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Court of Appeal of New Zealand |
Last Updated: 28 April 2010
IN THE COURT OF APPEAL OF NEW ZEALAND
CA761/2009 [2010] NZCA 133BETWEEN JAMES ROBERT REID
Applicant
AND NEW ZEALAND FIRE SERVICE COMMISSION
First Respondent
AND CROWN LAW OFFICE
Second Respondent
AND PRIVACY COMMISSIONER
Third Respondent
Hearing: 16 March 2010
Court: Hammond, Chambers and Baragwanath JJ
Counsel: Applicant in Person
P A McBride for First Respondent
T J Warburton and D M Consedine for Second
Respondent
M C Flahive for Third
Respondent
Judgment: 21 April 2010 at 2 pm
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JUDGMENT OF THE COURT
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Does litigation privilege come to an end when the proceeding that gave rise to it and any related proceedings are complete?
REASONS OF THE COURT
(Given by Chambers J)
Seeking document disclosure
[2] In May 2002, following discussions between Mr Reid and various solicitors at Crown Law as to Mr Reid’s intentions with respect to the various proceedings then extant, the Attorney-General decided to discontinue the proceeding.[2]
[3] In February 2006, however, Mr Reid’s discontent flared up again. He now sought from both Crown Law and the Fire Service copies of any records indicating that the Fire Service had referred the prospect of a vexatious litigant proceeding to Crown Law for consideration. He also sought “all other documentation pertaining to the Attorney-General’s application”, including, it would seem, legal advice given by Crown Law to the Attorney-General. Both organisations treated Mr Reid’s request as an information access request under the Privacy Act 1993. Both resisted disclosure on the basis that disclosure would breach legal professional privilege, in terms of s 29(1)(f) of the Privacy Act.
[4] For the last four years, Mr Reid has been involved in challenging those assessments before the Privacy Commissioner, in the Human Rights Review Tribunal, and, on appeal from the Tribunal, in the High Court. At each level, Mr Reid has been largely unsuccessful. Dobson J held that the Attorney-General was at all relevant times Crown Law’s client and, in respect of most of the disputed documents, was entitled to assert legal professional privilege.[3] Accordingly, Crown Law was justified in refusing to disclose the privileged documents. Mr Reid is not prepared, however, to give up his fight to see the documents. To come to this Court, he needs either leave of the High Court or special leave from us. He is quite open about why he wants to see the documents in respect of which privilege has been claimed: he wants to try to re-open, in an unspecified way, his employment litigation against the Fire Service. He told us he hopes to take his case to one or more international courts or tribunals.
[5] On 19 November 2009, Dobson J declined leave to appeal to this Court (the leave decision). So Mr Reid now seeks special leave. The essential issue before us is whether there is an arguable case that Dobson J’s decision on the issue of privilege is wrong and whether it is of sufficient importance to justify a second appeal.
[6] There are three respondents to this application: in order, the Fire Service, Crown Law, and the Privacy Commissioner. Each is in a different position from the others. We shall consider each separately. For reasons which will become apparent, it makes sense to deal with Crown Law first.
[7] Before doing that, however, we need to set out a little more of the procedural background (so far as is relevant) leading to the current application for special leave.
Procedural background
[9] Following the Tribunal decision, the Fire Service sought costs from Mr Reid. The Tribunal awarded the Fire Service $3,000 pursuant to s 85(2) of the Privacy Act.[6]
[10] Mr Reid appealed against the Tribunal’s decisions to the High Court. The Commissioner, who had been named as a party to the appeal, applied to have herself struck out as a party. Clifford J, who dealt with this interlocutory matter, apparently accepted that the Commissioner’s stance was right. It was, however, “eventually agreed”, according to Dobson J, that the Commissioner would continue to be involved “to assist the Court in the same way as had occurred on the arguments before the Tribunal”.[7] Her role was as an intervener, however, not as a party.
