SHABEENA SHAREEN NISHA (NISHA ALIM) v LSG SKY CHEFS NEW ZEALAND LIMITED NZEmpC

AUCKLAND [2015] NZEmpC 127 [29 July 2015]

IN THE EMPLOYMENT COURT

AUCKLAND

[2015] NZEmpC 127

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

Hearing:

By written submissions filed on 10, 14, 17, 21 and 23 July 2015

Appearances:

MW O'Brien and B Nicholson, counsel for plaintiff

C Meechan QC and J Douglas, counsel for defendant

Judgment:

29 July 2015

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.

1 Nisha v LSG Sky Chefs New Zealand Ltd [2015] NZEmpC 106.

[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 that the

defendant’s witnesses “will refuse to answer questions in cross-examination on the

basis of an incorrect interpretation of litigation privilege.”

[7] The defendant’s notice of opposition to these orders, filed on 17 July 2015, is

accompanied by an affidavit of Marie Park, sworn on the same date. Ms Park’s is

the only evidence before the Court. Her affidavit describes in appropriate detail the

nature of the documents for which privilege and irrelevance are claimed. The

defendant’s position on the disclosure of what it says are documents irrelevant to the

plaintiff’s proceeding, is that those documents dealing with the individual claims of

other employees or former employees brought by them against the defendant, are

irrelevant to this case. The defendant’s stance on documents which relate to the

entire group of transferees and to information received by LSG about transferees

generally, is that these are “potentially relevant to these proceedings”.

[8] Ms Park deposes that since 2011, LSG has been a party to a number of court

cases arising out of the Part 6A transfer of employees from PFC. LSG reported on

those court cases to its (overseas) regional office for the purpose of managing any

media interest, financial budgets, and for keeping regional management informed.

Ms Park’s evidence is that decision-making about transfer issues was managed at

local New Zealand level. In these circumstances, the defendant’s stance is that most

of the communications with LSG’s beyond-New Zealand operations are not relevant

to proving or disproving or supporting either party’s case in this litigation. Ms Park

says that, for the most part, she made the decisions relating to the transition of

transferees (including Ms Alim) herself. Ms Park deposes that the company’s

General Manager, Jacob Roest, had little involvement and that she only consulted

him on a few occasions about strategy matters for dealing with transferees and about

how to deal with their terms and conditions of employment with LSG. I accept that

defendant’s counsel has re-reviewed the challenged documents for relevance and

privilege.

[9] The appendix to Ms Park’s affidavit filed on 17 July 2015 is an analysis of

each of the documents either in which privilege is claimed or which is considered by

counsel for the defendant to be irrelevant to the current proceedings. I will deal with

these documents on an individual basis after setting out the applicable law relating to

privilege in them. I will also then refer to those claims of irrelevance where these

arise on the same principles enunciated in earlier interlocutory judgments dealing

with relevance arising out of the pleadings.

[10] Those earlier proceedings were between the defendant, LSG and the

plaintiff’s former employer, PFC. Their contents and outcomes are illustrated by a

series of judgments of the High Court,2 the Court of Appeal,

3 and the Supreme

Court.4 I will refer to those proceedings as “the High Court proceedings”. Those

earlier proceedings concerned the financial obligations between LSG and PFC upon

the loss by the former of a major airline catering contract to PFC, and the resulting

statutory transfer of PFC employee’s to LSG pursuant to Part 6A of the Employment

Relations Act 2000 (the Act). The plaintiff was one of those employees so

transferred. There have also been cases other than Ms Alim’s of former PFC

employees whose employment was transferred to LSG which are currently, or have

been, before the specialist employment institutions.

[11] The first question I will determine (for reasons to which I will come) is

whether this proceeding between Ms Alim and LSG relates closely to that earlier but

now concluded litigation in the High Court. In my view it clearly does. The brief

foregoing account of those other proceedings, together with the following summary

of the nature of this case, illustrate that this relationship test is established in this

case.

