Shabeena Shareen Nisha (Nisha Alim) v LSG Sky Chefs New Zealand Ltd NZEmpC Auckland

• Jurisdiction: New Zealand
• Judge: Chief Judge G L Colgan
• Judgment Date: 29 July 2015
• Date: 29 July 2015
• Court: Employment Court
• Docket Number: ARC 22/14

[2015] NZEmpC 127

IN THE EMPLOYMENT COURT AUCKLAND

ARC 22/14

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

And in the Matter of an application challenging assertion of privilege and irrelevance in documents for disclosure

Between

Shabeena Shareen Nisha (Nisha Alim)

Plaintiff

and

LSG Sky Chefs New Zealand Limited

Defendant

Appearances:

MW O'Brien and B Nicholson, counsel for plaintiff

C Meechan QC and J Douglas, counsel for defendant

Interlocutory application challenging the defendant's assertion of privilege in documents and claims of irrelevance of documents for disclosure — the defendant had been a party to a number of court cases concerning the transfer of employees affected by restructuring — the plaintiff's employment had been transferred to the defendant — the earlier proceedings were between the defendant and the plaintiff's former employer and were now concluded — the plaintiff sought disclosure of documents which included legal or litigation advice received in relation to the earlier litigation — whether there was litigation privilege in the documents prepared for the purpose of earlier litigation which had now been concluded, notwithstanding that it involved different parties — whether the current proceeding was closely related to the concluded litigation — whether the list of documents claimed as privileged had to comply with r8.16 High Court Rules (Schedule appended to affidavit of documents).

Held: The Employment Court Regulations 2000 (the Regulations) referred to “legal professional” privilege which encompassed ‘litigation privilege’. Although the Evidence Act 2006 (EA) did not bind the Employment Court (EC) (or the Employment Relations Authority), its treatment the two elements of ‘legal professional’ privilege illustrated the distinction between those two aspects and their differing scopes.

The privilege under s54 EA (privilege for preparatory materials for proceedings) had been extended in the employment context to cover communications with lay advocates and other recognised legal representatives of parties. Communications with legal advisers were included in the description of “legal professional privilege” in the Regulations. Litigation privilege under s56 EA (privilege for preparatory materials for proceedings) applied if the communication or information was made, received, compiled, or prepared for the dominant purpose of preparing for a proceeding or anticipated proceeding.

Litigation privilege was both broader and narrower than lawyer-client privilege. It was narrower in the sense that it encompassed documents and other information created for the purpose of, or in anticipation of, the particular litigation but not other advice which, in the case of legal advice generally, was covered by lawyer-client privilege. However litigation privilege was broader than lawyer-client privilege in the sense that it covered documents and other information not only between a party client and lawyer, but extended to litigation-related information provided by persons such as expert witnesses and the like. Its focus was on information for the particular litigation rather than on the identity of the person communicated with.

The documents at issue fell into both sub-categories and, thereby, into the broad category of “legal professional privilege” referred to in the Regulations.

Litigation privilege was “neither absolute in scope nor permanent in duration” and it expired with the end of the particular litigation “absent closely related proceedings” ( Snorkel Elevating Work Platforms Ltd v Thompson following Blank v Canada (Minister of Justice)). A document, once privileged, was not always privileged. However, rejection of LSG's argument of absolute privilege did not disadvantage LSG because litigation privilege attached to earlier documents that were similarly privileged in other closely associated litigation.

Litigation privilege in documents was lost after the conclusion of that litigation. However litigation privilege would not terminate where “closely related” litigation existed or might be reasonably apprehended and the parties could be said to be “locked in what was essentially the same legal combat” ( Blank). The proceedings currently before the EC were so closely related to the earlier proceedings, even although not involving an identity of parties, that the documents which attracted litigation privilege as asserted by LSG in those concluded proceedings, retained that status in the current proceeding.

The majority of the documents sought were either both irrelevant to this proceeding or, to the extent that they might be relevant, were subject to litigation privilege. Whether an assertion of privilege could be said to have been negated or waived was a factual question in each case. Although it might be possible, theoretically, for a party to be found to have waived privilege in a document by its disclosure of similar or associated documents, that was not the case here.