[11] At that same interlocutory hearing before Clifford J, Mr Reid decided not to pursue his appeal against the Fire Service except with respect to the costs award. We are not sure of Mr Reid’s motivation in reaching that decision. It may be he thought that, if he could knock out the Attorney-General’s claim to privilege, the Fire Service would in any event have to disclose the documents to him. It may be he wanted to reduce his exposure to the Fire Service on the appeal so that, if he lost, its entitlement to costs against him would be negated or, at least, minimised. (The Fire Service has apparently adopted an aggressive stance towards costs and the enforcement of costs awards in its legal skirmishes with Mr Reid.) In any event, the appeal against the Fire Service proceeded thereafter on that limited basis.
The proposed appeal against Crown Law
[13] Mr Reid named the Crown Law Office as second respondent. No point has ever been taken about it rather than the Attorney-General having been designated as a party.[10] Mr Reid’s proposed appeal against Crown Law is intended to challenge Dobson J’s Crown Law decision and lead to release of the requested documents.
[15] Mr Reid appears to have added before us four additional grounds of appeal. The first was that “the restrictive criteria” applicable to second appeals were “not appropriate in a case where there is clear and unambiguous bias by the appellate judge”. This is in effect a regurgitation of Mr Reid’s claim that Dobson J was biased (the third ground of appeal) because judges hold “law practitioners’ certificates” and thus are motivated to allow “the legal doctrine of legal professional privilege [to override] statute law in favour of law practitioners”. There is no proper basis for the allegation of bias on the Judge’s part.
[16] The second additional ground was that “the lack of an automatic second appeal [under] the Human Rights Act 1993 is unconstitutional”. That point is unarguable: it is not.
[17] The third additional ground was that “the principles of natural justice are breached by the practice of ... leave applications being heard by a judge whose decision is being challenged”. That point too is unarguable: they are not.
[18] The final ground involved a mishmash of ideas – an attack on the perfidy of the Fire Service and on the Judge, the latter being said to be “clearly committed to protecting corrupt public officials”. This invective does not give rise to an arguable question of law.
[19] On the basis of the arguments put forward by Mr Reid, the application for special leave should undoubtedly fail. But a member of the panel, Baragwanath J, raised at the hearing an issue which is definitely arguable, though only with respect to documents said to be protected by litigation privilege as opposed to legal advice privilege. (We shall call these documents “the litigation privilege documents”.) That issue is: does litigation privilege come to an end when the proceeding that gave rise to it and any related proceedings are complete?
Once the litigation has ended, the privilege to which it gave rise has lost its specific and concrete purpose – and therefore its justification.
[22] We are satisfied this question does meet the statutory criteria for special leave. In accordance with our normal practice, we do not give reasons for granting leave other than the summary in the two previous paragraphs.[18]
[23] There will be no order for costs on this part of the application for leave, either in favour of Crown Law against Mr Reid or in favour of Mr Reid against Crown Law. Mr Reid failed on all the points he wanted to argue, with the consequence that Crown Law was justified in opposing the application for special leave. As against that, special leave has now been granted.
The proposed appeal against the Fire Service
[24] Mr Reid is concerned about the costs orders against him. There is the Tribunal’s costs award of $3,000. And now he is liable under Dobson J’s two costs orders as well, one on the appeal and the other on the leave application. He wants all the costs orders against him quashed.
[25] Let us deal first with the Tribunal’s costs award. There is no doubt that, if the Tribunal’s substantive decision is correct, this costs order was entirely orthodox. Dobson J, who thought the Tribunal’s substantive decision was correct, so held, and he was right. In itself, the Tribunal costs decision does not give rise to any question of law worthy of a second appeal.
[26] But what if on the appeal for which special leave is now given this Court holds that the Attorney-General had lost his litigation privilege with the consequence that Crown Law and the Fire Service should have disclosed the litigation privilege documents to Mr Reid when he sought them in 2006 and with the further consequence that the Tribunal’s substantive decision (on which its costs order was parasitic) was, at least in part, wrong? This Court would normally in such a case adjust or quash (or even reverse) the lower court’s cost order, pursuant to its general powers under r 48 of the Court of Appeal (Civil) Rules 2005 (the Rules). No specific appeal against the costs determination is required. It would normally be quite unjust for a party who is later held to have wrongly won in a lower court, to hold onto a costs order in its favour in that court.
