Southern Ranges Limited v Commissioner of Crown Lands
[2022] NZHC 741
•11 April 2022
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2021-409-78
[2022] NZHC 741
UNDER The Judicial Review Procedure Act 2016 BETWEEN
SOUTHERN RANGES LIMITED
Applicant
AND
COMMISSIONER OF CROWN LANDS
Respondent
Hearing: 14 March 2022 Appearances:
J E Bayley and F H Scrase for Applicant (by VMR)
K M Anderson and K K C Efondo for Respondent (by VMR)
Judgment:
11 April 2022
JUDGMENT OF ASSOCIATE JUDGE LESTER
SOUTHERN RANGES LIMITED v COMMISSIONER OF CROWN LANDS [2022] NZHC 741
[11 April 2022]
[1] This judgment concerns one of three orders sought by the plaintiff relating to discovery. The respondent, in its notice of opposition, agreed with two of the orders sought – costs issues in respect of all three orders are reserved.
[2] The outstanding application is a challenge by the applicant to legal advice privilege claimed by the respondent. The disputed documents, some redacted in part and some fully withheld by the respondent, have now been produced to the Court. The parties sought directions by consent that the respondent provide the disputed documents without redaction to the Court for inspection. That has now occurred.
[3] Shortly before the hearing, the respondent submitted inspection was unnecessary and that its affidavit of documents should be taken at face value. However, I am satisfied that a review of the documents is called for.
[4] There was also what amounts to a cross-application by the respondent, seeking to maintain privilege over a document it says was disclosed in error.
Inspection
[5]In NZ Iron Sands Holdings Ltd v Toward Industries Ltd, Wylie J held:1
[21] Clearly the Court has a discretion whether to inspect a document, and [r 8.25 of the High Court Rules 2016] does not qualify that discretion in any way. There is no requirement that a Judge be satisfied of any particular circumstances before inspecting and, in appropriate cases, overruling a claim to privilege. A ruling after inspecting a document said to be privileged, even without the benefit of submissions, is more likely to further the ends of justice than a ruling without inspection.
(footnotes omitted)
[6] In-house solicitors at the Department of Conservation (DOC) and Land Information New Zealand (LINZ) swore affidavits confirming the correctness of the privilege claim. Subsequently, some of the redactions made on the grounds of that privilege were accepted by the respondent to have been in error. Mr Bayley, counsel for the applicant, submits that such casts doubt on the other privilege claims and that a review is appropriate.
1 NZ Iron Sands Holdings Ltd v Toward Industries Ltd [2019] NZHC 1416, [2019] NZAR 1199.
[7] I have reviewed the documents provided. Attached as Schedule A to this Judgment is a spreadsheet of the documents subject to redaction in part. That spreadsheet summarises the parties’ respective position on each document and I have added a further column with my decision.
[8] Attached as Schedule B is a brief spreadsheet relating to documents that were wholly withheld.
Legal professional privilege
[9] The starting position is s 54(1) of the Evidence Act 2006 (the Act) and s 54(2) of the Act. Those sections provide:
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.
(2)In this section, professional legal services means, in the case of a registered patent attorney or an overseas practitioner whose functions wholly or partly correspond to those of a registered patent attorney, requesting or obtaining or giving information or advice concerning intellectual property.
[10] The legal advisor for the purposes of s 54(1) is a lawyer who holds a practising certificate as a barrister or as a barrister and solicitor.2
2 Evidence Act 2006, s 51(1) and Lawyers and Conveyancing Act 2006, s 6.
[11] It is common ground between counsel that the onus of establishing privilege over the disputed documents lay with the respondent.3 The entitlement to privilege must be established unequivocally.4 The privilege must be established in clear terms.5
[12] It is also common ground that privilege attaches to the communications of in-house lawyers at Government Departments, provided the communication relates to professional legal services.6
[13] Here, there is communication across Government Departments; LINZ and DOC, with employees in one Department obtaining legal advice from the other. Ms Anderson, counsel for the Commissioner of Crown Lands (the Crown), submitted that in this context the Crown is indivisible and LINZ and DOC are treated as being one client. It was submitted that constitutionally the Crown and core Crown bodies are not separate entities and therefore legally privileged information can be freely circulated within and between core Crown bodies without any issues of waiver arising, because the privilege belongs to the client which is the Crown.7 Mr Bayley, counsel for the applicant, did not submit this proposition was incorrect.
[14] Where legal advice is summarised or reproduced in a document, such can remain privileged by virtue of s 53(1)(b) or (c) of the Act.
[15] Communications for the purposes of s 54 of the Act is wider than legal advice. Solicitor-client privilege can cover a broad range of matters that form part of the solicitor-client relationship: “… 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”.8
3 M v L [1997] 3 NZLR 424 at 429.
4 Kupe Group Ltd v Ariadne Australia Ltd (1991) 4 PRNZ 135 at 138.
5 M v L, above n 3, at 430.
6 NZ Iron Sands Holdings Ltd v Toward Industries Ltd, above n 1, at [26].
7 Carter v Coroner’s Court at Wellington [2018] NZHC 1781; and Bain v Minister of Justice [2013] NZHC 2123, (2013) 21 PRNZ 625.
8 Balabel v Air India [1988] 2 All ER 246 (CA) at 253.
[16] Material that is not literally a communication between a client and lawyer may still be privileged. Examples include the working papers of lawyers, including their file notes. These are an essential part of the process of advising and being advised.9
[17] One criticism raised by Mr Bayley was that nothing in the material filed by the respondent confirmed that the authors of the legal advice claimed to be privileged held practising certificates. Ms Anderson offered to file updating affidavits addressing that point. Such was not opposed. The affidavits confirm that the solicitors who are named or referenced in the documents held practising certificates and all solicitors in the in-house legal teams of DOC and LINZ also held practising certificates.
Applicant’s criticisms of the respondent’s discovery
[18] From the description of the documents in the respondent’s lists, Mr Bayley identified some documents have no identified author, no named recipient, appear to be documents prepared by people who are not lawyers, or is correspondence between non-lawyers. In short, Mr Bayley said the respondent had not satisfied the onus of establishing privilege over the disputed documents.
The respondent’s category of documents
[19] The respondent used the following four categories to justify its claim for privilege:
(a)Category One: Documents in this category are Ministerial briefings, internal memoranda or internal discussion/strategy documents that contain legal advice as well as other non-legal advice and discussion. Only the legal advice in these documents has been redacted and withheld, the balance of these documents have been discovered.
(b)Category Two: Documents in this category are an email (or emails) in an email chain or attached to a document that are to or from a legal advisor for the purpose of requesting, obtaining or giving legal advice. Only the emails containing correspondence to or from a legal advisor
9 Kupe Group Ltd v Seamar Holdings Ltd [1993] 3 NZLR 209 (HC) at 213.
for this purpose have been redacted and withheld, the balance of the email chain or the document that email is attached to has been discovered.
(c)Category Three: Documents in this category are emails sent by an official (not a legal advisor) that contain an extract or a summary of legal advice given by a legal advisor. The authors and recipients of these emails are all government officials at LINZ or DOC. Only the extract or summary of the legal advice has been redacted and withheld, the balance of these emails have been discovered.
(d)Category Four: Documents in this category are emails that contain a discussion or reference to a request for legal advice. The authors and recipients of these emails are all government officials at LINZ or DOC. Only the discussion or reference to the request for legal advice has been redacted or withheld, the balance of the emails have been discovered.
[20] The respondent, in the affidavits filed, identified which category or categories of documents were relied on in respect of each of the redacted documents. This was supplemented with a brief comment, those comments are reflected in the respondent’s position as recorded in the attached Schedules, as is the Crown category.
