Contents

Chapter 10
Privilege and confidentiality

General privilege provisions

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).

Overseas practitioner regime

10.128 The common law has always protected communications with overseas practitioners for the purpose of obtaining legal advice.738  However, there was no mention of how this should be treated in the Law Commission’s preliminary paper on privilege, or in the final report on evidence and accompanying Evidence Code. Similarly the Evidence Bill, as introduced and read for the first time, was silent on this.739
10.129It was only when the Bill was reported back by the Justice and Electoral Committee that the references to “overseas practitioners” were inserted,740  the Committee stating:741

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—

(a) a person who is entitled to practise as a barrister, or a solicitor, or both in the High Court of Australia or in a Supreme Court of a State or a territory of Australia; or
(b) a person who is entitled to practise in Australia as a registered patent attorney or as a registered trade marks attorney; or
(c) a person who is, under the laws of 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 a patent attorney.

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.

10.132The present ability to claim privilege over communications with an “overseas practitioner” therefore currently relies on the country in which the lawyer or patent attorney is qualified having been specified in an Order in Council.742  This is narrower than the common law, which did not contain such a restriction.
10.133A problem was initially encountered because, as noted above, the first Order in Council (and, indeed, the only one to date) was not made until just over a year after the Act came into force.743  In a case that came to the High Court in the intervening period it was, accordingly, argued (at least in effect, if not explicitly) that the second defendant could not claim privilege over any communications with overseas lawyers.744
10.134Dobson J disagreed and upheld the claim to privilege. First his Honour, in discussing the period between the commencement of the Act and the making of the Order in Council (which had been promulgated after the hearing, but before the time the judgment was delivered), stated:745

… 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.

10.135The Judge then went on to hold that privilege is a substantive legal concept to which the presumption against retrospective construction applies,746  and that s 5(3) of the Act, which states that the Act applies to all proceedings commenced before, on, or after the commencement of this section, does not oust this.747
10.136Dobson J’s approach, and the making of the Evidence (Recognition of Overseas Practitioners) Order 2008, has dealt with the transitional issue, but that is not the end of the matter. For instance, it remains to be seen what would happen if a party claimed privilege over a communication with a lawyer (or patent attorney) of a country that is not specified in the Order in Council. It has been suggested to us that the common law privilege cannot apply to such a communication, or else there would be no need for any Order in Council at all.748  We agree that this should be the case.

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.

10.139We also received a submission from Russell McVeagh questioning the appropriateness of the Order in Council procedure. It expressed concern that the 2008 Order (which is the only Order in Council made under the Act to date),749  is not an exhaustive list and excludes communications with overseas practitioners that quite properly would have been regarded as attracting privilege under the common law. It gives the example of the Cayman Islands as not being included in the Order.750

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.

Definition of “information”

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):

(2) A reference in this subpart to a communication or to any information includes a reference to a communication or to information contained in a document.
(3) Despite subsection (2), in sections 60 to 63, information means a statement of fact or opinion given, or to be given,—
(a) orally; or
(b) in a document that is prepared or created—
(i) after and in response to a requirement to which any of those sections applies; but
(ii) not for the principal purpose of avoiding criminal prosecution under New Zealand law.
10.149The privilege against self-incrimination has traditionally been a privilege against compelled testimony. In line with this, we proposed (in a separate preliminary paper the Law Commission issued about this privilege) that documents already in existence before the demand for information is made should not be protected.751  Such documents would be treated on the same basis as real evidence, which is not normally within the scope of the privilege.
10.150As the bulk of submissions agreed with this approach, in Evidence: Reform of the Law the Law Commission determined that:752

… 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).

10.151The corresponding provision in Evidence: Code and Commentary provided that:753

information in sections 61 to 64 means a statement of fact or opinion which is given, or is to be given,

(a) orally; or
(b) in a document that is prepared or created after and in response to a requirement from the person requiring the information, but not for the principal purpose of avoiding criminal prosecution under New Zealand law.
10.152In the Evidence Bill, the definition was moved into subpart 8 of Part 2 and amended slightly, but not in any substantive way.754  No changes were made to it before the Bill became the Act.

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.

10.154The issues are explained by Richard Mahoney and others.755  After noting that the privilege “does not provide an excuse for refusing to produce a pre-existing document”, they state:756

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.

