REID V CROWN LAW OFFICE AND ANOR HC WN CIV-2008-485-1203 [2009] NZHC 446 (21 April 2009)

IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY
                                                                CIV-2008-485-1203

              UNDER                      the Human Rights Act 1993, the
                                         New Zealand Bill
of Rights Act 1990, the
                                         Judicature Act 1908, the Judicature
                           
             Amendment Act 1972, the United Nations
                                         International Covenant on Civil and
                                         Political Rights and the United Nations
                                         Convention
on the Rights of the Child

              IN THE MATTER OF           an appeal of a decision of the Human
                      
                  Rights Review Tribunal

              BETWEEN                    JAMES ROBERT REID
                           
             Appellant

              AND                        CROWN LAW OFFICE
                                         Second
Respondent

              AND                        PRIVACY COMMISSIONER
                                         Third Respondent


Hearing:      23 March 2009

Counsel:      Appellant in person
              K Muller and D M Consedine for second respondent

             K Evans for third respondent

Judgment:     21 April 2009



                   RESERVED JUDGMENT OF DOBSON J




Context
and scope of present appeal


[1]    This is an appeal from a decision of the Human Rights Review Tribunal (the
Tribunal) upholding
claims to legal professional privilege as a ground for resisting




REID V CROWN LAW OFFICE AND ANOR HC WN CIV-2008-485-1203 21
April 2009

disclosure of personal information. It arises in a somewhat complicated factual
context.


[2]    The appellant (Mr
Reid) has been a frequent litigant on his own behalf in the
last 15 or so years. The areas of personal concern, causing him to commence
a
variety of proceedings, appear to have been the circumstances of his dismissal from
the New Zealand Fire Service (the Fire Service),
and challenges to proceedings in
relation to the custody of his son.


[3]    In late 1998, the Crown Law Office initiated proceedings
in the name of the
Attorney-General, seeking to have Mr Reid declared a vexatious litigant on the basis
of his pursuit of 18 sets
of proceedings bearing in some way on his employment, and
eight sets of family-related proceedings. These vexatious litigant proceedings
were
subsequently discontinued in May 2002 after on-going dialogue between Mr Reid
and various solicitors at the Crown Law Office,
intended to clarify Mr Reid's
intentions with various proceedings then extant. The outcome of that dialogue was
that it was no longer
considered necessary in the public interest to pursue a finding
that Mr Reid be declared a vexatious litigant.


[4]    On 11 February
2006, Mr Reid wrote to the Crown Law Office requesting a
copy of any records indicating that the Fire Service had referred the prospect
of
vexatious litigant proceedings to the Crown Law Office for consideration. Mr Reid
also sought "all other documentation pertaining
to the Attorney-General's
application including `extensive consideration and advice'". The Crown Law Office
accepted this as an information
access request to which principle 6 of the Privacy
Act 1993 (the Act) would apply.


[5]    On 18 February 2006, Mr Reid wrote to
the Fire Service requesting copies of
all documents pertaining to its referral of the prospect of vexatious litigant
proceedings
to the Crown Law Office. That was similarly treated as an information
access request, to which principle 6 of the Act would apply.


[6]    Both the Crown Law Office and the Fire Service resisted the request, at least
in respect of the vast majority of the documents
held by each of them, in reliance on

s 29(1)(f) of the Act. That section recognises, as a reason for refusing such requests,
that
disclosure of the information would breach legal professional privilege.
Mr Reid did not accept that this ground for refusing the request should apply, and
pursued the matter, first before the Privacy Commissioner. When she upheld the
stance taken, Mr Reid pursued an appeal before the
Tribunal.            The Tribunal
conducted hearings on the matter on 29 February and 8 April 2008. As the matter
was argued, the
Tribunal considered it appropriate to consider for itself the
documents in issue. With Mr Reid's concurrence, it considered the documents,
and
conducted a part of its hearing in Mr Reid's absence, to hear submissions as to the
application of legal professional privilege
to some of the documents involved.


