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Ponifasio v Council of Samoa Law Society [2013] WSSC 3 (11 February 2013)

SUPREME COURT OF SAMOA

Ponifasio v Council of Samoa Law Society [2013] WSSC 3

Case name: Ponifasio v Council of Samoa Law Society

Citation: [2013] WSSC 3

Decision date: 11 February 2013
Parties:
TUALA AUIMATAGI IOSEFO PONIFASIO applicant v COUNCIL OF SAMOA LAW SOCIETY respondent a body established by section 16 of the Law Practitioners Act 1976.

Hearing date(s): 5 February 2013

File number(s): MISC 156/12

Jurisdiction: Civil

Place of delivery: Mulinuu

Judge(s): Chief Justice Patu Falefatu Maka Sapolu

On appeal from:

Order:
Representation:
S. Ponifasio
S. Leung Wai

Catchwords:

Words and phrases:
Legislation cited:
Cross on Evidence (1996)
Cases cited:
Enosa v Samoa Observer Co Ltd [2005] WSSC 36.
A & P Cain Ltd v Electric Power Corporation [1997] WSSC 22
Carlton Cranes Ltd v Consolidated Hotels Ltd [1988] NZHC 344; [1988] 2 NZLR 555;
Three Rivers District Council v Governor
Company of the Bank of England [2004] UKHL 48
Guardian Royal Exchange Assurance v Stuart [1985] 1 NZLR 596 Esso Australia
Resources Ltd v Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49
Witcombe v Clerk of the House of Representatives [2008] NZ Emp Court 91;
Gibson and Anor v RJ Curtis [2008] NZHC 1049;
AA Meaker v MO Newdisk and Anor [2007] NZHC 1120;
Simunovich Fisheries Ltd and Ors v TVNZ and Ors [2007] NZHC 629.
Balabel v Air India [1988] 2 A11 ER 246
Grant v Downs [1976] HCA 63; (1976) 135 CLR 674
Crisford v Haszard [2000] NZCA 73; [2000] 2 NZLR 729

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

FILE NO.: MISC 156/12

IN THE MATTER:

of Part XIX of the Supreme (Civil Procedure) Rules 1980.

BETWEEN

TUALA AUIMATAGI IOSEFO PONIFASIO

Applicant

AND

COUNCIL OF SAMOA LAW SOCIETY a body established by section 16 of the Law Practitioners Act 1976.

Respondent

Counsel: S Ponifasio for applicant

S Leung Wai for respondent

Hearing: 5 February 2013

Conclusions: 6 February 2013

Judgment: 11 February 2013

JUDGMENT OF SAPOLU CJ

Introduction

1. As it is often the case, claims of privilege follow after discovery proceedings when the party against whom an order for discovery was obtained files an affidavit of discovery and the party who took out the order for discovery seeks inspection of any of the documents listed in the affidavit of discovery. The same has happened in this case.

Background

2. Essentially, the applicant is a member of the Samoa Law Society and the respondent is the Council of the Samoa Law Society. Following disciplinary proceedings against the applicant before the respondent and subsequent proceedings between the applicant and the respondent before the Supreme Court and then the Court of Appeal, this matter ended up again before the respondent.
3. On 7 June 2012, following the decision of the Court of Appeal on 31 May 2012, the applicant sent a written application to the respondent that he be issued with a practising certificate. A meeting of the respondent was held on 12 June 2012 in which the application by the applicant was considered. The respondent decided to decline the application and issued an interim suspension order against the applicant pursuant to s.38 of the Law Practitioners Act 1976. As it became apparent from the submissions of counsel on both sides, no reasons have been given by the respondent for its decision to issue the interim suspension order.
4. On 5 September 2012, the applicant filed a motion for judicial review seeking, inter alia, an order to quash or set aside the decision of the respondent imposing the interim suspension order on him. The applicant then sought and obtained an order for discovery on 4 December 2012 against the respondent. On 14 January 2013, the respondent filed an affidavit of discovery. Amongst the documents listed in the respondent’s affidavit of discovery is the minutes of the respondent’s meeting on 12 June 2012 in which it was decided to issue the interim suspension order against the applicant. It is in respect of that document that the applicant is seeking an order for inspection. The respondent opposes inspection on the ground of privilege.
5. After hearing these proceedings on 5 February 2013, I stated my conclusions on 6 February allowing the applicant’s motion for inspection of the minutes of the respondent’s meeting of 12 June 2012 insofar as those minutes relate to the making of the interim suspension order against the respondent. But the minutes of the meeting by the respondent are to be produced to the Court first so that extraneous and irrelevant material are blocked out before the minutes are made available to the applicant or his counsel for inspection. I also stated in my conclusions that I will prepare a written judgment with reasons which will be delivered to counsel in due course. This is that judgment.

