New Zealand Case Law: Decisions & Judgments

Topic

Dishonest purpose exception

Legal area

Court

24 Nov 2021

O’BRIEN v PARKINSON & ORS [2021] NZHC 3161

Citation

[2021] NZHC 3161
Court

High Court

The Court found a prima facie case that certain documents were prepared as part of a scheme to conceal relationship property and intended to defeat Ms O'Brien's interests; accordingly privilege was set aside in respect of four specific documents that were meaningfully linked to the alleged dishonest purpose, but not for other documents; the application for further discovery was dismissed as without merit and untimely.
20 Jun 2017

MCCULLAGH v ROBT. JONES HOLDINGS LTD [2017] NZHC 1704

Citation

[2017] NZHC 1704
Court

High Court

The respondent had not established the necessary prima facie foundation to invoke the 'dishonest purpose' exception to without prejudice privilege; Heath J's earlier findings and the unexplained omission of the recording/transcript from the affidavit undermined the respondent's claim, so cross-examination on the covert conversation was disallowed and the privilege upheld.
20 Dec 2013

ICEPAK GROUP LIMITED v QBE INSURANCE (INTERNATIONAL) LIMITED [2013] NZHC 3511

Citation

[2013] NZHC 3511
Court

High Court

QBE did not establish a sufficient prima facie case that communications were made for a dishonest purpose so as to defeat legal professional privilege; interrogatories were relevant to the pleaded defence but privilege is maintained except that communications purely between Icepak and its broker are not protected unless they form part of privileged legal advice; Icepak must answer parts of interrogatory (i) concerning communications with the broker up to 29 March 2010; QBE's applications for further disclosure and to disallow privilege otherwise are dismissed.
20 Dec 2011

MANIFEST CAPITAL MANAGEMENT PTY LTD V LAWRENCE AND MCCULLAGH, AS LIQUIDATORS OF NORTHERN CREST INVESTMENTS LTD (IN LIQUIDATION) HC AK CIV 2010-404-7741

Citation

openlaw-5e0fe054_67b1_4de0_b764_c39b1f890792.pdf
Court

High Court

Leave was granted under s 284(1)(b); on the evidence (documents and witness testimony) the Court found Manifest discharged the onus on the balance of probabilities that Northern Crest owes AUD 3,000,000 and reversed the liquidators' rejection, directing admission of the claim; the Reeves affidavit was ruled inadmissible because, although discussions were without prejudice, the applicant did not establish a prima facie case of dishonest purpose to override privilege; consequential directions and a confidentiality order were made.
26 Aug 2011

FULLERTON-SMITH V FULLERTON-SMITH HC HAM CIV 2011-419-615

Citation

openlaw-c4602a13_ff33_4250_9da6_5ea77a699df9.pdf
Court

High Court

On the evidence at the interlocutory stage the letters were legal advice to Mr Fullerton-Smith in his personal capacity, not to the Trust; therefore he alone holds privilege and has not waived it, and there is insufficient evidence to establish a prima facie dishonest purpose under s 67(1) Evidence Act 2006 to displace that privilege; the application to rely on the letters was dismissed.

New Zealand Case Law

O’BRIEN v PARKINSON & ORS [2021] NZHC 3161

MCCULLAGH v ROBT. JONES HOLDINGS LTD [2017] NZHC 1704

ICEPAK GROUP LIMITED v QBE INSURANCE (INTERNATIONAL) LIMITED [2013] NZHC 3511

MANIFEST CAPITAL MANAGEMENT PTY LTD V LAWRENCE AND MCCULLAGH, AS LIQUIDATORS OF NORTHERN CREST INVESTMENTS LTD (IN LIQUIDATION) HC AK CIV 2010-404-7741

FULLERTON-SMITH V FULLERTON-SMITH HC HAM CIV 2011-419-615