2 LSG Sky Chefs New Zealand Ltd v Pacific Flight Catering Ltd [2012] NZHC 2810.

3 Pacific Flight Catering Ltd v LSG Sky Chefs New Zealand Ltd [2013] NZCA 386, [2014] 2 NZLR 1.

4 LSG Sky Chefs New Zealand Ltd v Pacific Flight Catering Ltd [2014] NZSC 158.

[12] Ms Alim claims that following her transfer to LSG, the defendant breached

the terms and conditions of a collective agreement under which she was employed at

LSG, and breached obligations to her in relation to other terms and conditions of

employment. The existence of those obligations (breach of which LSG denies)

depends upon the plaintiff’s terms and conditions of employment immediately before

her transfer from PFC to LSG. The defendant says that PFC, unilaterally and for

ulterior motives arising out of the loss of its catering contract to LSG, inflated

unjustifiably Ms Alim’s terms and conditions with it, in an attempt to penalise,

financially and otherwise, her new employer LSG. That issue was referred to

expressly in the earlier High Court litigation,5 the nub of which was whether PFC

was responsible for paying LSG’s costs associated with the transfer of employees

(including Ms Alim) under Part 6A.

[13] Ms Alim also says that she was unjustifiably constructively dismissed by

LSG, the basis for that constructive dismissal being breach by the defendant of

fundamental terms and conditions of Ms Alim’s employment, and evincing an

intention not to be bound by them in future.

The plaintiff’s grounds of challenge

[14] In summary, these are:

whether the defendant is entitled to claim litigation privilege for

documents in this proceeding for which litigation privilege was

claimed in the previous High Court proceedings;

even if privilege can be claimed, whether the defendant has waived

privilege in respect of a number of such documents because it has

disclosed similar documents, putting those for which privilege is

claimed, in issue in the proceeding; and

whether the defendant has described improperly the documents in

respect of which it claims privilege, the plaintiff saying that the

5 At [8] (HC).

defendant should be required to describe those documents in

accordance with r 8.16(3) of the High Court Rules. This is to describe

adequately such privileged documents to enable the plaintiff to

consider meaningfully a challenge to those claims to privilege.

What is ‘litigation privilege’?

[15] The Employment Court Regulations 2000 (the Regulations) refer to “legal

professional” privilege. Although this phrase may, on its face, tend to suggest that

this is confined to what is otherwise known as ‘lawyer-client privilege’, I conclude

that it nevertheless also encompasses what is known loosely as ‘litigation privilege’.

That is for the following reasons.

[16] Although the Evidence Act 2006 does not bind this Court (or the

Employment Relations Authority), its modern treatment of what I conclude are these

two elements of ‘legal professional’ privilege illustrates, by guidance that I will

follow, both the distinction between those two aspects and their differing scopes.

[17] Section 54 (“Privilege for communications with legal advisers”) provides

materially:

(1) A person who obtains professional legal services from a legal

adviser has a privilege in respect of any communication between the

person and the legal adviser if the communication was—

(a) intended to be confidential; and

(b) made in the course of and for the purpose of—

(i) the person obtaining professional legal services from

the legal adviser; or

(ii) the legal adviser giving such services to the person.

…

[18] Although, in the employment jurisdiction, this privilege has been extended to

cover communications with lay advocates and other recognised legal representatives

of parties, the position here only involves a lawyer or lawyers. Communications

with legal advisers are included in the description of “legal professional privilege” in

the Regulations.

[19] The second statutory provision which defines what I have described as

‘litigation privilege’ is s 56 (“Privilege for preparatory materials for proceedings”).

This provides materially:

(1) Subsection (2) applies to a communication or information only if the

communication or information is made, received, compiled, or

prepared for the dominant purpose of preparing for a proceeding or

an apprehended proceeding (the proceeding).

(2) A person (the party) who is, or on reasonable grounds contemplates

becoming, a party to the proceeding has a privilege in respect of—

(a) a communication between the party and any other person:

(b) communication between the party’s legal adviser and any

other person:

(c) information compiled or prepared by the party or the party’s

legal adviser:

(d) information compiled or prepared at the request of the party,

or the party’s legal adviser, by any other person.