[7]    Although the Privacy Commissioner had generally upheld the approach
adopted by the Crown
Law Office and the Fire Service, it did propose a different
stance in respect of a small number of Crown Law Office documents that
represented notes of telephone discussions or meetings between Crown Law Office
solicitors and Mr Reid.     Ultimately, the Tribunal
did not find it necessary to
distinguish this small number of documents, and upheld privilege in them. I will
refer to this separate
group of documents as "the disputed CLO file notes".


[8]    Mr Reid then commenced both the present appeal, and judicial review
proceedings to challenge the Tribunal's decision. The judicial review aspect was
never separately pleaded and was struck out by Gendall
J on 8 October 2008. In
addition, the Privacy Commissioner moved to be struck out on the basis that she
could not be a respondent
to Mr Reid's appeal. Although Clifford J on 16 July 2008
accepted that as the correct jurisdictional position, it was eventually
agreed that the
continued involvement of the Privacy Commissioner was appropriate, to assist the
Court in the same way as had occurred
on the arguments before the Tribunal.


[9]    In addition, Mr Reid gave a clear indication of his intention to discontinue the
appeal
as against the Fire Service (in formal terms, originally joined as first
respondent in the name of the New Zealand Fire Service Commission).
In reliance
on Mr Reid's indication, Clifford J ordered the discontinuance of the appeal against
the Fire Service on 22 September
2008. Somewhat equivocally, Mr Reid suggested
during the argument of the appeal that the Fire Service should not have been

removed.
However, he acknowledged that the Fire Service was somewhat more
robust in perusing costs' entitlements against him than the Crown
Law Office, and
he accepted he did not want to be exposed to any risk of another adverse costs'
award in favour of the Fire Service.
In common with the review of the position
undertaken by Wild J on 21 January 2009, I continue to treat the appeal against the
Fire
Service as discontinued from 22 September 2008.


[10]   For the Privacy Commissioner, Mrs Evans advanced arguments on the appeal
in support of an obligation to partly disclose the disputed CLO file notes. For the
Crown Law Office, Ms Muller objected to this
issue being raised on the appeal when
previous notice had not been given of it, and the submissions for the Privacy
Commissioner
were only filed after those on behalf of the Crown Law Office. I was
not prepared to exclude the issue, but recognised the prospect
of prejudice to the
Crown Law Office from the sequence in which the issues had been raised.
Accordingly, I directed that the disputed
CLO file notes should be provided to me on
a confidential basis, and that Ms Muller, and subsequently Mr Reid, ought to have an
opportunity
of filing supplementary submissions dealing with the points raised on
behalf of the Privacy Commissioner. I will deal separately
with the disputed CLO
file notes towards the end of the judgment.


Arguments in support of appeal


[11]   Dealing first with access
to the documents generally, the grounds for the
appeal and Mr Reid's submissions as supplemented in his oral argument can, to the
extent there was any potentially arguable point, be distilled under the five following
headings:


       a)     Where the client whose privilege is in issue
in litigation is acting in
              the public interest, then that circumstance should be a recognised
              exception
to the usual public policy or other justifications for
              upholding litigation privilege.

       b)      The Tribunal's
decision wrongly identified the Fire Service as the
               client, when the Crown Law Office's only client was the Attorney-
               General.


       c)      The Tribunal was incompetent, improperly influenced by a desire to
               protect
lawyers and/or government, and had a pre-conceived notion of
               the sanctity to be attributed to "counsel's file".


       d)      Channelling through lawyers documents that would not be excepted
               from the obligations to disclose as
personal information if they were
               not so directed to lawyers amounts to "laundering of documents", and
          
    the client should not be able to invoke privilege in those
               circumstances.


       e)      An incidental criticism
of the prejudice suffered by Mr Reid in
               challenging the withholding of personal information was that he had
     
         to assess the prospects of challenge without a list of documents that
               would have been required to be produced
in the vexatious litigant
               proceedings, if they had continued.


