme, an affidavit by Yvonne Dossetter,, the ten Herald articles, the nine affidavits sworn for Barine, and briefing notes. A transcript of the Assignment programme, copies of the Herald articles, and copies of the affidavits were attached to the statement of claim. Various statements in these documents are highlighted. For example, the headline “Papers allege top-level fraud within Ministry of Fisheries” is highlighted in a Herald article of 4 May 2002. The statement of claim pleads that those parts of the programme transcript, articles, or affidavits that have been highlighted were false and defamatory. In the case of the Herald, the highlighted parts of the articles are also said to be defamatory when read in the context of all of the articles. In Barine’s case, the affidavits as a whole are said to be defamatory, and the highlighted parts are said to be defamatory when read in the context of the affidavits individually and as a whole.
[14] The highlighted statements are tabulated in the schedules, which attribute one or more of five defamatory meanings by reference both to each highlighted statement in isolation and to the statement when read in the context of other highlighted statements attributed to the relevant defendant and the source document (the programme transcript, articles, or affidavit) as a whole.
[15] The respondents deny the defamatory meanings and plead a number of defences. We are concerned only with the truth and honest opinion defences, but we record that the respondents also say that some of the defamatory statements are covered by statutory and common law qualified privilege. TVNZ and APN further say that, having regard to privileged disclosures such as those of Mr Peters, their own publications caused Simunovich no loss.
[16] Each respondent has taken a different approach to pleading truth under s 8(3)(a) and (b) of the Defamation Act 1992 and honest opinion under ss 9-12. The five defamatory imputations and the associated truth and honest opinion pleadings can be summarised in tabular form:
Imputation
Truth s8(3)(a)
Truth s8(3)(b)
Honest opinion s 9-12
1. That the three plaintiffs in concert or each of them were guilty of long-standing corrupt actions with senior personnel at the Ministry of Agriculture and Fisheries/Ministry of Fisheries.
Tier 1
TVNZ Barine
APN Barine
2. The second and third plaintiffs were each or both of them corrupt and dishonest businessmen.
Tier 1
APN
TVNZ Barine
APN Barine
3. In the alternative there were serious grounds for believing that each or all of the three plaintiffs were guilty of long-standing corrupt actions with senior personnel at the Ministry of Agriculture and Fisheries/Ministry of Fisheries; or
Tier 2
TVNZ APN
TVNZ Barine
TVNZ APN Barine
4. In the alternative there were serious grounds for believing that each or both of the second and third plaintiffs were corrupt and dishonest businessmen.
Tier 2
TVNZ APN
TVNZ Barine
TVNZ APN Barine
5. The three plaintiffs in concert or each of them committed or were responsible or were parties to serious criminal or fraudulent activities arising out of the plaintiffs’ involvement in scampi fishing.
Tier 1
APN
TVNZ Barine
APN Barine
[17] It will be seen that imputations 3 and 4 allege that the publications meant there were serious grounds to believe Simunovich was corrupt. These are conveniently called “tier 2” meanings, while imputations 1, 2, and 5 are “tier 1” meanings. That terminology was adopted by Allan J following English cases that have recognised three categories of defamatory allegations: statements of fact; claims that there were reasonable grounds for believing the statement of fact to be true; and claims that there were grounds for investigating whether the statement of fact is true. These are tier 1, 2, and 3 meanings respectively. In Chase v Newsgroup Newspapers Limited [2003] EMLR 11 (CA), Brooke LJ explained this categorisation (at [45]):
The sting of a libel may be capable of meaning that a claimant has in fact committed some serious act, such as murder. Alternatively it may be suggested that the words mean that there are reasonable grounds to suspect that he/she has committed such an act. A third possibility is that they may mean that there are grounds for investigating whether he/she has been responsible for such an act.
TVNZ’s defence
[18] As noted (at [16] above), TVNZ pleads truth under s 8(3)(a) in answer to the tier 2 imputations only (numbers 3 and 4). It pleads in the alternative in relation to all five defamatory imputations under s 8(3)(b) that the broadcast as a whole was in substance true or not materially different from the truth. It also pleads honest opinion in answer to the tier 2 imputations. Following the High Court judgment, TVNZ has separately pleaded ‘facts’ and ‘circumstances’ in support of each of the truth defences under s 8(3)(a) and (b).
[19] In support of its s 8(3)(b) defence, TVNZ attaches five schedules that are said to be statements of fact. Those are Schedules I, II, V, VI and VII. Schedule I is said to comprise those statements in the broadcast that TVNZ says were statements of fact (at [35] of TVNZ’s amended statement of defence). TVNZ does not expressly plead that these statements of fact were true; rather, Schedule I appears to be a list of all statements of fact in the programme. Schedule I includes what Mr Miles QC accepted were primary facts, such as:
The scampi fishery is administered by the Ministry of Fisheries.
as well as allegations that he objected to on the grounds that they were hearsay or opinion, such as:
We’ve been told one of [Vaughan Wilkinson’s] last jobs at the Ministry was to guide Simunovich through the process of obtaining a permit to fish for scampi.
And
Dave Patterson says in his affidavit that he and fellow skippers were ordered by Simunovich to misreport catches so that the company could make more money….
TVNZ’s evident purpose is to put in issue, in aid of its truth defence, the fact that other people believed or claimed that Simunovich had acted unlawfully.
[20] Schedule II sets out particulars of what is said to be an insufficiently arms-length relationship between Simunovich and the Ministry to the detriment of other fishers. No issue is taken with this schedule.
[21] Schedule V summarises affidavit evidence provided to TVNZ prior to broadcast of the Assignment programme. The deponents are listed, and it is said (using [3.1] of Schedule V by way of example) that “[t]he Barine affidavits alleged amongst other things [that] Simunovich had purposefully misreported catch of other species as scampi in order to inflate catch histories in the critical period”. Further particulars of that allegation are given by reference to parts of the affidavits. The first such particular refers to [3]-[5] of the affidavit of Michael Claudatos, a commercial fisherman. When reference is made to that affidavit, it may be seen that Mr Claudatos deposes to admissions made in, he believes, 1997 by a Simunovich skipper, Wayne Crapper. He recounts a conversation in which Mr Crapper explained that on Mr Wilkinson’s instructions he had exceeded Simunovich’s catch rights in one area of the fishery and had packed bycatch as scampi, covering it with one layer of scampi at the top of each carton. Much of this affidavit material in Schedule V is objected to on the grounds that it is hearsay, opinion, conclusory, or lacks specificity.