…

[20] The second sub-category (‘litigation privilege’) is both broader and narrower

than lawyer-client privilege. It is narrower in the sense that it encompasses

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,

is covered by lawyer-client privilege. Litigation privilege is broader than lawyer-

client privilege in the sense that it covers documents and other information not only

between a party client and lawyer, but extends to litigation-related information

provided by persons such as expert witnesses and the like. Its focus is on

information for the particular litigation rather than on the identity of the person

communicated with.

[21] The documents at issue in this case, which the defendant says attracted

litigation privilege in the High Court, fall into both sub-categories and, thereby, into

the broad category of “legal professional privilege” referred to in the Regulations.

Does litigation privilege expire by judgment?

[22] The defendant argues that, irrespective of which sub-category of litigation

privilege a document or information falls into, its privileged status does not expire,

whether by effluxion of time, conclusion of litigation, or otherwise. Acknowledging

that there are different views on this question, Ms Meechan QC for the defendant

argues nevertheless that the contrary view that privilege can expire in some cases is a

largely academic position. She says that this view finds expression principally in a

judgment of the Supreme Court of Canada, which has only been followed once in

New Zealand and then by an obiter dicta remark in a judgment of the High Court

without, it seems, the benefit of argument.

[23] Rather, counsel for the defendant say that these questions of privilege are

properly determined by a traditional application of the English common law in New

Zealand.

[24] Counsel for Ms Alim argue that LSG is not now entitled to assert litigation

privilege in documents which were privileged in respect of the High Court litigation

between it and PRI Flight Catering Ltd (PRI) but which litigation has now been

concluded by a judgment of the Supreme Court. Excluded from this contention,

however, must be documents which may have been the subject of litigation privilege

for that proceeding but are also, independently, the subject of that privilege for this

proceeding, and documents which are subject to solicitor-client privilege (as opposed

to litigation privilege) in that earlier High Court proceeding.

[25] Having established that the litigation, in which the documents for which

privilege is now claimed were created, was closely related to the current

proceedings, can it be said, nevertheless, that the litigation privilege is co-terminous

with the conclusion of those earlier proceedings?

[26] As already noted, this question was dealt with by the Supreme Court of

Canada in a majority judgment which has subsequently been followed in New

Zealand by the High Court.6

[27] There may still be some doubt about the chronological scope of the privilege

in New Zealand and, in particular, whether litigation privilege ends with the

conclusion of the relevant litigation. Older English authorities support a view that

might be said to be “once privileged – always privileged”.7 The privilege is, of

6 Blank v Canada (Minister of Justice) [2006] 2 SCR 319, 2006 SCC 39.

7 At [37].

course, the relevant party’s privilege and is for its benefit or may even be potentially

for the benefit of its successor in title. However, the Supreme Court of Canada has

held in that jurisdiction that litigation privilege is “neither absolute in scope nor

permanent in duration” and that litigation privilege expires with the end of the

particular litigation “absent closely related proceedings”.8 That judgment was

followed by the High Court in New Zealand in Snorkel Elevating Work Platforms

Ltd v Thompson.9

[28] In Canada, as in New Zealand, documents which may be subject to litigation

privilege are documents that are prepared for the purpose of litigation, whether

actual or reasonably anticipated. At the heart of the judgments of the Supreme Court

of Canada is the differential basis of litigation privilege on the one hand, and

solicitor-client privilege on the other. Solicitor-client privilege protects the

confidentiality of communications between a lawyer and a client for the purposes of

obtaining legal advice. It allows clients to communicate with absolute candour with

their legal advisers. In respect of documents in which that privilege is asserted, the

privilege is indefinite in its duration. On the other hand, litigation privilege protects

documents prepared for the purpose of actual or reasonably contemplated litigation

and includes not only the advice of lawyers but communications with others

(including, for example, expert witnesses) about the actual or reasonably anticipated

litigation.