10.155They conclude:757

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).

10.157The authors also take issue with s 51(3)(b)(ii). In addition to noting the same problem, namely that it seems to envisage the privilege being utilised after the document has been created, they state that a literal reading of this provision would remove from the scope of the privilege “any document prepared or created because of the privilege holder’s hope that it would make the spectre of a prosecution go away.”758  And as they point out, it “seems a safe assumption that many self-incriminating documents prepared or created after a requirement of the sort set out in ss 60–63 are motivated by the hope that this show of cooperation may lead to the end of a threatened prosecution.”759  In their view, this part of the provision is aimed at excluding from the operation of the privilege a fraudulent statement, but it requires a “substantial gloss” to read it as such.760

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).

Waiver

10.159Section 65 of the Act provides:

65 Waiver

(1) A person who has a privilege conferred by any of sections 54 to 60 and 64 may waive that privilege either expressly or impliedly.
(2) A person who has a privilege waives the privilege if that person, or anyone with the authority of that person, voluntarily produces or discloses, or consents to the production or disclosure of, any significant part of the privileged communication, information, opinion, or document in circumstances that are inconsistent with a claim of confidentiality.
(3) A person who has a privilege waives the privilege if the person—
(a) acts so as to put the privileged communication, information, opinion, or document in issue in a proceeding; or
(b) institutes a civil proceeding against a person who is in possession of the privileged communication, information, opinion, or document the effect of which is to put the privileged matter in issue in the proceeding.
(4) A person who has a privilege in respect of a communication, information, opinion, or document that has been disclosed to another person does not waive the privilege if the disclosure occurred involuntarily or mistakenly or otherwise without the consent of the person who has the privilege.
(5) A privilege conferred by s 57 (which relates to settlement negotiations or mediation) may be waived only by all the persons who have that privilege.
10.160 It has been said that waiver of privilege has never been an easy matter and that this remains the case after the enactment of the Evidence Act 2006.761  The Law Commission examined the issue of waiver of privilege in its 1994 preliminary paper on privilege and proposed retention of the approach to waiver taken by the New Zealand courts at that time, which it saw as essentially encompassing two situations:762

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.

10.162The Law Commission also proposed codification of the rule in R v Uljee763  whereby if a party obtains material subject to legal professional privilege without the consent of the privilege holder, the privilege is not waived and the material is inadmissible.764
10.163In its report on the Evidence Code in 1999, the Law Commission proposed removal of the waiver ground where it is unfair for the client to take the benefits of disclosing the document while also seeking to retain the privilege, as it considered that such situations would be covered by the other proposed basis for waiver, namely where the client disclosed the privileged material inconsistently with a claim of confidentiality.765
10.164The Select Committee made only one change to cl 61 of the Evidence Bill, which dealt with waiver of privilege. This was to add a reference to “mediation” in the subclause dealing with settlement negotiation to reflect the changes made to the scope of that privilege elsewhere in Bill.766  That change is not relevant to any of the issues raised in this report.

Scope of “putting in issue” in s 65(3)(a)

10.165Richard Mahoney has argued that the High Court interpreted s 65(3)(a) “out of existence” in two significant cases. He notes that:767

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.

10.166 Once these possibilities have been eliminated as the intended target of s 65(3)(a), Richard Mahoney argues that the next most obvious target might be some version of the common law “putting in issue” exception to legal professional privilege. This exception came up in Shannon v Shannon.768  It applies when a privilege holder raises an issue in litigation that is “incapable of fair resolution” without reference to the privileged material.769  The Court of Appeal followed its earlier decision in Ophthalmological Society of New Zealand v Commerce Commission770  and refused to adopt the putting in issue exception, preferring to preserve the sanctity of legal professional privilege.771
10.167The Court of Appeal in Shannon considered whether the Law Commission’s proposed s 69 in the Evidence Code was recommending the adoption of a putting in issue exception in New Zealand. It examined the commentary to the Evidence Code and concluded that it appeared not to be. It noted that the Law Commission had referred to putting the privileged communication in issue, which is not the same thing as putting a matter in issue which cannot fairly be assessed without reference to the privileged material.772  The Court concluded that:773

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.