[21] The applicant had to frame its challenge to the claims for privilege knowing only what the respondent said about the document. Accordingly, Mr Bayley, in challenging the privilege claimed, identified issues of potential doubt or concern in relation to the claim for privilege. As will be seen from the column “Applicant’s Notes/Response” in the attached Schedules (prepared by the applicant and supplemented by me to record my decisions), there are a number of common points taken in relation to the claims for privilege.
[22] In the attached two Schedules under the heading “Decision”, I confirm whether the claim for a redaction is confirmed, why in the briefest of terms and, if declined, my reasons for doing so. I do not, in respect of each claim, address each of the potential
challenges listed by the applicant in the spreadsheets. I make general comments about those grounds now.
[23] A number of the documents for which privilege is maintained, summarise or refer to legal advice given from the in-house legal teams at DOC and LINZ. A common criticism is that the circumstances in which the original advice was sought/given is not explained. Mr Bayley, in his submissions, referred to Barns v Commissioner of Taxation (CTH), as authority for the proposition that the respondent needed to provide “evidence of the thought processes behind, or the nature and purpose of advice being sought in respect of, each particular document.”10
[24] However, the requirement suggested by Mr Bayley is to place a gloss on s 54(1) of the Act which is not warranted by the wording of that section. Once communications in respect of professional legal services with a legal advisor were intended to be confidential and made in the course of, and for the purpose of, requesting or obtaining legal services or the legal advice in giving such services, then the documents are privileged. The existence of privilege under s 54 is not conditional on the advice being somehow demonstrated to have been reasonably required or the circumstances in which the advice was sought being otherwise explained. If legal services are sought from a legal advisor, communications in the course of and for the purpose of obtaining legal services, are privileged without more. That is the only purpose that must be demonstrated.
[25] A further common point of challenge is that it is common no author or recipient of the advice is stated. The applicant is correct in this observation. In most cases where legal advice was said to be summarised, the author of the advice is not named. However, all the in-house lawyers have practising certificates so any advice from them will be privileged.
[26] In a number of documents, advice was shared between LINZ and DOC. It is said the basis for the legal advice being shared is not explained. That point falls away once DOC and LINZ are seen as part of the Crown and are treated as one client for the purposes of privilege.
10 Barns v Commissioner of Taxation (CTH) (2007) 242 ALR 601 at [18].
[27] It is also true that a number of the documents are not dated but such is not a pre-requisite for the documents being privileged if they otherwise meet the requirements of s 54.
[28] Further, on a number of occasions, the source documents containing the legal advice being referred to in the document for which privilege is claimed are not identified. That is a valid point but it is sufficient for privilege to be claimed if the document records legal advice or is a communication in that regard.
[29] Every document has been reviewed. Where the privilege has been confirmed, it was clear the document recorded legal advice or recorded requests for advice. There are instances where further information is sought and they are referred to in the Schedules. This Judgment is therefore technically an interim one in respect of those outstanding matters given further information is sought – that being one of the options available following an inspection.11
[30]The respondent is to provide the further information in respect of documents
[11] and [20] of Schedule A within 10 working days of the date of this Interim Judgment.
Waiver of privilege
[31] As noted at the outset, the respondent essentially applies for an order that it has not waived privilege in a document which was listed (albeit with redactions) and produced for inspection.
[32] Ms Anderson submitted that, in the course of preparing the response sought by the applicant, she became aware that in the documents were a handwritten notes of a DOC solicitor. She submitted that the document was inadvertently and mistakenly discovered.
11 NZ Iron Sands Holdings Ltd v Toward Industries Ltd, above n 1, at [38].
[33] The only evidence provided by the applicant in relation to this issue is as follows:
8.… Those notes were inadvertently disclosed in the respondent’s discovery.
8.1In relation to document WHI.034.0467, there has been no waiver nor intent to waive privilege over those notes. Those notes remain completely protected by legal privilege. I understand Janine Sidery is affirming a supplementary affidavit of documents that will correctly list those notes as a document for which the respondent claims privilege over the entire document.
[34] This evidence was contained in an affidavit sworn 3 December 2021. When the issue was raised with the applicant in early December 2021, the applicant’s solicitors replied on 14 December 2021 stating the applicant’s view was that privilege had been waived and referred to authority in support of that position.
[35] The question is whether the respondent can bring itself within ss 65(2) and 65(4) of the Act which provides:
(2) A person who has a privilege waives the privilege if that person, or anyone with the authority of that person, voluntarily produces or discloses, or consents to the production or disclosure of, any significant part of the privileged communication, information, opinion, or document in circumstances that are inconsistent with a claim of confidentiality.
(3) …
(4) A person who has a privilege in respect of a communication, information, opinion, or document that has been disclosed to another person does not waive the privilege if the disclosure occurred involuntarily or mistakenly or otherwise without the consent of the person who has the privilege.
[36] Mr Bayley submitted that the document was voluntarily disclosed after a considered review and in circumstances which were inconsistent with a claim for confidentiality. He submitted the document was intentionally listed as an open document and had clearly been subject to review as it was subject to minor redaction and was supplied by way of formal discovery.
[37] Mr Bayley submits there is no evidence that disclosure was made “mistakenly” for the purposes of s 65(4) of the Act.
[38] I accept Mr Bayley’s submission that there is no meaningful evidence tendered by the respondent of a mistake. The submissions made by Ms Anderson are unsupported by evidence. Parts of her submissions effectively give evidence from the Bar, but Mr Bayley is correct that from December 2021 the respondent was aware that its position on waiver was not accepted.
[39] The applicant, in its December 2021 letter, referred to Pernod Ricard New Zealand Ltd v Lion.12 The Court said at s 65(4) that:13
… The subsection is directed at the not uncommon situation of an administrative error or procedural mishap, where the party handing over or disclosing a document never intends to do so. Section 65(4) was not intended to preserve privilege where a document is knowingly and deliberately disclosed after close attention has been given to its status for privilege purposes.
[40] No evidence as to how the document came to be mistakenly disclosed, despite being reviewed and redacted, was given. This is the very issue at the heart of the respondent’s claim that the applicant did not waive privilege.
[41] Ms Anderson sought leave to file further evidence on this. I declined that request. As I have said, the respondent was on notice as to the applicant’s position on waiver and did not meet that argument in its evidence.
[42] I decline the informal application by the respondent for a declaration that document WHI.034.0467 is wholly protected by legal privilege. As it is subject to a partial redaction, it is included in Schedule A relating to partially redacted documents.
12 Pernod Ricard New Zealand Ltd v Lion-Beer, Sprits & Wine (NZ) Ltd [2012] NZHC 2801.
13 Pernod Ricard New Zealand Ltd v Lion-Beer, Sprits & Wine (NZ) Ltd above n 12 at [49].
Costs
[43] If costs cannot be agreed, any memorandum seeking costs to be filed within five working days of the date of this Judgment, with any reply to be filed 10 days thereafter. In both cases, memoranda are not to be more than five pages.
Associate Judge Lester
Solicitors:
Rhodes & Co, Christchurch Crown Law, Wellington
SCHEDULE A
DISPUTED DOCUMENTS – PARTIALLY REDACTED DOCUMENTS
Crown Categories:
One: Ministerial briefings, internal memoranda or internal discussion / strategy documents that contain legal advice as well as other non-legal advice and discussion. Only the legal advice in these documents has been redacted and withheld, the balance these documents have been discovered. Three: Emails sent by an official (not a legal advisor) that contain an extract or a summary of legal advice given by a legal advisor. The authors and recipients of these emails are all government officials at LINZ or DOC. Only the extract or summary of the legal advice has been redacted and withheld, the balance of these emails have been discovered. Two: Email/s in an email chain or attached to a document that are to or from a legal advisor for the purpose of requesting, obtaining or giving legal advice. Only the emails containing correspondence to or from a legal advisor for this purpose have been redacted and withheld, the balance of the email chain or the document that email is attached to has been discovered.