[22] Schedule VI is a list of deponents and others who were interviewed for the purposes of the programme. TVNZ relies on the contents of those interviews as broadcast, as if pleaded in full. Details are not given in the pleading. Counsel for Simunovich objects on the ground that TVNZ is pleading the fact that some deponents repeated their allegations when interviewed, and the fact that the remaining interviewees, mostly lawyers for various parties, expressed opinions based on the opinions or allegations of others.
[23] Schedule VII addresses involvement by Simunovich in illegal fishing activities. It alleges that Simunovich gave instructions to leave catch details blank on catch returns (to enable completion of false details), to misreport species and the weight of fish caught, to dump catch and not report it, to conceal catch, and to destroy documentary evidence of actual catch, and that it also submitted inaccurate returns to the Ministry. Many of these particulars Mr Miles accepted; others were said to lack details of when, by whom, and to whom such instructions were given.
[24] In relation to its defence under s 8(3)(a), TVNZ relies on facts pleaded in Schedules II and V.
[25] TVNZ also relies on “circumstances” in support of the truth defence under s 8(3)(b); they are recounted in Schedules III, IV and VIII. In relation to s 8(3)(a), it relies on circumstances pleaded in Schedules III, IV, V, VI, VII and VIII..
[26] Some of these schedules have already been described. Schedule III refers to the judgments of the High Court and Court of Appeal in scampi litigation between 1993 and 2002. TVNZ pleads the findings and not merely the fact that the judgments were issued. For example, it pleads that in Official Assignee v The Chief Executive of the Ministry of Fisheries, Thomas J held that the Ministry appeared to have been all too ready to build on past errors and injustices and to rely on adopting a new regime to overcome problems caused by earlier mismanagement. Mr Miles objected to these particulars on the ground that the Court findings are merely expressions of opinion for the purposes of this proceeding. He maintained that if the defendants wish to argue that the Ministry acted unreasonably they must assert and prove it. By relying on the Court decisions in this way, he argues, TVNZ seeks to force Simunovich to prove that the Judges were wrong.
[27] Schedule IV refers to allegations made in Parliament and elsewhere by Mr Peters. The tenor is captured at [2.4] of Schedule IV:
The Ministry of Fisheries is guilty of condoning corruption, aiding and abetting corruption and involving itself in corruption. ..I will produce documentary evidence that the Ministry of Fisheries knew full well about and condoned the misreporting of, for example, species catch history, and that it knowingly condoned the evading of catch history records, whilst advising others in the industry that catch history would be irrelevant.
These particulars Mr Miles viewed as a particularly extravagant and unreliable form of hearsay.
[28] Schedule VIII refers to the reports of Mr Andrew dated 15 August 2002 and 2 October 2002. The pleading does not appear to allege that TVNZ had copies of these reports when the Assignment programme was broadcast. In the earlier report, Mr Andrews was asked to advise on the nature of allegations against two fisheries officials and whether any further action ought to be taken. He concluded in his first report that the allegations ought to be formally investigated and could not be understood without considering the allegations directed at Simunovich, which he summarised and which are repeated in Schedule VIII. In his second report, Mr Andrews advised that he saw no proper basis for doubting the explanation put forward by the two fisheries officials concerned; however, he recorded that neither of the officials sought expressly to deny that Simunovich was involved in illegal fishing, and that in other respects they tended to confirm some of the allegations made in the Barine affidavits. Objection is taken to these particulars on the ground that the reports are mere opinion.
[29] Turning to honest opinion, TVNZ pleads that if the Assignment programme carried imputed meanings 2 and 3, such meanings were conveyed as expressions of opinion. TVNZ pleads the facts in Schedule I, and relies on Schedules III, IV, V and VI. In other words, it relies on all the facts said to have been stated in the programme together with the judicial findings, Mr Peters’ statements, the affidavits, and the interviews.
APN’s defence
[30] APN pleads that if any of the publications have any of the imputed meanings 2 to 5, then those meanings were true or not materially different from the truth (at [32] of its amended statement of defence). As mentioned, it does not invoke s 8(3)(b). The facts and circumstances on which it relies in support of the truth defence are set out in Schedule A. Simunovich complains that APN, like TVNZ, has failed to plead those facts in the publications that it says are true.
[31] Schedule A is divided into parts dealing with each of the four imputations. In relation to imputation 2, APN pleads, for example, that Simunovich and its directors were parties to corrupt and dishonest business practices, which are listed. The first is instructing skippers not to complete Catch Landing Returns with the intention that these returns would later be falsified. Particulars are given of specific incidents. No objection is taken to a number of these particulars, such as [1(a)(i)]:
In or about 1989 the third plaintiff directed a skipper employed by the first plaintiff, Mr David Patterson, to leave the catch details on the Catch Landing Returns blank.
Other particulars, such as the following, are said to want for details of dates and participants:
Mr Wayne Crapper … did not complete Catch Landing Returns … but instead provided signed blank Catch Landing Returns to an employee of the first plaintiff for completion
[32] Other particulars given in relation to imputation 2 include falsifying the area that vessels were working, misreporting species caught, under-reporting catches, making improper use of advance warning of inspections, and destroying evidence. The same particulars are relied upon in relation to imputation 5.