[29] In the Canadian case, Blank, a company of which Mr Blank was a director

was charged with offences under federal environmental legislation. Those charges

were ultimately quashed. Mr Blank subsequently brought a civil action against the

Federal Government alleging fraud, conspiracy, perjury, and abuse of prosecutorial

powers. He made a number of requests for access to records pertaining to the

prosecutions. Although some documents were disclosed by the defendant, Mr Blank

applied to the Federal Court for judicial review of the defendant’s continued reliance

on disclosure exemptions for certain documents. In this way, the Supreme Court

came eventually to determine whether litigation privilege over those documents had,

8 At [37], [36].

9 Snorkel Elevating Work Platforms Ltd v Thompson [2007] NZAR 503 at [13].

in fact, come to an end because the specific proceedings to which they related had

concluded.

[30] By a majority, the Federal Court of Appeal of Canada had held that litigation

privilege in that case had terminated, although allowed for the possibility that one

might define “litigation” more broadly to include not only the particular proceeding

which gave rise to the claim but also where the litigants are involved in recurring or

related proceedings that involve the same legal, policy, and strategic

considerations.10

[31] The Canadian Supreme Court dismissed the appeal against the judgment of

the majority of the Court of Appeal in two sets of reasons. Fish J (with McLachlin

CJC and Binnie, Deschamps and Abella JJ concurring) held that the two types of

privilege are conceptually distinct and “not … two branches of the same tree”.11

The

goal of litigation privilege was held to be “to ensure the efficacy of the adversarial

process” and not to protect the solicitor-client relationship itself.12

This majority

reasoning held the two privileges to be complementary but distinct, so that what was

called the “zone of privacy” under litigation privilege, which was created by the

litigation, comes to an end with the litigation itself.13

[32] Importantly for the purposes of this case, the Fish J majority recognised that

litigation privilege will not terminate where “closely related” litigation exists or may

be reasonably apprehended and the parties may be said to be “locked in what is

essentially the same legal combat”.14

Related proceedings would include those

involving the same parties, the same or a related cause of action, issues common to

the initial action or the same “essential purpose” as the original proceedings.15

The

Fish J majority also affirmed the principle that litigation privilege will arise where

documents are prepared for the “dominant purpose” of litigation, not simply the

broader “substantial purpose” test which the Court rejected.16

10

Blank v Canada (Minister of Justice) (FCA) [2005]1 FCR 403, 2004 FCA 287 at [89]. 11

Blank (SCC) at [7]. 12

At [27]. 13

At [34]. 14

At [34]. 15

At [39]. 16

At [60].

[33] Bastarache and Charron JJ concurred in the result but took a different

approach to reaching it, based in part on the Canadian Federal Access to Information

Act. In the minority’s view, the statute’s exemption allowing the government to

refuse to disclose documents where solicitor-client privilege was found to exist also

extended to litigation privilege. The two Justices therefore differed from the

majority in espousing the “two branches” theory of privilege but, like their

colleagues, concluded that in this litigation, privilege had expired with the

conclusion of the proceedings.

[34] Turning to the New Zealand case in which Blank was followed by Randerson

J (Snorkel Elevating Work Platforms),17

that concerned civil litigation which

survived the resolution of employment litigation essentially between the same

parties. At [13] of the judgment, Randerson J wrote:

Prior to the issue of this proceeding, Mr Thompson issued proceedings on 16

September 2005 alleging wrongful dismissal. As I understand it, those

proceedings resulted in a finding that Mr Thompson was unjustifiably

dismissed and the proceedings are now concluded. Any litigation privilege

that may have related to the employment proceedings has therefore lapsed:

Minister of Justice v Blank [2006] 2 SCR 315 at [34].

The defendant’s submissions on the law

[35] This affects two questions. The first is whether “internal documents”, in this

case correspondence within the defendant’s management structure referring to, or

based on, legal or litigation advice sought and received by the defendant in relation

to the raft of litigation in which LSG was then a participant (including references to

Ms Alim’s actual or prospective case), attract privilege in those documents. That

encompasses either or both of lawyer/client privilege and litigation privilege. The

defendant submits that such communications are privileged.