Four: Emails that contain a discussion or reference to a request for legal advice. The authors and recipients of these emails area all government officials at LINZ or DOC. Only the discussion or reference to the request for legal advice has been redacted and withheld, the balance of the emails have been discovered.
| No. | Date / Ref / Type | Crown Category | Respondent’s Position | Applicant’s Notes / Response | Decision | |
| [1] | (1) (20) Undated WHI0273192 Notes | One | - Espie Affidavit: This is a document titled "Mt White Notes for Strategy''. The redacted information summarises legal advice from DOC and LINZ's in- house legal teams. | - No stated author or recipient. - No date. - Authors of summarised legal advice not disclosed. - Source document(s) containing the legal advice (used to create the summary) not identified with no cross- reference to other discovered privileged document(s). - Basis for legal advice to be shared between LINZ and DOC not explained. - Circumstances in which the original advice was sought / given not explained. | - First Redaction: Discusses legal advice. - Second Redaction: | Confirmed |
| Confirmed | ||||||
| Summarises legal advice. | ||||||
| No. | Date / Ref / Type | Crown Category | Respondent’s Position | Applicant’s Notes / Response | Decision |
| [2] | Undated WHI0273340 Notes | One | - Espie Affidavit: This is a document titled "Attachment B: Resolving Riversdale Flats: High Level Options Assessment". The redacted information summarises legal advice from DOC and LINZ's in-house legal teams. | - Document has been supplied in two subsequent versions by the respondent. The first heavily redacted version is at 10. The second less redacted version is at 12. - Respondent redacted key elements of an “options assessment” thereby concealing what options were being considered (which is independent of any legal advice concerning those options). - Further scrutiny thereby required over remaining redactions viz: · No stated author or recipient. · No date. · Authors of summarised legal advice not disclosed. · Source document(s) containing the legal advice (used to create the summary) not identified with no cross-reference to other discovered privileged document(s). · Basis for legal advice to be shared between LINZ and DOC not explained. · Circumstances in which the original advice was sought / given not explained. | - Redacted panel: Confirmed. Discusses legal advice. |
| No. | Date / Ref / Type | Crown Category | Respondent’s Position | Applicant’s Notes / Response | Decision | |
| [3] | Undated WHI0274326 Plan | One | - Espie Affidavit: This is a document titled "Mount White -Plan on a Page for 2019" and it is marked as "confidential and legally privileged". The redacted information summarises legal advice from DOC and LINZ's in-house legal teams. | - Document has been supplied in two subsequent versions by the respondent. The first heavily redacted version is at 14. The second less redacted version is at 15. - Respondent had redacted a statement as straightforward as a “strategy paper is being produced for the Minister’s consideration by early May” which does not record or request legal advice. - Further scrutiny thereby required over remaining redactions viz: · No stated author or recipient. · No date. · Authors of summarised legal advice not disclosed. · Source document(s) containing the legal advice (used to create the summary) not identified with no cross-reference to other discovered privileged document(s). · Basis for legal advice to be shared between LINZ and DOC not explained. · Circumstances in which the original advice was sought / given not explained. | - Redacted Panel: | Confirmed |
| Records and comments on legal advice from named solicitor. | ||||||
| [4] | 29-03-2010 WHI0260124 Letter | Two | - Espie Affidavit: This is a letter dated 29 March 2010 from DOC to LINZ. Attached to this letter is an email of 17 November 2010 from Anthony Hatch to Maria McEwan. Anthony Hatch was an in-house lawyer at LINZ. In this email Mr Hatch gives legal advice to Ms McEwan. Mr Hatch's email has been redacted and withheld completely. | - The letter (at 12) has no reference to any attached legal advice. - Respondent’s explanation is unintelligible because the letter pre-dates the asserted 17 November 2010 date of the legal advice. - Circumstances in which the original advice was sought / given not explained. | - Redactions of Email: | Confirmed |
| Redacted document is an email referring to legal advice and to a memorandum of 28 October 2010 from McEwin to Hatch. - The email refers to the 29 March 2010 letter so cannot have been attached to it. | ||||||
| No. | Date / Ref / Type | Crown Category | Respondent’s Position | Applicant’s Notes / Response | Decision |
| [5] | 17-05-2011 WHI0260093 Internal Memorandum | One | - Espie Affidavit: This is an internal LINZ memo to Matthew Clark (Manager Pastoral) from Maria McEwan (Portfolio Manager) dated 17 May 2011. The redacted sections refer to and summarises legal advice. | - This is a document between non-lawyers. - Authors of summarised legal advice not disclosed. - Source document(s) containing the legal advice (used to create the summary) not identified with no cross- reference to other discovered privileged document(s). - Circumstances in which the original advice was sought / given not explained. - First redaction is so short that it is implausible that it contains a summary of legal advice. | - First Redaction: Declined. This redaction refers to the existence of the legal opinion dated 17 November 2010 (being the redacted email just referred to), the existence of this document is not privileged. - Second Redaction: Confirmed Summarises request for legal advice and the advice received. |
| [6] | 24-09-2014 WHI0260121 Internal Memorandum | One | - Espie Affidavit: This is an internal LINZ memo to David Rhodes (Manager Crown Property) from Mike Sherman (Portfolio Manager) dated 24 September 2014. The redacted sections refer to and summarises legal advice. | - This is a document between non-lawyers. - Authors of summarised legal advice not disclosed. - Source document(s) containing the legal advice (used to create the summary) not identified with no cross- reference to other discovered privileged document(s). - Circumstances in which the original advice was sought / given not explained. - First redaction is so short that it is implausible that it contains a summary of legal advice. | - First Redaction: Declined. Same answer as first redaction document [5]. - Second Redaction: Confirmed Same answer as second redaction document [5]. - Third Redaction: Declined. - Same answer as first redaction document [5]. |
| [7] | 24-09-2014 WHI0030357 Memorandum | One & Two | - Espie Affidavit: This is an internal LINZ memo to David Rhodes (Manager Crown Property) from Mike Sherman (Portfolio Manager) dated 24 September 2014. The redacted sections refer to and summarise | - The first two pages of this document are identical to the preceding document. The same comments apply. - As to attached email, refer to comments in respect of WHI0260124. | - First Redaction: Declined. Same answer as first redaction document [5]. - Second Redaction: Confirmed |
| legal advice. Attached to this memo is an email of 17 November 2010 from Anthony Hatch to Maria McEwan. Anthony Hatch was an in-house lawyer at LINZ. In this email Mr Hatch gives legal advice to Ms McEwan. Mr Hatch's email has been redacted and withheld completely. | Same answer as second redaction document [5]. |
| No. | Date / Ref / Type | Crown Category | Respondent’s Position | Applicant’s Notes / Response | Decision | |
| [8] | 20-10-2014 WHI0340769 | Three | - Espie Affidavit: This is an email chain between officials at LINZ and DOC. In one of those emails from Mike Sherman to Steve Sharman dated 14 October 2014, Mr Sherman summarises legal advice from LINZ's inhouse legal team. That summary of the legal advice has been redacted and withheld. | - This is a document between non-lawyers. - Authors of summarised legal advice not disclosed. - Source document(s) containing the legal advice (used to create the summary) not identified with no cross- reference to other discovered privileged document(s). - Circumstances in which the original advice was sought / given not explained. - Basis for legal advice to be shared between LINZ and DOC not explained. | - Redaction: Confirmed. Discussion of advice and recommendations from legal team. | |
| [9] | 25-03-2016 WHI0275620 | Two | - Espie Affidavit: This is an email chain. The top four emails in this chain are email correspondence between Mike Sherman and myself dated 22-25 March 2016. All four of those emails have been redacted and withheld as they are a communication to or from a legal advisor for the purpose of requesting, obtaining or giving legal advice. | - Circumstances in which the original advice was sought / given not explained. | - First Redaction: | Confirmed. |