10.168 Despite the fact that Ophthalmological Society of New Zealand and Shannon were both decided prior to the enactment of the 2006 Act, the High Court has subsequently applied these decisions in interpreting the possible scope of s 65(3)(a).774
10.169The leading case on s 65(3)(a) post-Evidence Act is Astrazeneca Ltd v Commerce Commission (2008) 12 TCLR 116 (HC). The Court in that case noted that the Court in Shannon had described two versions of the putting in issue exception, namely:775
  • The wide version whereby privilege is lost once the privileged communication forms a legitimate and reasonable issue in the litigation. The focus is on the nature of the case, the issues raised by it, and whether the privileged communication is directly relevant to an issue in the proceeding.
  • The narrower version, which is based in the conduct of the party claiming privilege. If that party asserts reliance on the privileged communication, such that examination of the relevant advice becomes necessary to assess the claimed reliance, then waiver of privilege would result.
10.170The Court went onto to say:776

… 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.

10.171Focusing on the last sentence of this passage, it might be thought that the kind of situation that would be covered by s 65(3)(a) is where, for example, a party to a proceeding asserts the fact of reliance on legal advice as a defence to a matter in issue in the proceeding. However, in Shuttle Petroleum Distribution Ltd v Chevron New Zealand in the context of discussing s 65(2), Dobson J referred to:777

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.

10.173As for what the Law Commission actually intended when it included s 65(3), Richard Mahoney is right that the discussions are indeed sparse.778  In its preliminary paper on privilege, the Law Commission noted:779

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.

10.175The Law Commission went on to note that communications between lawyer and client relating to general legal advice will only infrequently become relevant to court proceedings. Even then, it will be a small minority of cases where the importance of the communication is sufficient to override privilege.780
10.176The commentary to the Evidence Code as it relates to the predecessor to s 65(3) is particularly bare. The commentary simply notes as an example, people who sue their lawyer for malpractice cannot rely on legal professional privilege to prevent disclosure of communications between them that are relevant to defending the claim.781  There is no signal anywhere in the final report to suggest that the Law Commission was recommending a departure from the approach of the New Zealand courts at that time. For this reason, the Court of Appeal’s view of what the Law Commission intended is probably an accurate view.

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.

An “authorised person”

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.

10.180Prior to the Act, the basic rule was that only the privilege holder could waive privilege.782  Section 51 (the interpretation provision for the privilege subpart of the Act) extends the grant of privilege to communications involving the privilege holder’s “authorised representative”, acting on behalf of that person.783  Section 65(2) (dealing with implied waiver of privilege) also refers to anyone who acts “with the authority” of the privilege holder. However, there is no other reference to “authorised person” elsewhere in s 65. Section 65(1) (setting out the general rule regarding waiver) refers only to a privilege holder being able to waive the privilege.
10.181The problem has been stated as follows:784

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.

Joint and successive interests

10.184Section 66 of the Act provides:

66 Joint and successive interests in privileged material

(1) A person who jointly with some other person or persons has a privilege conferred by any of sections 54 to 60 and 64 in respect of a communication, information, opinion, or document—
(a) is entitled to assert the privilege against third parties; and
(b) is not restricted by any of sections 54 to 60 and 64 from access or seeking access to the privileged matter; and
(c) may, on the application of a person who has a legitimate interest in maintaining the privilege (including another holder of the privilege), be ordered by a Judge not to disclose the privileged matter in a proceeding.
(2) If a person has a privilege conferred by any of sections 54 to 57 in respect of a communication, information, opinion, or document, the personal representative of the person or other successor in title to property of the person—
(a) is entitled to assert the privilege against third parties; and
(b) is not restricted by any of sections 54 to 60 and 64 from access or seeking access to the privileged matter.
(3) However, subsection (2) applies only to the extent that a Judge is satisfied that the personal representative or other successor in title to property has a justifiable interest in maintaining the privilege in respect of the communication, information, opinion, or document.
(4) A personal representative of a deceased person who has a privilege conferred by any of sections 54 to 57 in respect of a communication, information, opinion, or document and any other successor in title to property of a person who has such a privilege, may, on the application of a person who has a legitimate interest in maintaining the privilege (including another holder of the privilege), be ordered by a Judge not to disclose the privileged matter in a proceeding.