[27] The position is complicated here by the fact that Mr Reid elected not to continue with his substantive appeal against the Fire Service. Should that now make the Tribunal’s costs award in the Fire Service’s favour inviolate? We have decided it should not. If this Court holds the Attorney-General has lost his privilege, then Crown Law will have to disclose the litigation privilege documents. If a fresh request for disclosure were made to the Fire Service, it would have to disclose its documents as well, as the ground for refusing disclosure (the Attorney-General’s privilege) would no longer be available. In those circumstances, the Tribunal costs decision should not stand unmodified, as it was premised on what this Court would have held to be an incorrect view of the law. If this Court holds the Attorney-General has not lost his privilege, however, then the Tribunal costs decision will stand. We are not prepared to grant special leave to appeal from it.
[28] We now deal with the two High Court costs orders. The first question that needs to be answered is whether Mr Reid needs leave at all. Can he appeal them as of right under s 66 of the Judicature Act 1908? There is a passage in this Court’s decision in Friends of Pakari Beach v McCallum Bros Ltd[19] which suggests that High Court costs orders (whether on a first instance appeal or on a decision declining leave to appeal) may be appealed as of right:
[48] We agree that a decision granting or refusing leave to appeal is not appealable. The only recourse for an applicant declined leave is to apply afresh to the Court of Appeal for special leave. But a costs order is different. Costs orders may be challenged and reversed on appeal in two different ways. First, they can be challenged directly and independently of the substantive decision to which they relate via an appeal under s 66 of the Judicature Act. Alternatively, and more commonly, a High Court costs order may be reviewed if the substantive decision to which it relates is overturned or varied.
(Emphasis added.)
[30] The consequence is that Mr Reid can challenge the High Court costs awards only if:
- (a) he can persuade us they raise a question or questions of law of such importance that special leave to appeal should be granted; or
- (b) he succeeds on the substantive appeal, with the consequence that review of the lower court’s cost orders becomes appropriate.
[31] As to the former, we are satisfied that special leave should not be granted. Dobson J’s awards were orthodox and principled, given his view of the substantive issue under appeal.
[32] But what if Mr Reid’s substantive appeal succeeds? In that event, this Court will be entitled, pursuant to r 48, to review the High Court costs orders. We emphasise that these costs orders, in that event, will not necessarily be quashed or varied. This Court may consider that the High Court costs orders should stand, notwithstanding Mr Reid’s success on the substantive issue, in light of the fact that Mr Reid never thought or took the point which is now his only hope of success. On the contrary, he obfuscated matters by taking copious, thoroughly bad points.
[33] In summary, therefore, we decline Mr Reid’s application for special leave to appeal against the Fire Service decision and the two High Court costs orders in the Fire Service’s favour. But all three costs orders may be reviewed if this Court allows Mr Reid’s appeal on the substantive matter and holds that the Attorney-General’s litigation privilege had been lost by February 2006.
[34] What role, if any, should the Fire Service play on the appeal? Clearly it should remain as a party. But we would think it unnecessary for it to file submissions or appear on the substantive appeal. Crown Law can be expected to make whatever submissions are required on the issue of whether the Attorney-General has lost his litigation privilege. The Fire Service has adopted the stance it has only because it believed itself under a duty to preserve the privilege the Attorney-General was asserting. If the Attorney-General has lost his privilege, that is (or should be) no skin off the Fire Service’s nose.
[36] The Fire Service sought costs on this application. Normally, we would determine costs now, but in the peculiar circumstances that have arisen, we do not think that appropriate. This proceeding has become so complicated between Mr Reid and the Fire Service that all costs issues should be parked in the meantime. We reserve costs in respect of the present application for determination after the proposed appeal has been heard. If Mr Reid fails on the appeal, then almost certainly the Fire Service would be entitled to costs on this application. We decline to speculate what the fair result should be if he succeeds on the appeal.
The proposed appeal involving the Privacy Commissioner
[37] As we have said, the Commissioner was struck out as a party and continued in the High Court as an intervener. No order is sought against the Commissioner on the proposed appeal. The only question is whether the Commissioner should continue in its role as intervener on the appeal.