| Email 22 March 2016 Sherman to Espie:. Request for advice. - Second Redaction: Confirmed. Email 22 March 2016 Espie to Sherman – request for information by solicitor – part of continuum of communication in respect of request for advice. - Third Redaction: Confirmed. Email 23 March 2016, Sherman to Espie: - Reply to solicitor’s advice for information – part of continuum of communication. - Fourth Redaction: Confirmed Email 25 March 2016 Espie to Sherman – legal advice | ||||||
| No. | Date / Ref / Type | Crown Category | Respondent’s Position | Applicant’s Notes / Response | Decision |
| [10] | 07-04-2016 WHI0301617 | Three & Four | - Newell Affidavit: This is an email chain between LINZ and DOC officials. The redacted information is an extract of legal advice from the LINZ in-house legal team and a reference to legal advice that has been requested. | - This is correspondence between non-lawyers. - Authors of extract of legal advice not disclosed. - Source document(s) containing the legal advice (from which extract obtained) not identified with no cross- reference to other discovered privileged document(s). - Circumstances in which the original advice was sought / given not explained. - Basis for legal advice to be shared between LINZ and DOC not explained. | - First Redaction: Confirmed. Email 6 April 2016 Sherman to Stuart: Summary of legal advice. - Second Redaction: Declined. Email 7 April 2016, Baxter to various: No advice sought or recorded. |
| No. | Date / Ref / Type | Crown Category | Respondent’s Position | Applicant’s Notes / Response | Decision |
| [11] | 12-07-2016 WHI0290098 | Three & Four | - Newell Affidavit: This is an email chain between DOC officials. The redacted information is a summary of legal advice from DOC's in-house legal team and references to legal advice that has been requested. | - This is correspondence between non-lawyers. - Authors of summarised legal advice not disclosed. - Source document(s) containing the legal advice (used to create the summary) not identified with no cross- reference to other discovered privileged document(s). - Circumstances in which the original advice was sought / given not explained. - Basis for legal advice to be shared between LINZ and DOC not explained. - Some redactions so short that it is implausible they it contains a summary of legal advice. | - First Redaction: Declined. First para, Email 6 July 2016 Timpson to Severinsen: Does not give or discuss legal advice albeit may permit nature of legal advice to be deduced. - Second Redaction: Confirmed. Last line Email 6 July 2016 - email Timpson to Severinsen: Request for legal advice. - Third Redaction: Declined. Email Severinsen to Timpson 6 July 2016: Confirms legal advice being prepared but does not go further. - Fourth Redaction: Ruling pending. Email Severinsen to Timpson 7 July 2016: more information required. Not apparent that points 1, 2, and 3 are legal advice, more in the nature of historical observation. Points 4 and 5 are suggestive of legal advice or are a summary of legal advice as claimed. - Fifth Redaction: Declined. Email Baxter to Stuart 12 July 2016: This is a request for a copy of legal advice once prepared – the instruction for and preparation of the legal advice being undertaken by other people. |
| No. | Date / Ref / Type | Crown Category | Respondent’s Position | Applicant’s Notes / Response | Decision |
| [12] | 01-09-2016 WHI0275749 | Three & Four | - Espie Affidavit: This is an email chain with a series of emails between LINZ officials (David Gullen (the then Commissioner of Crown Lands) Mike Sherman, John Hook and myself) dated 1 September 2016. The redacted information in these | - Authors of summarised legal advice not disclosed. - Source document(s) containing the legal advice (used to create the summary) not identified with no cross- reference to other discovered privileged document(s). - Circumstances in which the original advice was | - First Redaction: Confirmed. Email 1 September 2016, Gullen to Sherman, Hook and Espie. Records solicitor’s advice. - Second Redaction: Confirmed |
| emails either summarises or requests legal advice from LINZ's in-house legal team. | sought / given not explained. | Same email. Refers to the need for and subject to legal advice. - Third Redaction: Confirmed. Email 1 September 2016, Sherman to Gullen. Refers to the need to seek legal advice and the subject matter of that advice. | |||
| [13] | 05-09-2016 WHI0273240 | Two & Four | - Espie Affidavit: This is an email chain with a series of emails between DOC and LINZ officials. The top email in the chain is an email from Mike Sherman to myself dated 5 September 2016 sent for the purposes of obtaining legal advice. That email has been entirely redacted to protect legal privilege. - The other redacted information in other emails in the chain discuss requesting legal advice from LINZ's in-house legal team. | - Circumstances in which the advice was sought not explained. - Correspondence between non-lawyers (in different Government departments) concerning requesting legal advice is not privileged as distinct from a communication to a lawyer requesting legal advice. | - First Redaction: Confirmed. Email 5 September 2016 Severinsen to Sherman. Refers to need for solicitors preparing for a joint discussion. - Second Redaction: Confirmed. Email Sherman to Severinsen. Refers to a question being referred to Espie for legal advice. - Third Redaction: Confirmed. Email Sherman to Espie 5 September 2016. Provision of information to Espie for the purposes of him undertaking legal discussions. |
| [14] | 29-11-2016 WHI0275710 | Three | - Espie Affidavit: This is an email chain. The top email in this chain is between LINZ officials (from David Gullen (the then Commissioner of Crown Lands) to John Hook, copying in Mike Sherman and myself) dated 29 November 2016. The redacted information in that email is a summary of legal advice from LINZ's in-house legal team. | - Principally a communication between non-lawyers. - Authors of summarised legal advice not disclosed. - Source document(s) containing the legal advice (used to create the summary) not identified with no cross- reference to other discovered privileged document(s). - Circumstances in which the original advice was sought / given not explained. | - Redaction: Confirmed. Email Gullen to Hook and Espie 29 November 2016. Refers to legal advice. |
| No. | Date / Ref / Type | Crown Category | Respondent’s Position | Applicant’s Notes / Response | Decision |
| [15] | 15-02-2017 WHI03112546 | Three | - Newell Affidavit: This is an email chain between LINZ and DOC officials. The redacted information is a summary of legal advice from DOC's in-house legal team. | - This is correspondence between non-lawyers. - Authors of summarised legal advice not disclosed. - Source document(s) containing the legal advice (used to create the summary) not identified with no cross- reference to other discovered privileged document(s). - Circumstances in which the original advice was sought / given not explained. - Basis for legal advice to be shared between LINZ and DOC not explained. | - Email Severinsen to Hook dated 15 February 2017: Confirmed. Records contents of legal opinion. - |
| [16] | 28-02-2018 WHI0272988 Submission | One | - Espie Affidavit: This is a document titled "Submission to Commissioner of Crown Lands: Transfer - Mt White pastoral lease" dated 2 March 2018. This document has been signed by Ken Taylor on behalf of Quotable Value Limited. The redacted information summarises legal advice from Quotable Value Limited’s solicitor. | - This is a document authored by a non-lawyer. - Author of the summarised legal advice not disclosed. - Source document(s) containing the legal advice (used to create the summary) not identified with no cross- reference to other discovered privileged document(s). - Basis upon which the original advice was sought / given not explained. - No explanation whatsoever as to how a solicitor / client relationship existed between LINZ and QV’s in- house solicitor to attract legal professional privilege. | - Redaction: Confirmed. Records legal advice |
| [17] | 02-03-2018 WHI0100342_ 005 Submission | One | - Espie Affidavit: This is a document title "Submission to Commissioner of Crown Lands: Transfer - Mt White pastoral lease" dated 2 March 2018. This document has been signed by Ken Taylor on behalf of Quotable Value Limited. The redacted information summarises legal advice from Quotable Value Limited’s solicitor. | - Refer comments in respect of previous document. | - Redaction: Confirmed. Records legal advice. |
| No. | Date / Ref / Type | Crown Category | Respondent’s Position | Applicant’s Notes / Response | Decision |
