Wakefield v Network Waitaki Limited
[2025] NZHC 1973
•18 July 2025
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2023-476-9 [2025] NZHC 1973
BETWEENGARRY JOHN WAKEFIELD and FIONA JEAN WAKEFIELD
First Plaintiffs
OTHER PLAINTIFFS
Second to One Hundred and Twenty-one Plaintiffs (detailed in Schedule A)
AND NETWORK WAITAKI LIMITED
Defendant
Hearing: 7 July 2025
Appearances: B R D Cuff and C S M Henley for Plaintiffs
W J Hamilton and A F M Larkin for Defendant
Judgment: 18 July 2025
JUDGMENT OF ASSOCIATE JUDGE LESTER
(2nd discovery judgment)
WAKEFIELD v NETWORK WAITAKI LIMITED [2025] NZHC 1973 [18 July 2025]
[1]This is the second discovery judgment involving these parties.
[2]This proceeding concerns a fire that started on 4 October 2020 between
2.10 am and 3.00 am that devastated the Lake Ōhau Village. There are now 121 plaintiffs with the total amount claimed well over $50,000,000. The plaintiffs say that the fire started at power pole number 35693, part of the Lake Ōhau feeder line operated by Network Waitaki Limited (NWL). That feeder line runs through the vacant land outside of the Ōhau Village.
[3] In the earlier judgment,1 the plaintiffs challenged the adequacy of discovery provided by NWL and sought orders setting aside a claim for litigation privilege.
[4] In this application, NWL take issue with the plaintiffs’ compliance with the rules relating to discovery and seek orders that:
(i)the plaintiffs file and serve a further affidavit that gives full particulars of the steps taken to fulfil their obligations under the standard discovery order made in this proceeding including what they did to identify individuals or entities that may have relevant documents, the enquiries they made of those persons or entities and what steps they took to locate relevant documents;
(ii)the plaintiffs individually list the documents in respect of which privilege is claimed and identify for each document the privilege that is relied on; and
(iii)where documents are redacted, explain the reason for the redaction.
[5] NWL also sought an order that the Court inspect the documents for which privilege or confidentiality is claimed.
1 Wakefield v Network Waitaki Ltd [2025] NZHC 656.
[6] NWL seeks an order that the plaintiffs provide discovery of the complete files of their insurers, agents and loss adjusters and that the redactions be removed.
[7] NWL did not seek an order setting aside the privilege claimed by the plaintiffs from the date of a letter sent by solicitors acting for IAG New Zealand Limited (IAG) just before midnight on 7 October 2020 (the “hold liable” letter).2 However, counsel for the plaintiffs appear to accept such has been put in issue.
[8] Documents held by Vero Insurance New Zealand Limited (Vero) are said to be protected by litigation privilege from 8 October 2020. Some six other insurers became involved in the following months and years, and it is said they are entitled to common interest privilege.
The source of NWL’s concerns
[9] A challenge to the adequacy of discovery is often met with the presumption that the sworn list of documents is correct, and that it is for the challenger to demonstrate there are grounds to believe other documents exist or that a claim for privilege is invalid. However, in order to rely on the presumption, the discovery provided must comply with the High Court Rules 2016 (the Rules) as the Rules governing discovery create a process aimed at ensuring care is taken in compiling the documents to be disclosed and that the documents are listed and described in a manner that allows the reader to see the basic details of what is being discovered. The date, author, recipient and type of communication (email, letter et cetera), or the nature of a document (file note, report et cetera) must be specified.3 If a list does not meet the discovery requirements in the Rules, the ability to rely on the presumption is weakened and may, depending on the degree of non-compliance, be lost.
[10] In this case, NWL raises a number of doubts about the adequacy of the plaintiffs’ list, as suggested by the orders sought. Mr Hamilton, counsel for NWL, more than once said that NWL “doesn’t know what it doesn’t know”. In some cases, Mr Hamilton could not give specifics of NWL’s concerns as he submits the plaintiffs’
2 Mr Hamilton, counsel for NWL, does not accept that the 7 October 2020 letter was a “hold liable” letter. I address that separately.
3 High Court Rules 2016, sch 9 cl 6.
list does not comply with the requirements of the Rules. The primary reason for this submission is the way in which the plaintiffs have described their claims for privilege.
[11] For example, the litigation privilege is described in pt 2 of the plaintiffs’ list as follows:
Date Document type Author Recipient Privilege Category 7 October 2020 –
present
Documents made or information compiled or prepared by or at the request of the plaintiffs, their agents, or their legal advisors, or communication between the plaintiffs, their legal advisors and third parties, made, received, compiled or prepared when litigation was reasonably apprehended or had commenced and for the dominant purpose of enabling the legal advisors to conduct the proceeding or advise the plaintiffs in relation to it. Various. Various Litigation privilege (Evidence Act 2006,
s 56)
[12] The author and recipient are described in the same way in respect of legal professional privilege and when it became relevant to common interest privilege.
[13] The above method of describing privileged documents does not comply with the listing and exchange protocol in pt 2 of sch 9 to the Rules . Clause 6 of sch 9 requires the following detail for each document: document ID, date, document type, author, recipient, parent document ID, and privilege category. Clause 9(2) provides that: “Documents for which privilege is claimed may be group listed in accordance with r 8.16(2).” That rule provides that: “Subject to Part 2 of Schedule 9, documents of the same nature falling within subclause (1)(b), (d) or (e) may be described as a group or groups.”
[14] In AFI Management Pty Ltd v Lepionka & Company Investments Ltd, the Court noted that if group listing of privileged documents is to be adopted, the listing needs to accurately inform the parties of the nature of the individual documents in that group, the date range for them and the basis for privilege claimed.4 In that case, the grouping
4 AFI Management Pty Ltd v Lepionka & Company Investments Ltd [2017] NZHC 1176 at [101].
“communications between solicitor, counsel, clients and potential witnesses” had to be recast, as those communications were clearly not of the same nature.”5
[15] McGechan on Procedure, under the heading “when groups of documents appropriate” states “If it is not possible to provide an accurate global description of the individual documents in a group (e.g. correspondence between defendant and its solicitors) then the documents must be individually listed and described however onerous that might be.”6
[16] While some grouping of documents for which privilege is claimed may be possible in certain circumstances, the approach adopted by the plaintiffs is invalid because the use of the term “various” (see for example, at [11] above, to describe authors and recipients (the Various to Various issue)), means it is not possible to identify the parties to the correspondence or documents, nor can the nature of particular privileged documents be determined.