[38] Given that we can expect the contrary view to Mr Reid’s on the appeal to be strongly espoused by skilled Crown counsel, we see no need for the Commissioner to continue to be represented on the foreshadowed appeal. We therefore direct that the Commissioner is not to be either a party or an intervener on the appeal. We note in passing that Mr Reid continues to make assertions against the Commissioner. This is not a judicial review proceeding.[22] The Commissioner’s role was in effect as a first tier decision-maker when Mr Reid, Crown Law, and the Fire Service could not agree on whether Mr Reid was entitled to the disputed documents. She should no more be a party to the appeal than should the Tribunal or the High Court, given that there is a perfectly capable and well-funded contradictor to Mr Reid. Mr Reid’s allegations against the Commissioner are irrelevant to the question of law in respect of which we are giving special leave. None of those allegations gives rise to a separate question of law worthy of consideration by this Court.
[39] The Commissioner, as an intervener, did not seek costs in the High Court or before us. Accordingly, there will be no order as to costs.
Where to from here?
[40] We have granted Mr Reid special leave with respect to one question of law. Special leave is otherwise declined. For the avoidance of doubt, we advise Mr Reid that he must now file and serve a notice of appeal, limited to that question, within the time specified in r 29 of the Rules. The two respondents will be the New Zealand Fire Service Commission and the Crown Law Office. He should seek by way of relief:
- (a) that his appeal be allowed;
- (b) that the Tribunal decision and the Crown Law decision be set aside;
- (c) that Crown Law disclose the litigation privilege documents to him.[23]
[41] When in due course Mr Reid files his submissions for the appeal, he should deal with the issue of costs in the Court of Appeal, whether he wins or loses.[24] Mr Reid does not need to deal with costs in the Tribunal or before the High Court, however. If he loses on the appeal, the Tribunal costs decision and the High Court costs orders will stand: see [35] above. If he wins on the appeal, all parties will be given an opportunity to file submissions on what, if anything, should happen with respect to costs in the Tribunal and the High Court.
[42] We do not prejudge what the panel which hears this appeal will do, by way of remedy, should the question of law be answered “yes”. It is possible that the panel will go on to determine whether the Attorney-General’s privilege had come to an end by February 2006 (when Mr Reid requested the documents) or, perhaps, has now come to an end. The panel may decide, in that event, to grant Mr Reid the remedy of access.[25] Alternatively, this Court may remit the question of remedy to some person or body lower in the chain. Counsel and Mr Reid should cover in their submissions what should happen in the event the question of law is answered “yes”, including submissions on facts relevant to remedy, in case this Court decides to adopt the former course and dispose of the case once and for all.
[43] A final word. We strongly urge Mr Reid to retain legal counsel for the appeal. He may be eligible for legal aid: we know nothing of his financial circumstances.
Solicitors:
McBride Devonport James, Wellington, for First
Respondent
Crown Law Office, Wellington, for Second Respondent
Office of
the Privacy Commissioner, for Third Respondent
[2] Attorney-General v Reid HC Wellington CP365/98, 16 May 2002.
[3] Reid v Crown Law Office HC Wellington CIV-2008-485-1203, 21 April 2009 [Crown Law decision].
[4] The Evidence Act 2006 does not apply to Mr Reid’s request for the documents: see the Evidence Act, s 53(5).
[6]
Reid v New Zealand Fire Service Commission [2008] NZHRRT 18 [Tribunal
costs decision].
[7]
Crown Law decision at [8].
[9] Leave
decision at [22].
[10] Tribunal
decision at [3].
[12] The leave decision at [6]-[17].
[13] Minister of Justice v Blank [2006] 2 SCR 319.
[15] Crown Law decision at [23].
[17]
Snorkel Elevating Work Platforms Ltd v Thompson [2007] NZAR
504.
[18] Court of
Appeal (Civil) Rules 2005, r 27(2)(b).
[19] Friends of Pakari Beach v McCallum Bros Ltd [2008] NZCA 87, [2008] 2 NZLR 649.
[22] Mr
Reid did purport to judicially review the Commissioner’s decision, but
Gendall J struck that part of the proceeding out
on 8 October 2008. Mr Reid has
not appealed against that decision.
[23] See
generally the Privacy Act, s 85, as to the kinds of remedy the Tribunal could
have ordered.
[24]
The Rules, r 41(1)(c).
[25] This Court
has power so to act: see the Human Rights Act 1993, ss 124(4) and 123.
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