| [18] | 24-05-2018 WHI03112832 | Three | - Newell Affidavit: This is an email chain between DOC officials. The redacted information is an extract of legal advice from the LINZ in-house legal team. | - The redaction portion (at 80) is correspondence between non-lawyers. - Author of the extract of legal advice not disclosed. - Source document(s) containing the legal advice (from which extract obtained) not identified with no cross- reference to other discovered privileged document(s). - Basis upon which the original advice was sought / given not explained. - No explanation as to how the LINZ in-house legal advice being summarised came to be in possession of DoC. - Basis for legal advice to be shared between LINZ and DOC not explained. | - Redaction: Confirmed. Email Stewart to Timpson 14 May 2018. Records legal advice. |
| [19] | 18-07-2018 WHI0340467 Handwritten Notes This is the document subject to the waiver of privilege ruling. | N/A | - Respondent claims that this document has been provided in error and maintains that privilege still exists over the entire document, with no waiver having taken place. | - In respect of this document, refer to the body of the applicant’s submissions. | - First Redaction: (top of page 3). Confirmed. Sets out legal question. - Second Redaction: (bottom of page 3). Declined. Does not record legal advice. |
| No. | Date / Ref / Type | Crown Category | Respondent’s Position | Applicant’s Notes / Response | Decision |
| [20] | 27-07-2018 WHI03113458 | One & Two | - Newell Affidavit: This is an email chain between DOC officials. - The first three emails in the chain dated 26 and 27 July 2018 are between Mary-Anne Baxter and myself. These emails were for the purpose of requesting, obtaining and giving legal advice. These emails have been completely redacted and withheld. - There are two emails at the end of this email chain dated 23 and 25 July 2018 from Mary-Anne Baxter | - Circumstances in which the DoC advice was sought / given not explained. - Author of the summarised legal advice not disclosed. - Source document(s) containing the legal advice (used to create the summary) not identified with no cross- reference to other discovered privileged document(s). - Basis upon which the original LINZ advice was sought / given not explained. - Basis for legal advice to be shared between LINZ and | - First Redaction: Ruling Pending. Email Baxter to Newell 23 July 2018. More information required. This document includes links to previous email conversations which may contain legal advice. - Second Redaction: Declined. |
| to myself. These emails were also for the purpose of requesting and obtaining legal advice. These emails have been completely redacted and withheld. - Part of an email in the chain from John Hook to | DOC not explained. | Email Baxter to Newell 25 July 2018. This email does not contain request for legal advice. - Third Redaction: Confirmed. | |||
| several DOC officials dated 26 July 2018 has been redacted. That redacted information is a summary of legal advice from the LINZ in-house legal team. | Email Hook to Baxter 26 July 2018. Records legal advice. - Fourth Redaction: Confirmed. Email Newell to Baxter 26 July 2018. Legal advice discussion. - Fifth Redaction: Confirmed. Email Baxter to Newell 27 July 2018. Legal advice discussion. |
| No. | Date / Ref / Type | Crown Category | Respondent’s Position | Applicant’s Notes / Response | Decision |
| [21] | 02-08-2018 WHI03114149 | Two & Three | - Newell Affidavit: This is an email chain between DOC officials, including a DOC solicitor, Tara Allardyce. - The email at the end of this email chain dated 1 August 2018 from Tara Allardyce to several DOC officials was for the purpose of giving legal advice. This email has been completely redacted and withheld. - The first email in the chain is an email from Annie Wallace to Michael Slate and Tara Allardyce dated 2 August 2018. The redacted information in that email summarises legal advice from DOC's in-house legal team and references legal advice that has been requested. | - Circumstances in which the DoC advice was sought / given not explained. - Author of the summarised legal advice not disclosed. - Source document(s) containing the legal advice (used to create the summary) not identified with no cross- reference to other discovered privileged document(s). | - First Redaction: Declined. Email Allardyce to Wallace, 1 August 2008. The letter is sent by Ms Allardyce who is a solicitor, but it is sent in her capacity as “(Acting) Statutory Manager, Eastern South Island”, not sent as a solicitor. The letter does not contain a request for legal advice and does not give legal advice. It is not in terms of s 54 a communication requesting or obtaining legal services or a legal advisor giving such services. - Second Redaction: Confirmed. |
| Email Wallace to Slate, 2 August 2018. Records legal opinion. | |||||
| [22] | 10-08-2018 WHI0341066 | Three | - Newell Affidavit: This is an email chain between DOC officials. The redacted information is an extract of legal advice from the LINZ in-house legal team. | - The redacted portion of this document is identical to the document at 80 (WHI03112832). The same comments apply to this document. | - Redaction: Confirmed. Email Stewart to Timpson, 14 May 2018. Records legal advice. |
| [23] | 16-08-2018 WHI0350168 | Three & Four | - Newell Affidavit: This is an email chain between DOC officials following receipt of an email from a third party, Lake Moeraki Wilderness Lodge. The first email in the chain dated 16 August 2018 is from Andy Roberts to Tara Allardyce, Jonty Somers, Lou Sanson, Michael Slater, Dave Wilkins, Kingsley Timpson and myself. That email summarises DOC in-house legal advice and references legal advice that has been requested. This email has been completely redacted and withheld. | - Circumstances in which the DoC advice was sought / given not explained. - Author of the summarised legal advice not disclosed. - Source document(s) containing the legal advice (used to create the summary) not identified with no cross- reference to other discovered privileged document(s). | - Redaction: Confirmed. Email Roberts to Allardyce & Ors, 16 August 2018. Records legal advice and requests further advice. The solicitors who are the source of the advice are recorded. |
| No. | Date / Ref / Type | Crown Category | Respondent’s Position | Applicant’s Notes / Response | Decision |
| [24] | 24-08-2018 WHI0340226 | Three & Four | - Newell Affidavit: This is an email chain between DOC and LINZ officials. The redacted information contains a summary of DOC and LINZ legal advice and references legal advice that has been requested. | - Two sections are redacted in this document and the respondent’s comments do not delineate between the separate redactions. - The second redaction is particularly short – only half a sentence. - The correspondence is principally between non- lawyers. - Circumstances in which the legal advice was sought / given not explained. - Author of the summarised legal advice not disclosed. - Source document(s) containing the legal advice (used to create the summary) not identified with no cross- reference to other discovered privileged document(s). - Basis for legal advice to be shared between LINZ and DOC not explained. | - First Redaction: Declined. Email Hook to Roberts & Ors, 24 August 2014. The claimed privilege is that the email records a summary of legal advice. The redacted section simply records that the legal opinions are still someway apart. This does not summarise the legal opinions, only that they differ. - Second Redaction: Confirmed. Email Dexter to Allardyce & Ors, 24 August 2018. Seeks legal services from in-house solicitor. |
| [25] | 31-08-2018 WHI0260794 | Three | - Espie Affidavit: This is an email chain between LINZ and DOC officials John Hook, Andy Roberts, Jacob Dexter, Tara Allardyce, April Hussey and Jerome Sheppard) dated 24-31 August 2018. The redacted information is a summary of LINZ and DOC legal advice. | - The half sentence redaction is the same as in WHI0340226 and the same comments apply. | - Redaction: Declined. Email Hook to Roberts, 24 August 2018. Same email as First Redaction entry [24]. |
| No. | Date / Ref / Type | Crown Category | Respondent’s Position | Applicant’s Notes / Response | Decision |