Should the plaintiffs’ relisting of privileged documents be limited by date range?
[17] Mr Hamilton was concerned that some of the documents included in the litigation privilege category may not have been prepared for the dominant purpose of litigation.
[18] Mr Hamilton notes that the fire was on 4 October 2020, but this proceeding was not issued until June 2023.
[19] Mr Cuff, counsel for the plaintiffs, resisted having to list all 4,500 privileged documents across all categories of privilege claimed.
[20] The burden of that task is ameliorated by the ability to group documents of the same nature. However, the plaintiffs cannot avoid their primary obligation to identify the parties to correspondence or authors of documents required by the Rules.
5 At [99]—[100].
6 Jessica Gorman and others McGechan on Procedure (online ed, Thomson Reuters) at [HR9.16.04].
[21] Accordingly, there is an order that the plaintiffs are to, in respect of each document and category for which privilege is claimed, provide a sworn list of documents that complies with the listing requirements in sch 9 to the Rules. That list is to be provided within 20 working days of this judgment. The plaintiffs are entitled to provide discovery by group, but in respect of each group, the author and recipient of the documents are to be identified, together with the nature of those documents. The authors and recipients of documents are to be identified by name, not by category or role. Leave is reserved to the plaintiffs to seek an extension of time to complete the revised list if that proves to be necessary.
Is the description of the searches for documents in the plaintiffs’ lists deficient?
[22] Rule 8.15(2)(c) of the Rules requires a party to “Give particulars of the steps taken to fulfil [the party’s] obligations” in the affidavit of documents. Evidence for the plaintiffs is given in general terms. The deponent, who is a solicitor with the plaintiffs’ firm of solicitors, says: “The insurers searched for all documents that they are required to discover under the discovery order (Relevant Documents)” and “for the plaintiffs that are their customers, search their file management systems for Relevant Documents.”
[23] This deponent’s reference to the search being for “Relevant Documents” has led NWL to believe that a relevance assessment was made by the insurers and individual plaintiffs before material was provided to the plaintiffs’ solicitors for review.
[24] Starting from that belief, Mr Hamilton submits there is no evidence as to the instructions that were given to insurers to guide their relevance assessment or as to the searches required of each insurer. Mr Hamilton submits that NWL needs such evidence in order to assess whether a consistent approach was taken by the eight insurers to the production of documents.
[25] While it initially appeared that NWL was wanting all 121 plaintiffs and eight insurers to file separate lists of documents, Mr Hamilton clarified that NWL’s concern was with the completeness of discovery from the insurers.
[26] I can understand why the reference to relevant documents in the evidence referred to at [22] above, led to NWL’s concern. However, at the hearing Mr Cuff, said the insurers provided to the plaintiffs’ solicitors their full client files for this event. Accordingly, no relevance assessment was made by the insurers.
[27] As to material provided by loss adjusters, again Mr Cuff advised that the full loss adjusters’ files had been provided. Material agreed by NWL to be irrelevant such as policy or reserve information was excluded. While there are some redactions from the loss adjusters’ reports, it has been agreed that those redactions will be removed. Accordingly, Mr Cuff says there is nothing further to come from the loss adjustors.
[28] The plaintiffs’ evidence could be clearer in respect of the searches that the insurers were asked to undertake. The reference to insurers being asked to search their file management systems for relevant documents understandably led NWL to think that a key word type search had been undertaken rather than the insured’s full files being provided. Similarly, the reference to the loss adjusters, experts and investigators being asked to search their file management system created the same uncertainty.
[29] The plaintiffs are to provide an affidavit confirming Mr Cuffs’ advice at the hearing. Of course, it is not a matter of me doubting Mr Cuff, but the plaintiffs are entitled to evidence in respect of the areas of concern given the uncertainty created by how the plaintiffs’ affidavit was framed.
[30] Mr Hamilton says that while an example of the instructions given to each individual insured by the plaintiffs’ solicitors has been provided, there is no evidence as to what the responses were. The practical point is the individual plaintiffs were told of their obligations to carry out searches. As all plaintiffs will receive a copy of this judgment, I remind them that they were obliged to search all their records, whether they are in hard copy or electronic form, including records in storage, and they must search for deleted messages or documents on telephones or computers; this obligation extends to documents in any form. In addition, they are obliged to call for documents from third parties where they have the right to call for those documents, for example, if there are documents held by their accountants, lawyers, or, for example, a builder who carried out remedial work, where the plaintiff does not already have a copy which
they made available to their solicitors acting for them in this proceeding. If the above prompts any plaintiffs to locate further documents, they are to provide them to their solicitors as soon as possible.
[31] In addition to the order at [21], I record that the redactions in the loss adjusters’ documents are to be removed and I make an order in relation to the affidavit directed at [29] above—that affidavit is to be provided within 20 working days of this judgment. I do not make any further orders in respect of this aspect of NWL’s application.
Missing documents including missing attachments
[32] NWL, in its evidence, detailed what it considered to be missing correspondence and why it held that view and gave examples of missing attachments referred to in documents but apparently not discovered.
[33] At the hearing, Mr Cuff produced a table that sought to respond to each of those allegations and in almost every case, asserted that the material had already been disclosed or did not exist. Mr Hamilton understandably, had no ability to respond to that schedule in the course of the hearing.
[34] Paragraphs 8.1 to 8.3 of Mr Cuff’s table deal with redactions which are now not in dispute.
[35] Paragraph 8.4 of Mr Cuff’s schedule is a reference to discovered documents only being an excerpt of a larger document. A full explanation is required from the plaintiffs in respect of these documents. One of the examples I was taken to was a document numbered page 2, of what appears to be a letter, with the rest of the document missing. An explanation is to be provided by the plaintiffs in respect of the 18 documents referred to at paragraph 8.4 of Mr Cuff’s table. If the full documents exists, then they will need to be discovered. If the review of these documents does not result in any further relevant documents being produced, then it is to be explained why that is the case and why only excerpts are available, is to be explained.