[36] On this issue I accept the defendant’s case based on such judgments as Bank

of Nova Scotia v Hellenic Mutual War Risks Association (Bermuda) Ltd (the “Good

Luck”),18

Balabel v Air India19

and the judgment of the Federal Court of Australia in

17

Snorkel Elevating Work Platforms, above n 10. 18

Bank of Nova Scotia v Hellenic Mutual War Risks Assoc (Bermuda) Ltd; the “Good Luck”, [1992]

2 Lloyds Rep 540. 19

Balabel v Air India [1988) Ch 317 at 330.

Pratt Holdings Pty Ltd v Federal Commissioner of Taxation.20

That principle is

subject, of course, to the qualification that the document constituting “secondary

evidence” of privileged communications must contain, either expressly or by

inference, the nature of the advice sought or given.

[37] However, I do not agree with the defendant’s second legal proposition, or at

least with the breadth and absoluteness of it, that a document, once privileged, is

always privileged. The defendant relies upon venerable English authorities

including those set out in Thanki’s The Law of Privilege.21

Whilst that simple and

absolute proposition supported by authority in the text may once have constituted the

common law of New Zealand, I conclude that this has now changed to the position

established by the Canadian Supreme Court in Blank and followed by the High Court

in New Zealand. In the end, however, that rejection of the defendant’s argument of

absolute privilege does not disadvantage LSG because litigation privilege in this case

attaches to earlier documents that were similarly privileged in other closely

associated litigation.

Decision of litigation privilege expiry question

[38] I accept for application in the Employment Court the statements of principle

made in the Canadian Supreme Court judgment in Blank and adopted in New

Zealand by the High Court. Litigation privilege in documents is lost after the

conclusion of that litigation unless other (including subsequent) proceedings are

closely related to the proceedings in which the documents were privileged.

[39] I accept the defendant’s fall-back case and reject the plaintiff’s. The

proceedings currently before the Employment Court are so closely related to the

proceedings in the High Court, even although not involving an identity of parties,

that documents which attracted litigation privilege asserted by LSG in those

concluded High Court proceedings retain that status in the current proceeding. That

challenge to the defendant’s assertion of privilege in those documents is dismissed.

20

Pratt Holdings Pty Ltd v Federal Commissioner of Taxation [2004] FCAFC 122, 207 at para 20. 21

Bankim Thanki ed The Law of Privilege (2nd

ed, Oxford University Press, 2011).

Analysis of documents for privilege/relevance

[40] As outlined at the commencement of this judgment, I now apply the

foregoing legal tests of privilege and relevance to each of the documents, the non-

disclosure of which by the defendant is challenged by the plaintiff. I do so by an

analysis of Ms Park’s description of each document or class of document in her

affidavit of 17 July 2015 and in the plaintiff’s submissions in reply filed on 23 July

2015.

[41] Document 230 is described by Ms Park as a “short cover email” from herself

to LSG’s Regional HR and Operations Managers which was copied to Mr Roest. Its

contents deal with “some options to discuss for the conference call today” and an

attachment includes a table setting out the status and financial impact on LSG of a

number of cases. Ms Park says that the document relates generally to how LSG was

managing issues relating to transferees in June 2011 but does not contain any

specific information that is relevant to the actual issues in Ms Alim’s case. It is said

not to mention the plaintiff or anything connected to her issues and was prepared as

an update for LSG’s regional management about the other cases referred to in it,

including an analysis of them based on legal advice from LSG’s lawyers at the time.

Ms Park says that two of those cases so analysed have not yet been concluded. The

defendant’s claim is that the document is both irrelevant to this proceedings or, to the

extent that it may be relevant, is subject to litigation privilege. I agree and determine

that it need not be disclosed to the plaintiff.

[42] Document 231 is said by Ms Park to be a document created by her, given to

the defendant’s solicitor, Ms Douglas, during the Authority’s investigation of Ms

Alim’s case. It is said to include Ms Park’s comments on submissions proposed in

preparation for the case, and I agree that it is the subject of litigation privilege and

need not be disclosed.

