Fiona Walker v Delta Community Support Trust

JurisdictionNew Zealand
JudgeB A Corkill
Judgment Date30 September 2014
CourtEmployment Court
Docket NumberCRC 38/13
Date30 September 2014

In the Matter of a challenge to a determination of the Employment Relations Authority

and

In the Matter of a challenge to objection to disclosure

BETWEEN
Fiona Walker
Plaintiff
and
Delta Community Support Trust
Defendant

CRC 38/13

IN THE EMPLOYMENT COURT CHRISTCHURCH

Challenge to objection to disclosure of multiple documents — defendant claimed litigation privilege or solicitor/client privilege under r44(3) Employment Court Regulations (ECR) (objections to disclosure — legal professional privilege) — Employment Relations Authority became aware of existence of emails during hearing — Authority ordered defendant and its lawyers to examine them and disclose those that were not privileged — some of these were disclosed to plaintiff including one which the defendant released by mistake — whether communications between the defendant Board's representative and the lawyers, and communications between the Board members were privileged — whether litigation privilege arose in the employment context from the point where there was a serious problem in the employment relationship that could give rise to litigation — whether an order could be made for the destruction of the document accidentally released by the defendant.

Counsel:

L Ryder, counsel for the plaintiff

R Coltman, counsel for the defendant

INTERLOCUTORY JUDGMENT OF JUDGE B A Corkill

Background
1

This interlocutory judgment determines a challenge to objection to disclosure of multiple documents.

2

The plaintiff was employed by the defendant from 2000 until her dismissal on 21 May 2012. She pursued personal grievances alleging that a suspension prior to her dismissal was unjustifiable and that she had been unjustifiably dismissed. The Authority determined both issues in favour of the defendant. 1 The plaintiff has challenged the whole of the determination and elected a hearing de novo.

3

Although the challenge was instituted in July 2013, the matter has been the subject of a number of procedural difficulties to this point.

4

First, the pleadings took some time to be refined, with an amended statement of claim being filed on 14 October 2013, and an amended statement of defence on 16 October 2013.

5

Secondly in February 2014, the plaintiff instituted a disclosure process based on a list of documents which had been filed and served on the defendant on 13 December 2013.

6

Following a sequence of directions from the Court which needed to be issued so that there could be a proper focus on the issues between the parties, the following were placed before the Court for its consideration and determination:

  • a) An amended list of documents by the defendant, dated 16 May 2014. Litigation privilege or solicitor/client privilege was claimed for a substantial number of documents.

  • b) The plaintiff filed and served a challenge to objection to disclosure on 30 May 2014, which challenged the above objections to disclosure, and sought an order declaring those objections to be ill-founded under reg 45 of the Employment Court Regulations 2000 (the Regulations). The plaintiff's challenge related to some 322 disputed documents (approximately 2,600 pages). The defendant filed and served a notice of opposition dated 27 June 2014, objecting to disclosure of documents on the grounds of privilege.

  • c) Affidavits were provided by each party to support their respective contentions.

7

Both parties submitted that the Court should inspect the disputed documents under reg 45(2) of the Regulations; to that end 12 Lever Arch files containing the disputed documents were filed.

8

The background to this issue is that during the investigation meeting, the Authority Member requested that a check be made of Trust records to ascertain whether there were documents that should be produced to the Authority. The plaintiff states that this arose because the Authority was told that members of the Board communicated with each other mainly by email in the course of their deliberations over the employment relationship problem. Rev King obtained documents at short notice; a “medium-sized box” of papers was brought to the investigation meeting. The plaintiff says it was agreed that following the hearing that day, the defendant's lawyer would consider the documents together with Rev King and Mr Weir, and the lawyer would provide relevant copies to the plaintiff's lawyer. A portion of the documents were then provided that evening to the plaintiff's lawyer. It was in this context that a claim for privilege was first made.

9

The plaintiff states that amongst the documents provided were some which “provided an insight into the Trust's approach to the investigation”. She said that she relied on these to show that the Trust did not approach the investigation in an open and fair manner. In the main she seeks disclosure of documents — emails — which were sent to and from Board members by Mr Weir who was liaising with the Trust's lawyer.