[36] In respect of item 6.3(a) of the table, there are 36 loss adjuster reports that record they were peer reviewed, but the review has not been disclosed. Mr Cuff says no review documents exist. An affidavit as to why that is the case is required.
[37] Leave is reserved to NWL to seek that the hearing be resumed to the extent that NWL is not satisfied with the explanation provided in the table. However, given Mr Cuff’s assurances that all relevant material has been provided, I would expect that any issues in that regard should be capable of being resolved between counsel.
[38] For the avoidance of doubt, I decline to order that each of the 121 individual plaintiffs file a further list of documents giving particulars of the steps they took to fulfil their discovery obligations. Again, to be fair, Mr Hamilton did not pursue that application at the hearing.
[39] As to the application for an order that the plaintiffs make available to the Court for inspection, the documents which they claim privilege or confidentiality for, I decline to make that order. There are some 4,500 documents for which privilege is claimed. At the hearing, Mr Hamilton explained that he had anticipated this application would prompt a more particularised list of privileged documents that would have permitted a more targeted request for the Court’s inspection. I suggested if there remains a significant area of disputed privilege that an independent senior barrister be engaged to carry out an inspection and review at NWL’s cost in the first instance. That senior barrister would provide a short list of documents for which the claim for privilege may be questionable and which may then be referred to me, but until then, the Court will not be carrying out a wholesale review of privilege or confidentiality.
[40] My judgment to this point addresses the orders actually sought in NWL’s interlocutory application.
Litigation privilege
[41] While the above deals with the application as filed, Mr Hamilton’s submissions went on to take issue with the date from which the plaintiffs claimed litigation privilege. The context is the fire was on 4 October 2020. IAG claims litigation
privilege from 7 October 2020 and Vero claims litigation privilege from 8 October 2020.
[42] Mr Hamilton queries both claims. The essence of his submission is that in a number of cases, including cases involving the investigation of fires, the Courts have recognised that the primary purpose of initial expert investigation into an event giving rise to loss will be determining cause rather than recovery.7 Mr Hamilton therefore submits that it is likely that documents for which privilege is claimed on 7 October 2020 and for a period thereafter cannot be ascertained because he has not had a fully particularised list, and he submits those documents will either have been for the predominant purpose of determining cause (in which case the claim for litigation privilege will fail) or for a mixed purpose, in which case the dominant purpose will have to be assessed.
[43] I accept Mr Hamilton is handicapped in carrying out this assessment by not having the properly particularised list of documents for which privilege is claimed. As I said in the first discovery judgment between the parties:8
… when there is a challenge to privilege the Court would be assisted by more detail as to the identity of parties to correspondence or the nature of the documents when considering the claim for privilege.
[44]The extract from the plaintiffs list set out at [11], offers no such assistance.
The “hold liable” letter
[45] Just before midnight on 7 October 2020, IAG’s solicitors sent NWL by email a letter that advised:
IAG is the insurer of a number of homes that were destroyed by the fire in and around Lake Ohau Village…
… [IAG’s] fire origin and cause investigators identified the likely point of origin for the fire approximately Latitude -44.25491, Longitude 169.816304. This is located between and underneath two Network Waitaki Limited busck power poles ….
7 Citing Brandlines Ltd v Central Forklift Group Ltd HC Wellington, CIV-2008-485-2801, 11 February 2011 and Ohope Chartered Club v Bay of Plenty Electric Power Board HC Rotorua CP3/93, 13 June 1006.
8 Wakefield v Network Waitaki Ltd above n 1 at [28].
The letter also recorded that “Damage to [Waitaki’s] network’s conductors has been identified in this area.” IAG called upon NWL to preserve all equipment at or nearby the point of origin of the fire, as it considers that equipment to be “valuable evidence in the fire’s investigation”.
[46] IAG requested that all the infrastructure equipment be retained by Fire and Emergency New Zealand (FENZ) “as a neutral party to preserve the chain of custody”. It sought that no destructive testing, alteration or disposal of the infrastructure should be undertaken without the consent of all interested parties and FENZ.
[47] IAG also called for the preservation of all historical and recent relevant records relating to repair work at the poles, maintenance work, et cetera.
[48] The 7 October 2020 letter does not expressly state that IAG is holding NWL liable for the loss but that is the reality of the letter.
[49] IAG instructed Corporate Risks, a company which advises in a wide range of fire investigation issues, to investigate and, if possible, determine the fire’s origin and cause. That instruction was on 4 October 2020.
[50] On 6 October 2020, Mr Joseph of Corporate Risks visited the scene of the main fire for the first time and commenced investigations alongside another investigator acting for Vero and investigators on behalf of FENZ. Mr Joseph said he spent all day at the scene, other than a short period when he was requested to leave by FENZ.
[51] Mr Joseph explains that his initial investigations included plotting fire runs and identifying a likely point of origin at a location between and underneath two NWL power poles.
[52] On 7 October 2020, Mr Joseph communicated with IAG’s solicitors regarding an update of his investigation. Later on the afternoon of 7 October 2020, Mr Joseph discussed with IAG’s counsel and their solicitors, his views as to the origin and cause of the fire which he concluded was likely between and underneath two of NWL’s
power poles. Mr Joseph’s view was that the fire was likely associated with NWL’s Lake Ōhau infrastructure.
[53] NWL, when it received the 7 October 2020 letter, apprehended that it was going to be the subject of litigation. NWL originally claimed litigation privilege over documents from 5 October 2020.
Assessing claims for privilege
[54] The plaintiffs rely on s 56(1) and (2) of the Evidence Act 2006 (the Act) which provides:
56 Privilege for preparatory materials for proceedings
(1)Subsection (2) applies to a communication or information only if the communication or information is made, received, compiled, or prepared for the dominant purpose of preparing for a proceeding or an apprehended proceeding (the proceeding).
(2)A person (the party) who is, or on reasonable grounds contemplates becoming, a party to the proceeding has a privilege in respect of—
(a)a communication between the party and any other person:
(b)a communication between the party’s legal adviser and any other person:
(c)information compiled or prepared by the party or the party’s legal adviser:
(d)information compiled or prepared at the request of the party, or the party’s legal adviser, by any other person.