[33] In answer to the two tier 2 imputations, APN pleads facts and circumstances, separating the two as required by the Judge. Mr Miles submits that the facts as detailed in [2.1] of Schedule A make it plain that APN rely on the assertions or expressed opinions that others made about Simunovich. They include the fact that the High Court and Court of Appeal had made various findings adverse to the Ministry, the fact that various deponents who were in a position to know or have proper grounds for believing that what they said was true had sworn affidavits the details of which are summarised, the fact that Mr Peters made a number of statements during the Parliamentary debate on 24 April 2002 and subsequently (these statements are summarised), the fact that the Solicitor-General had instituted an inquiry, the fact that the Serious Fraud Office had considered investigating the allegations, and in respect of the Herald publications after 29 October 2002, the fact that TVNZ had undertaken its investigation and broadcast the Assignment programme. Also included is an allegation that the Herald’s reporter had ascertained certain facts during the investigation: for example, the fact that Mr Nalder, a former fisheries official, had confirmed to the reporter that he had investigated Simunovich. To most of these allegations objection is taken; they are variously said to be hearsay and opinion. Mr Miles accepted others, such as an allegation that Mr Wilkinson worked for the Ministry and had a close working relationship with certain officials.
[34] Examples of the challenged particulars given by APN in answer to the tier 2 imputations are:
a)“The fact that after hearing evidence and submissions the High Court had held … that MAF policy makers failed to manage the developing fishery in such a way that was fair to all fishers”;
b)“The fact that Ronald Ian Chadwick swore an affidavit” deposing to various matters including the statement that the “actions of Head Office were successful in ensuring that a major investigation of Simunovich did not take place.” The pleading goes on to allege that Mr Chadwick was a credible source of information. The affidavits of other unnamed deponents are also summarised;
c)“The fact that Mr Nalder confirmed to the Herald’s reporter that after he left the Ministry his file on Simunovich Fisheries Ltd disappeared from a locked drawer in his desk at the Auckland office of the Ministry.”
[35] The circumstances relied upon are set out in [2.2] of Schedule A. They include matters set out in judgments of the High Court and Court of Appeal, which are summarised in the pleading, statements made by Mr Peters in Parliament, and information received from the Ministry of Fisheries under the Official Information Act 1982. The last of these categories is particularised extensively by reference to allegations that had been made to the Ministry about Simunovich’s activities. APN further refers to TVNZ’s Assignment programme and relies on a transcript of the programme. Lastly, it pleads various matters ascertained by its reporter during his investigations, such as that the third and fourth respondents felt they were “hard done by” in relation to the scampi fisheries and felt that Simunovich had received favourable treatment, and the fact that the reporter was told by a source that Simunovich mislabelled fish to the Ministry’s knowledge but was not prosecuted. These particulars are also the subject of objection.
[36] Turning to honest opinion, APN pleads that if any of five specified highlighted statements in Simunovich’s second amended statement of claim had any of the defamatory imputations 1 to 5, then such meaning was conveyed as an expression of the honest opinion of a third party on one or more matters of public interest. By way of example:
a)The highlighted statement 7/5 refers to the Ministry’s denial of allegations of corruption and the following statement of Sir Geoffrey Palmer (acting as an advisor to Barine), who was said to have seen some of the documents:
I felt that either there was incompetence here – and that’s always possible, I regret to say – or there was something worse that needed to be investigated
b)The highlighted statement 12/3 refers to the 15 August 2002 report of Mr Andrew, with the conclusion that there was sufficient substance to justify real concern and his statement that:
There is reasonable evidence of serious illegal fishing by Simunovich and evidence that the Auckland office had taken significant steps towards investigating these illegal activities… There are real questions raised as to why investigations were not continued and criminal proceedings brought.
[37] In support of the honest opinion defence, APN relies on facts and circumstances in Schedule B, which sets out in tabular form the highlighted statement pleaded by Simunovich, the author of the opinion, the true facts relied on by APN in the context of the article as a whole, and the “true facts relied on when taken together with other highlighted statements identified in Schedule 3 of the second amended statement of claim”. Much of this Mr Miles found unobjectionable. In relation to each of the statements pleaded by Simunovich, Schedule B incorporates by cross-reference all of the matters set out in [2] of Schedule A, but Mr Gray QC acknowledged that these cross-references will be deleted and we say no more about them. Mr Miles also submitted that many of the particulars given in the fourth column are objectionable because they were neither referred to in the publications nor publicly notorious at the time.
Barine’s defence
[38] Barine’s statement of defence is direct and concise by comparison. With respect to the defence of truth, it invokes s 8(3)(b) only. The facts relied upon by Barine are set out at [87.1] to [87.7] of its amended statement of defence. [87.8] pleads the circumstances relied upon, but it is confined to critical findings made by the High Court and Court of Appeal about the relationship between Simunovich and the Ministry. Mr Miles’ principal complaint about the pleading was that Barine cannot plead s 8(3)(b) because to do so in the circumstances of this case is tantamount to asserting the truth of an imputation not pleaded by Simunovich. He also argued that some of the particulars lack details of who issued instructions, to whom, and when. In support of the defence of honest opinion, Barine adds in [88] a series of particulars of illegal fishing activities, the close relationship between Mr Wilkinson and the Ministry, the advantageous treatment of Simunovich by the Ministry, the Ministry’s failure to monitor and investigate Simunovich, and the Court decisions. There is no appeal against the Judge’s findings in Judgment No 7 affecting Barine’s honest opinion defence.
The issues for decision
[39] The issues that we address in this judgment are:
a)Whether TVNZ and Barine may plead truth under s 8(3)(b) of the Defamation Act and particularly whether s 8(3)(b) is available to a defendant only in a ‘pick and choose’ case;
b)The facts and circumstances that a defendant who asserts truth must or may plead, specifically:
i)The scope of a defendant’s obligation under s 38 of the Defamation Act to plead facts alleged to be true, and the facts and circumstances relied on to show those facts are true;
ii)Whether the repetition and conduct rules apply to tier 2 imputations in New Zealand;
iii)Whether there is an exception to the repetition rule for judicial decisions;
iv)Whether s 38 allows a defendant to plead the opinions and assertions of third parties in support of a truth defence.
c)The facts and circumstances that a defendant who asserts honest opinion must or may plead, specifically:
i)Whether a defendant may plead the opinions or assertions of others, whether as publication facts or as supporting facts and circumstances;
ii)Whether a defendant may plead facts and circumstances that are neither referred to in the publication nor publicly known, and which may post-date the publication.