| [26] | 26-09-2018 WHI0300840 Memorandum | One | - Newell Affidavit: This is a departmental memo dated 26 September 2018 from Andy Roberts (DOC official) to the Minister of Conservation. The redacted information contains a summary of DOC and LINZ legal advice and references legal advice that has been requested. | - The respondent’s original discovery affidavit records that Ms Allardyce is an author of this memorandum. However, both the memorandum and Ms Newell’s affidavit record that only Andy Roberts, a non-legal advisor, authored this document. - Much of the redacted information is under the heading “background and context”. - Circumstances in which the legal advice was sought / given not explained. - Author of the summarised legal advice not disclosed. - Source document(s) containing the legal advice (used to create the summary) not identified with no cross- reference to other discovered privileged document(s). - Basis for legal advice to be shared between LINZ and DOC not explained. | - First Redaction: Confirmed. Para [4] of memo. Provision of legal advice. - Second Redaction: Confirmed. Para [7] of memo. Summary of legal advice. - Third Redaction: Confirmed. Para [8] of memo. Summary of legal advice. - Fourth Redaction: Declined. Para [9] of memo. Paragraph only records the fact that a meeting of the legal teams of DOC and LINZ has been scheduled and no more. - Fifth Redaction: Confirmed. Part of para [10] of the memo. Giving of legal advice. - Sixth Redaction: Confirmed. Para [18] of memo. Giving of legal advice. |
| [27] | 15-01-2019 WHI03110916 | Two | - Newell Affidavit: This is an email dated 15 January 2019 from Mary- Anne Baxter to Sheryl Johnson and Tara Allardyce. The redacted information is a request for advice from Ms Allardyce. | - The correspondence is principally between non- lawyers – the lawyer is only cc’d. - Circumstances in which the legal advice was sought is not explained. | - First Redaction: Declined. Email Baxter to Johnson and Allardyce, 15 January 2019. The claimed privilege is that the redaction is a claim for advice. The redaction is a request for an update in relation to the events recorded earlier in the email. Request in context is for a factual update rather than for legal services. |
| No. | Date / Ref / Type | Crown Category | Respondent’s Position | Applicant’s Notes / Response | Decision |
| [28] | 06-03-2019 WHI0301705 | Two | - Newell Affidavit: This is an email chain between DOC officials following earlier correspondence with Guy Blundell. The first email in the chain dated 6 March 2019 is from me to Andy Roberts, Kingsley Timpson, Janine Sidery, Wendy Osborne and Tara Allardyce. It contains legal advice and has been completely redacted and withheld. - The second email in the chain dated 6 March 2019 is from Andy Roberts to Kingsley Timpson, Janine Sidery, Tara Allardyce, Wendy Osborne and myself. The redacted information in that email is a request to myself and Ms Allardyce for legal advice. | - Circumstances in which the legal advice was sought / given not explained. | - First Redaction: Confirmed. Email Roberts to Timpson & Ors, 6 March 2019. Summary of legal position. - Second Redaction: Confirmed. Email Newell to Roberts & Ors. Summary of legal advice. |
| [29] | 16-05-2019 WHI0050021 Email & Briefing Paper | One | - Espie Affidavit: This document is an email attaching a Ministerial Briefing to the Minister for Land Information dated 16 May 2019. Parts of the Ministerial Briefing have been redacted. That redacted information is legal advice. | - Document has been supplied in two subsequent versions by the respondent. The first heavily redacted version is at 115. The second less redacted version is at 131. - Respondent redacted the content of the “three main approaches the Crown could pursue” independent of any legal advice concerning those options. - Further scrutiny thereby required over remaining redactions viz: · Named author is not a lawyer. · Authors of legal advice not disclosed. · Circumstances in which the original advice was sought / given not explained. | - First Redaction: Confirmed. Page 6 of 10 of that document. Summary of documents, internal legal advice. - Second Redaction: Confirmed. Para [25] page 5 of the document. Summary of legal advice. - Third Redaction: Declined. Part para [24] page 5. Redacted passage does not record legal advice from DOC, only when the issue referred to in para [24] might be able to be resolved. - Fourth Redaction: Confirmed. Para [23] page 5 of the document. Summary of legal advice. - Fifth Redaction: Confirmed. Table top of page 5. Refers to legal advice. - Sixth Redaction: Confirmed. Para [5] page 2 of the document. Records legal advice. |
| No. | Date / Ref / Type | Crown Category | Respondent’s Position | Applicant’s Notes / Response | Decision |
| [30] | 16-05-2019 WHI0050019 High Level Options Assessment | One | - Espie Affidavit: This is a document titled "Attachment B: Resolving Riversdale Flats: High Level Options Assessment". The redacted information summarises legal advice from DOC and LINZ's in-house legal teams. | - Document has been supplied in two subsequent versions by the respondent. The first heavily redacted version is at 147. The second less redacted version is at 149. - The comments in respect of WHI0273340 apply to this document. | - Redaction: Confirmed. The deleted part of the table sets out legal advice. The applicants say that the deleted option is independent of any legal advice. I do not agree. If a solicitor is engaged to provide advice as to options then the solicitor in generating those options and advising of the implications of the same is providing legal services that is confidential. Again, it is the communication that is confidential. The focus is not on whether every section of a document contains legal advice. |
| [31] | 13-11-2019 WHI0301776 Notes | One | - Newell Affidavit: This is a document titled "Mt White Station - Riversdale Flats" dated 13 November 2019. The redacted information summarises DOC and LINZ legal advice. | - This document has been supplied in two subsequent versions by the respondent. The first heavily redacted version is at 151. The second less redacted version is at 152. - The respondent inappropriately redacted the details of options being considered (independent of legal advice concerning these options). - Further scrutiny thereby required over remaining redactions viz: · No stated author or recipient. · Authors of summarised legal advice not disclosed. · Source document(s) containing the legal advice (used to create the summary) not identified with no cross-reference to other discovered privileged document(s). · Basis for legal advice to be shared between LINZ and DOC not explained. | - Redaction: Confirmed. Records legal advice. |
| No. | Date / Ref / Type | Crown Category | Respondent’s Position | Applicant’s Notes / Response | Decision |
| [32] | 20-11-2019 WHI0050047 | Two & Three | - Espie Affidavit: This is an email chain. The top email in this chain is from myself to Joshua Paulin (a LINZ official) and Craig Harris (Commissioner of Crown Lands) dated 20 November 2019. That email contains legal advice from me to Mr Paulin and Mr Harris. That email has been completely redacted and withheld. - Two other emails in the chain from Mr Paulin and Mr Harris on 20 November 2019 either discussing requesting legal advice from me or request legal advice from me. That discussion and request have been redacted and withheld. | - Circumstances in which the legal advice was sought / given not explained. | - First Redaction: Declined. Email Harris to Paulin, 20 November 2019. Communication between non-lawyers raising the issue of requesting legal advice. Such not within s 54. - Second Redaction: Confirmed. Email Paulin to Harris & Ors, 20 November 2019. Request for legal advice. - Third Redaction: Confirmed. Email Esbie to Paulin & Ors, 20 November 2019. Provision of legal advice. |
| [33] | 27-11-2019 WHI0260887 Report | One | - Espie Affidavit: This is a document titled "Riversdale Flats - Options and next steps" dated 27 November 2019. The redacted information summarises DOC and LINZ legal advice. | - This document has been supplied in two subsequent versions by the respondent. The first heavily redacted version is at 155. The second less redacted version is at 160. - The respondent had redacted key elements of an assessment of options thereby concealing what options were being considered (which is obviously independent of any legal advice concerning these options). - Further scrutiny thereby required over remaining redactions viz: · No stated author. · Authors of summarised legal advice not disclosed. · Source document(s) containing the legal advice (used to create the summary) not identified with no cross-reference to other discovered privileged document(s). · Basis for legal advice to be shared between LINZ and DOC not explained. | - First Redaction: Confirmed. Under heading “Legal” top left corner. Summary of legal advice. - Second Redaction: Confirmed. Blue Table, righthand side of document. Records legal advice. |
| No. | Date / Ref / Type | Crown Category | Respondent’s Position | Applicant’s Notes / Response | Decision |