Legal professional privilege

6. In A & P Cain Ltd v Electric Power Corporation [1997] WSSC 22, this Court, in its judgment, cited a passage on legal professional privilege from Cross on Evidence (1996) 5^th NZ ed by DL Mathieson para 10.20, p.272 where the learned author stated:

“In both civil and criminal cases, confidential communications between a client and the client’s legal adviser, and certain communications between client or legal adviser and third parties do not have to be revealed in evidence.

“As pointed out in para 17 of the 16^th Report of the English Law Reform Committee, the privilege covers three kinds of communications:

“(a) communications between the client or his agents and the client’s professional legal advisers; and

“(b) communications between the client’s professional legal advisers and third parties, if made for the purpose of pending or contemplated litigation; and

“(c) communications between the client or his agent and third parties, if made for the purpose of obtaining information to be submitted to the client’s professional legal advisers for the purpose of obtaining advice upon pending or contemplated litigation.”

7. Legal professional privilege was discussed in the judgments of this Court in A & P Cain Ltd v Electric Power Corporation [1997] WSSC 22 and Enosa v Samoa Observer Co Ltd [2005] WSSC 36. I do not intend to repeat here all that which was discussed in those two cases. But I would have to point out that the legal professional privilege under (a) in para 6 above which applies to confidential communications between a client or his agent and the client’s legal adviser is often described as the solicitor and client privilege but sometimes as legal advice privilege: see Carlton Cranes Ltd v Consolidated Hotels Ltd [1988] NZHC 344; [1988] 2 NZLR 555; Three Rivers District Council v Governor and Company of the Bank of England [2004] UKHL 48; both those cases were cited in Enosa v Samoa Observer Co Ltd [2005] WSSC 36. The legal professional privilege under (b) and (c) in para 6 above which applies to certain communications between a client’s professional legal advisers and third parties and communications between the client or his agent and third parties is called litigation privilege: see Enosa v Samoa Observer Co Ltd [2005] WSSC 36 and the relevant authorities discussed therein.
8. The authority which is often cited in judgments of the New Zealand Courts in respect of the legal professional privilege which applies to confidential communications between a client or his agents and the client’s legal advisers is the decision of the English Court of Appeal in Balabel v Air India [1988] 2 A11 ER 246; see, for example, Witcombe v Clerk of the House of Representatives [2008] NZ Emp Court 91; RM Gibson and Anor v RJ Curtis [2008] NZHC 1049; AA Meaker v MO Newdisk and Anor [2007] NZHC 1120; Simunovich Fisheries Ltd and Ors v TVNZ and Ors [2007] NZHC 629.
9. In Balabel v Air India [1988] 2 A11 ER 246, Taylor LJ said at p.254:

“Although originally confined to advice regarding litigation, the privilege was extended to non-litigious business. Nevertheless, despite that extension, the purpose and scope of the privilege is still to enable legal advice to be sought and given in confidence. In my judgment, therefore, the test is whether the communication was made confidentially for the purposes of legal advice. Those purposes have to be construed broadly. Privilege obviously attaches to a document conveying legal advice from solicitor to client and to a specific request from the client for such advice. But it does not follow that all other communications between them lack privilege. In most solicitor and client relationships, especially where a transaction involves protracted dealings, advice may be required or appropriate on matters great or small at various stages. There will be a continuum of communication and meetings between the solicitor and the client”.