[40] Mr Miles accepted that some of these issues were raised obliquely, or not at all, in Simunovich’s Notice of Appeal. Rather, the issues were developed in the statement of issues and written submissions. To some extent, the Notice of Appeal simply complains that the Judge failed to make formal orders reflecting his reasons. (He left it to the parties to ask for formal orders, then recorded the formal orders that he was prepared to make in a minute that Simunovich characterises as incomplete.) In other respects, it asserts that the Judge was wrong to refuse to strike out specified paragraphs without identifying what exactly was in issue. The Notice of Appeal is obscure and unhelpful. There was no dispute, however, that it does not include, so far as APN is concerned, much of Simunovich’s attack on [2] of Schedule A and, so far as Barine is concerned, the claim that Barine may not rely on s 8(3)(b) and the complaint that the particulars of the truth defence are inadequate.
[41] Mr Gray took the point, and focused his written submissions on the Notice of Appeal. He also pointed out that some of the issues were not fully argued in the High Court, where Allan J observed that Mr Miles’ submissions relating to APN’s honest opinion defence were very brief. The Judge plainly felt that he received insufficient assistance from counsel.
[42] However, we think it is necessary to examine these issues now; they were addressed in the High Court judgment, including APN’s honest opinion defence which Mr Gray argued at some length although Mr Miles did not, notice of them was given in the written submissions, and they are important issues that affect the scope of the litigation and in respect of which we think a decision of this Court is necessary. Our reasons for judgment on the issues that have been raised unavoidably affect other parts of the pleadings. Mr Galbraith QC also accepted pragmatically that we might deal with the issues, and our decision on the appeal against TVNZ’s pleading inevitably affects APN’s and to a lesser extent Barine’s. Accordingly, we elected to deal with the issues under r 48 of the Court of Appeal (Civil) Rules 2005 and gave leave to file further submissions.
[43] The grounds of appeal and submissions raised the absence of details in some particulars, notably names and dates. We do not address those matters in detail in this judgment, for several reasons. The appeal is brought in part against a refusal to strike out, yet striking out is inappropriate here because it is not evident that the matters complained of are “incurably bad’: McDonald’s Corp v Steel [1995] 3 All ER 615 at 623 (CA). The defence must be supported by particulars complying with R130(5) and serious allegations of dishonesty require full particulars, but we were advised that inspection is incomplete and we were told that particulars will be given once that has been done. To the extent that the appeal seeks further particulars rather than striking out, the Judge did not deal with the details complained of in his reasons for judgment or formal orders. In his reasons, he contemplated rather that the parties would return for a further hearing should they be unable to resolve the remaining differences. So we would be addressing the adequacy of particulars as a matter of first impression.
[44] Mr Miles’ preferred course was that we should deal with the issues of principle in this judgment, giving leave to return to this Court should further orders be necessary. Indeed, he did not seek to list all of the particulars of truth and honest opinion to which he took exception. We agree with that two-step approach but it is neither practical nor appropriate to return to this Court. For reasons given below, our findings on the issues listed above (at [39]) will necessitate repleading by the respondents in any event, and it is appropriate that the particulars be addressed by the High Court after that is done. Accordingly, insofar as the appeal addressed other aspects of the pleadings and the High Court judgment it will be dismissed.
Is s 8(3)(b) available to the respondents?
[45] Section 8 of the Defamation Act provides:
8 Truth
(1) In proceedings for defamation, the defence known before the commencement of this Act as the defence of justification shall, after the commencement of this Act, be known as the defence of truth.
(2) In proceedings for defamation based on only some of the matter contained in a publication, the defendant may allege and prove any facts contained in the whole of the publication.
(3) In proceedings for defamation, a defence of truth shall succeed if—
(a) The defendant proves that the imputations contained in the matter that is the subject of the proceedings were true, or not materially different from the truth; or
(b) Where the proceedings are based on all or any of the matter contained in a publication, the defendant proves that the publication taken as a whole was in substance true, or was in substance not materially different from the truth.
[46] Mr Miles argued that the respondents may not plead s 8(3)(b), because Simunovich relies on the whole of the publications. In those circumstances, to allow a defendant to plead s 8(3)(b) would be to permit it to establish truth by reference to a lesser meaning than that pleaded by Simunovich, contrary to the long-established rule in New Zealand that a defendant who pleads truth must do so by reference to the particular imputations pleaded by the plaintiff. He argued that Barine may not plead s 8(3)(b) at all and, somewhat inconsistently since the same rule must apply to both respondents, that TVNZ may not plead it in the alternative to s 8(3)(a).
[47] The Judge rejected the argument that TVNZ cannot plead both limbs of s8(3), following the judgment of this Court in Television New Zealand Ltd v Haines [2006] 2 NZLR 433. He cited a passage from the judgment of Robertson J, for the Court:
[45] Section 8(2) makes it clear that, if a plaintiff complains of only part of a publication, the defendant may prove the truth of any facts contained in the whole of the publication to show the context of the statement complained of. This subsection, coupled with s 8(3)(b), means that Templeton v Jones is no longer good law in New Zealand.
[46] Section 8(3) sets out the substantive truth defence. The important thing to note is that the defence of truth may now be proved in two different ways. Paragraphs (a) and (b) of s 8(3) provide alternatives. Under paragraph (a), a defendant will avoid liability if it proves that the imputations pleaded were true or not materially different from the truth. We discuss later whether a defendant is limited under this paragraph to the imputations pleaded by the plaintiff. Alternatively, under s 8(3)(b) a defendant can avoid liability if it proves that the publication taken as a whole was in substance true or was in substance not materially different from the truth. These two different methods of proving truth must be separately pleaded and will be the subject of separate directions by the Judge to the jury.
[48] The Court plainly envisaged that both defences might be put to the jury. As Allan J noted in Judgment No 7 (at [19]), the plaintiffs in Haines pleaded that the whole of the broadcast in question carried certain meanings. It was not, in other words, a ‘pick and choose’ case, in which the plaintiff isolates certain statements and alleges that they alone carry the defamatory meaning. He also observed that although Simunovich says it relies upon the entire Assignment programme, it has identified relevant portions of the programme (presumably referring to the highlighted statements) to the exclusion of others (at [21]). The s 8(3)(b) pleading was not inconsistent with TVNZ’s plea of truth to two of the five imputations pleaded in reliance on some, but not all, of the programme. He did not address Simunovich’s pleading against Barine; it appears that the argument in the High Court may have focused on TVNZ alone.