| [34] | 02-12-2019 WHI0050049 | One | - Espie Affidavit: This is an email from Nicola Thomas (Director, Crown Property Christchurch) to several LINZ officials Joshua Paulin, Jeremy Barr, Jerome Sheppard, Nicole Arthur, Lydia Bloy, Craig Harris and myself). The redacted information in this email is a summary of a meeting I had with Ms Thomas, Mr Harris and Ms Bloy at which we discussed legal matters relating to the pastoral lease for Mt White Station. | - This email starts with the line “general update on Mt White follows”, which does not imply that nearly a page of legal advice is to follow. - Circumstances in which the legal advice was sought / given not explained. - It does not follow that a discussion of legal matters at an earlier meeting means that an ex-post summary of all matters discussed at the meeting is privileged. | - Redaction: Confirmed. Entire passage records legal advice. |
| [35] | 08-06-2020 WHI0050056 | Three & Four | - Espie Affidavit: This is an email from Nicole Thomas to Jerome Sheppard (both LINZ officials) dated 8 June 2020. The redacted information in the email is a discussion of a request for legal advice. - Attached to that email is a document titled ''Talking Points: Riversdale Flats". This document is a draft. The redacted information summarises legal advice. | - This is correspondence between non-lawyers. - Circumstances in which the advice was sought not explained. - Attached “talking points” document has no listed author or recipient. - Authors of summarised legal advice not disclosed. - Source document(s) containing the legal advice (used to create the summary) not identified with no cross- reference to other discovered privileged document(s). | - First Redaction: Confirmed. Under heading “Key Messages”, first bullet point of redaction. Records legal advice. Remaining three bullet point. Declined. Not a record of advice. - Second Redaction: Confirmed. Para prior to head “Key Messages”. Records legal advice. - Third Redaction: Declined. Covering email, 8 June 2020, Thomas to Shepherd. Not a communication between solicitors contemplated. Check on whether legal advice from Crown Law completed but does not record legal advice given by a solicitor. |
| No. | Date / Ref / Type | Crown Category | Respondent’s Position | Applicant’s Notes / Response | Decision |
| [36] | 09-06-2020 WHI0050058 | Three & Four | - Espie Affidavit: This is an email chain. The relevant email with redacted information is between LINZ officials (from Nicola Thomas to Lydia Bloy, Shawnee Westerman, Phil Holland and Cathie Doyland) dated 9 June 2020. The redacted information discusses a request for legal advice and summarise legal advice. | - The relevant email does not include lawyers. - Correspondence between non-lawyers concerning requesting legal advice is not privileged as distinct from a communication to a lawyer requesting legal advice. - Circumstances in which the advice was sought not explained. - Authors of summarised legal advice not disclosed. - Source document(s) containing the legal advice (used to create the summary) not identified with no cross- reference to other discovered privileged document(s). | - First Redaction: Confirmed. Bottom of page 1, email 9 June 2020, Thomas to Bloy & Ors. Summary of legal advice. - Second Redaction: Confirmed. Middle redacted paragraph. Records legal advice. - Third Redaction: Confirmed. Email 9 June 2020. Records legal advice. |
| [37] | 24-11-2020 WHI03113115 | Three | - Newell Affidavit: This is an email chain between DOC officials. The first email in the chain dated 24 November 2020 is from Mary-Anne Baxter to Janine Sidery and Brian Taylor. The redacted information in that email is a summary of legal advice. | - The relevant email is correspondence between non- lawyers. - Circumstances in which the advice was sought / received not explained. - Authors of summarised legal advice not disclosed. - Source document(s) containing the legal advice (used to create the summary) not identified with no cross- reference to other discovered privileged document(s). | - Redaction: Confirmed. Records legal advice. |
| [38] | 24-11-2020 WHI0070161 | Three | - Espie Affidavit: This is an email chain. It contains various emails between LINZ and DOC officials. The relevant email with redacted information is from Mike Sherman and Steve Sharman dated 14 October 2014. The redacted information summarises legal advice from LINZ's in-house legal team. | - The relevant email is correspondence between non- lawyers. - Circumstances in which the advice was sought / received not explained. - Authors of summarised legal advice not disclosed. - Source document(s) containing the legal advice (used to create the summary) not identified with no cross- reference to other discovered privileged document(s). - Basis for legal advice to be shared between LINZ and DOC not explained. | - First Redaction: Confirmed. Email 14 October 2014, Sherman to Sharman. Records legal advice. |
| No. | Date / Ref / Type | Crown Category | Respondent’s Position | Applicant’s Notes / Response | Decision |
| [39] | 05-03-2021 WHI03105959 | - The respondent has provided no explanation for this privilege claim. | - The applicant is unable to assess this privilege claim due to the respondent’s lack of response. | - Document not provided for review. |
SCHEDULE B
DISPUTED DOCUMENTS – FULLY REDACTED DOCUMENTS
| No. | Date / Ref | Applicant’s Comments (04-03-22) | Respondent’s Comments (09-03-22) | Applicant’s Reply (11-03-22) | Decision |
| [1] | Undated 027.3183 | No date, author, or recipient. Applicant is unable to assess the privilege claim. | This document summarises legal advice. The date and identity of the author is unknown. | - Authors of summarised legal advice not disclosed either. - Source document(s) containing the legal advice (used to create the summary) not identified with no cross- reference to other discovered privileged document(s). | - Confirmed. Summary of legal advice – refers to solicitors who were the authors of the advice discussed in the document. |
| [2] | Undated 027.3718 | No date, author, or recipient. Applicant is unable to assess the privilege claim. | This is an attachment to a legally privileged document. The applicant does not dispute that the parent document is legally privileged. We recognise that this document does not attract privilege by virtue of being attached to a privileged document. However, this document on its own is irrelevant. It is therefore not independently discoverable. This document is listed here to ensure compliance with cl 8(3) of Part 2 of Schedule 9 of the High Court Rules. | - It is now admitted that the document is not privileged yet the document was individually listed as privileged in the supplementary affidavit as to documents. - This approach, liable to mislead, is not excused by cl 8(3). The rules cannot sensibly be construed to permit individually listing an unprivileged document as being privileged. - The respondent has not hitherto suggested that this document is irrelevant. - The fact that the document is attached to a discoverable privileged document gives rise to a reasonable inference that it is relevant. - Given that privilege is not claimed over this document, the pragmatic course would have been (and remains) disclosure in order to avoid ongoing dispute. | - Declined. Privilege not maintained – I do not accept the document is irrelevant and so it should be produced. |
| [3] | Undated 027.3719 | No date, author, or recipient. Applicant is unable to assess the privilege claim. | This is an attachment to a legally privileged document. The applicant does not dispute that the parent document is legally privileged. We recognise that this document does not attract privilege by virtue of being attached to a privileged document. However, this document on its own is irrelevant. It is therefore not independently discoverable. This document is listed here to ensure compliance with cl 8(3) of Part 2 of Schedule 9 of the High Court Rules. | - Refer comments in respect of 027.3718 above. | - Declined. Privilege not maintained – I do not accept the document is irrelevant and so it should be produced. |
| No. | Date / Ref | Applicant’s Comments (04-03-22) | Respondent’s Comments (09-03-22) | Applicant’s Reply (11-03-22) | Decision |
| [4] | Undated 027.3732 | No date, author, or recipient. Applicant is unable to assess the privilege claim. | This is a draft version of document WHI.027.3340. Document WHI.027.3340 has previously been discovered and provided to the applicant for inspection. Mr Espie, a solicitor and Head of Legal at LINZ, reviewed this draft version, and it contains his comments and amendments. | - The respondent has not explained the basis on which it is claiming privilege over the draft version (without the comments / amendments). - In particular, it has not addressed whether the draft was prepared for the purpose of obtaining legal advice as compared to the purpose of furtherance of preparation of the document for finalisation (see Sumunovich Fishers Ltd v TVNZ (HC, Auckland, CIV 2004-404-3903, 18 December 2006), at [26]ff)). - Nor has the respondent identified that the comments and amendments relate to rights, liabilities or obligations of the respondent under private or public law. | - Confirmed. Draft of discovered document with marked-up changes recording legal advice. The marked-up changes are not merely for preparation of the document for finalisation, but reflect changes in accord with advice recorded in the marked-up comments. |
