Water Users' Group (NZ) Incorporated v Mahuta

[2022] NZHC 2858

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2021-485-756

[2022] NZHC 2858

UNDER

the Declaratory Judgments Act 1908 and Part 30 of the High Court Rules 2016

BETWEEN

WATER USERS’ GROUP (NZ) INCORPORATED

Applicant

AND

HON NANAIA MAHUTA

First Respondent

ATTORNEY-GENERAL

Second Respondent

Hearing:

On the papers

Appearances:

G Judd KC and G Illingworth KC for Applicant

M Colson KC and A Bowden for First and Second Respondents

Judgment:

2 November 2022

Reissued:

9 November 2022

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[1]                 In my judgment of 9 September 2022, I dealt with various interlocutory applications by the applicant against the respondents (to whom I will refer collectively as “the Crown”).1 Amongst other things I dismissed an application for an order that the Crown discover Crown Law Office advice.

1      Water Users’ Group (NZ) Inc v Mahuta [2022] NZHC 2311.

WATER USERS’ GROUP (NZ) INCORPORATED v MAHUTA [2022] NZHC 2858 [2 November 2022]

[2]                 By notice of application dated 3 October 2022, the applicant seeks leave to appeal against that aspect of my judgment. The applicant requires leave by reason of s 56(3) of the Senior Courts Act 2016 which provides:

No appeal, except an appeal under subsection (4), lies from any order or decision of the High Court made on an interlocutory application in respect of any civil proceeding unless leave to appeal to the Court of Appeal is given by the High Court on application made within 20 working days after the date of that order or decision or within any further time that the High Court may allow.

[3]                 The application for leave is opposed, the Crown’s notice of opposition being dated 18 October 2022.

[4]                 Counsel for both the applicant and the Crown have filed brief submissions, respectively in support of and opposition to the application for leave.

[5]The principles that apply to applications under s 56(3) are well established:2

(a)a high threshold exists;

(b)the applicant must identify an arguable error of law or fact;

(c)the alleged error should be of general or public importance warranting determination or otherwise of sufficient importance to the applicant to outweigh the lack of general or precedential value;

(d)the circumstances must warrant incurring further delay; and

(e)the ultimate question is whether the interests of justice are served by granting leave.

[6]For the applicant, Mr Judd and Mr Illingworth emphasise these points:

(a)First, that there was no prospect in this case of an appeal being overtaken by the substantive hearing as the point concerning the

2      Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [9]–[14]; affirmed in Greendrake v District Court of New Zealand [2020] NZCA 122 at [6].

discoverability or otherwise of the Crown Law Office advice will be determined at this stage and not revisited at trial.

(b)Second, that if the issue that the applicant wants to argue before the Court of Appeal is not argued in the context of an appeal against my judgment, it will not be heard by the Court of Appeal at all.

(c)Third, and rather elusively, that, as a practical matter, an appeal might dispose of the proceeding if the applicant, having had the chance to review the Crown Law Office advice, were to abandon its case. I take this to mean that if the applicant were to conclude, in the light of the Crown Law Office advice, that the Crown Law Office was correct, then it might choose to abandon the case, in which case the appeal would be dispositive.

(d)Fourth, the arguments that the applicant advanced before this Court, and which it wishes to advance before the Court of Appeal, are bona fide and serious.

(e)Finally, that the issue involves a question of law or general principle of importance so as to counter any delay or cost involved.

[7]                 Drawing the strands of the argument together, Mr Judd and Mr Illingworth contend that “… there is good reason to consider the issue before and separately to [sic] any substantive appeal, it is sufficiently meritorious in substance and relates to a sufficiently important issue as to outweigh the cost and delay of appeal”.

[8]                 In opposing the application for leave on behalf of the Crown, Mr Colson and Mr Watson began by emphasising the high threshold that exists to which I have already referred. Having done that, they contend that the applicant has not identified an arguable error. In this regard, they say that they apprehend that the primary argument appears to be that I fell into error by applying principles of collateral waiver because those principles have been overtaken by the Evidence Act 2006.   Mr Colson and   Mr Watson submit that it is not a reasonably arguable contention.

[9]                 They say that the principle of collateral waiver continues to apply whenever a party claims that another party has waived privilege over material that is so closely connected to other privileged material. They submit that that was the core issue before the Court and therefore that collateral waiver principles were engaged.

[10]             They refer to several authorities which demonstrate that the collateral waiver has survived the enactment of the Evidence Act 2006. They make the point that, on behalf of the applicant, no authority is drawn to the Court’s attention supporting the contention that the principle no longer exits. Mr Colson and Mr Watson make the obvious argument that privilege is such an important principle that the doctrine of collateral waiver should not be lightly brushed aside. They submit that “… the approach the applicant appears to be advancing may lead to disclosure being ordered of material that is not truly relevant to the proceedings, which would be to place insufficient weight on the significance of legal professional privilege”.

[11]             Mr Colson and Mr Watson submit that my judgment applied collateral waiver principles in an orthodox way, and reached the correct outcome. Finally, it is contended on behalf of the Crown that if there is an arguable error it is not a matter of sufficient significance to justify the cost and delay to which an appeal would give rise, and that, standing back from the matter, the interests of justice would not be served by granting leave.

[12]             In my assessment, the issue in respect of which the applicant wishes to appeal is not quite as narrow as the Crown would have it. The broader issue is not one in respect of which there is any appellate authority, or at least recent New Zealand appellate authority.

[13]             I identified the issue at [7(b)] of my judgment. From [38], I contrasted the approaches to collateral waiver which appeared to have been adopted in NZX Ltd v Ralec Commodities Pty Ltd3 and McGuire v Wellington Standards Committee (No. 1)4. It was not my view that Dobson J and Kós J were necessarily adopting different

3      NZX Ltd v Ralec Commodities Pty Ltd [2015] NZHC 241.

4      McGuire v Wellington Standards Committee (No 1) [2014] NZHC 1159 at [23].

approaches. Rather, it appeared to me that they were responding to the different issues raised in the specific contexts of those cases.

[14]             In this case, it seemed to me to be necessary to determine whether the deployment of the material (in respect of which I concluded that privilege had been waived) would give rise to unfairness unless the additional material sought by way of discovery was also disclosed. The alternative was whether the rule was an absolute one in the sense contended for by the applicant. The conclusion I reached was that the additional component of the principle was necessary. My view on that point has not changed. However, as I say, that does appear to me to be a point in respect of which appellate authority would be of some assistance.

[15]             I agree with the argument advanced on behalf of the applicant that this is a point which can only be addressed at this stage because if the applicant is not given leave to appeal (either by this Court or the Court of Appeal) it will not be addressed at all. I also agree with the applicants that it is a confined and discrete point which can be dealt with efficiently and that the cost and time that will be taken in doing so is not disproportionate to the importance of the point itself.

[16]             For those reasons, I am prepared to grant the applicant leave to appeal on the point which I understand will be the focus of their appeal.

[17]             Costs are reserved. I am confident that with senior counsel for both parties it will be unnecessary for the Court to deal with costs, but if that confidence proves unfounded counsel may come back by memorandum in the usual way.

Associate Judge Johnston

Solicitors:

Franks Ogilvie, Wellington for Applicant

Crown Law Office, Wellington for First and Second Respondents