[49] We agree with the Judge that Simunovich pleads particular parts of the TVNZ and Barine publications, pleading in TVNZ’s case that the highlighted parts have the five defamatory meanings and in Barine’s case that they have the same meanings when read in the context of the affidavits taken individually and together. That is, it is at least to some extent a ‘pick and choose’ case.
[50] Simunovich’s argument also encounters more fundamental difficulties. Section 8(3)(b) provides that where the proceedings are based on all or any of the matter contained in a publication, the defence succeeds if the defendant proves that the publication as a whole is in substance true or not materially different from the truth. Accordingly, the defence is not on its face confined to ‘pick and choose’ cases.
[51] Mr Miles argued that it is necessary to place a gloss on the statutory language to preserve the principle that a defendant who wishes to plead the truth of a defamatory imputation must do so by reference to the imputation pleaded by the plaintiff and not some other or lesser meaning. But this Court observed in Haines, after examining s 8 and the legislative history, that the two limbs of s 8(3) serve different purposes. The first limb allows the defendant to prove that the imputations pleaded by the plaintiff were true, or true in substance. It remains the law that a defendant who pleads truth under s 8(3)(a) cannot set up alternative meanings and prove the truth of those meanings: Haines at [55]-[59]. That is so because the defendant must answer the plaintiff’s pleading, and because a parallel inquiry into a meaning not asserted by the plaintiff would complicate the jury’s task. The second limb allows the defendant to show that any defamatory imputations in the publication caused no injury to reputation because the publication as a whole was in substance true or not materially different from the truth.
[52] Mr Miles invited us to distinguish Haines, arguing that the Court’s conclusion that a defendant may plead both limbs of s 8(3) was obiter because the issue was whether TVNZ had the right to set up and prove lesser meanings. It is true that the question was whether it is open to a defendant to set up lesser meanings under s 8 of the Defamation Act, contrary to the rule affirmed in Broadcasting Corporation of New Zealand v Crush [1988] 2 NZLR 234 (CA). But to answer that question the Court had to examine the purpose served by both limbs of s 8(3). We observe too that TVNZ pleaded both limbs in Haines. The Court’s conclusion was not obiter, and we decline to distinguish it. We conclude that TVNZ and Barine may plead s 8(3)(b), with or without s 8(3)(a).
[53] This conclusion is not intended to affect Allan J’s ruling (at [43]–[44]) that Simunovich is entitled to a clearly defined set of particulars for each of the s 8(3)(a) and s 8(3)(b) defences.
Section 38 and particulars of true facts
[54] Section 38 of the Defamation Act provides:
38 Particulars in defence of truth
In any proceedings for defamation, where the defendant alleges that, in so far as the matter that is the subject of the proceedings consists of statements of fact, it is true in substance and in fact, and, so far as it consists of an expression of opinion, it is honest opinion, the defendant shall give particulars specifying—
(a) The statements that the defendant alleges are statements of fact; and
(b) The facts and circumstances on which the defendant relies in support of the allegation that those statements are true.
[55] The first question is whether s 38 has any relevance to this case. It is addressed to the ‘rolled up’ plea, in which a defendant pleads truth and honest opinion in the one averment. The respondents have not pleaded in that way; indeed s 40 provides that a defendant who intends to plead truth and honest opinion must do so separately. The issue assumes significance because of the phrase “facts and circumstances” in s 38(b). The Judge relied upon that phrase to allow the respondents to plead the opinions and assertions of others in support of the truth defence, as circumstances but not as primary facts.
[56] Mr Miles accepted that s 38 generally describes the pleading obligations of a defendant who asserts either truth or honest opinion. Mr Galbraith equivocated. Mr Gray was not disposed to agree, but properly drew our attention to this Court’s bare statement in Haines (at [101]) that s 38 does apply to a defence of truth. The same approach was taken in Television New Zealand Limited v Ah Koy [2002] 2 NZLR 616 (CA), the Court holding at [15], without discussion, that a defendant must provide particulars of the “facts and circumstances” on which it relies in support of a defence of truth.
[57] We consider that s 38 does record the obligations of a defendant who pleads truth. That is the established view, reflected in this Court’s decisions in Ah Koy and Haines, and Mr Miles conceded that it is correct. The section requires that the defendant identify those statements that it says are true statements of fact and the further facts and circumstances it relies on to prove those facts. We accept that the legislature must have contemplated that the same obligation would apply to separate truth and honest opinion defences.
[58] Counsel agreed that the purpose of particulars of truth in a defamation action was explained by Tipping J in Ah Koy:
[17] One of the purposes of particulars is to enable the plaintiff to check the veracity of what is alleged; another is to inform the plaintiff fully and fairly of the facts and circumstances which are to be relied on by the defendant in support of the defence of truth; yet another is to require the defendant to vouch for the sincerity of its contention that the words complained of are true by providing full details of the facts and circumstances relied on. It can be seen that against each of these three purposes the particulars provided by TVNZ fall well short of being sufficient. It should be mentioned that a further purpose of particulars is that a defendant at trial is not usually permitted to lead evidence of facts and circumstances beyond those referred to in the particulars. In Zierenberg v Labouchere [1893] 2 QB 183 at p 186 Lord Esher MR said that a plea of justification (now of truth) without sufficient particulars was invalid and that this had been the law “from the earliest times”. As [Gatley on Libel and Slander (4ed 1998)] says at para 27.10, it is arguable that in these circumstances there is no plea of justification on the record. On that basis a plea of truth without sufficient particulars would be at risk of being struck out.
