BODY CORPORATE 161113 AND ANOR V AUCKLAND CITY COUNCIL AND ORS HC AK CIV 2003-404-6422

BODY CORPORATE 161113 AND ANOR V AUCKLAND CITY COUNCIL AND ORS HC AK CIV 2003-404-6422

The court applied the two litigation privilege tests (definite prospect of litigation and dominant purpose). Documents 6.1 (building survey report dated 30 May 2003) and GVT.0089.02.0045 were found not to have litigation as their dominant purpose and must be produced. The minutes of the extraordinary general meeting dated 9 July 2003 contain barrister advice and are protected by legal professional privilege and need not be disclosed.

Citation
openlaw-01abe715_6b89_4721_8fbc_519d04dfc38e.pdf
Parties
First Plaintiff: Body Corporate 161113; Second Plaintiff: Charles Mills and others; First Defendant: Auckland City Council; Second Defendant: Brent Francis Hulena t/a Hulena Architects; Second Defendant: Robert Fang Sang t/a Sang Architects & Company; Third Defendant: Lake Engineering Consultants Limited (in liquidation)
Court
High Court
Jurisdiction
New Zealand
Judgment Date
23 July 2007
Procedural Posture
Civil (discovery Application) / Application for Further and Better Discovery (privilege Review) on the Papers
Outcome
Application partly allowed: privilege claims over two listed documents rejected and production ordered; privilege claim over minutes upheld.
Legal Topics
Litigation Privilege, Legal Professional Privilege, Further and Better Discovery, Dominant Purpose Test, Production of Documents
Civil Procedure Evidence Privilege Property Law Litigation Privilege Legal Professional Privilege Further and Better Discovery Dominant Purpose Test +1 more

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Parties

Body Corporate 161113

First Plaintiff

Charles Mills and others

Second Plaintiff

Auckland City Council

First Defendant

Brent Francis Hulena t/a Hulena Architects

Second Defendant

Robert Fang Sang t/a Sang Architects & Company

Second Defendant

Lake Engineering Consultants Limited (in liquidation)

Third Defendant

Procedural Posture

Civil (discovery Application) / Application for Further and Better Discovery (privilege Review) on the Papers

Legal Issues

  1. 1 Whether listed documents are protected by litigation privilege
  2. 2 Whether minutes recording barrister advice are protected by legal professional privilege
  3. 3 Whether the dominant purpose test is satisfied for specific documents

Ratio Decidendi

The court applied the two litigation privilege tests (definite prospect of litigation and dominant purpose). Documents 6.1 (building survey report dated 30 May 2003) and GVT.0089.02.0045 were found not to have litigation as their dominant purpose and must be produced. The minutes of the extraordinary general meeting dated 9 July 2003 contain barrister advice and are protected by legal professional privilege and need not be disclosed.

Court Disposition

Application partly allowed: privilege claims over two listed documents rejected and production ordered; privilege claim over minutes upheld.

Orders

  • Documents identified as 6.1 (building survey report dated 30 May 2003) must be produced
  • Document GVT.0089.02.0045 must be produced