[55] NWL challenges both the reasonable contemplation requirement (s 56(2)) and the dominant purpose requirement (s 56(1)).
Reasonable contemplation
[56]The learned authors of Cross on Evidence state:9
The Act requires that the privilege holder either be or “reasonably contemplate becoming” a party to a proceeding or an anticipated proceeding. This is a “qualification” that the person who is making the claim must satisfy. The question is one of fact, to be determined on the evidence offered as to the
9 Mathew Downs (ed) Cross on Evidence (online ed, LexisNexis) at [EVA56.5(a)].
actual contemplation of the party concerned, and on the reasonableness of that contemplation. The onus is on the party claiming the privilege. (footnotes omitted)
[57] Cross on Evidence cites Attorney-General v Seven Electrical Ltd, where Master Thomson observed:10
[8]In deciding what the dominant purpose of preparation of documents was, the Court should look at the intention of the composer of the document and the intention of the composer of the documents and the intention of the person or authority under whose direction they have been produced or brought into existence. (Carlton Cranes Ltd v Consolidated Hotels Ltd [1998] 2 NZLR 555 at 557.
[58]Master Thomson also noted that:11
[10] A party setting up a claim for privilege has an onus to establish its entitlement to the benefit of the privilege. That entitlement must be established clearly and unequivocally.
[59] I note these authorities pre-date the passing of the Act, but Cross on Evidence notes that: “Section 56 was intended to restate the existing law in relation to “litigation privilege”.12
[60] The principle set out in Carlton Cranes Ltd v Consolidated Hotels Ltd,13 relied on by Master Thomson in the Seven Electrical Ltd case,14 has been referred to in recent decisions, without criticism of this principle.15
[61] The key issue is when the plaintiffs’ insurers reasonably contemplated litigation was likely. As Mr Cuff submitted, those insured who were fully indemnified had no reason to think in terms of litigation as they were made whole by their insurer. In respect of plaintiffs who were under-insured or had no insurance, then it is highly unlikely they will have any privileged documents. Documents as to quantum will not be privileged and individual homeowners are highly unlikely to have any material
10 Attorney-General v Seven Electrical Ltd HC Wellington CP251/00, 14 November 2001.
11 Citation omitted.
12 At [EVA56.3].
13 Carlton Cranes Ltd v Consolidated Hotels Ltd [1998] 2 NZLR 555.
14 Attorney-General v Seven Electrical Ltd, above n 10.
15 See Minister of Education v James Hardie New Zealand [2020] NZAR 641; Public Trust v Hotchilly Ltd [2010] BCL 344; and Telecom New Zealand v AMP New Zealand Property Commercial Ltd [2006] BCL 295.
relevant to the cause of the loss—if such is claimed it will only be known once the Various to Various issue is addressed.
[62] The claim for privilege as at 7 October 2020 is squarely founded on the 7 October 2020 letter and Mr Joseph’s investigations.
[63] It is tempting to defer a ruling on this issue until there is full disclosure of the full correspondence on 7 October 2020. However, in my view, there is enough to conclude that litigation was reasonably contemplated by IAG on 7 October 2020. The factors are as follows:
(i)The fire was a major incident and it was clear by 7 October 2020 that IAG was going to face significant claims.
(ii)There is no evidence I have seen to suggest that the origin of the fire was not related to NWL’s network. NWL of course denies liability but it is not a situation where the fire investigator was faced with multiple possible sources of the fire. With the fire investigator’s evidence that, in his view, the origin of the fire lay with the NWL network, an insurer’s natural response would be to look to NWL for recovery.
(iii)Mr Joseph was instructed on 4 October 2020. IAG’s solicitor at the time were instructed by IAG, at the latest, on 6 October 2020, that being the date they sent a formal letter of instruction to Mr Joseph. That Mr Joseph was reporting to IAG’s solicitors rather than simply to IAG suggests the focus was on a legal process.
(iv)Discussions between Mr Joseph and the solicitors then instructed, took place in the afternoon of 7 October 2020 but, the “hold liable” letter was not sent until just before midnight on 7 October 2020. That the solicitors were working through to midnight on the issue is consistent with a litigation mindset.
(v)The demand that NWL preserve evidence coming from a law firm acting on behalf of an insurer can only be for the purposes of litigation.
(vi)The solicitors then instructed would not have sent the letter of 7 October 2020 without instructions from their insurer client. It follows from that fact that the insurer was contemplating litigation, hence the demand for the preservation of evidence after having worked through the day with their fire investigator and solicitor and then giving instructions for the letter, which was sent just before midnight.
[64] I do not accept Mr Hamilton’s submission that the fact Mr Joseph and the plaintiffs became aware on 17 December 2020 of an alternative source of the fire within NWL’s network (now relied on) as the origin of the 4 October 2020 fire, changes what was understood on 7 October 2020.
[65] The solicitors and IAG clearly relied on Mr Joseph’s October 2020 opinion about the origin and cause of the fire, as pointing to NWL as a potential avenue of recovery. As I have said, there is no evidence of any other potential source of recovery. That the focus changed from the two power poles in Mr Joseph’s initial report to the apparently faulty cross-arm at a different pole, does not alter what was considered on 7 October 2020.
Dominant purpose
[66] The above conclusion is only half the assessment as to whether the claim of litigation privilege is correct. The twin tests of reasonable apprehension of litigation and dominant purpose are determined on the basis of evidence with both limbs having to be satisfied to maintain privilege.16
[67] The dominant purpose of the documents prepared on 7 October 2020 and thereafter cannot be assessed because Mr Hamilton and the Court do not know what the documents are because of the way in which the privilege documents have been listed.
16 E Sport Yachting Ventures Ltd v Southern Spars HC Auckland CIV-2008-404-1120, 29 July 2011 at [20].
[68] Whether the documents were for a mixed purpose or not, simply cannot be assessed at this time.
[69] This aspect of NWL’s application is adjourned. Once the particularised list ordered above has been provided, leave is reserved to NWL to have this aspect of its application set down with the benefit of further evidence and submissions once NWL and the Court know the nature and timing of the documents for which privilege is claimed.
Claim for privilege by Vero
[70] Vero’s claim for litigation privilege is said to run from 8 October 2020. That is because of its receipt of its expert’s initial investigation and on the strength of an email produced only in the plaintiffs’ bundle of documents for the hearing.
