MORGAN v WHANGANUI COLLEGE BOARD OF TRUSTEES CA498/2013 [2013] NZCA 587
Leave to appeal was granted because the identified question of law—concerning the scope of legal professional privilege and its exceptions in the employment context, including potential inconsistency with Bayliss Sharr and the relevance of privileged communications to constructive dismissal—required appellate...
Source-derived case information.
- Citation
- [2013] NZCA 587
- Parties
- Applicant: Kenneth Lee Morgan; Respondent: Whanganui College Board of Trustees
- Court
- Court of Appeal
- Jurisdiction
- New Zealand
- Judgment Date
- 27 November 2013
- Procedural Posture
- Employment Court of Appeal / Leave to Appeal Granted
- Outcome
- Leave to appeal granted on identified question of law.
- Legal Topics
- Legal Professional Privilege, Admissibility of Communications, Constructive Dismissal, Exceptions to Privilege
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenneth Lee Morgan
Applicant
Whanganui College Board of Trustees
Respondent
Procedural Posture
Employment Court of Appeal / Leave to Appeal Granted
Legal Issues
- 1 Whether the Employment Court was correct to determine the relevant communications were privileged or otherwise inadmissible
- 2 Whether a dispute must have arisen before privilege attaches and what constitutes a dispute
- 3 Whether privileged communications can constitute evidence of constructive dismissal
Ratio Decidendi
Leave to appeal was granted because the identified question of law—concerning the scope of legal professional privilege and its exceptions in the employment context, including potential inconsistency with Bayliss Sharr and the relevance of privileged communications to constructive dismissal—required appellate determination.
Court Disposition
Leave to appeal granted on identified question of law.
Orders
- Leave to appeal granted on the question whether the Employment Court was correct to determine the relevant communications were privileged or otherwise inadmissible
- Appeal to be determined on the agreed statement of facts, subject to the panel hearing the appeal
Full Case Text
Judgment text and source record
1 paragraphs
MORGAN v WHANGANUI COLLEGE BOARD OF TRUSTEES CA498/2013 [2013] NZCA 587 [27 November 2013]IN THE COURT OF APPEAL OF NEW ZEALANDCA498/2013[2013] NZCA 587BETWEEN KENNETH LEE MORGANApplicantAND WHANGANUI COLLEGE BOARD OFTRUSTEESRespondentHearing: 26 November 2013Court: Randerson, French and Miller JJCounsel: D Burton and F Hills for ApplicantP B Churchman QC and E V Unsworth for RespondentJudgment: 27 November 2013 at 4:00 pmJUDGMENT OF THE COURTLeave to appeal is granted on the following question:Was the Employment Court correct in law to determine that the relevant communications between the parties or their representatives were protected by privilege or were otherwise inadmissible?____________________________________________________________________[1] We give brief observations to explain the general scope of the identified question of law.[2] First, it appears to us that the judgment of the Chief Judge under appeal1 is arguably inconsistent with the judgment of the Employment Court given by Judge1 Lee Morgan v Whanganui College Board of Trustees [2013] NZEmpC 117.Couch in Bayliss Sharr v McDonald2 as to the need for a dispute to have arisen before communications may be protected by privilege and as to what may constitute a dispute for these purposes.[3] Second, there is a potential issue as to whether a more nuanced approach is required in employment law cases where statements made in privileged communications may constitute evidence of constructive dismissal.[4] Third, we envisage the question of law as embracing the issue of whether any of the relevant communications are capable in law of constituting any of the established exceptions to the protected status of privileged communications.[5] Fourth, we expect that the appeal will be determined on the basis of the agreed statement of facts which was before the Employment Court although any final decision in that respect must lie with the panel hearing the appeal.Solicitors:Cullen – The Employment Law Firm, Wellington for ApplicantHorsley Christie, Whanganui for Respondent2 Bayliss Sharr v McDonald [2006] ERNZ 1058.