FINANCIAL MARKETS AUTHORITY v HOTCHIN [2015] NZHC 243
The court allowed the s 69 non-disclosure application for document HAN150.0075 because it was an interagency informal communication whose candid nature was in the public interest to protect and which contained nothing relevant not available elsewhere; the court ordered redactions to document HAN150.0127 because it...
Source-derived case information.
- Citation
- [2015] NZHC 243
- Parties
- Plaintiff: Financial Markets Authority; First Defendant: Mark Stephen Hotchin; Second Defendant: Gregory John Muir; Third Defendant: Tipene Gerard O'Regan; Fourth Defendant: Bruce Patrick Gordon; Fifth Defendant: Eric John Watson; Sixth Defendant: Dennis Joseph Broit
- Court
- High Court
- Jurisdiction
- New Zealand
- Judgment Date
- 23 February 2014
- Procedural Posture
- Securities Act Proceedings / Interlocutory Applications Regarding Discovery, Redaction and Non Disclosure
- Outcome
- Applications partly allowed: non-disclosure allowed for HAN150.0075; redactions ordered for HAN150.0127; timetable to be revisited at next conference.
- Legal Topics
- Legal Professional Privilege, Discovery, Redaction, Public Interest Immunity, Timetable Orders
Source-derived case record
Summary, issues, holding and outcome
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Parties
Financial Markets Authority
Plaintiff
Mark Stephen Hotchin
First Defendant
Gregory John Muir
Second Defendant
Tipene Gerard O'Regan
Third Defendant
Bruce Patrick Gordon
Fourth Defendant
Eric John Watson
Fifth Defendant
Dennis Joseph Broit
Sixth Defendant
Procedural Posture
Securities Act Proceedings / Interlocutory Applications Regarding Discovery, Redaction and Non Disclosure
Legal Issues
- 1 Whether documents should be withheld or redacted under ss 69 and 70 of the Evidence Act 2006
- 2 Whether interagency informal communications are protected by public interest from disclosure
- 3 Whether specific document contained legal advice and communications for purpose of giving and taking legal advice
Ratio Decidendi
The court allowed the s 69 non-disclosure application for document HAN150.0075 because it was an interagency informal communication whose candid nature was in the public interest to protect and which contained nothing relevant not available elsewhere; the court ordered redactions to document HAN150.0127 because it contained summaries of legal advice and communications for the purpose of giving and taking legal advice and thus attracted legal professional privilege; timetable orders were to be revisited at the next conference.
Court Disposition
Applications partly allowed: non-disclosure allowed for HAN150.0075; redactions ordered for HAN150.0127; timetable to be revisited at next conference.
Orders
- Document HAN150.0075 not disclosed (s 69 Evidence Act)
- Redactions ordered to document HAN150.0127 to redact privileged material
Full Case Text
Judgment text and source record
1 paragraphs
FINANCIAL MARKETS AUTHORITY v HOTCHIN [2015] NZHC 243 [23 February 2014]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2012-404-001771[2015] NZHC 243UNDER Sections 55 - 57 of the Securities Act 1978BETWEEN FINANCIAL MARKETS AUTHORITYPlaintiffAND MARK STEPHEN HOTCHINFirst DefendantGREGORY JOHN MUIRSecond DefendantTIPENE GERARD O'REGANThird DefendantBRUCE PATRICK GORDONFourth DefendantERIC JOHN WATSONFifth DefendantDENNIS JOSEPH BROITSixth DefendantHearing: On the papersJudgment: 23 February 2014JUDGMENT OF WINKELMANN JThis judgment was delivered by me on 23 February 2014 at 2.45 pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy Registrar[1] On 4 November 2014 I issued a judgment in respect of various applicationsin connection with discovery of the FMA's documents. Those included applicationsby the FMA under ss 69 and 70 of the Evidence Act 2006 that a significant volumeof documents not be disclosed. Having dismissed those applications in relation tosome documents, I reserved leave to the FMA to apply for further redactions. TheFMA now applies for redaction in respect of one document. That redaction isopposed by the defendants.[2] I also address in this judgment the FMA's application under s 69 and 70 that aparticular document not be disclosed to the defendants. Consideration of thatdocument was omitted in my earlier judgment.[3] I apologise to the parties for the delay in addressing these additional issues,but the Registry failed to refer counsels' memoranda to me until early February2015.Document not addressed in earlier judgment[4] In respect of document HAN150.0075, which appeared in the Judge onlybundle, the s 69 application is allowed. This is an interagency communication of aninformal nature. It contains a frank discussion between these agencies of a typewhich it is in the public interest be able to occur without concern as to disclosure.The document contains nothing of relevance which is not available in otherdocuments.Redaction[5] The FMA seeks redactions in respect of document HAN150.0127 only. TheFMA says that the document concerned contains legally privileged material.[6] Having considered the document and the proposed redactions in light of theFMA submissions, I am satisfied that rather than merely setting out a plan of actionas I had previously indicated, the document also contains summaries of legal advice,and communications for the purpose of giving and taking legal advice. That isprivileged material.[7] Accordingly, the redactions requested are ordered.Timetabling[8] The FMA also requested a variation to timetable orders. Due to the delay in addressing these issues it is better if the timetable is revisited at the next conference in this proceeding, on 24 February 2015.