10

In this judgment it is necessary first to outline a brief chronology so as to provide the context within which the disputed documents arose. I shall then consider the legal issues arising from counsel's submissions. Finally reference will be made to a schedule prepared by the Court which identifies the documents where the objection to disclosure is not upheld in light of the relevant principles.

11

On this occasion I have considered it appropriate to exercise the Court's discretion to inspect the documents in issue. Although, as the Court of Appeal has warned, inspection should never occur “as a matter of automatic practice”, 2 a Judge will generally be prepared to inspect a document to decide an objection where the parties request it, in the interests of getting to the truth of the matter. 3 There are

numerous examples in this Court where such a practice has been adopted. 4 That said, where there are multiple folders of documents, as here, the process of inspection is necessarily time-consuming. The Court will usually wish to be satisfied that responsible efforts have been made to resolve the issues directly between the parties, who after all have primary knowledge of the factual matrix
12

It was appropriate for the Court to conduct an inspection in this case because of the way in which the issue developed at the investigation meeting. Documents were disclosed in a manner which did not generate confidence in the process of disclosure. It was accordingly necessary to undertake independent scrutiny of the contested documents.

Context for privilege objections
13

The defendant is a Christian community-based organisation, registered as a Charitable Trust. It is administered by a Board containing five members. In the relevant period Ms Slot-Brand was the Board Chair; in May 2012 she was succeeded by Rev King, as Acting Chairperson. Mr Weir was the Trust Service Coordinator.

14

Rev King provided evidence to the Court for the purposes of this interlocutory application, as follows:

  • 6. I recall it was around Friday 24 February 2012 that the Board was notified by Mr Weir that allegations had been made against Fiona Walker by one of her staff regarding cash handling and financial reporting.

  • 7. On or about 24 February 2012 the Board directed Mr Weir to seek legal advice on behalf of the Trust in relation to the processes that the Trust would be required to carry out in its investigation of the allegations that had been made against Mrs Walker.

  • 8. Mr Weir at the time of the investigation was a paid employee of the Trust and was in effect its general manager. At the Board's direction, he sought legal advice from Cavell Leitch Law who from that point on provided advice in relation to the Trust's employment issues with Mrs Walker.

  • 9. On 27 February 2012 Mr Weir and the Board's then chair Helen Slot-Brand had an initial meeting with Mrs Walker to inform her that

    certain allegations had been made against her that required investigation. Mrs Walker was provided with a letter setting out the allegations and she was asked to attend an investigation meeting with a legal representative or support person.
  • 10. The investigation meeting was to have occurred on 29 February 2012 but this did not occur because Ms Ryder (Mrs Walker's solicitor) informed the Board that Mrs Walker was too ill to attend the investigation meeting.

  • 11. On 7 March 2012, Ms Ryder wrote to the Board stating that Mrs Walker was stressed because of the investigation and was seeking medical advice.

  • 12. The Trust received a medical certificate from Mrs Walker on 8 March 2012 stating that she was unfit for work due to employment related stress.

  • 13. On 13 March 2012, Ms Ryder sent the Trust an email raising a personal grievance in relation to Mrs Walker's suspension.

  • 14. Unfortunately, at no point during the investigation process did Mrs Walker meet with us to discuss the issues that the Trust had raised with her about her conduct. What this meant was that all of the correspondence between the parties was through their respective legal representatives.

  • 15. Mr Weir was tasked by the Board to arrange, correspond and rely the Trust's lawyer's advice to the Board and in turn relayed our Board members' questions and enquiries back to him. On several occasions our lawyer attended Board meetings to speak directly to us in relation to this matter.

  • 16. On 21 May 2012, Mrs Walker was informed, through her solicitor, that the Trust had concluded that her actions constituted serious misconduct and that her employment would be terminated.

  • 17. By letter dated 23 May 2012, Ms Ryder informed the Trust that she was raising a personal grievance on behalf of Mrs Walker for unjustified dismissal.

Legal professional privilege
15

Regulation 44(3) of the Regulations provides:

44 Objections to disclosure

  • (3) The only grounds upon which objections may be based are that the document or class of documents–

    • (a) is or are...

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