[59] However, the issue in this case is not what particulars the respondents must plead to fully and fairly inform Simunovich and the Court of their defences, but whether the particulars they want to plead are relevant to those defences. Particulars must be relevant and capable of establishing the truth of the defamatory statements. If they are not, then they are at best redundant and at worst apt to lead the jury into error. They may be struck out if they are irrelevant, vague, or embarrassing, or so prolix that they are likely to delay the fair trial of the proceeding: Halsbury’s Laws of England (28 Halsburys 4ed Reissue) at [190].
The repetition and conduct rules
[60] The question whether the phrase “facts and circumstances” allows a defendant to prove facts by showing that others alleged or opined that the defamatory statement was true requires that we examine the status of the repetition and conduct rules in New Zealand law and their application to tier 2 imputations. The repetition rule provides that a defendant who has repeated a defamatory allegation cannot succeed in justifying it by proving the fact that the allegation has been made, but must prove the truth of the underlying allegation. The conduct rule provides that it is normally necessary to plead facts tending to show that it was some conduct on the plaintiff’s part that led to the defamatory statement.
The parties’ positions
[61] Mr Miles contended that the repetition and conduct rules apply in New Zealand, relying on English authorities. Accordingly, a defendant may not plead the fact that another person claimed the defamatory statement was true, and particulars of the defence must focus on some conduct of the plaintiff. There is no authority in England or New Zealand that a defendant may establish truth by pleading the hearsay statements or opinions of others. Rather, “circumstances” in s 38 adds nothing to “facts”. A defendant must plead primary facts where a tier 1 or 2 imputation is pleaded, but in the latter case the defendant need prove the primary facts to a lesser standard, that of reasonable grounds to suspect. The opinions and assertions of others cannot logically prove the truth of an imputation, even in a tier 2 case. In the High Court, the Judge accepted most of these principles but allowed the respondents to plead hearsay and opinion as circumstances, if not as facts.
[62] Mr Galbraith and Mr Gray argued that the English cases in which the repetition rule is explained must be approached with care. In England a defendant may plead and prove a lesser meaning (known as a Lucas-Box meaning, based on Lucas-Box v News Group Newspapers Ltd [1986] 1 WLR 147) in answer to a defamatory imputation, and the status of the repetition rule is controversial. The law of privilege also differs. The repetition rule is a rule of relevance, and it is now possible to lead hearsay evidence in New Zealand under the Evidence Act 2006. The statutory context differs from English law: “circumstances” must add something to “facts”, and the Defamation Act must be interpreted in accordance with the New Zealand Bill of Rights Act 1990. Counsel accepted that the repetition rule is part of New Zealand law, but argued that this Court is free to recognise that a defendant may rely on the statements of others in support of a truth defence to a tier 2 imputation, because the point has not been considered previously. Findings made in judgments of the Courts and statements in the House must be capable of providing serious grounds for belief, and the respondents should be entitled to tell the jury what was in their minds when they published their stories. Mr Billington QC added economically that [87.8] of Barine’s amended statement of defence (which refers to the Court decisions) is a fact that has been pleaded as a circumstance only because the Judge required it.
The repetition rule
[63] In Musa King v Telegraph Group Ltd [2004] EWCA 613 at [22], the English Court of Appeal quoted with apparent approval a series of principles adopted by Eady J at first instance. The principles are applicable to a defence of justification where the defamatory imputation pleaded is one of “reasonable grounds to suspect”. They include the repetition and conduct rules:
(1)There is a rule of general application in defamation (dubbed the "repetition rule" by Hirst LJ in Shah) whereby a defendant who has repeated an allegation of a defamatory nature about the claimant can only succeed in justifying it by proving the truth of the underlying allegation – not merely the fact that the allegation has been made;
(2)More specifically, where the nature of the plea is one of "reasonable grounds to suspect", it is necessary to plead (and ultimately prove) the primary facts and matters giving rise to reasonable grounds of suspicion objectively judged;
(3)It is impermissible to plead as a primary fact the proposition that some person or persons (eg law enforcement authorities) announced, suspected or believed the claimant to be guilty;
(4)A defendant may (for example, in reliance upon the Civil Evidence Act 1995) adduce hearsay evidence to establish a primary fact – but this in no way undermines the rule that the statements (still less beliefs) of any individual cannot themselves serve as primary facts;
(5)Generally, it is necessary to plead allegations of fact tending to show that it was some conduct on the claimant's part that gave rise to the grounds of suspicion (the so-called "conduct rule").
(6)It was held by this court in Chase at [50] – [51] that this is not an absolute rule, and that for example "strong circumstantial evidence" can itself contribute to reasonable grounds for suspicion.
(7)It is not permitted to rely upon post-publication events in order to establish the existence of reasonable grounds, since (by way of analogy with fair comment) the issue has to be judged as at the time of publication.
(8)A defendant may not confine the issue of reasonable grounds to particular facts of his own choosing, since the issue has to be determined against the overall factual position as it stood at the material time (including any true explanation the claimant may have given for the apparently suspicious circumstances pleaded by the defendant).
(9)Unlike the rule applying in fair comment cases, the defendant may rely upon facts subsisting at the time of publication even if he was unaware of them at that time.
(10)A defendant may not plead particulars in such a way as to have the effect of transferring the burden to the claimant of having to disprove them.
[64] The principles were derived by counsel in Musa King from the leading authorities, including Stern v Piper [1997] QB 123 (CA), in which Simon Brown LJ held (at 135-136):
The repetition rule ... is a rule of law specifically designed to prevent a jury from deciding that a particular class of publication - a publication which conveys rumour, hearsay, allegation, repetition, call it what one will - is true or alternatively bears a lesser defamatory meaning than would attach to the original allegation itself. By definition, but for the rule, those findings would otherwise be open to the jury on the facts; why else the need for a rule of law in the first place?
[65] In another of those authorities, Shah v Standard Chartered Bank [1999] QB 241 (CA), Hirst LJ held (at 263) that the rule “reflects a fundamental canon of legal policy in the law of defamation dating back nearly 170 years, that words must be interpreted, and the imputations they contain justified, by reference to the underlying allegations of fact and not merely by reliance upon some second-hand report or assertion of them”. The rule governs not merely meaning but also pleading and proof of a defence of justification.
