MARRIOTT V THE ATTORNEY-GENERAL IN RESPECT OF LAND INFORMATION NEW ZEALAND AND THE REGISTRAR-GENERAL OF LAND HC AK CIV 2008-404-001437

MARRIOTT V THE ATTORNEY-GENERAL IN RESPECT OF LAND INFORMATION NEW ZEALAND AND THE REGISTRAR-GENERAL OF LAND HC AK CIV 2008-404-001437 2 February 2010IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2008-404-001437BETWEEN PETER JOHN MARRIOTT, MICHELLE SANDRA TAYLOR AND COLIN JAMES BISHOP BEING TRUSTEES OF THE MARTAY FAMILY TRUST Plaintiffs AND THE ATTORNEY-GENERAL IN RESPECT OF LAND INFORMATION NEW ZEALAND AND THE REGISTRAR- GENERAL OF LAND Defendant Hearing: by memoranda Counsel: D K Wilson for plaintiffs J R Burns for defendant Judgment: 2 February 2010 at 5:30pmJUDGMENT OF ASSOCIATE JUDGE ABBOTTThis judgment was delivered by me on 2 February 2010 at 5:30pm, pursuant to Rule 11.5 of the High Court Rules. Registrar/Deputy RegistrarSolicitors: Turner Hopkins, PO Box 33237, North Shore City 0740 for plaintiffs Crown Law, PO Box 2858, Wellington 6140 for defendant[1] This judgment is given on an application by the defendant to set aside claims made by the plaintiffs for legal privilege in documents created in the course of obtaining legal advice. Normally the plaintiffs would be entitled to privilege. The defendant contends, however, that the plaintiffs have waived their right to privilege. [2] The documents in question were listed, with the claim for privilege in an amended affidavit of documents sworn on 24 July 2009, in the following terms:303. Undated Summary of events by P Marriott P4 304. 11/10/05 Affidavit of R C Candy P4 ... 4. The documents described as P4 are documents written for the purposes of provided information to the plaintiff's legal advisors (Turner Hopkins, D KWilson, and Bell Gully), for consulting on legal issues including those at issue in these proceedings and obtaining legal advice.[3] By agreement the competing arguments have been advanced by memoranda rather than in a hearing. [4] The matter requires an urgent determination, as trial of the substantive proceeding is to commence tomorrow. Unfortunately, in the absence of a specific hearing of the matter the memoranda were overlooked until the last few days. It has not been possible, for other reasons, to give a fully reasoned judgment in the time available. In the light of the need for a determination before the commencement of the trial, I am releasing my decision now, and my reasons will follow. [5] Waiver of privilege is governed by s 65 of the Evidence Act 2006. The defendant contends that in answers to interrogatories the plaintiffs have both voluntarily disclosed the information contained within these two documents (s 65(2)), and have put their contents in issue (s 65(3)(a)). [6] For the reasons that will follow I take the view that if the information has been disclosed in part it is not in circumstances that are inconsistent with a claim of confidentiality, and that in the circumstances of the case the plaintiffs have not put the information in the documents in issue in the proceeding.[7] I will address costs in the reasons for judgment. ____________________Associate Judge Abbott