10. For the purposes of the privilege which applies to confidential communications between a client or his agents and the client’s legal advisers, it is not necessary that litigation is in progress or reasonably apprehended or contemplated. It is sufficient that a communication was made confidentially between the client or his agent and the client’s legal adviser for the purpose of obtaining legal advice: Balabel v Air India [1988] 2 A11 ER 246, 254, per Taylor LJ.
11. The second kind of legal professional privilege is litigation privilege: see Enosa v Samoa Observer Co Ltd [2005] WSSC 36. This is the kind of privilege which, as already pointed out, applies to certain communications between a client’s legal advisers and third parties or certain communications between a client or his agent and third parties. As pointed out by Cooke J (as he then was) in Guardian Royal Exchange Assurance v Stuart [1985] 1 NZLR 596, 597, the problem that sometimes arises in relation to litigation privilege is when a document has been prepared for a number of purposes, one of which is submission to the legal advisers to enable them to conduct litigation for the client. Richardson J at p.602 referred to documents created for multiple purposes. So Guardian Royal Exchange Assurance v Stuart [1985] 1 NZLR 596 was not concerned with a document that was prepared for a ‘sole purpose’ but with a document that was prepared for a number of purposes. This should be borne in mind when applying Guardian Royal Exchange Assurance v Stuart to other cases: see Enosa v Samoa Observer Co Ltd [2005] WSSC 36.
12. In Enosa v Samoa Observer Co Ltd [2005] WSSC 36, this Court took the view that whether a document will attract litigation privilege will depend on whether it has been prepared or come into existence for the sole purpose, if it is a single purpose document, or for the dominant purpose, if it is a multiple purposes document, of rendering assistance to a legal adviser to enable him or her to conduct or advise regarding litigation that is in progress or in reasonable contemplation. In doing so, this Court followed Three Rivers district Council v Governor and Company of the Bank of England [2004] UKHL 48 para 102 where Lord Carswell said:

“The conclusion to be drawn from the trilogy of 19^th century cases to which I have referred and the qualifications expressed in the modern case law is that communications between parties or their solicitors and third parties for the purpose of obtaining information or advice in connection with existing or contemplated litigation are privileged, but only when the following conditions are satisfied:

“(a) litigation must be in progress or in contemplation;

“(b) the communications must have been made for the sole or dominant purpose of conducting that litigation;

“(c) the litigation must be adversarial, not investigative or inquisitorial”.

13. As pointed out in Enosa v Samoa Observer Co Ltd [2005] WSSC 36, the test applied in New Zealand for determining whether litigation privilege attaches to a multiple purposes document obtained by a party or his legal adviser from a third party when litigation is in progress or reasonably contemplated is whether the dominant purpose for the preparation of such a document is to enable the legal adviser to conduct or advise regarding the litigation. This dominant purpose test was adopted in Guardian Royal Exchange Assurance v Stuart [1985] 1 NZLR 596 by Cooke J at p.602, by Richardson J at p.604, and by Tompkins J at p.606. This is as opposed to the sole purpose test which was adopted by the majority of the High Court of Australia in Grant v Downs [1976] HCA 63; (1976) 135 CLR 674. However, in the subsequent case of Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49, 73, a differently constituted High Court of Australia by a majority adopted the dominant purpose test.
14. This Court in Enosa v Samoa Observer Co Ltd [2005] WSSC 36 also adopted the dominant purpose test for determining whether litigation privilege attaches to a multiple purposes document obtained by a party or his legal adviser from a third party where one of the purposes of the document is to enable the legal adviser to conduct or advise regarding the litigation when it is in progress or reasonably contemplated.
15. The onus of proving whether a document was prepared or brought into existence for the dominant purpose of enabling a party’s legal adviser to conduct or advise regarding litigation lies on the party claiming litigation privilege: AWB v Cole [2006] FCA 571 per Young J reaffirmed in Test Document v Test Document [2004] 1999. This is not to be confused with the onus of satisfying the Court that inspection should be ordered which lies on the party who is moving for an order for inspection of documents: A & P Cain v Electric Power Corporation [1997] WSSC 22.

Judicial inspection of documents claimed to be protected by litigation privilege

16. Counsel for the respondent opposed the applicant’s motion for inspection of the minutes of the respondent’s meeting on 12 June 2012 in which the respondent decided to suspend the applicant from legal practice on an interim basis. Counsel for the respondent also questioned whether the Court has jurisdiction to inspect the minutes of the respondent’s meeting of 12 June 2012 if they are privileged. I must say that the question is not whether the Court has jurisdiction to inspect the minutes of the respondent’s meeting if they are protected by litigation privilege. The real question is whether the Court has jurisdiction to inspect the minutes of the respondent’s meeting in order to see whether the claim to litigation privilege is justified. To that question, the answer is undoubtedly in the affirmative in this case.
17. In A & P v Electric Power Corporation [1997] WSSC 22, this Court said:

“The second issue is whether in proceedings for a motion for an order for inspection of documents, the Court has power to inspect the documents for itself in order to arrive at a just decision. The answer must be that in an appropriate case the Court has the power to inspect for itself the documents which are the subject of a motion for inspection in order to arrive at a just decision. To see and inspect the documents would reduce the chances of the Court coming to a wrong and unjust decision. It would also inspire confidence in a Judge coming to a particular decision if he had inspected the documents for himself. Not to see the documents would mean that the Court’s decision would be very much guided by what counsel opposing the motion for inspection tells the Court. But naturally counsel opposing the motion would not like to say much about the contents of the motion in the presence of counsel moving the motion. In New Zealand, the power of the Court to inspect for itself the documents which are the subject of contested proceedings is now well established. The power will be exercised where it is appropriate to do so in order to arrive at a just decision: see, for instance, Guardian Royal Exchange Assurance v Stuart [1985] 1 NZLR 596 per Cooke J at p.599 and per Tompkins J at p.606. I hold that this Court also has such a power”

18. In Enosa v Samoa Co Ltd [2005] WSSC 36, this Court again said:

“Counsel for the plaintiff made the important submission that if the Court is in real doubt whether the relevant document attracts litigation privilege then the Court should inspect the document. Support for that submission was derived from Guardian Royal Exchange Assurance v Stuart [1985] 1 NZLR 596 where Cooke J said at p.599:

“‘As in previous cases in this Court (see Konia v Morley [1976] 1 NZLR 455, Environmental Defence Society Inc v South Pacific Aluminium Ltd (No.2) [1981] NZCA 31; [1981] 1 NZLR 153 and Fletcher Timber Ltd v Attorney-General [1984] NZCA 11; [1984] 1 NZLR 290 inspection of the documents by the Judges has proved illuminating. High Court Judges now appear to be adopting this practice quite commonly in disputed privilege claims. Experience suggests that its advantage in being likely to lead to a more just decision outweighs the disadvantage that only the Judge and not the other side sees the documents if the claim to privilege is upheld. Accordingly, in the field of legal professional privilege at least, I think that in general a Judge who is in real doubt and is asked by one of the parties to inspect should not hesitate to do so’”

19. In the subsequent New Zealand case of Seamar Holdings Ltd v Kupe Group Ltd [1995] 1 NZLR 274, Gault J, in delivering the judgment of the New Zealand Court of Appeal, phrased the exercise of the jurisdiction of the Court to inspect a document for which privilege is claimed slightly different. His Honour said at p.279:

“[Good] reason would be needed for the imposition of a fetter on the power of the Judge to inspect for the purpose of ruling on the privilege. That the Judge will not have the assistance of evidence and submissions on the true significance of the documents does not appeal as sufficient reason. A ruling on the application for production of documents is not, and no Judge would treat it as, a pre-judgment of the substantive case. A ruling after inspection of the documents, albeit unassisted, is more likely to further the ends of justice than a ruling without any inspection of the documents. That is the governing consideration, as has been recognised in this Court in such cases as Guardian Royal Exchange Assurance of New Zealand v Stuart [1985] 1 NZLR 596, 599, and Attorney-General v Hawkins [1992] 2 NZLR 664, 668-669.

“A Judge will not automatically inspect but as a matter of judgment will no doubt satisfy himself or herself that the circumstances warrant exercising the power of inspection and that it is likely to be of assistance. We see no reason to impose anything more”.

Are the minutes of the respondent’s meeting on 12 June 2012 protected by privilege?

20. Counsel for the applicant in her lucid and well presented submissions pointed out that the minutes of the respondent’s meeting on 12 June 2012 where the applicant was suspended on an interim basis do not fall under any of the heads of legal professional privilege. I agree.
21. The minutes are not covered under the first head of legal professional privilege which relates to confidential communications between a client or his agent and the client’s legal adviser: see Cross on Evidence (1996) 5th NZ ed, p.272, para 10.20 by DL Mathieson. This is because the minutes were simply a record of the meeting of the respondent held on 12 June 2012 and what was discussed in that meeting. The minutes were not a communication between the respondent or its agent and the respondent’s legal adviser. Counsel for the respondent also did not rely on this head of privilege to oppose inspection of the minutes. He relied on litigation privilege which is the second head of legal professional privilege.
22. The minutes are also not covered under litigation privilege which relates to communications between a client’s legal adviser and a third party for the purpose of pending or contemplated litigation and communications between a client or his agent and a third party for the purpose of obtaining information to be submitted to the client’s legal adviser for the purpose of obtaining advice upon pending or contemplated litigation: again see Cross on Evidence (1996) 5th NZ ed, p.272, para 10.20. This is because the minutes were simply a record of the meeting of the respondent held on 12 June 2012 and what was discussed in that meeting. The minutes were not a communication either between the respondent’s legal adviser and a third party or between the respondent or an agent of his and a third party. Furthermore, there was no pending or contemplated litigation at the time of the respondent’s meeting on 12 June 2012. The applicant’s motion for judicial review against the respondent’s decision to suspend the applicant was not filed until 5 September 2012 which was about three months after the respondent’s meeting on 12 June 2012. A mere possibility of litigation at the time of the respondent’s meeting on 12 June 2012 is not enough. As Cooke J said in Guardian Royal Exchange Assurance v Stuart [1985] 1 NZLR 596, 599:

“As to the documents we have inspected, it is evident that they have been prepared for mixed purposes. Their immediate purpose was to enable the defendant to decide whether or not to accept liability. No doubt this decision would be made after taking legal advice; indeed some of the reports were actually made to the defendant’s solicitor. But that does not mean that, to adopt one of Skerrett CJ’s phrases in Laurenson v Wellington City Council [1927] NZGazLawRp 77; [1927] NZLR 510, they were compiled ‘in the bona fide belief that litigation will probably ensue’. Litigation was no more than a possibility”. (emphasis mine).

23. Likewise, “A mere vague apprehension of litigation generally is not sufficient to found a claim of privilege: “Laurenson v Wellington City Council [1927] NZGazLawRp 77; [1927] NZLR 510, 511 per Skerrett CJ cited by Tompkins J in Guardian Royal Exchange Assurance v Stuart [1985] 1 NZLR 596, 606.
24. As these proceedings are concerned with a claim of privilege in the minutes of a meeting, I will refer to three of the New Zealand cases that touch on this point even though the point arose in the context of communications between a client and his legal adviser and not in the context of litigation privilege. In Simunovich Fisheries Ltd and Ors v TVNZ and Ors [2007] NZHC 629, para 2 6, Allan J stated:

“My own researches have unearthed only the judgment of Henry J in Auag Resources Ltd v Amax Gold Mines New Zealand Ltd HC AK CL 59/93 17 June 1994. There, Henry J was required to deal with a challenge to a claim of privilege in draft minutes of joint venture meetings and of certain directors’ meetings. Having referred to Balabel v Air India, Henry J said (at p.8):

“‘Applying that test, communications between the Normandy Poseidon group and its solicitors seeking advice on the content of the draft minutes and the resulting advice does in my view attract privilege. However, the draft minutes themselves as originally prepared by the project manager must I believe be in a different category. I do not see how it can properly be said that draft minutes of a meeting are intended to be confidential to the compiler and to be made for the purpose of obtaining legal advice. Such a draft is clearly intended to be a record of the meeting, not generated for the purpose of obtaining legal advice. The fact that advice is also being sought on a particular matter referred to in the minutes does not mean that the draft arose from the seeking out of advice, and disclosure in this situation does not indirectly defeat a legitimate privilege. Whether these defendants are in possession only of copies of the draft minutes as returned by the solicitors, which by way of annotation contains their advice or notes of their advice, I am unsure. Such copies would in my opinion be privileged, as would correspondence (whether by way of facsimile cover sheet or otherwise), although the original draft would not”’

25. Allan J then went on to say at para [27] of his judgment:

“It will be observed that Henry J drew a distinction between copies of the draft minutes provided to and returned by the solicitors on the one hand, and other copies of the draft minutes including the original, which would not be privileged”.

26. In Witcombe v Clerk of the House of Representatives [2008] NZ Emp Court 91, para [61], Judge Colgan said:

“In Simunovich, the High Court Judge himself found only one judgment of direct assistance, that in Auag Resources Ltd and Ors v Amax Gold Mines New Zealand Ltd and Ors HC Auckland, CL 59/93, 17 June 1994. There the challenge was to a claim of privilege in draft minutes of joint venture directors’ meetings. Henry J in Auag concluded that a communication sent to solicitors, seeking advice on the contents of draft minutes, attracted privilege although, as originally prepared, the draft minutes did not. Draft minutes of a meeting could not be said to be intended to be confidential to the compiler and to be made for the purpose of obtaining legal advice. Rather, such a draft was clearly intended to be a record of the meeting, not generated for the purpose of obtaining legal advice”.