[71] A senior investigations advisor at Vero instructed its fire expert on 6 October 2020 to carry out investigations into the fire. That email concluded: “As you are aware it will be critical to establish the cause of the [f]ire and whether any liability or recovery exists ASAP.”
[72] The fire investigator replied by email on, it appears the evening of 7 October 2020. The email says that “the origin and cause investigation is ongoing”. The email refers to:
· An area of interest has been identified under 1 11kV Power line operated by Network Waitaki.
· The line in the area of interest is between two poles, 177 metres apart.
· On this line the three conductors have at least 4 and possible 7 previous repairs/joins.
· One line has clear evidence of an electrical event, the aluminium wrapped round the steel core has arced”.
[73] The report of the initial investigation contains a recommendation to instruct a suitable electrical expert to undertake an examination of the power network and to report on whether the network was of the required standard and the reason for the electrical event.
[74] The informally produced email of 8 October 2020 is from the senior investigations adviser at Vero (who had corresponded with the fire expert), to a senior insurance lawyer at Suncorp New Zealand.
[75]The email sent at 10.02 am on 8 October 2020 says:
Vero are currently responding to Major Losses at Lake Ohau where a number of properties have been ‘total losses’.
…
Investigations have appointed C&O Specialist Ken Legat and he is working with other Insurers to identify Recovery.
At this point there is strong evidence that an electrical event has occurred and there may be some Recovery against Network Waitaki the local Power provider.
At this point I am looking at a joint approach with IAG and sharing costs with them on Experts.
[76]The recipient of the email replied at 11.43 am on 8 October 2020:
…
Given the circumstances of the fire and the potential for litigation, could you please ensure the investigation reports are directed to me and marked “Privileged & Confidential” so that I can provide legal advice as required to Vero.
[77] The circumstances of the fire, in particular that no other origin was identified at the time, reinforces that Vero was on a litigation footing. Again, in my view, there is enough to conclude that Vero considered that litigation was reasonably contemplated on 8 October 2020.
[78] However, the same issue in respect of dominant purpose noted at [66]—[68] above remains and will be addressed as set out in [69] above.
Common interest privilege
[79] Common interest privilege arises where material subject to a privilege belonging to one party only, is confidentially disclosed to another party with a common interest. This disclosure does not waive the privilege, either at common
law due to the imposition of a common interest privilege, or under the Evidence Act 2006 due to the operation of s 65(2).17
[80] The plaintiffs’ claim for common interest privilege also suffers from the use of the Various to Various issue. Given the nature of the privilege, the use of such vague terms was never going to be an acceptable way of claiming this privilege. This is because assessing common interest privilege requires an understanding of the identity of the person or entity said to share the privilege in order to assess whether they share a common interest.
[81] Accordingly, whether common interest privilege has properly been claimed will have to be examined once the list directed above has been provided. However, I make some comments about what I understand is the basis of the common interest in this case, being that IAG and/or Vero shared their privileged information with other insurers whose clients suffered loss in the fire. Those other insurers have, rather than duplicating the work completed by IAG and/or Vero, left it to those insurers to make the running in this proceeding.
[82] Common interest privilege was discussed in detail in Unilateral Investments Ltd v VNZ Acquisitions Ltd, which identified the following relevant principles:18
(i)there must be a common interest in the subject matter of the communications in respect of which the claim is made;
(ii)the common interest must be identical or closely related. A sufficiently close relationship is one where it is inappropriate to treat the parties claiming privilege separately; and
(iii)the common interest may be either legal or commercial.
17 Cross on Evidence above n 9, at [EVA66.3].
18 Unilateral Investments Ltd v VNZ Acquisitions Ltd [1993] 1 NZLR 468 (HC) at 478.
[83] In the discussion that follows, I refer to the holder of the original privilege as party [A] and the party seeking to claim common interest privilege based on [A]’s privilege, as party [B].
[84] Common interest privilege is not a freestanding head of privilege. Instead, it is parasitic on orthodox legal privilege.19 Party [B] must have a common interest in the subject matter of the privileged documents.20 A common interest is, broadly, one in which the parties have the same or a very similar interest at stake, for example, a lease interpretation issue that affects equally several tenants with independent interests in the same tenancy block as they have separate leases.21
[85] The Courts have been reluctant to set rigid or defined boundaries to common interest privilege, meaning it is difficult to set down any definitive rules as to when a relationship would be such as to attract the privilege.22
[86] A number of examples were given in Buttes Gas and Oil Co v Hammer (No. 3):23
Owners of adjoining houses complain of a nuisance which affects them both equally. Both take legal advice. Both exchange relevant documents. But only one is a plaintiff.24
An author writes a book and gets it published. It is said to contain a libel or to be an infringement of copyright. Both author and publisher take legal advice. Both exchange documents. But only one is made a defendant.25
Take the case of a block of flats. The landlord takes proceedings against a particular tenant and the dispute concerns a term of the lease which is common to all the tenancies. The tenant might well circulate all other tenants in confidence with a copy of counsel’s opinion which he had obtained. If the landlord were then to join another tenant as an additional defendant, could he obtain production of the copy of the opinion? I think not.26
19 WXY v Gewanter [2012] EWHC 1071 (QB) noted in Colin Passmore Privilege (4th ed, Sweet & Maxwell, London, 2020) at [6-002], n 2.
20 Passmore, above n 19, at [6-079], n 114.
21 Passmore, above n 19, at [6-076].
22 Bankim Thanki (ed) The Law of Privilege (3rd ed, Oxford University Press, Oxford, 2018) at [6.35].
23 As cited in Thanki (ed), above n 2: Buttes Gas and Oil Co v Hammer (No. 3) [1981] QB 223 (CA) (reversed on appeal although the House of Lords ruling left unaffected the common interest issue Buttes Gas and Oil Co v Hammer (No. 3) [1982] AC 888).