[66] The English Court of Appeal has recognised that under the modern law of evidence, hearsay evidence may now be deployed, in theory, to prove the truth of the particulars of justification: Chase at [39]-[42]. However, it remains the law that a defendant who has reported a libel it has heard from others will only succeed in a plea of justification if it can prove by admissible evidence that what they said was substantially true.
[67] In Hamilton v Clifford [2004] EWHC 1542 (QB), Eady J dealt with a challenge to a defence of reasonable grounds to suspect. He held:
[38] It was apparently accepted in Musa King, as a general proposition, that the mere fact that someone has said that a claimant is guilty, or that someone believes it to be so, cannot in itself constitute reasonable grounds to suspect. Mr Moloney queried the authority for that proposition, but it would appear to follow from the need for the grounds pleaded to be tested by objective criteria. The point is closely related to the repetition rule. The fact that someone has asserted "X is guilty of murder" does not in itself go to provide reasonable grounds for suspicion. Something more is required.
[39] The point was, after all, considered by the Court of Appeal in Shah. It will not do to regurgitate allegations from newspaper articles and add the assertion that the allegations are credible: see especially pages 269-270. There is no need for the discussion to become confused by references to hearsay evidence and the changes brought about by the Civil Evidence Act 1995: see eg the observations of Brooke LJ in Chase at [41]-[44]. The essence of May LJ's remarks in Shah was that the setting out of subjective views and judgments is irrelevant to the establishment of grounds to suspect, which are to be judged objectively.
[68] The case concerned a false allegation of rape, which had been repeated by a publicity agent engaged to sell the woman’s story to the tabloids. Eady J went on to explain why, in his view, grounds to suspect cannot be established by pleading and proving the views or judgments of others:
[40] Mr Moloney says it is different if the assertions relied upon are those of an eye-witness. If one wishes to rely on the eye-witness, of course, one is fully entitled to plead that what she says is true. So here, Mr Moloney could have pleaded that the Hamiltons participated in the rape of Miss Milroy-Sloan and called her in due course to prove it. He does not do that, for obvious reasons. She made it all up. Can he fall back on her bare assertion, albeit now known to be false, for the purpose of showing reasonable grounds to suspect at the time of publication and before she had been rumbled? If so, it would enable media defendants generally to plead reasonable grounds to suspect merely on the basis that a crank or scoundrel has chosen to blackguard a person who happens to be in the public eye. All they would need to do is bear in mind the in-house lawyer's advice that they should publish no more than "there are reasonable grounds to suspect X of murder because Y has accused him".
[69] In Shah, May LJ stated (at 269) that if a defendant could justify a defamatory imputation by relying on what he was told by persons whom he regards as honest and reliable, it must follow that evidence would be admissible as to the reputed honesty and reliability of the informants. But such evidence would also be irrelevant to what the defendant had to establish (that there are objectively reasonable grounds for suspicion) because it would be directed to an essentially subjective judgment of the honesty and credibility of the informants.
[70] The question whether the repetition rule applies to a tier 3 imputation is apparently unsettled. Bennett v News Group Newspapers Ltd [2002] EMLR 39 (CA) concerned an investigation into police corruption. The defendant published an allegation that eight unnamed officers had been transferred to another station while the allegations were investigated. The five plaintiffs were among those transferred. The defendant sought to set up a tier 3 imputation, alleging that sufficient grounds existed to investigate police officers at the police station concerned. The Court of Appeal adopted the repetition rule but held that Tucker J had correctly exercised his discretion by allowing the defendant to plead allegations of corruption against police officers other than the plaintiffs. The police investigation could not simply be viewed as a collecting house for rumour or hearsay. The Court suggested that it was the fact that numerous separate allegations had been made, and not their truth or even plausibility, that would be relevant to the defence of justification; if so, the complaint that the particulars were hearsay might take on a different aspect. In that case, it should not be necessary to investigate the reliability of those who made the primary allegations.
[71] Similarly, in Musa King, the Court of Appeal allowed the defendant to plead, in support of a tier 3 meaning that the police suspected the plaintiff of involvement in terrorism-related activities, that he had been placed on a list of suspects and that the police had raided his home. Gatley suggests that the decision is justifiable on the basis that it would be unjust to deny the particulars when they were stated in the article complained of and the defendant had set up a tier 3 meaning, which only requires a focus on the plaintiff’s conduct: Gatley on Libel and Slander (10ed 2004) at [27.10].
[72] The question whether the repetition rule applies to a tier 3 imputation was also examined by the Court of Appeal in Jameel v Times Newspapers Ltd [2004] EWCA Civ 983. The plaintiff said he was defamed by an article alleging that fundraisers acting for Al-Qaeda had targeted him. Sedley LJ thought it arguable that the repetition rule does not always apply to a tier 3 libel, but found (at [30]) the consequences of that conclusion disturbing, for disapplying the rule would place a premium on formulating slurs as tier 3 allegations.
[73] It is correct that there are important distinctions between English and New Zealand defamation law. In England a defendant is entitled to set up and prove a lesser or Lucas-Box meaning in answer to a defamatory imputation. And what is known in England as “Reynolds privilege” has not been adopted in this country. That privilege attaches to the general obligation of a publisher to communicate important information on a matter of real public interest, provided that a test of responsible journalism is met: Reynolds v Times Newspapers Ltd [2001] 2 AC 127 (HL); Jameel (Mohammed) v Wall Street Journal Europe Sprl [2006] 3 WLR 642 (HL). The privilege recognised in Lange v Atkinson [2000] 3 NZLR 385 (CA) is confined to published statements directly concerning the functioning of representative and responsible government.
[74] Nonetheless, counsel were right to concede that the repetition rule is part of New Zealand law. Although the term ‘repetition rule’ is of recent vintage, attributed to Hirst LJ in Shah, the rule was approved in Truth (New Zealand) Ltd v Holloway [1961] NZLR 22 (PC). The trial Judge had directed the jury that it was no defence to show that the defendant was reporting a defamatory statement made by another. Approving that direction, Lord Denning described it as settled law. We observe that Truth v Holloway was followed in Stern v Piper, and so forms part of the English line of authority discussed above. The only question is whether the rule ought to be modified so that it does not apply to a plaintiff’s tier 2 imputation.