How judicial inspection of the minutes of the respondent’s meeting on 12 June 2012 is to be done

27. In recognition of the fact that in the respondent’s meeting of 12 June 2012 other issues were discussed apart from the interim suspension of the applicant, counsel for the applicant submitted that if the motion for inspection is upheld, then it would be appropriate for the Court to inspect the minutes and black out the irrelevant material as the applicant is only interested in what is recorded in the minutes concerning the interim suspension order made by the respondent against the applicant. I also agree with this submission.

Rationale of legal professional privilege

28. Out of respect for the emphasis placed by counsel for the respondent on what he understands to be the underlying rationale of litigation privilege, I need to refer to what is said in Guardian Royal Exchange Assurance v Stuart [1985] 1 NZLR 596 about the policy considerations underlying legal professional privilege. At p.601, Cooke J said:

“The dual purpose problem can arise in the second broad class of cases, where there are reports or other communications not between solicitor and client. Then there may be obvious competition between two concepts: that a man should be free to bare his breast to his lawyer so as to obtain full professional help in litigation; and that any attempt to withhold relevant evidence should be jealously scrutinised. The second concept has gained strength in recent times, partly because of increasing emphasis on openness of information. There is also increasing awareness in the common law world that the tactics of the adversary system are not the be-all and end-all of the route to justice”.

29. Richardson J said at pp. 604-605:

“The high value attached in New Zealand to legal professional privilege between solicitor and client is reflected in R v Uljee [1982] 1 NZLR 561 and Commissioner of Inland Revenue v West-Walker [1954] NZLR 191. But there is all the difference in the world between confidential communications between a client and his solicitor designed to encourage a candid flow of information and advice between them and the preparation by third parties of material for multiple purposes, one only of which is for consideration by the solicitor for apprehended litigation. It is in that second situation that the observation in the majority judgment in Grant v Downs [1976] HCA 63; (1976) 135 CLR 674, 686 has particular force: ‘... the privilege detracts from the fairness of the trial by denying a party access to relevant documents or at least subjecting him to surprise’. Along with Lord Edmund-Davies in Waugh v British Railways Board [1979] UKHL 2; [1980] AC 521, 543, I consider we should start from the basis that the public interest is best served by rigidly confining within narrow limits the cases where material relevant to litigation may be lawfully withheld’.

30. At pp. 605-606, Tompkins J said:

“The determination of the appropriate test requires reconciliation of two opposing policy considerations. The first is that the effective operation of the adversary system requires a party to be able to obtain legal advice on existing, pending or contemplated litigation unrestricted by apprehension that information made available to his legal adviser may find its way into his opponent’s hands. He must be able, as Sir George Jessell MR said in Anderson v Bank of British Columbia [1876] UKLawRpCh 145; (1876) 2 Ch D 644, 649, ‘to make a clean breast of it’ to his lawyer.

“The opposing policy consideration is that the facts relevant to the determination of any issue should be freely available to the Court and to the parties. The interests of a fair trial require all relevant documentary evidence to be before the Court. As was pointed out by Stephen, Mason and Murphy JJ in Grant v Downs at p. 686, the non-availability of documents inconsistent with the parties’ case may be an impediment, not an inducement to frank testimony. It detracts from the fairness of the trial by denying a party access to relevant documents or at least subjecting him to surprise”.

31. The views expressed by Richardson J in Guardian Royal Exchange Assurance v Stuart [1985] 1 NZLR 596 at pp. 604-605 were repeated by His Honour in delivering the judgment of the New Zealand Court of Appeal in Crisford v Haszard [2000] NZCA 73; [2000] 2 NZLR 729 at p.733. His Honour then added at p. 733:

“To the same effect, Nemetz JA in Flack v Pacific Press Ltd (1970) 14 DLR (3d) at p.303 considered that legal professional privilege ought not to be extended beyond the limits of the rationale on which it is founded”.

Conclusions

32. For the reasons given in the foregoing discussion, I have come to the following conclusions which I delivered to counsel on Friday, 6 February 2013:

(a) The applicant’s motion for inspection of documents is upheld, that is to say, the minutes of the meeting by the respondent on 12 June 2012, insofar as they relate to the making of the interim suspension order against the applicant, are to be made available to the applicant or his counsel for inspection.

(b) The minutes of the meeting by the respondent on 12 June 2012 are to be produced to the Court first for inspection at 9:30am on Thursday, 7 February 2013, so that extraneous and irrelevant material are blacked out before the minutes are made available to the applicant or his counsel for inspection.

33. Costs reserved.
    

CHIEF JUSTICE

Solicitor

Ponifasio Law Firm for applicant

Leung Wai Law Firm for respondent