10.127The Law Commission has received a number of submissions relating to the general privilege provisions, such as s 51 (interpretation), s 65 (waiver of privilege) and s 66 (joint and successive interests in privileged material).
We recommend that the definition of legal adviser also include overseas practitioners. This would mean that clients of overseas practitioners could claim privilege for legal advice. As to which overseas practitioners we should recognise, we recommend that those who are entitled to practise as a barrister and solicitor in Australia, and those who are registered patent attorneys or trade marks attorneys in Australia, should be included. We recommend that there be a process by which lawyers and patent attorneys in other countries can be recognised by Order in Council.
10.130The Bill was then passed with no further change to (what is now) s 51. The definition of “overseas practitioner” in s 51 of the Act provides:
overseas practitioner means—
10.131In accordance with s 51(6), the Evidence (Recognition of Overseas Practitioners) Order 2008 was made on 7 July 2008 and came into force on 7 August 2008, just over one year after the Act came into force (on 1 August 2007). The Order specified 87 countries for the purpose of para (c) of the definition of “overseas practitioner” in s 51(1) of the Act. No further Orders in Council have been made in this respect.
… It would clearly be an absolute contradiction to the clear legislative intention for the lapse in time until an Order in Council is promulgated under s 51(6) to trigger the removal, by a side wind, of the firmly entrenched notion of legal professional privilege. That privilege is respected in similar terms throughout the common law world. I am satisfied that Parliament cannot have intended that the delay in promulgating the Order in Council would create a lacuna in which the settled state of recognition of legal professional privilege, as it applies across jurisdictions in the common law world, should be disrupted.
10.137The Ministry of Justice advised us that after the enactment of the Evidence Act, a two stage process for designation under s 51 was agreed to. The second stage of the process required countries to respond to a questionnaire from New Zealand. However, many countries did not respond and the second stage of designations was not achieved as intended originally.
10.138The Ministry suggested that an alternative approach would be to provide for the courts to recognise the privilege of clients of overseas lawyers and patent attorneys who are recognised in their country as being properly qualified to provide legal advice.
10.140The Russell McVeagh submission suggests that if the Order in Council procedure had not been included in the Act, it is likely that the common law approach would have continued to apply by virtue of ss 10 and 12 of the Act. It submits that a preferable approach would be to amend para (c) of the definition of “overseas practitioner” to read:
[A] person who is, under the laws of any country, except a country specified by an Order in Council made under this section, entitled to undertake work that, in New Zealand, is normally undertaken by a lawyer or patent attorney.
10.141Alternatively, Russell McVeagh suggested that if the current approach is retained, there should be a review within the next year to consider whether any other countries need to be added by an Order in Council made under s 51(6), and there should be a requirement for five yearly reviews of the countries that are recognised under s 51.
10.142We prefer the approach suggested by the Ministry of Justice. This approach worked prior to the enactment of s 51. Further, it avoids the need for Orders in Council to be made updating the list in the event of international events affecting the constitution of nations or the desirability of recognising legal practitioners from particular jurisdictions.
10.143It is possible that Russell McVeagh is correct in its view that, in the absence of s 51(6), the prior common law would apply (by virtue of ss 10 and 12). However, given that one of the key aims of the Evidence Act from its inception was to enhance the accessibility of evidence law, we recommend that para (c) of the definition of “overseas practitioner” should be repealed and replaced with the following:
Any person who is, under the laws of their country, recognised as being properly qualified to undertake work that is normally undertaken by a lawyer or patent attorney.
10.144This would enable courts faced with claims to privilege in respect of advice provided by overseas practitioners to decide on a case by case basis whether that claim should be accepted. Section 51(6) should be repealed and the Evidence (Recognition of Overseas Practitioners) Order 2008 should also be revoked.
10.145It was suggested to us by a member of our advisory group that the unfortunate situation created by the Todd Pohukura case should be avoided with any proposed amendment. The Act should provide that, in any proceeding, the court is to apply the law of privilege as stated in the Act, regardless of when the communication took place.
10.146It was suggested that if this step is not taken, there will be an ongoing time continuum issue when any question of privilege arises before the courts. If the Act is amended to alter privilege, the courts following Todd Pohukura will only apply the amended version to communications that took place after the amendment. There is the potential for a complex situation to develop. As the Act almost invariably provides better protection than the common law, there is no removal of any vested right.