[12]   As to the first argument raising some notion
of a public interest exception
where it was the public interest that motivated pursuit of the proceedings, this was
said to be relevant
here, where proceedings to have a litigant declared vexatious
under s 88B of the Judicature Act 1908 are pursued "in the public interest".
Mr Reid
submitted this ought to be a circumstance in which compliance with obligations to
provide personal information to a citizen
should be seen as overriding the usual rules
as to privilege that apply to the way all litigation is conducted. However, there is
nothing in either the scheme or terms of the Act, or in the principles on which the
law in relation to privilege is founded, to support
such a notion.


[13]   There is a long-standing principle on which litigation privilege rests. Once
litigation is in contemplation
as a serious or realistic prospect, documents prepared
with a dominant purpose of assisting that party's case in the litigation are
protected
from disclosure: Guardian Royal Assurance of New Zealand Ltd v Stuart  [1985]

1 NZLR 596, s 56 of the Evidence Act 2006. This allows full and frank exchanges
of views, testing of positions and facilitation of better conditions
for the preparation
of a party's case in litigation than would be the case if the product of all work
designed to assist the party
in the litigation was constrained by the prospect of
disclosure to opposing parties: B v Auckland District Law Society [2004] 1 NZLR
326 (PC) at [37]-[43]. This rationale means that the protection of privilege is cast
more widely once litigation is in prospect,
than is the case in non-litigious
communications between a solicitor and client: Konia v Morley  [1976] 1 NZLR 455
(CA) at 458; McGechan on Procedure at HR8.31.07.


[14]       The fact that the litigation is being pursued in the public interest,
rather than
for financial reasons or to vindicate some private right, cannot make a material
difference to the rationale for the
privilege. Litigation pursued in the public interest
is still entitled to whatever advantages are inherent in its preparation being
aided by
the availability of privilege in just the same way as the circumstances of preparation
of any other party's case in any
litigation. This is implicit, for instance, in the
recognition that privilege applies equally to criminal proceedings (inevitably
pursued
in the public interest) as to all civil proceedings: B v Auckland District Law Society
at [44].


[15]       All agencies
subjected to the obligations imposed by the freedom of
information principle are equally entitled to have the scope of exceptions
recognised
in s 29 of the Act applied in their favour. Mr Reid could not suggest any basis on
which documents arising in the course
of litigation which might be categorised as "in
the public interest" should be treated any differently, and there is no rational
basis
for considering such an argument.


[16]       The second of Mr Reid's arguments, described in [11]b) above was based on
the
well-established proposition that solicitors do not have standing to claim
privilege in their own right. The privilege is always
that of the client: B v Auckland
District Law Society at [45]. The practitioner can only claim privilege on behalf of
the client,
and it is entirely the client's prerogative to waive that privilege if the client
sees fit. Here, Mr Reid characterised the analysis
of the claims to privilege as
wrongly treating the Fire Service as the client of the Crown Law Office, when the

Crown Law Office's
only relevant client in the matter was the Attorney-General.
Mr Reid cited an exchange between the Chair of the Tribunal, Mr Hindle,
and Crown
Counsel in respect of one particular document, where Crown Counsel observed:

       But that's actually not the Attorney's
privilege there, that would be the Fire
       Service's privilege and we just happen to have a copy of that document
       because
they provided it to us. (Transcript of hearing on 8 April 2008, p 6)

[17]   Mr Reid claimed as a success in his argument before
the Tribunal,
recognition of the point that the Fire Service had no privilege in the relevant
documents in its own right. A contrary
view had been suggested by the Privacy
Commissioner, on the basis that the Fire Service was a client of the Crown Law
Office. However,
that does not establish an error in the Tribunal's analysis of the
scope of privilege able to be claimed in the case. I accept Ms
Muller's submission,
on a fuller reading of all the materials, that it was clearly the position of the Crown
Law Office throughout
that the Fire Service was not a client of the Crown Law
Office, and had not been at any relevant stage. Claims for litigation privilege
were
advanced on the basis that the Attorney-General was the client, and the Fire Service
a third party, and that is indeed reflected
in the terms of the Tribunal's decision:

       Of course it was the Attorney-General and the plaintiff who were parties to
   
   the s 88A [now s 88B] proceedings, but we have no doubt that the Fire
       Service information was (and is) privileged nonetheless.
It is comprised of
       communications between the Attorney-General and the Fire Service (a third
       party) for the purpose
of litigation that was either pending or under-way at
       the relevant times. [22]

[18]   Indeed, the passage from p 6 of the
transcript of the hearing on 8 April 2008
quoted in [16] above is preceded by an observation by Crown Counsel, which
provides the
context for the observation criticised by Mr Reid. Crown Counsel had
immediately before that said:

       I think that we would
have taken the view that that was privileged
       communication with a legal adviser and between a legal adviser and a third
       party.

In other words, the Fire Service was a third
party, not a client.


[19]   Mr Reid's concern is that when the Fire Service was not the client of Crown
Law Office, in the context
of litigation the Crown Law Office was conducting for the

Attorney-General, then there must be an error in approach in treating
the Fire
Service's contribution to exchanges about the Attorney-General's litigation as if the
Fire Service was also the client.
However, where litigation is the purpose for such
communications, the scope of the privilege is recognised as going beyond
communications
between solicitor and client and, for the purpose of preparing their
case, extends to third parties with whom either the solicitor
or the client has dealings:
Crisford v Haszard  [2000] 2 NZLR 729 (CA) at [18].               It would subvert this
recognised scope of privilege if copies of documents retained in the hands of a
third
party, where those same documents are privileged in the hands of the solicitor, are
not able to be withheld from disclosure
when a demand is made of the third party.


[20]   Accordingly, Mr Reid cannot make out an error in the Tribunal reasoning by
suggesting
that the Tribunal treated the Fire Service as the client of the Crown Law
Office. Rather the recognition of privilege for Fire Service
documents rests on their
status as a third party consulted by the solicitor for the Attorney-General in the
course of preparing litigation
on his behalf.


[21]   Mr Reid's third group of arguments (see [11]c) above) constituted an
ad hominem attack on the Tribunal, and
in particular its Chair. Mr Reid chose to
interpret a range of comments from the Tribunal in the course of the hearing as
reflecting
a wish to protect government agencies, and potentially lawyers in general.
I am satisfied that all of those observations were no
more than a reasonable testing of
positions. The operative test of the correctness of the Tribunal's decision is an
analysis of the
reasons provided in its decision. With respect, I find the decision to
be carefully reasoned and to apply an entirely conventional
approach to the
assessment of the scope of privilege that could be claimed in the circumstances.


[22]   Having inspected all the
information for which privilege was claimed by both
the Fire Service and Crown Law Office, the Tribunal dealt first with the Fire
Service
information. It was satisfied, both by reference to common law principles of the
scope of litigation privilege and also by
the definition of privilege in s 56 of the
Evidence Act 2006, that all the documents produced to the Tribunal by the Fire
Service
fell within s 29(1)(f) of the Act. This was recognised as giving the Fire
Service proper reason to withhold the information from
the plaintiff.

[23]   In considering the information withheld by the Crown Law Office, the
Tribunal considered a number of arguments
that have not been repeated on this
further appeal. It analysed and dismissed arguments that, to the extent information
held by Crown
Law Office was a matter of policy advice, it could not be privileged.
Perhaps predictably, the Tribunal found that none of the information
held fell within
the rubric of policy advice. The Tribunal also rejected an argument that there had
been waiver of privilege. There
was also an argument, some flavour of which
remained on appeal, to the effect that the proceedings had been concluded so long
ago
that the claim for privilege should be treated as having been overtaken by
history. I agree with the Tribunal's rejection of that
notion, given the guiding
principle that a document "once privileged, is always privileged": B v Auckland
District Law Society at
[44].