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”.

10.186It has been said that there:785

… 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.

10.188Alternatively, commentators have suggested that it is likely that this issue arises due to a simple drafting error. They note that the Law Commission’s proposed Evidence Code used the phrase “personal representative of a deceased person” consistently throughout their version of s 66.786  The clause by clause analysis of the Bill as introduced also refers to “personal representatives of deceased privilege holders” which seems to indicate that the Government did not intend to depart from the Law Commission’s approach.787  There is also nothing in the report of the Select Committee or in the parliamentary debates to suggest any legislative intent to change the original policy.

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)

738Todd Pohokura Ltd v Shell Exploration NZ Ltd (2008) 18 PRNZ 1026 (HC) at [73].
739Evidence Bill 2005 (256-1).
740Evidence Bill 2005 (256-2), cl 47.
741Evidence Bill 2005 (256-2) (select committee report) at 7.
742Section 51(1)(c) and definition of “overseas practitioner”.
743Evidence (Recognition of Overseas Practitioners) Order 2008.
744Todd Pohokura Ltd v Shell Exploration NZ Ltd, above n 738, at [66].
745At [73].
746At [87].
747At [88].
748Indeed, by remaining silent on the issue of overseas practitioners, it may be that the Law Commission originally intended that the common law would simply apply, pursuant to ss 10 and 12 of the Act.
749Evidence (Recognition of Overseas Practitioners) Order 2008.
750Letter from Andrew Butler (Partner, Russell McVeagh) to Law Commission, above n 618.
751Law Commission The Privilege Against Self-Incrimination (NZLC PP25, 1996), ch 8.
752Law Commission Evidence: Volume 1, above n 611, at 77.
753Law Commission Evidence: Volume 2, above n 616, at 14.
754Evidence Bill 2005 (256-1), cl 47.
755Mahoney and others, above n 666, at 253.
756At [EV51.07] (original emphasis).
757At [EV51.07] (original emphasis).
758At [EV51.08].
759At [EV51.08] (original emphasis).
760At [EV51.08].
761Richard Mahoney “Evidence” [2010] NZ L Rev 433 at 449.
762Law Commission Privilege, above n 608, at 56.
763R v Uljee [1982] 1 NZLR 561 (CA).
764At 69–70.
765Law Commission Evidence: Volume 1, above n 611, at 85.
766Evidence Bill 2005 (256-2), cl 61(5).
767Mahoney, above n 761, at 449.
768Shannon v Shannon [2005] 3 NZLR 757 (CA).
769At [34].
770Ophthalmological Society of New Zealand Inc v Commerce Commission [2003] 2 NZLR 145.
771Shannon, above n 768, at [38]–[39].
772At [47].
773At [49].
774See for example, Shuttle Petroleum Distribution Ltd v Chevron New Zealand HC Wellington CIV-2007-485-831, 5 September 2008; Body Corporate No 191561 v Argent House Ltd HC Auckland CIV-2007-404-4634, 19 December 2008; Houghton v Saunders HC Christchurch CIV-2008-409-000348, 24 July 2009; S v W HC Auckland CIV-2011-404-3775, 13 July 2012; and Guttenbeil v Tower Insurance [2012] NZHC 2106.
775Astrazeneca Ltd v Commerce Commission (2008) 12 TCLR 116 (HC) at [31]–[39].
776At [39] (emphasis added).
777Shuttle Petroleum Distribution Ltd v Chevron New Zealand, above n 774, at [62].
778Mahoney and others, above n 666, at 301.
779Law Commission Privilege, above n 608, at 48–49.
780At 49.
781Law Commission Evidence: Volume 2, above n 616, at 181.
782Mahoney and others, above n 666, at [EV65.03]. Shannon, above n 768, at [60] citing B v Auckland District Law Society [2003] UKPC 38, [2002] 1 NZLR 326 (PC) at [45].
783Evidence Act 2006, s 51(4).
784Mahoney and others, above n 666, at [EV65.03] (original emphasis).
785Mahoney and others, above n 666, at 307.
786At 307. See also Law Commission Evidence: Volume 2, above n 616, at 182.
787Evidence Bill 2005 (256-1) (explanatory note) at 16.