[43] Document 232 is said by Ms Park to be a financial table analysing legal costs

(including actual and estimated costs) incurred by the company in various cases in

which it was involved. It does mention Ms Alim’s case but does not discuss any

issues in it. Ms Park says that the defendant’s view is that it is irrelevant to the

issues in the plaintiff’s case or, alternatively, that it is subject to privilege in that it

was prepared for the dominant purpose of assisting the defendant to manage the

litigation. I agree that it is both irrelevant and, even if not so, subject to litigation

privilege.

[44] Document 235 is said by Ms Park to be her notes of the Authority’s

investigation meeting on 27 February 2013, including her record of evidence given

in that meeting and a commentary on that evidence. The defendant claims litigation

privilege in these notes. I consider that whilst the commentary on the evidence is

subject to litigation privilege, those parts of the notes which record evidence given is

not subject to privilege. In these circumstances, an appropriately redacted copy of

the notes should be provided by the defendant to the plaintiff within one week.

[45] Document 239 is said by Ms Park to be one prepared in March 2011 to

update the company’s regional management on the various court cases in which it

was then involved. Ms Park says that parts of this document, which set out the

background of what was happening at the time, have already been disclosed, but

those parts discussing two individual employees’ cases have been redacted for

irrelevance, confidentiality, and litigation privilege. Parts of the document also

discuss High Court litigation which was then contemplated. Ms Park says that

document 239 does not discuss the plaintiff or any issues directly relevant to her

case. One of the two individual cases which is discussed is said to be still ongoing.

The defendant claims litigation privilege relating to the other cases and irrelevance in

the remaining detail. I agree that those parts of the document which have not already

been disclosed are either, irrelevant or privileged, or both.

[46] Document 240 is a draft letter prepared for the purpose of obtaining legal

advice from one of the defendant’s then lawyers, Garry Pollak. It was a draft letter

addressed to Gerda Gorgner, who I understand was a human resources staff member

with PFC, discussing the proposed transfer of employees as a group. The letter s

said to have been written before the transfer when the defendant was seeking to

resolve its concerns about that matter. Ms Park says that the letter finally sent to Ms

Gorgner was in a different form. It claims lawyer/client and litigation privilege and,

in the circumstances outlined by Ms Park, I conclude it is so privileged.

[47] Document 241 is said to be a duplicate of document 240 and attracts privilege

in the same way.

[48] Document 242 is said by Ms Park to be an email from her to Mr Roest dated

31 October 2012 discussing issues relating to the various cases about the transfer of

employees and other entirely unrelated matters which are irrelevant to this

proceeding. It is said also to discuss practical arrangements about the management

of disclosure processes in another individual case which is ongoing. The email also

discusses what is described as “resourcing to assist with “PRI calculations”.” This

relates to calculations that LSG was preparing for employees after finally having

received time and wage records from PRI which were provided to LSG to calculate

accurately leave balances. The document also includes a paragraph about the

plaintiff but which is said to be “purely administrative”. The defendant claims

litigation privilege in relation to this and related proceedings and says that the

information is both confidential and irrelevant in any event.

[49] I have concluded that the parts of document 242 which refer to “resourcing to

assist with “PRI calculations”” are relevant and not privileged as is the paragraph

dealing with the plaintiff personally. Those parts of document 242 must be disclosed

to the plaintiff within one week but the other parts of the document which are

irrelevant and/or privileged may be redacted.

[50] Document 243 is said by Ms Park to be an email from her to Mr Roest dated

22 December 2011 which was forwarded to LSG Regional HR Manager, Corina

Cheung, on 11 January 2012 as an update on cases arising from the transfer that were

then on hand. The cases discussed are said to be two individual personal grievances,

one of which has not been resolved, the High Court proceeding relating to annual

leave, and the case in which a union sued PRI about the latter’s failure to provide

time and wage records. Also included is reference to a privacy complaint. Ms Park

says that Ms Alim is not mentioned in that document. I agree that the document is

either irrelevant to Ms Alim’s case or, even if it is, is the subject of litigation

privilege in relation to the other cases referred to.