[24]   Mr Reid criticised comments made by the Chair of the Tribunal suggesting
preconceptions about an automatic entitlement
to privilege for "counsel's file".
Mr Reid's point was that, without a specific analysis of what was contained in a
particular file,
such an approach affords protection on an unreasoned basis, when he
was entitled to have a document by document analysis undertaken,
irrespective of
where those documents were physically located.


[25]   It is perhaps not an adequate answer to Mr Reid on this point
to observe that
litigation lawyers routinely resort to the rubric of "counsel's file" as a shorthand
reference to papers, all of
which are inevitably privileged because they have been
brought into existence in the course of preparation for litigation. The entitlement
to
use the shorthand phrase obviously depends on those using it respecting the rationale
that lies behind it: ie that counsel's file
will not be a repository for documents other
than those which are inarguably entitled to protection from disclosure on the basis
of
litigation privilege.   It is a valid shorthand expression, subject to that implicit
expectation. In the present case, it is clear that the Tribunal was
not in any way
diverted by use of the expression. Instead, members of the Tribunal considered all
the documents on their merits.
Therefore there is nothing in Mr Reid's concern that
use of the shorthand phrase "counsel's file" in any way adversely impacts the
analysis undertaken.

[26]    The fourth group of Mr Reid's complaints were to the effect that the Fire
Service and the Crown Law
Office had somehow colluded in channelling through
lawyers documents that would not be excepted from the disclosure obligations,
if
they had not been directed to lawyers.     He characterised this as laundering of
documents, and said that in such circumstances
the client should not be able to
invoke privilege. Posing as an outsider, confronted with difficulties in challenging
"the establishment",
Mr Reid criticised the lawyers for using the concepts of
privilege in a way that they were so nebulous that they could have been
created by
Lewis Carroll, in that they meant whatever the lawyers wanted them to mean.


[27]    However colourfully it was put,
this point could not avail Mr Reid in
challenging the reasoning of the Tribunal. There is, of course, a well-recognised
exception
to the entitlement for a client to claim privilege, in circumstances where
the documents are in any way involved in a fraud. This
is now reflected in s 67 of
the Evidence Act 2006. That is an answer to any legitimate concern that privilege is
used to shield improper
or fraudulent conduct. Mr Reid could not advance any
rational basis for treating the correspondence between the Fire Service and
Crown
Law Office as in any way contrived so as to generate privilege. The Crown Law
Office's task legitimately extended to liaison
with the Fire Service as the opposing
party to a very large number of proceedings involving Mr Reid, so the lines of
communication
on the subjects covered were entirely conventional and reasonable
ones.


[28]    Finally, Mr Reid raised a criticism that went to
process rather than the
correctness of the Tribunal's reasoning, when he criticised the Fire Service and the
Crown Law Office for
not producing a list of those documents recognised as
containing personal information about Mr Reid, but which those organisations
were
withholding from disclosure in reliance on s 29(1)(f) of the Act. Mr Reid did not
appear to involve the Tribunal in this criticism.
Conceptually, it could have been
argued that the Tribunal was wrong, as a matter of process, not to direct assistance
for him in
running his case, by requiring the production of lists. Even if it were
formulated in these terms, this argument does not amount
to one that can affect the
correctness of the Tribunal's substantive decision. As Mrs Evans pointed out, there
is nothing in the
Act that goes anywhere near creating an expectation that an

organisation will produce a list, of the type required to be produced
by parties to
litigation in the discovery process, when acknowledging a request for access to
personal information and advancing
reasons for the extent of any documents
withheld.


[29]   Mr Reid's expectation that such organisations should be required to respond
in the same way as if they were parties to litigation is misconceived. As it is, the
burden of responding to requests for personal
information is obviously not
insubstantial.   The statute does not suggest any circumstances in which those
obligations should be
expanded to require the production of a list.         I was not
persuaded that Mr Reid's position, even in the relatively unusual
circumstances here,
was prejudiced to an extent that such an obligation should have been imposed.


[30]   Accordingly, with the
exception of the disputed CLO file notes, there are no
grounds for upsetting the Tribunal's decision. I accordingly dismiss the appeal
as
argued by Mr Reid.


