CLERK OF THE HOUSE OF REPRESENTATIVES V WITCOMBE CA CA669/2008
The Court granted leave to appeal on specified questions of law: whether the Chief Judge misconstrued the tests for litigation and legal advice privilege and whether the Chief Judge misapplied Simunovich; the Court accepted that the extent of legal professional privilege in employment cases raises issues of public...
Source-derived case information.
- Citation
- openlaw-66de24d3_20ee_403b_a18b_6fd549970e53.pdf
- Parties
- Applicant: Clerk of the House of Representatives; Respondent: Alan Witcombe
- Court
- Court of Appeal
- Jurisdiction
- New Zealand
- Judgment Date
- 8 December 2008
- Procedural Posture
- Appeal Leave to Appeal / Leave Application Before Court of Appeal
- Outcome
- Leave to appeal granted on the specified questions of law; costs reserved.
- Legal Topics
- Litigation Privilege, Legal Advice Privilege, Interlocutory Judgment, Precedent Application (simunovich), Costs
Source-derived case record
Summary, issues, holding and outcome
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Parties
Clerk of the House of Representatives
Applicant
Alan Witcombe
Respondent
Procedural Posture
Appeal Leave to Appeal / Leave Application Before Court of Appeal
Legal Issues
- 1 Whether the Chief Judge misconstrued the test for litigation privilege and/or legal advice privilege
- 2 Whether the Chief Judge misapplied the Court of Appeal decision in Simunovich Fisheries Ltd v Television New Zealand Ltd [2008] NZCA 350
- 3 Whether legal professional privilege extends to originals and copies of draft investigation reports retained by the client and not sent to legal advisers
Ratio Decidendi
The Court granted leave to appeal on specified questions of law: whether the Chief Judge misconstrued the tests for litigation and legal advice privilege and whether the Chief Judge misapplied Simunovich; the Court accepted that the extent of legal professional privilege in employment cases raises issues of public importance and warrants appellate consideration.
Court Disposition
Leave to appeal granted on the specified questions of law; costs reserved.
Orders
- Leave to appeal granted on the questions of law set out at [3] of the judgment.
- Costs are reserved.
Full Case Text
Judgment text and source record
1 paragraphs
CLERK OF THE HOUSE OF REPRESENTATIVES V WITCOMBE CA CA669/2008 8 December 2008IN THE COURT OF APPEAL OF NEW ZEALAND CA669/2008 [2008] NZCA 538BETWEEN CLERK OF THE HOUSE OF REPRESENTATIVES Applicant AND ALAN WITCOMBE Respondent Hearing: 2 December 2008 Court: Glazebrook, Robertson and Arnold JJ Counsel: P J Gunn for Applicant G C Davenport for Respondent Judgment: 8 December 2008 at 10.00 amJUDGMENT OF THE COURT A The application for leave to appeal is granted on the questions of law set out at [3]. B Costs are reserved.____________________________________________________________________REASONS OF THE COURT(Given by Glazebrook J) [1] The applicant seeks leave to appeal against the part of the interlocutory judgment of Witcombe v Clerk of the House of Representatives EmpC WC17/08,WRC 12/06 26 September 2008 where Chief Judge Colgan held that, while the applicant is entitled to claim legal professional privilege in respect of copies of preliminary draft employment investigation reports sent to her legal advisers, she is not entitled to claim legal professional privilege in relation to the originals or other copies of those draft reports retained by the applicant or otherwise not sent to her legal advisers. [2] We accept the applicant's submission that the extent of legal professional privilege in employment cases is a matter of general public importance. We also consider that this case raises important issues relating to the limits of the decision of this Court in Simunovich Fisheries Ltd v Television New Zealand Ltd [2008] NZCA 350. [3] The application for leave to appeal is granted on the following questions of law: (a) Did the Chief Judge misconstrue the test for litigation privilege and/or legal advice privilege? (b) Did the Chief Judge misapply the test in Simunovich? [4] Costs are reserved.Solicitors: Crown Law Office, Wellington McBride Davenport James, Wellington for Respondent