24 At 243 per Lord Denning MR.
25 At 243 per Lord Denning MR.
26 At 252 per Donaldson LJ.
[87] The authors of The Law of Privilege identify other classes of relationship where the necessary mutuality of interest is likely to exist as being an insurer and insured; insurer and reinsurer; a parent company and its wholly-owned subsidiary; a company and its shareholder; a company and its director; a principal and its agent; and a liquidator and creditors.27
[88] Common interest privilege only applies in respect of communications disclosed whilst the common interest subsists but not after it has ended or is in abeyance. Accordingly, a common interest which arises only after the disclosure of the documents will not retrospectively cloak them with common interest privilege.28
[89] The shared communication must concern either the subject matter of the common interest or litigation concerned with the common interest. It is therefore necessary to examine party [A]’s interests and party [B]’s interests to determine whether the communication is concerned with that common interest as the privilege only arises when the reason for party [A] giving the privileged material to party [B] is to advance their common interest. Party [A] and party [B] must have the same or a very similar interest at stake and the material provided must relate to the interest that is at stake.29
[90] The examples given above at [86] in common that party [A] and party [B] have a shared interest in preserving their own assets, defeating a shared risk or advancing a commercial common objective dealt with in the privileged correspondence. In one form or another party [A] and party [B]’s definable property interests are at stake.
[91] Common interest privilege does not arise merely because party [A] passes on information to party [B] to keep that party informed. The material must concern the
27 Thanki, above n 22 at [6.36]. When the cases referred to in Thanki at [6.36], n 115 and 116, in support of the relationship of company/shareholder and company/director having the necessary mutuality of interests are examined, they show in respect of Farrow Mortgage Services Pty Ltd (in liq) v Webb (1996) 39 NSWLR 601, that the directors asserting privilege had sought advice from the same solicitors as their company—the directors seeking advice in relation to their duties and obligations as directors and their possible future liability to a third party. The case is in fact a joint privilege case. Pioneer Concrete (NSW) Pty Ltd v Webb (1995) 13 ACLC 1949 is another joint privilege case heard in 1995.
28 Thanki (ed), above n 22, at [6.39].
29 The reference to parties having a common interest at stake comes from Passmore, above n 19, at 6-076.
common interest of party [B].30 The purpose of passing on the information must be linked to the common interest.
[92] Clearly, something less than a legal interest is sufficient to support a common interest, that is, party [B] being party to the same litigation as party [A]. Equally, a mere subjective concern, sympathy or desire by party [B] to assist party [A] with litigation, in my view, is not enough—such a subjective test would be unworkable.
[93] In my view, for party [B] to establish common interest privilege based on a common commercial interest, party [B]’s position must be so similar to party [A] that their personal position, that is they have a definable right, is (to use the expression from Privilege), at stake in relation to the matters to which privilege is claimed. In other words, is there a reasonable likelihood party [B]’s own commercial position would be affected by virtue of having access to party [A]’s privileged material.
[94] As noted above, common interest privilege is parasitic on a validly claimed privilege. Accordingly, it will be necessary here for the plaintiffs to establish the privilege disputed by the defendants, in this case litigation privilege, before any disclosure of that material, for example, to other insurers, will be protected by common interest privilege.
[95] However, my preliminary view is that if there are additional insurers whose insured’s lost property in the Ōhau fire, then they are essentially in the same position as IAG and Vero when it comes to whether the litigation and common interest privilege will exist.
[96] This will need to be revisited once the plaintiffs have provided proper particularised discovery in respect of all of their claims for privilege.
30 Passmore, above n 19 at [6.080], suggests that, while the Courts are prepared to protect party [A] who is providing confidential information, party [B] “does not enjoy the independent right to assert the provider’s privilege that common interest privilege can confer”. See also Thanki, above n 19, at [6.24], common interest privilege provides party [B] an independent right to assert privilege against a third party rather than their right being dependent on the assertion of privilege by party [A].