| [5] | Undated 027.3809 | This is correspondence between non-lawyers, and is made directly to the applicant. | This is a draft version of document WHI.026.0976. Document WHI.026.0976 has previously been discovered and provided to the applicant for inspection. This draft document was sent to Crown Law for review and is an attachment to that email to Crown Law. The applicant does not dispute that the email to Crown Law is legally privileged. | - Refer comments in respect of 027.3732 above. | - Confirmed. Records query from Crown Law Office. |
| [6] | Undated 030.0727 | No date, author, or recipient. Applicant is unable to assess the privilege claim. | This is an attachment to a legally privileged document. The applicant does not dispute that the parent document is legally privileged. We recognise that this document does not attract privilege by virtue of being attached to a privileged document. However, this document on its own is irrelevant. It is therefore not independently discoverable. This document is listed here to ensure compliance with cl 8(3) of Part 2 of Schedule 9 of the High Court Rules. | - Refer comments in respect of 027.3718 above. | - Declined. Privilege not maintained – I do not accept the document is irrelevant and so it should be produced. |
| [7] | Undated 030.0728 | No date, author, or recipient. Applicant is unable to assess the privilege claim. | This is an attachment to a legally privileged document. The applicant does not dispute that the parent document is legally privileged. We recognise that this document does not attract privilege by virtue of being attached to a privilege document. However, this document on its own is irrelevant. It is | - Refer comments in respect of 027.3718 above. | - Declined. Privilege not maintained – I do not accept the document is irrelevant and so it should be produced. |
| No. | Date / Ref | Applicant’s Comments (04-03-22) | Respondent’s Comments (09-03-22) | Applicant’s Reply (11-03-22) | Decision | ||
| therefore not independently discoverable. This document is listed here to ensure compliance with cl 8(3) of Part 2 of Schedule 9 of the High Court Rules. | |||||||
| [8] | Undated 034.0178 | No date, author, recipient. Applicant unable to assess privilege claim. | or is the | The identity of the author is unknown. This document is a record of a meeting between DOC and LINZ with in-house solicitors present. | - The presence of in-house solicitors does not render everything discussed at the meeting subject to legal professional privilege. - The respondent does not state whether legal professional services were requested or supplied at the meeting. - The participants in, and purpose of, the meeting are not disclosed. | - Confirmed. Notes of meeting attended by DOC and LINZ in-house solicitors – records legal discussions. | |
| [9] | Undated 034.0614 | No date, author, recipient. Applicant unable to assess privilege claim. | or is the | This document is in draft and contains a request for Crown Law advice. The identity of the author is unknown. | - It is not obvious from this explanation whether the draft was prepared for the purposes of obtaining legal advice or, within the draft, there was a request for legal advice in which case the balance of the draft may not be subject to legal professional privilege. - Nor is it clear whether any request for legal advice was ever communicated to fall within s 54. | - Confirmed. advice. | A request for legal |
| [10] | Undated 035.0189 | The author of this report is not a legal advisor. No recipient or date is provided. Applicant is unable to assess the privilege claim. | This is an attachment to a legally privileged document. The applicant does not dispute that the parent document is legally privileged. We recognise that this document does not attract privilege by virtue of being attached to a privileged document. However, this document on its own is irrelevant. It is therefore not independently discoverable. This document is listed here to ensure compliance with cl 8(3) of Part 2 of Schedule 9 of the High Court Rules. | - Refer comments in respect of 027.3718 above. | - Declined. Privilege not maintained – I do not accept the document is irrelevant and so it should be produced. | ||
| [11] | 22-03- 2018 031.14028 | This is correspondence between non-legal advisors. Applicant is unable to assess the privilege claim. | This is an email chain between DOC officials, including a lawyer. This email chain contains legal advice and discuses that legal advice. | - The lawyer is not disclosed. | - Confirmed. Email exchange discussing legal advice from DOC’s chief legal advisor. | ||
| [12] | 23-08- 2018 031.12620 | This is correspondence between non-legal advisors. Applicant is unable to assess the privilege claim. | This is an email chain between DOC officials, including two lawyers. This email chain contains legal advice and discuses that legal advice. | - The lawyers are not disclosed. | - Confirmed. Discussion of legal advice prepared by DOC’s chief legal advisor and circulated amongst DOC staff including solicitors. | ||
| [13] | 24-08- 2018 | This is correspondence between non-legal advisors. | This is an email chain between DOC officials, including two lawyers. This email chain | - The lawyers are not disclosed. | - Confirmed. Discussion of legal advice prepared by DOC’s chief legal | ||
| No. | Date / Ref | Applicant’s Comments (04-03-22) | Respondent’s Comments (09-03-22) | Applicant’s Reply (11-03-22) | Decision | ||
| 031.12631 | Applicant is unable to assess the privilege claim. | contains legal advice and discuses that legal advice. | advisor and circulated amongst DOC staff including solicitors. | ||||
| [14] | 12-09- 2018 012.0055 | This document has listed no author or recipient. Applicant is unable to assess the privilege claim. | Simon Espie, a solicitor and Head of Legal at LINZ, is the author of this document. These notes are records of Mr Espie’s conversation with DOC. | - The respondent does not state whether legal professional services were requested or supplied. - Circumstances of this discussion are not disclosed, including Mr Espie’s authority to provide professional legal services to DOC (assuming they were in fact provided). | - Confirmed. Email records legal discussion between solicitor at DOC with unnamed individuals at DOC who are discussing legal advice they have received or given. | ||
| [15] | 01-11- 2018 027.4450 | This correspondence has no listed author. Applicant is unable to assess the privilege claim. | Mr Espie, solicitor and Head of Legal at LINZ, is the author of this email. This document is a record of what Mr Espie said to DOC when discussing LINZ and DOC’s respective legal positions. | - Mr Espie is listed as recipient; not author. - Circumstances of this discussion are not disclosed, including Mr Espie’s authority to provide professional legal services to DOC. | - Confirmed. Respondents comments are accurate. | ||
| [16] | 10-05- 2019 027.3722 | This document appears to be a draft / earlier version of a document which was supplied, partially redacted, in the respondent’s discovery [document ref 005.0021]. It is dated 6 days prior, is similarly listed as a briefing paper and has the same four authors. If it is such an earlier version, then it is not the proper subject for a claim of solicitor client privilege. | This is a draft document. The final version of this document (WHI.005.0021 starting at WHI.005.0025) has previously been discovered and provided to the applicant for inspection. Mr Espie, a solicitor and Head of Legal at LINZ, reviewed this draft version and it contains his comments and amendments. | - Refer comments in respect of 027.3732 above. | - Confirmed. The edits, comments and amendments reflect a request for legal services and is part of the broad nature of legal advice referred to in the Judgment at [15]. | ||
| [17] | 20-12- 2019 027.3201 | No listed author recipient. Applicant unable to assess privilege claim. | or is the | This document is in draft and contains a request for Crown Law advice. The identity of the author is unknown. | - Refer comments in respect of 034.0614 above. | - Confirmed. advice. | A request for legal |
| [18] | 20-12- 027.4418 | No listed author recipient. Applicant unable to assess privilege claim. | or is the | This document is in draft and contains a request for Crown Law advice. The identity of the author is unknown. This is the same document as WHI.027.3201. | - Refer comments in respect of 034.0614 above. | - Confirmed. advice. | A request for legal |
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