MITA MICHAEL RIRINUI v LANDCORP FARMING LIMITED [2014] NZHC 798

MITA MICHAEL RIRINUI v LANDCORP FARMING LIMITED [2014] NZHC 798 [15 April 2014]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCIV-2014-485-2915[2014] NZHC 798UNDER the Judicature Amendment Act 1972BETWEEN MITA MICHAEL RIRINUIPlaintiffAND LANDCORP FARMING LIMITEDFirst DefendantTHE MINISTER FOR STATE-OWNED ENTERPRISES and THE MINISTER OF FINANCESecond DefendantsTHE ATTORNEY-GENERALThird DefendantHearing: 15 April 2014Counsel: A N Isac and J P Koning and G M Richards for PlaintiffS A Barker and L M Brazier for First DefendantJ R Gough and S J Humphrey for Second and Third DefendantsJudgment: 15 April 2014ORAL JUDGMENT (NO. 2) OF WILLIAMS J[1] The plaintiff seeks disclosure of a "memo of advice" prepared by the First Defendant's solicitors for its client and passed on to a third non-party, Micro Farms Limited. Micro Farms was a proposed purchaser of Wharere Farm. It seems that the memorandum was an assessment of risk around the possibility of litigation from Ngati Whakahemo in relation to the proposed transaction. The memorandum was sent under cover of an email dated 3 March 2014, the day before Micro Farms did in fact enter into the transaction.[2] The First Defendant resists disclosure claiming either non waiver of privilege or common interest privilege with Micro Farms. I will deal with the common interest question first before turning to non-waiver.[3] I agree with Mr Isac that there was no common interest between the Second Defendants and Micro Farms on the date of the disclosure to Micro Farms. That is for the obvious reason that Micro Farms was not a purchaser of the land on that date. The parties were still in negotiations. In fact, if anything, their interests were opposed at that point. If there is need for support for what in my view is a relatively obvious point, it can be found in obiter in the decision of Fresh Direct Ltd v J M Batten and Associates, a judgment of Wylie J where he makes a similar point in circumstances where the parties are in fact already contractually bound at [71].1[4] The more difficult point is whether there was waiver at all. That is whether the disclosure of the, the memorandum to Micro Farms represented a waiver of the privilege that attached (as Mr Barker rightly pointed out) under s 54 Evidence Act 2006 as solicitor/client privilege or under s 56 as litigation privilege. Thankfully that issue has been dealt with by Henry J in Harbour Inn Seafoods Ltd v Switzerland General Insurance Co Ltd in which His Honour made two general points that, in my view, resolve the issue. 2[5] The first is, where His Honour said that: 3The privilege claimed here is from disclosure to the defendant, and the question of a claim of privilege as against Heath is not presently an issue. In my judgment the fact of disclosure of a document when confined to a particular non-party does not necessarily constitute a waiver of privilege available to a party seeking production. In principle, it seems to me that disclosure for example by a plaintiff to an associate or confidante unconnected with the proceeding, of written legal advice, on a claim against the defendant in ordinary circumstances would not, and should not, constitute a waiver against the defendant. (emphasis in the judgment)[6] The question here in this case before me, is whether Micro Farms ought properly to be seen as a confidante of the Second Defendant.1 Fresh Direct Ltd v J M Batten and Associates (2009) 20 PRNZ 126 (HC).2 Harbour Inn Seafoods Ltd v Switzerland General Insurance Co Ltd [1990] 2 NZLR 381 (HC).3 At 384.[7] The Judge makes the point that "waiver may result if it can be said that the third person was at the time of disclosure the agent, representative or otherwise acting on behalf of the person seeking production, thus effectively making the disclosure to that person."4 That is not the situation here. He continues: "There may also be circumstances where the disclosure is made in such a way (for example to a news media representative or to a gathering of people) as to show reliance on the claim has been foregone. Other circumstances, such as third disclosure by the third person, may possibly also operate to terminate the claim." 5[8] Now the underlying principle from that decision seems to me clear enough. That is, if the circumstances of disclosure indicate it was not intended to be a general disclosure, and in particular was not intended in any way to be a disclosure to the defendant or to the world at large, then privilege is not waived. Circumstances in this case amply demonstrate, in my view, that privilege has not been waived. Clearly the advice from Buddle Findlay to Landcorp and handed onto Micro Farms was intended for their eyes only, and certainly could not have been intended on any stretch of the imagination to be a provided to Ngati Whakahemo or to the world in general. Applying then that principle to this fact situation makes it clear in my view that privilege is not waived, even though there was no common interest.[9] The application is dismissed.___________________________Williams J4 At 384.5 At 384.