Are copies of non-privileged documents privileged in the hands of legal advisors?
[161] The second issue raised by counsel was whether the copies sent to Simpson Grierson are privileged on the ground that they are communications passing between solicitor and client for the purpose of legal advice.
[162] Where an original document has not been brought into existence for the purpose of obtaining legal advice or assembling evidence for trial, a photocopy of it made for the purpose of obtaining legal advice does not attract privilege: Dubai Bank Ltd v Galadari [1989] 3 All ER 769 (CA); Ventouris v Mountain [1991] 1 WLR 607 (CA). In the latter case, Bingham LJ held that the English system of civil procedure is founded on the rule that the interests of justice are served by full disclosure. There are exceptions, including legal professional privilege, but because disclosure is generally regarded as beneficial, any exception has to be justified as serving the public interest that gave rise to the exception. He rejected a submission that disclosure of such documents would diminish or destroy the confidential relationship between solicitor and client. It is necessary to look to the purpose for which a document was brought into existence, and not the purpose for which a copy was obtained.
[163] Ventouris v Mountain was followed in Crisford v Haszard [2000] 2 NZLR 729 (CA). At issue was a tape recording of a conversation which took place between the defendant and a friend of the defendant. At the behest of the plaintiff’s solicitor, the friend covertly recorded the telephone conversation for the purpose of the litigation. The plaintiff then asserted privilege for the recording and transcript of the conversation. The Court found that the recording was a reproduction of a non-privileged conversation (at [28]). Richardson P, for the Court, held that there were no New Zealand cases, and it seemed no reported authorities in other comparable jurisdictions, directly on point. The matter had to be approached on first principles, recognising that the variety of circumstances which may arise precludes the adoption of a formula or universal touchstone as applicable without qualification in all cases. The starting point was that the High Court Rules express the social philosophy that, except where there is a valid claim to privilege, a party needs access to all documents relating to the case in order for justice to be done. There is no readily discernible reason for attaching any lesser significance to the social policies underlying the disclosure of relevant documents when balancing those public interest considerations against the public interest considerations served by legal professional privilege. He cited with approval the judgment of Dawson J in Baker v Campbell (1983) 153 CLR 52 at 122 (HCA):
The privilege cannot operate to put beyond the reach of the law documentary or other material which has an existence apart from the process of giving or receiving advice or the conduct of litigation.
[164] Richardson P referred by analogy to the situation where a copy of a non-privileged document is made for the purposes of litigation, holding that the authorities tend to the conclusion that privilege from production and inspection is not available unless the document obtained betrays the advice or views of the solicitor or client or agent obtaining the document.
[165] Crisford concerned litigation privilege, but the principle adopted by the Court applies equally to legal advice privilege. The privilege should be as narrow as its principle necessitates, meaning that copies of non-privileged documents sent to a lawyer are privileged only if their disclosure would reveal a privileged communication.
[166] Counsel did not refer us to Crisford, but pointed to a divergence of Commonwealth authority. It appears that the Canadian Courts have followed the English cases: British Columbia Securities Commission v Branch (1995) 123 DLR (4th) 462 at 481 (SC). But a majority in the High Court of Australia in Commissioner, Australian Federal Police v Propend Finance Pty Ltd (1997) 71 ALJR 327 (Toohey and Dawson JJ dissenting) took the contrary view, reasoning inter alia that legal professional privilege does not protect documents as such, but communications between lawyer and client. It is immaterial that the communication may take the form of a copy document.
[167] This is not an appropriate occasion to consider whether to depart from the Court’s reasoning in Crisford. Nor did counsel suggest that the status of the draft scripts has been altered by the Evidence Act. Under s 54, legal advice privilege attaches to confidential communications between client and legal adviser in the course of and for the purpose of obtaining or giving professional legal services. ”Communication” is not defined in s 51 but, as the Law Commission observed in its preliminary paper, it is a concept of flexible meaning in this context: Evidence Law: Privilege (NZLC PP23 1994) at [61].
[168] The Judge reasoned that copies sent to the solicitors were privileged, whether or not they disclosed legal advice, because they were part of a continuum aimed at keeping both informed. For that proposition he cited Balabel v Air-India [1988] 2 All ER 246 (CA), in which the issue was whether legal advice privilege extended to all communications between solicitor and client on matters within the ordinary business of the solicitor and referable to the solicitor-client relationship.
[169] We readily accept that the draft scripts were sent to Simpson Grierson on a privileged occasion. TVNZ sought advice about them. But where a client’s document was not prepared for the purpose of seeking advice, it does not attract privilege merely because it was sent to the lawyer as an adjunct to a communication in which advice was sought or given. It is privileged only if in the circumstances its disclosure would reveal the content of the privileged communication.
Would disclosure of the draft scripts evidence a privileged communication?
[170] The real issue in this appeal is not whether a distinction should be drawn between the original draft scripts and the copies sent to the solicitors, but whether the scripts disclose the legal advice sought or given about their content.
[171] The Judge further reasoned that disclosure of the draft scripts would tend to reveal the content of privileged communications between lawyer and client. That was so because they formed the basis of those communications. He might have added that, as Mr Galbraith submitted, the scripts reveal advice given, by way of inference from changes made to successive versions. We accept, as Mr Ivory pointed out, that Mr Vaughan did not make that claim expressly in his affidavit. But the evidence does show that advice was sought on the drafts and each successive version reflected advice given on its predecessor. In those circumstances, the inference was available to the Judge that disclosure would reveal privileged communications.
Decision
[172] The appeal is dismissed.
COSTS
[173] We reserve costs for further submissions in the event that counsel are unable to agree. Simunovich should file any memorandum as to costs by 10 October 2008, and the respondents by 31 October 2008. Simunovich may file a memorandum in reply by 7 November 2008.
Solicitors:
Craig Griffin & Lord, Mr Eden, Auckland for Appellants
Simpson Grierson, Auckland for First Respondent
Bell Gully, Auckland for Second Respondent
Gilbert Walker, Auckland for Third and Fourth Respondents
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