Southern Ranges Limited v Commissioner of Crown Lands

[2022] NZHC 933

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2021-409-78

[2022] NZHC 933

UNDER

the Judicial Review Procedure Act 2016

BETWEEN

SOUTHERN RANGES LIMITED

Applicant

AND

COMMISSIONER OF CROWN LANDS

Respondent

Hearing:

(Determined on the Papers)

Appearances:

K M Anderson for Respondent

J E Bayley for Applicant (submission not called for)

Judgment:

5 May 2022

JUDGMENT OF ASSOCIATE JUDGE LESTER

SOUTHERN RANGES LIMITED v COMMISSIONER OF CROWN LANDS [2022] NZHC 933 [5 May 2022]

[1]                  In my Interim Judgment dated 11 April 2022,1 (Interim Judgment) concerning a challenge to the claim of legal advice privilege claimed by the respondent, I requested further information in relation to two documents which has now been provided by the respondent. The further evidence is from a senior in-house solicitor with Te Papa Atawhai Department of Conservation (DoC).

Document 11

[2]                  The redacted passage in Document 11, which is an email, contains five brief points. Of the first three points, I said it was not apparent they represented legal advice. The remaining two points appeared to be legal advice.

[3]                  While the author of the email was not a solicitor, the further evidence is that the redacted bullet points record part of the communication between the solicitor and the author of the email made in the course of and for the purpose of the solicitor giving legal advice. The evidence is that the numbered points are summaries of conclusions tentatively reached by the solicitor. The solicitor’s summary points were then included in the email sent by one manager at DoC, to whom the advice had been provided, to another manager within DoC. This claim for privilege is confirmed.

Document 20

[4]                  The second document for which further information has been provided is part of Document 20,2 an email between a senior official at DoC and the solicitor who has sworn the updating affidavit. The solicitor explains the email was sent to her in response to the solicitor’s request for background information to assist the solicitor with providing legal advice.

[5]                  I noted in my Interim Judgment that the redacted email includes links to previous email conversations. The updating affidavit confirms that some of those email chains have been withheld as they include legal advice. That this was the

1      Southern Ranges Ltd v Commissioner of Crown Lands [2022] NZHC 741.

2      Document 20 is an email chain starting with an email dated 23 July 2018.

purpose of the email is not apparent on its face. However, there is no basis to not accept the evidence that has been provided.

[6]Accordingly, the first redaction in relation to Document 20 is confirmed.

Request to revisit declinature of privilege

[7]                  The claim for privilege in relation to the second redaction on Document 20 was declined. This redaction relates to a further email dated 25 July 2018 sent by the same DoC senior official to the deponent of the updating affidavit.

[8]                  In the further evidence before the Court, the solicitor characterises the passage for which the redaction was declined as being an email sent for the purposes of obtaining legal advice as it was part of the continuum of communications between the solicitor and the manager.

[9]In the Interim Judgment I noted that:3

… legal advice is not confined to telling the client the law; it must include advice as to what should prudently and sensibly be done in the relevant legal context.

[10]              Putting the 25 July 2010 email in context is the reply from the solicitor later the  same  day,  which  has  been   discovered  as  Document  WHJ.030.1631,  being a document for which privilege has been claimed. The solicitor notes the contextual matters raised in the 25 July 2018 email, for which redaction has been declined, and goes on to express a legal opinion. Document WHF.030.1631 is not part of the email chain previously produced to me.

[11]              But for document WFF.030.1631 being produced, I would not have revisited the Ruling on the second redaction. However, the new email confirms the second redacted email was part of a continuum of correspondence between the solicitor and the senior official. The second redacted email sets out the context in which advice was provided and would continue to be provided. The matters raised in the email for

3      Southern Ranges Ltd v Commissioner of Crown Lands, above n 1, at [15].

which redaction was declined, raise points for the solicitor to consider in the relevant legal context.

[12]              The new material means I am now satisfied the redaction of the 25 July 2018 email, the second redaction to Document 20 in the schedule to the Interim Judgment, is confirmed.

Associate Judge Lester

Solicitors:

Rhodes & Co, Christchurch Crown Law, Wellington