Disputed CLO file notes


[31]   Separate consideration is required in respect of the disputed CLO file notes.


[32]   The argument between Mrs Evans and Ms Muller on
the disputed CLO file
notes revealed both a material difference on emphasis as to the law and a different
perception in the factual
sense of the character of the disputed CLO file notes.


[33]   It was common ground that privilege cannot be claimed for what is
no more
than a factual record of a communication from an opposing party in litigation:
Kennedy v Lyall  (1883) 23 Ch D 387. Accordingly, if, say, a telephone conversation
between the legal adviser for one party and the opposing party is recorded, and then
transcribed, privilege cannot be claimed for the transcribed text of the conversation.
Mrs Evans argued that the same approach applies
to what is a relatively common
practice for a solicitor when participating in such a conversation to take a
contemporaneous note
of the main points traversed in such a conversation.
Obviously that will be less than verbatim, but on Mrs Evans' analysis will


nonetheless often be no more than a record of what has been said by and to the
opposing party, albeit in abbreviated form. The Privacy
Commissioner argues that
such notes are not excepted under s 29(1)(f) because, to the extent a note is no more
than a record of what
was said, privilege cannot be claimed for it. In the present
case, the Privacy Commissioner's analysis was that the majority of the
disputed CLO
file notes were no more than a factual record of what was said in conversations
between various solicitors at the Crown
Law Office and Mr Reid. To the extent
there was the addition of any comment or advice, or a view about the factual matters
traversed
that was taken by the Crown Law Office personnel, Mrs Evans accepted
that those parts should be redacted so that disclosure was not
required of any parts of
the file notes that in any way reflected the preparation of the case by the Crown Law
Office.


[34]   
  The difference in emphasis from this approach argued for by Ms Muller was
that as soon as the record of the conversation was less
than a verbatim transcript of
what was said, then the note of the conversation inevitably reflected some
component of skill or judgement
by the note-taker, reflecting what was perceived to
be important (reflected in what was included) and distinguishing that from the
less
important (which would not be mentioned, or not dealt with fully). Thus, as soon as
any note was less than a full verbatim record
of what had been said, it would reflect
the input of legal advice or judgement, so that the client is entitled to assert privilege
over such documents produced on behalf of the client by the solicitor in the course of
preparing the case.


[35]      Both counsel
referred to the Court of Appeal decision in Crisford v Haszard
 [2000] 2 NZLR 729.         That case did involve the transcript of a surreptitiously
recorded telephone conversation between the defendant and a non-party
whom the
defendant thought might be a witness for him, but who had arranged to record the
conversation to assist the plaintiff's
solicitors. Consistently with the rationale for
privilege as discussed above, the Court of Appeal confirmed the High Court decision
that the transcript was not privileged because it constituted no more than a verbatim
record of what one party had said to someone
else. Of relevance to the present
situation are the terms in which the Court of Appeal distinguished a verbatim record
from a note
or summary of such a conversation. A verbatim transcript left:

        ...no room for arguing that it has the stamp of the plaintiff's
agent's opinions
        and impressions of the conversation. [25]

[36]    The Court treated the authorities as tending to "the
conclusion that privilege
from production and inspection is not available unless the document which is
obtained betrays the advice
or views of the solicitor or client or agent obtaining the
document" (see [26]). The Court of Appeal implicitly endorsed the approach
that
Potter J had taken in the High Court, distinguishing the verbatim transcript from a
note of the conversation on the basis that
the latter:

        ...would have the imprimatur of her own recollection and emphasis and,
        created for the purpose of the
litigation, would have attracted privilege. [8]

[37]    Ms Muller also referred to the United Kingdom decision in Grant v
Southwestern
and County Properties Ltd  [1975] 1 Ch 185 in which there was again
an obiter recognition of the distinction between a verbatim tape-recording of a
conversation and a summary
of the note-taker's recollection of a conversation with
the other party to the litigation (see p 199). Consistently, the point is
that the note of
the conversation has to be prepared in a way that puts the imprimatur or stamp of the
preparer on its contents,
reflecting the purpose of its preparation as assisting in the
litigation.


