THE NZ GUARDIAN TRUST CO LTD v IAN CHARLES EASTON [2021] NZCA 205

THE NZ GUARDIAN TRUST CO LTD v IAN CHARLES EASTON [2021] NZCA 205 [21 May 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA279/2021[2021] NZCA 205BETWEEN THE NEW ZEALAND GUARDIANTRUST COMPANY LIMITEDFirst ApplicantIAN EASTON LMITEDSecond ApplicantPERPETUAL TRUST LIMITEDThird ApplicantAND IAN CHARLES EASTONRespondentHearing: 21 May 2021Court: Miller and Goddard JJCounsel: L J Taylor QC and J B Orpin-Dowell for ApplicantsDJS Parker and D A Fry for RespondentJudgment: 21 May 2021ORAL JUDGMENT OF THE COURTThe application for a stay of the direction to disclose documents given inEaston v The New Zealand Guardian Trust Co Ltd [2021] NZHC 117 is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Miller J)[1] Before us is an application for stay pending the hearing of an application forleave to appeal an interlocutory decision of the High Court in a civil proceeding.[2] The application has been made in the course of a trial which is scheduled toconclude next week. Most of the evidence has already been heard. The stay will forcethe High Court to adjourn the trial part-heard, possibly for an indefinite period.[3] An application of this kind is most uncommon. It is a very rare case in whichthis Court will interfere in a trial Judge's management of the case at trial, for tworeasons. One is that the Court is not well placed to second-guess the trial Judge'sconduct of the trial, or to gauge the impact of its intervention. The other is that it is arare case in which any error cannot be remedied on appeal from the substantivejudgment.[4] The decision which the applicant wishes to appeal is an interlocutory decision,made on 17 May 2021, requiring that the applicant make discovery of documents thatare the subject of a claim to legal professional privilege. Cooke J upheld the claim toprivilege before trial, but acceded to an application made after he had heard a week'sevidence at trial. He gave detailed reasons, the essential substance of which was thathe was now satisfied that the claim to privilege as against the respondent wasunsustainable. He ordered that the applicant make discovery.[5] A stay of this decision could not be entertained unless this Court was satisfiedboth that leave to appeal is likely to be granted and that unless a stay is granted theapplicant may suffer some harm of a kind that will be difficult to remedy.[6] As required by s 56(3) of the Senior Courts Act, leave to appeal was first soughtfrom the trial Judge. He declined it for two reasons.[7] The first reason was that the applicant could not satisfy him that its positionwas not adequately protected by the right to appeal against any adverse substantivejudgment. The Judge held that:[21] I pressed Mr Taylor on why the defendants' position is not adequatelyprotected by the right to appeal against any adverse substantive judgment. Heindicated that once the documents were available the defendants' fundamentalright to confidential legal advice was destroyed, and that this could not beremedied by a substantive appeal. I asked Mr Taylor why the position wouldbe any different from any other error by the trial Court on the admissibility ofevidence, and why the Court of Appeal could not resolve the effect of any sucherror. He responded by contending that it was not ultimately material whetheror how the documents might affect the substantive judgment, and that the keypoint was that the defendants' fundamental right to confidential legal advicewould be compromised. Indeed he indicated that he had not reviewed thedocuments claimed as privilege in formulating the arguments now advancedby the defendants.[22] I see no substance to the defendants' position. I accept that anyerroneous decision requiring privileged documents to be disclosed cannot becompletely remedied on appeal in terms of the point of principle referred toby Mr Taylor. But any adverse impact of any wrong admission of thosedocuments on the ultimate decision in this case would be able to be. Appealcourts are well able to identify how, if at all, an erroneous admissibilitydecisions affected an ultimate judgment. The defendants have an availableright of appeal to address this situation if the plaintiff's claims were tosucceed.[8] Nothing in the papers before us or the argument that we have heard todaypersuades us that the Judge was wrong to refuse leave.[9] It may be that an error has been made, but we are not persuaded that it cannotbe remedied on appeal. It is true that information once disclosed to the respondentscannot be unknown, but the question is whether evidence subsequently held by thisCourt to be inadmissible cannot be put aside and disregarded when deciding thesubstantive appeal or, should that course be necessary, on a retrial. There is nothingbefore us to show that that would be the case here. It is common ground that thediscovered material may be used only for the purposes of the litigation and Mr Tayloraccepts that the only relevant prejudice is that which may be experienced in thelitigation. That is so because but for the litigation the respondents would be entitledto see the documents.[10] The balance of convenience unquestionably favours continuing. It is not a casein which this Court's decision might avoid the need for a great deal of evidence at trial;the trial is substantially complete and it does not appear that the information is likelyto lead to much more evidence being led. To grant leave would be to delay thesubstantive judgment for what may be a considerable period, and with it the ultimateresolution of the case. The applicant characterises the issue as an important one oflegal principle, and we are prepared to accept for present purposes that that is so, butit is also and substantially a question of the application of law to fact. The proposedappeal will require that this Court traverse the evidence that led the Judge to hisconclusion.[11] For these reasons we are not persuaded that an application for leave to appealhas sufficient prospects of success to justify intervention at this juncture in the trial.[12] The application for stay pending hearing of the leave application is declined.In the circumstances it is proper that the applicant should pay costs as for a standardapplication on a band A basis with disbursements as fixed by the Registrar.Solicitors:Carlile Dowling, Napier for ApplicantsParker & Associates, Wellington for Respondent