Costs
[97] Costs are reserved pending developments once the further list is provided. Success has been shared in that NWL has obtained an order for proper particularised discovery in respect of privilege but it has been unsuccessful in respect of its challenge to the date at which litigation was reasonably contemplated.
Associate Judge Lester
Solicitors:
Wotton Kearney, Wellington (for Plaintiffs) Chapman Tripp, Christchurch (for Defendant)
SCHEDULE A
GARRY JOHN WAKEFIELD, FIONA JEAN WAKEFIELD and ELEANOR MARY SMART, as
trustees of the WAKEFIELD FAMILY TRUST Second Plaintiffs
FJ AND GJ WAKEFIELD FOREST PARTNERSHIP
Third Plaintiff
ERIC FREDERICK HENDRIK BREETVELT, MICHELLE PATRICIA BREETVELT, ABRAHAM KRIS BREETVELT and STANLEY KURT
BREETVELT
Fourth Plaintiffs
CAMPBELL ROBERT DYKES and LYNDA ELIZABETH GRAY
Fifth Plaintiffs
LYNDA ELIZABETH GRAY and I & C TRUSTEES
LIMITED, as trustees of the EVORA TRUST Sixth Plaintiffs
SALLY BRIGET HOLLOWAY and JEFFREY IRVIN HOLLOWAY
Seventh Plaintiffs
SALLY BRIGET HOLLOWAY, JEFFREY IRVIN HOLLOWAY and DOWNIE STEWART
TRUSTEE LIMITED, as trustees of the JEFF AND SALLY HOLLOWAY FAMILY TRUST
Eighth Plaintiffs
DAVID NEIL HONEYFIELD and JANETTE LOUISE WHELAN
Ninth Plaintiffs
MOLLY NAUGHTON
Tenth Plaintiff
ANNE ELIZABETH DENNIS, FRANK
EDGERTON DENNIS and MARINUS ANTONIUSBAKX, as trustees of the LINDISBURN TRUST Eleventh Plaintiffs
BARBARA JOAN MACKAY and NORMAN PANTON McKAY
Twelfth Plaintiffs
MALCOLM DAVID McMILLAN
Thirteenth Plaintiff
PERPETUAL TRUST LIMITED and MALCOLM
DAVID McMILLAN, as trustees of the E. A. McMILLAN FAMILY TRUST
Fourteenth Plaintiffs
DAVID McMILLAN
Fifteenth Plaintiff
OHAU SNOW HOLDINGS LIMITED
Sixteenth Plaintiff
ANTHONY JOSEPH RYAN
Seventeenth Plaintiff
ANTHONY JOSEPH RYAN, JUDITH CATHERINE RYAN and A J & J C RYAN
TRUSTEES LIMITED, as trustees of the AJ & JC RYAN FAMILY TRUST
Eighteenth Plaintiffs
WILLEM ALEID CORNELIS SANDBERG and NAPIER INDEPENDENT TRUSTEES LIMITED, as
trustees of the SANDBERG TRUST, and TRACEY KELLY
Nineteenth Plaintiffs
WILLEM ALEID CORNELIS SANDBERG
Twentieth Plaintiff
STEPHEN CARL JOHN SIMMONS
Twenty-First Plaintiff
STEPHEN CARL JOHN SIMMONS and LINDA
SIMMONS, as trustees of THE BLUE GOLD TRUST
Twenty-Second Plaintiffs
DETECTION SERVICES LIMITED
Twenty-Third Plaintiff
VIVIENNE MARY SMITH-CAMPBELL
Twenty-Fourth Plaintiffs
VIVIENNE MARY SMITH-CAMPBELL and JOHN
LOUIS CAMPBELL, as trustees of the OHAU FAMILY TRUST
Twenty-Fifth Plaintiffs
VIVIENNE MARY SMITH-CAMPBELL and JOHN
LOUIS CAMPBELL, as trustees of THE INLANDS TRUST
Twenty-Sixth Plaintiffs
ROWENA SMITHIES and SIMON JOHN SMITHIES
Twenty-Seventh Plaintiffs
HUGH AYSON SPIERS and DWAYNE ARTHUR RENNIE
Twenty-Eighth Plaintiffs
CHRISTOPHER CHARLES SPIERS
Twenty-Ninth Plaintiff
CHRISTOPHER CHARLES SPIERS, LENA RAE SPIERS, HUGH AYSON SPIERS, JACQUELINE HELEN BANCROFT and GUY DOUGLAS
BANCROFT, as trustees of the SPIERS FAMILY TRUST
Thirtieth Plaintiffs
STANLEY JOHN DOWNEY SPIERS
Thirty-First Plaintiff
KARLA SCHMIDT
Thirty-Second Plaintiff
BRIAN WILLIAM TREVATHAN, LOIS
TREVATHAN and NEW ZEALAND TRUSTEE
SERVICE LIMITED, as trustees of THE MARYBRAE TRUST
Thirty-Third Plaintiffs
BERNARD PIERRE WICHT and HELEN ELIZABETH McMAHON
Thirty-Fifth Plaintiffs
BERNARD PIERRE WICHT, EVAN JAMES
TAYLOR, as trustees of the B WICHT FAMILY
TRUST, and HELEN ELIZABETH McMAHON andEVAN JAMES TAYLOR, as trustees of the H McMAHON FAMILY TRUST
Thirty-Sixth Plaintiffs
JOANNA RANDALL
Thirty-Seventh Plaintiff
LEWES JOHN BUTLER and ROBERT GLENDENNING BUTLER
Thirty-Eighth Plaintiffs
DESMOND ALLAN JELLYMAN and JUNE FOONG NGOR JELLYMAN
Thirty-Ninth Plaintiffs
JELLYMAN FAMILY TRUSTEE COMPANY LIMITED
Fortieth Plaintiff
IAN JOHN ADAMSON and NICOLA SARAH ADAMSON
Forty-First Plaintiffs
IAN JOHN ADAMSON, NICOLA
SARAH ADAMSON and BANCO TRUSTEESLIMITED, as trustees of the ADAMSON FAMILY TRUST
Forty-Second Plaintiffs
LINDA MARIE ANDERSON and RENIER PASTORIZA FIGURACION
Forty-Third Plaintiffs
WARREN ANDERS BAKER and RACHEL ANNE BAKER
Forty-Fourth Plaintiffs
WARREN ANDERS BAKER and RACHEL ANNE
BAKER, as trustees of the WA & RA BAKER FAMILY TRUST
Forty-Fifth Plaintiffs
WILLIAM DANIEL BENNETT and SUSAN
MARGARET BENNETT, as trustees of the BENNETT FAMILY TRUST
Forty-Sixth Plaintiffs
CATHERINE MARY BOYLE
Forty-Seventh Plaintiff
BRYAN FREDERICK DAVIES
Forty-Eighth Plaintiff
BRENDAN MARTIN DURCAN, JACQUELINE MARGARET DURCAN and AORAKI TRUSTEES
CO (2013) LIMITED, as trustees of THE BALLYMOTE TRUST
Forty-Ninth Plaintiffs
ESTELLE LOUISE EASTON and ALAN GEORGE EASTON
Fiftieth Plaintiffs
PAUL JAMES EDMONDSTON
Fifty-First Plaintiff
GLEN MARY SKI CLUB INCORPORATED
Fifty-Second Plaintiff
VICTORIA KELLAND
Fifth-third Plaintiff