[38]    Ms Muller reviewed Australian authorities dealing
with claims to privilege in
respect of notes of discussions between a solicitor and the opposing party. She relied
on the approach
of the New South Wales Court of Appeal in Sugden v Sugden
 (2007) 70 NSWLR 301;  [2007] NSWCA 312, suggesting the approach was
consistent with that taken by the New Zealand Court of Appeal in Crisford. After
recognising that communications
between parties to litigation are not, without more,
to be treated as confidential for the purposes of claims to privilege, the Sugden
decision continued:

        But it does not follow that the solicitor's document recording a
        communication with an opposing
party or the opposing party's legal
        representative is not privileged. Whether it is or not depends on the question
     
  of whether the document is, even though the communication that it records
        was not, confidential within the statutory definition.
[64]

[39]   In the context being considered, the requirement for some confidentiality
related to the need for some element of selectivity
or judgement being applied by the
person making the note. In that sense, the Sugden decision, which considered the
scope of privilege
in terms of the New South Wales Evidence Act 1995, is again
consistent with the base principle that the privilege will exist to protect
the
confidentiality of some element of preparation of the case for the relevant party. It is
not privileged merely because it is
made by the solicitor for a party, but because its
content reflects some part, however small, of the preparation of the party's case.


[40]   In reliance on these cases, the argument for the Crown Law Office was that
the only safe approach to the scope of privilege
in such circumstances is to recognise
that once the note is less than a verbatim record, it must be taken to involve some
element
of judgement in what is recorded. This would lead to recognition that
disclosure of the content would risk revealing some part of
the preparation of that
party's case. Ms Muller's argument was that the composition of such documents
will inevitably involve elements
of recollection, choice of wording, selection of
content, and emphasis on the part of the author giving it a different character
or
quality to that of the underlying communication.          Because a reviewer of the
documents testing their entitlement to privilege
will not have been involved at the
time, it is arguably impossible to assess the extent of selectivity or judgement
involved in its
preparation, leading inevitably to the recognition that its collation of
the content of the conversation gives rise to an entitlement
to claim privilege.


[41]   Mrs Evans recognised that such file notes may often include the author's
impression of the conversation
they record. Her proposal was that the parts of such
records that reflect an impression of the conversation, as well as those reflecting
any
tactical considerations, comments on what was said, or anything going to the
provision of advice, can be protected by redaction.
Ms Muller's rejoinder was that
impressions of the author may go beyond comments that make it clear on their terms
that they are an
impression, and extend to unspoken selection as to topics recorded
and the terms in which they are expressed.


[42]   This dividing
line is to be determined in accordance with the principle
governing the recognition of litigation privilege.      Those producing
a record in

summary form, be it a file note, informal email or in other forms, where the purpose
of doing so is to assist in the
preparation of the case for a litigant, should have the
confidence of knowing that any component that reflects or hints at work done
or the
priorities in preparation of the litigant's case will remain confidential, and need not
be shared with the opposing parties
on discovery. That means that a liberal approach
should be adopted to the recognition of notes of communications with opposing
parties
as being likely to contain material for which privilege can be claimed.
However, I am not persuaded that the prospect of such content
is a sufficient
justification for treating all notes or summaries of communications with the opposing
party as being entitled to privilege, as a matter of course. Whilst I accept that an
independent reviewer cannot assess the relevance of what may have been
omitted, or
what might be signalled, for instance by the priority in which topics are dealt with, a
liberal approach to recognising
whether the author has placed his or her "stamp" on
what is otherwise a factual record is a task that can realistically be undertaken.


[43]   Having considered the disputed CLO file notes, the Tribunal accepted the
Crown Law Office argument, deciding the point in
the following terms:

       [34]    ...[H]aving regard to the information in the documents at issue, we
       have concluded that
they each reflect an element of choice about what was
       recorded and how the record was expressed. The documents themselves
       satisfy us that in their preparation there was a sufficient exercise of skill,
       selection, effort and/or judgement to
come within the rationale for legal
       professional privilege.