10.147We suggest that, as a transitional issue, this is best left to Parliamentary Counsel to consider in the context of drafting any amendment to s 51.
R25 We recommend that the definition of “overseas practitioner” in s 57(1) be replaced with “Any person who is, under the laws of their country, recognised as being properly qualified to undertake work that is normally undertaken by a lawyer or patent attorney.”
R26 We recommend that s 51(6) be repealed and the Evidence (Recognition of Overseas Practitioners) Order 2008 be revoked.
10.148Section 51 contains the following subsections that are relevant to the term “information” used in ss 60 to 63 (which concern the privilege against self-incrimination):
… Accordingly, the definition of “information” in s 4 is limited to statements made orally or in a document created after and in response to a request for the information (but not for the principal purpose of avoiding criminal prosecution under New Zealand law).
information in sections 61 to 64 means a statement of fact or opinion which is given, or is to be given,
10.153We are not aware of any suggestion that the line drawn by the Law Commission in Evidence: Reform of the Law between documents created before a request for information, and those created after (and in response to) it, was wrong. However, one submitter has argued that the provision as drafted is misguided and does not actually reflect this distinction.
Despite this intention of the legislation, s 51(3)(b) still contains some uncertainties. Section 51(3)(b)(i) gives the impression that the privilege against self-incrimination can somehow be claimed for a statement that has been given in a document prepared or created after a requirement for information. This impression is misleading because, as stated above, the privilege does not apply once a disclosure has actually been made.
It is best to read s 51(3)(b)(i) as focussing on a portion only of the opening phrase of s 51(3) and applying solely to a statement to be given in a document following a requirement to provide information. Although a government official is demanding that the statement be given in a document, the privilege can still be claimed as a reason to refuse to comply with the demand. However, if the privilege holder capitulates and gives the statement, there is nothing left for the privilege to protect.
10.156We agree, and consider that this could be resolved by the removal of the words “given, or” in the phrase “given, or to be given” in s 51(3)(b)(i).
10.158We consider that Mahoney and others are probably correct. However, we do not consider that the courts would read s 51(3)(b)(ii) as literally as they suggest. Further, we are not sure how the provision would be reworded to make the distinction that they seek. Given no one else has raised the issue, and we are not aware of it ever coming before the courts, we are inclined at this stage to recommend no legislative change in this respect.
R27 We recommend deleting the words “given, or” in the phrase “given, or to be given” in s 51(3).
10.159Section 65 of the Act provides:
Privilege will be lost if it is unfair for the client to take the benefits of disclosure while also seeking to retain the benefits of privilege. And it will be lost if what the client has done is inconsistent with a claim to keep the document confidential.
10.161It gave the example of a client suing the lawyer who provided the advice for negligence or malpractice, thereby putting the advice into issue in the proceeding.
Two ways in which it might have been thought that a litigant puts privileged material “in issue” can immediately be eliminated from the scope of s 65(3)(a). The first is by disclosing a significant part of the privileged material “in circumstances that are inconsistent with a claim of confidentiality”. We know this cannot be the target of s 65(3)(a) because such a disclosure is precisely what amounts to a waiver under s 65(2). The same conclusion follows from s 65(3)(b), which declares that a waiver of privilege occurs when a privilege holder institutes a civil proceeding against a person who is in possession of privileged material and the effect of instituting the proceeding is to put the privileged matter in issue in the proceeding.
Whatever the extent of the “putting in issue” exception recommended by the Law Commission, its introduction is best left to Parliament. The policy issues can be fully canvassed in that forum.
… the judgments in Ophthalmological Society and Shannon indicate where the boundaries of s 65(3)(a) lie. While the former espouses a test based on the Court’s objective judgment as to the consistency of the claimant’s conduct with maintaining the privilege, the discussion in Shannon elucidates the principles which underpin that test. The mere relevance of a privileged communication to an issue in the case provides no basis for waiver. Even a party’s asserted reliance upon a privileged communication is generally insufficient. Waiver occurs where a party both asserts reliance upon the communication and also seeks to inject the substance of the communication in evidence.
The classic situation is where a party resisting an application for security for costs, or defending an allegation of illegality, refers to and relies on legal advice, either about the strength of the plaintiff’s case in the first instance, or as justifying the lawfulness of the conduct, in the second case.