RODNEY BRIAN McLELLAN and RACHEL ANNE McLELLAN
Fifth-Fourth Plaintiffs
JANET MITCHELL
Fifty-Fifth Plaintiffs
ROOPALI JOHRI
Fifty-Sixth Plaintiff
ANDREW LONIE
Fifty-Seventh Plaintiff
STUART ROSS PATERSON and MICHELLE JANE PATERSON
Fifty-Eighth Plaintiffs
KATHERINE MARGARET POULSEN
Fifty-Ninth Plaintiff
WILLIAM HENRY SUTHERLAND
Sixtieth Plaintiff
JANE FRANCES SIMPSON and DAVID CRAIG OVENDEN
Sixty-First Plaintiffs
NATALIE MARTHA GOULD, SIMON GEORGE GOULD and BENJAMIN JAMES TAYLOR, as
trustees of the RED TREE TRUST Sixty-Second Plaintiff
JOHN FRASER
Sixty-Third Plaintiff
MARCUS WELLS
Sixty-Fourth Plaintiff
TARBIT BUILDING LIMITED
Sixty-Fifth Plaintiff
DAVID GREEN
Sixty-Sixth Plaintiff
PAUL WHEARTY and NICHOLA JANE WHEARTY
Sixty-Seventh Plaintiffs
NYREE JEAN SCHAAR and PIETER STEFANUS JOHANNES SCHAAR
Sixty-Eighth Plaintiffs
JOSHUA SCHAAR
Sixty-Ninth Plaintiff
GARY JOHN STICHBURY
Seventieth Plaintiff
GARY JOHN STICHBURY, JUDITH FRANCES STICHBURY and NAPIER INDEPENDENT
TRUSTEES LIMITED, as trustees of the GJ & JF STICHBURY FAMILY TRUST
Seventy-First Plaintiffs
CLARE WILLIAMS
Seventy-Second Plaintiff
VOODOO PROPERTY HOLDINGS LIMITED
Seventy-Third Plaintiff
ROSS GEORGE YEAGER
Seventy-Fourth Plaintiff
DAVID TALBOT HOWEY and JENNIFER CHRISTINE HOWEY
Seventy-Fifth Plaintiffs
JAMES ANTHONY MANSFIELD and ELIZABETH KATE MANSFIELD
Seventy-Sixth Plaintiffs
NEVILLE MAURICE LEWIS and LINDA JUNE LEWIS
Seventy-Seventh Plaintiffs
NEVILLE MAURICE LEWIS, LINDA JUNE LEWIS and RUSSELL TURNER LEWIS
TRUSTEES LIMITED, as trustees of the TOTARA-BEECH TRUST
Seventy-Eighth Plaintiffs
PAUL AUBREY
Seventy-Ninth Plaintiff
OLD STONE HUT FOREST LIMITED
Eightieth Plaintiff
VERITY FARMS NZ LIMITED
Eighty-First Plaintiff
SHARON FAE ENGLISH
Eight-Second Plaintiff
SHARON FAE ENGLISH and CAROLYN SUE
ENGLISH, as trustees of the ENGLISH FAMILY TRUST
Eighty-Third Plaintiffs
STEPHEN DWEIGHT MARK and JULIE MAI MARK
Eighty-Fourth Plaintiffs
STEPHEN DWIGHT MARK, JULIE MAI MARK
and CHRISTINE HELEN DARLING, as trustees of THE OSCAR TRUST
Eighty-Fifth Plaintiffs
BARRY JOHN FRANKLYN BIGGS and WENDY ELIZABETH BIGGS
Eighty-Sixth Plaintiffs
CATHERINE MARY MILLER
Eighty-Seven Plaintiff
ANNE-MARIE MILLER and SARAH LOUISE
MILLER, as trustees of the CM MILLER FAMILY TRUST
Eighty-Eighth Plaintiff
OHAU HOLIDAY HOMES LIMITED
Eighty-Nineth Plaintiff
MARIE BERNICE McAUGHTRIE and RICHARD NIGHTINGALE
Ninetieth Plaintiffs
DANIEL WILLIAM JOHNSTON and MJO
TRUSTEE COMPANY LIMITED, as trustees of the DJP SHARE TRUST
Ninety-First Plaintiff
DAVID FRASER RENDALL and MEGAN ELIZABETH JANE RENDALL
Ninety-Second Plaintiffs
JAMES ANTHONY CARNIE and NADIA MARIA
NORTON, as trustees of the OHAU TRUST Ninety-Third Plaintiffs
WILLIAM PATRICK CHISHOLM
Ninety-Fourth Plaintiff
MICHAEL TATTERSALL and PAULETTE TATTERSALL
Ninety-Fifth Plaintiffs
XU XU and YU WU
Ninety-Sixth Plaintiffs
FIVE RIVERS LIMITED
Ninety-Seventh Plaintiff
MAREE CAROLINE HORO, as trustee of the OHAU COMPANY TRUST
Ninety-Eighth Plaintiff
JANET ELIZABETH MUIR and RICHARD HANDLEY BROWN
Ninety-Ninth Plaintiffs
JANET ELIZABETH MUIR and RICHARD HANDLEY BROWN
One Hundredth Plaintiffs
AARON WAYNE GILMORE and SAINT PAULS
ASSET MANAGEMENT LIMITED, as trustees of THE MIGHTY ROCKET TRUST
One Hundred and First Plaintiffs
TIMOTHY HAROLD MUELLER
One Hundred and Second Plaintiff
PHILLIPPA WALTER
One Hundred and Third Plaintiff
KATHLEEN LAWSON and BRIAN GRAEME LAWSON
One Hundred and Fourth Plaintiffs
MARTIN JAMES HEAL
One Hundred and Fifth Plaintiff
ROGER MEE and ANNETTE MEE
One Hundred and Sixth Plaintiffs
ROBERT JAMES HALL, JOY MARGARET
ADELINE HALL, GDT NO.3 LIMITED, as trustees of THE HALL FAMILY TRUST, and ANNA
LOUISE DUNCAN and KATHERINE GAIL
DUNCAN, as trustees of the OHAU TRUST One Hundred and Seventh Plaintiffs
PHILIP DUNCAN
One Hundred and Eighth Plaintiff
EICHARD MICHAEL CONSTANT
One Hundred and Ninth Plaintiff
SARAH JANE LOVIE, NEVILLE SCHEIWE and
MARK JONATHAN TAVENDALE, as trustees of the JAMES SCHEIWE & SARAH LOVIE FAMILY
TRUST
One Hundred and Tenth Plaintiffs
JILLIAN ELIZABETH HEATH STONE and DAVID CHARLES STONE
One Hundred and Eleventh Plaintiffs
MAINLY TRUSTS LIMITED, as trustee of the DJ TRUST
One Hundred and Twelfth Plaintiff
DEBORAH LETHBRIDGE
One Hundred and Thirteenth Plaintiff
GENEVIEVE FRANCES BECROFT
One Hundred and Fourteenth Plaintiff
ROBIN ADRIAN FINNEY
One Hundred and Fifteenth
STEWART NEGUS
One Hundred and Sixteenth Plaintiff
DAVID LITTLETON
One Hundred and Seventeenth Plaintiff
THE BARN AT KILLIN B&B LIMITED
One Hundred and Eighteenth Plaintiff
LOUISE MILFORD NEILSON and MICHAEL JOHN MAJOR NEILSON
One Hundred and Nineteenth Plaintiffs
DONALD JAMES EDWARDS and BERNARD JENNINGS
One Hundred and Twentieth Plaintiffs
FREEHOLD FOREST LIMITED
One Hundred and Twenty-First Plaintiff
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