[44]   However, in the present case it is ironically unhelpful
to the argument for the
Crown Law Office that their disputed file notes have the appearance of being
relatively full, carefully confined
to a factual record (except where comments or
opinions are advanced in discrete parts of the notes), and were intended as the only
permanent record of conversations with Mr Reid that had very recently taken place.
The notes appear to reflect care to be thorough
and accurate where resort to them
might later be made by others within the Crown Law Office as part of dealing with a
difficult litigant.
I can readily conceive of the many circumstances in which there
will be an intermingling of a selective record of what had been discussed,
with the
consequences of that for the author or the client. However, I concur on this occasion
with the Privacy Commissioner's assessment
that it is possible to delete those parts
of the particular file notes that go beyond a factual record of what had been said, for

the purpose of fulfilling the obligation to give disclosure of material for which
privilege cannot be claimed.


[45]   With very
few exceptions, I concur with the extent of redactions, as I
understand them to have been proposed on behalf of the Privacy Commissioner.
(It
may be that, in the photocopying for me, the extent of highlighting on some of the
file notes may not have been clearly identified.)
Contemporaneously with the issue
of this judgment, I will have the Registry make available to the Crown Law Office
and to Mrs Evans
further copies of the file notes with the extent of redaction I
consider appropriate marked on each of them. In the absence of any
application on
behalf of the Crown Law Office for leave to appeal this decision under s 124 of the
Human Rights Act 1993, compliance
with this judgment would then require
disclosure by the Crown Law Office to Mr Reid of the notes, except to the extent I
have marked
redactions on them.


[46]   I am very conscious that in concluding this part of the appeal on these terms,
I am reaching the opposite
conclusion to that reflected in the Tribunal's decision.
That was reached after considering all the withheld documents whereas I
have only
considered these four file notes.


[47]   However, I have come to the contrary view because of the importance I
attach
to the scope of privilege claimed in any circumstance not going beyond the
principle that is the rationalisation for recognising
privilege in the first place. Once I
have taken account of the extent of redactions I propose, it is not possible to
recognise any
contribution to the preparation of the Attorney-General's case, in the
remaining narration of what has been said. The principal skill
demonstrated by the
terms of the file notes is the diligence of their authors in creating an accurate record
of oral dealings with
an allegedly vexatious litigant. Again, it is ironic that that
context provides a basis that may often not be present, enabling a
subsequent
reviewer to be confident of the lack of selectivity in the record of the conversations
that had occurred.

Summary


[48]    The appeal,
as argued by Mr Reid in challenging the entitlement of the
Crown Law Office to withhold documents containing personal information
on the
ground that they are privileged, is dismissed.


[49]    The discrete argument advanced on behalf of the Privacy Commissioner
about the obligation to disclose the disputed CLO file notes, in partially redacted
form, is accepted. In the absence of an appeal,
I order that the Crown Law Office is
to provide Mr Reid with copies of those disputed CLO file notes, redacted to the
extent marked
up on copies of those file notes that I will provide to counsel for the
Crown Law Office and the Privacy Commissioner on distribution
of this judgment.


Costs


[50]    The modest measure of success on the appeal in relation to the disputed CLO
file notes cannot
be attributed to Mr Reid.              I am grateful to Mrs Evans and
Ms Muller for the thorough way in which they argued the appeal,
and in particular
this issue. As to the cost consequences of this outcome, it is certainly not to be seen
as a "success" entitling
Mr Reid to an award of costs. Should either the Crown Law
Office or the Privacy Commissioner wish to pursue costs on the predominant
outcome, which is the dismissal of the balance of the appeal, then I will receive
Memoranda.




                               
                                               Dobson J




Solicitors:
James Reid, 2 Vogel Street, Woodville
Crown Law Office, Wellington
for second respondent
K Evans, Office of the Privacy Commissioner, Wellington for third respondent