10.172In order to achieve this result it seems that Dobson J must have seen a reference to the existence of legal advice supporting or justifying the person’s position as a “disclosure” in terms of s 65(2). If s 65(3)(a) does not cover this kind of case, it is difficult to see what it would cover.
Under the present law, all of this information is protected, unless the client unwisely makes reference to the advice received from the lawyer, or otherwise puts the existence or terms of that advice in issue. But what is a reference to that advice? In Australia, a finding of waiver has been made upon the basis of very slight, or merely implicit, reference to the communication between lawyer and client. … Such decisions have introduced considerable uncertainty about the scope of the client’s protection. They are perhaps inspired by a concern that the law of privilege would otherwise protect too much, in circumstances where it is important to the court to have the information.
The Commission considers that the problem should be tackled more directly. There are cases where the privilege ought, in the interests of fairness, to be overridden. These situations should be approached on their merits, not indirectly by invoking the doctrine of waiver.
10.174This passage might be seen as a clear signal that the Law Commission did not favour a wholesale adoption of the Australian “putting in issue” approach to waiver. However, it has to be viewed in the context of the Law Commission’s view of legal professional privilege at that time, which was that it should be a qualified privilege. Such an approach would mean that a narrower approach to waiver could be adopted. As discussed earlier in this report, the Law Commission subsequently retreated from this view and recommended an absolute privilege.
10.177Accordingly, a curious situation has arisen. The Law Commission’s proposed provision on waiver has been enacted and the courts have interpreted the provision as not intended to alter the state of the law in New Zealand. However, that provision can have no meaning separate from the other bases for waiver covered in s 65 unless a change to the common law position was intended.
10.178For our part, while we consider that Richard Mahoney is probably correct and s 65(3)(a) has been effectively interpreted out of existence, we received no submissions on this and certainly no one appears to be saying that the balance currently struck between the maintenance of privilege and the interests promoted by legal professional privilege, and the interests of justice, is the wrong one. For this reason, we do not recommend any change to this provision.
10.179Commentators on the Act have said that it gives mixed messages about whether an “authorised representative” of a privilege holder can effectively waive privilege.
It is difficult to know what conclusion should be drawn from the sudden specific reference to an authorised representative in s 65(2). On one hand, it appears to confirm the … suggestion that s 51(4) was not meant to apply to s 65 (or else, why would this particular part of s 65(2) be necessary?). On the other hand, it seems questionable that the mere absence in s 65(1) and 65(3) of a specific reference to an authorised representative means that conduct by a person, acting with the privilege holder’s express authority, can never (in the circumstances covered by ss 65(1) or 65(3)) amount to a waiver.
10.182While these inconsistencies in drafting are unfortunate, we are not aware of any difficulties in practice regarding waiver and authorised representatives. We consider that it is likely that s 65(3) would be interpreted as including the conduct of authorised representatives acting on behalf of the privilege holder. After all, the majority of legal proceedings are instituted by lawyers acting as the authorised representative of the plaintiff / applicant.
10.183In the absence of specific problems, we prefer at this time to make no recommendation for amendment to the privilege provisions relating to authorised representatives.
10.184Section 66 of the Act provides:
66 Joint and successive interests in privileged material
10.185A drafting issue has been raised in relation to s 66. That is a question as to whether the word “deceased” was omitted from s 66(2)–(3) deliberately. Section 66(2)–(3) uses “personal representative” without restricting it to deceased persons to cover other personal representatives (for example, someone appointed under the Protection of Personal and Property Rights Act 1988), whereas the definition in s 66(4) is a narrower one, referring to a “personal representative of a dead person”.
… could be a foundation for an argument ss 66(2) and (3) were dealing with a wider class of personal representatives. Yet, if this is so, the result is an undesirable uncertainty. With no guidance from the Act, a vast field opens up for people who may legitimately be described as the “personal representatives” of other people.
10.187The difference in language might be because in the circumstances the latter subsection deals with, there could be a conflict between the interests of a deceased privilege holder and the interests of beneficiaries.
10.189We tend to agree that this appears to be a simple drafting issue caused by the omission of the term “of a deceased person” from s 66(2). While this does not appear to have caused problems to date, we note that it does introduce potential uncertainty as to the scope of s 66(2) and accordingly, recommend an amendment to clarify the Law Commission’s intent that s 66(2) apply to personal representatives of deceased persons.
R28 We recommend that “deceased” should be added after “personal representative of the” in s 66(2)