Regulation 6 (procedure) provided that matters before the EC had to be disposed of as nearly as may be in accordance with the regulations. The Regulations provided for a form of procedure for dealing with the disclosure of documents so that reg 6(2)(a)(ii) (if … no form of procedure … provided …the court must … dispose of the case … in accordance with … the provisions of the High Court Rules) was not engaged. Rule 8.16(3) HCR could provide a degree of guidance in the interpretation and application of the Regulations, but it could not override or substitute for them.

To enable a party effectively to take objection to a claim to privilege, the documents asserted to be privileged had to be identified by their date, a brief description of their general nature, and details of the sender and recipient of such documents if appropriate. If, therefore, the documents had not been found to be privileged, LSG would have been required to provide those details to NA. However that had been done in the affidavit and therefore no further orders were required.

Application dismissed.

INTERLOCUTORY JUDGMENT (NO 16) OF Chief Judge G L Colgan

1 This further interlocutory judgment deals with the plaintiff's challenge to the defendant's claims to privilege in, and irrelevance of, certain documents held by the defendant. Leave to make this interlocutory application was granted in the Court's Interlocutory Judgment (No 8) issued on 7 July 2015. 1 The nature of this application has already been summarised at [3] and [6]–[7] of that judgment. It deals with whether the defendant is entitled to assert litigation privilege in documents prepared for the purpose of earlier High Court litigation which has now been concluded. There is apparently no argument that the defendant's relevant documents were subject to litigation and/or lawyer-client privilege in those High Court proceedings.

2 Following the filing of lengthy submissions in reply by the plaintiff on 23 July 2015, it is necessary to go back to the plaintiff's application for which leave was granted in the Court's Interlocutory Judgment (No 8). Both the scope of the questions for determination, and their particularisation in relation to specific documents, have expanded significantly since leave was granted.

3 Excluding the documents filed in relation to the plaintiff's application for leave which was granted, I start with the plaintiff's “Application challenging privilege” filed on 10 July 2015. The order sought in that application was: “That the defendant within 14 days will make copies of the documents listed in the Schedule to this application available for inspection.” The schedule lists 48 separate and numbered documents. The grounds on which the plaintiff seeks disclosure of those documents are, first, her dispute of the defendant's claim that they are all privileged and/or irrelevant. The next ground is: “The defendant is not entitled to claim litigation privilege in relation to particular documents detailed in the Schedule”. Next, the plaintiff says that the documents in respect of which privilege is claimed “are not properly described”. Penultimately, the plaintiff says that the defendant has waived privilege in particular documents listed in the schedule. Finally, the plaintiff says that the information contained in those documents is necessary for her to properly pursue her case.

4 The plaintiff's application was accompanied by a short memorandum by counsel for the plaintiff. After setting out a brief background, that memorandum says that the plaintiff's challenge is based primarily on “three key arguments”. These are:

• a The defendant has misinterpreted and/or misapplied the principles of litigation privilege and has claimed incorrectly claimed privilege over a number of documents;

• b Litigation privilege lapses upon the conclusion of the proceeding in question, which means that the defendant cannot claim litigation privilege in respect of documents in the High Court, Court of Appeal, and Supreme Court proceedings between PRI and LSG (refer LSG Sky Chefs New Zealand Ltd v Pacific Flight Catering Ltd & Anor [2014] NZSC 1528). The plaintiff claims that documents that detail the defendant's approach to the transfer situation cannot be withheld on the basis of this litigation privilege that has lapsed; and

• c The defendant has waived privilege in respect of a number of documents because it has disclosed similar documents, which puts these documents in issue in the proceedings.

5 Finally, the plaintiff says that the defendant has not properly described the documents in respect of which privilege is claimed. She says that the defendant is required to do so in accordance with r 8.16(3) of the High Court Rules, the purpose being to enable the other party to meaningfully consider a challenge to the claim of privilege.

6 Counsel for the plaintiff concludes by expressing her concern...