[51] Document 245 is said to be a “cover email chain” between Ms Park, Ms

Cheung, William Wong, HK Cheung and Mr Roest in March 2011 organising a

conference call to discuss the various ongoing cases that LSG had at the time.

Attached was a discussion document (239) which has been partially disclosed to the

plaintiff. Document 245 is said to have been administrative in nature and sets out

Ms Cheung’s request for more detail on issues although, on closer review, the

defendant now says that this is irrelevant to the issues in this case because it does not

refer to Ms Alim. Alternatively, the defendant claims litigation privilege in relation

to the other cases referred to, and says that the information about other individuals’

cases is confidential. I conclude that the disclosure of part of the document does not

waive privilege. It appears to be irrelevant to the proceeding, but I conclude also

that to the extent that it is not, litigation privilege applies to it.

[52] Document 246 is said to be an email from Mr Roest to Michael Luk

(Regional Finance) forwarding an email to Mr Roest on 31 January 2013 from Neil

Bryant. That ‘Bryant email’ deals with legal costs for all PRI and employee-related

disputes and is said to contain confidential information about the impact of these

legal costs on LSG. Ms Park says it has been included because it mentions that PRI

litigation but is not relevant to proving the issues in Ms Alim’s case. It is said not to

refer to her directly although the “global financial figures” mentioned would include

costs in relation to her case. I accept the defendant’s contention that the document is,

in these circumstances, both irrelevant to this proceeding and subject to litigation

privilege.

[53] Document 247 is said by Ms Park to be an email sent to her and Mr Roest,

and copied to Ms Cheung and Josefine Corsten, in April 2011 from Claudia Ling,

Director of Corporate Communications in LSG’s Germany office. It attaches three

documents. These are said to include a draft media release communication, a draft

media Q & A sheet, and a document setting out background information relating to

the various cases that the defendant was then facing as a result of the PRI transfers,

including a discussion about LSG’s position. Ms Park says that the plaintiff, Ms

Alim, is not mentioned in these documents. Litigation privilege is claimed for them.

This is because the background document provides some information about the

various cases in which the defendant was then a party, and on transferees generally.

It discusses the litigation strategy for one of the individual cases in which related

litigation is ongoing. It is also said to discuss another individual case (which has

now concluded) and what was then the intended High Court case to recover the

value of annual leave transferred.

[54] The plaintiff uses document 247 as an example of what she contends is the

necessity to disclose documents which discuss “transferees generally”. The plaintiff

says that the defendant is not entitled to claim litigation privilege in respect of the

other (now concluded) proceedings but accepts that the defendant may redact

information relating specifically to the single case that is still ongoing which is

identified as Matsuoka v LSG Sky Chefs New Zealand Limited, ARC 23/12 and ARC

102/13, if that case is to be considered as “related litigation”. I have found that it is

related litigation.

[55] Further, the plaintiff disagrees with the defendant’s claim that because these

documents contain analysis based on legal advice received, they are privileged. The

plaintiff’s position is that the defendant is only entitled to claim legal advice

privilege in respect of direct communications between LSG and its legal advisers but

not in respect of its own interpretation of that advice, unless disclosure would, by

necessity and inevitable inference, disclose the terms of that legal advice. In the case

of document 247, the plaintiff says that such analysis is based only on the legal

advice received and does not refer to the terms of that advice so is not privileged and

should be disclosed.

[56] I have concluded that the media release communication documents (including

the Q & A sheet) are irrelevant to this particular litigation. I accept that the third

document, relating to the various cases in which the defendant was then engaged

resulting from transfers, is subject to litigation privilege and need not be disclosed.

[57] Document 248 is said by Ms Park to be an email from her to Ms Cheung, Mr

Cheung, and William Wong (copied to Mr Roest) dated 8 July 2011, about the cases

in which LSG was involved at the time. This includes an update on a case in this

jurisdiction between the Service and Food Workers Union Nga Ringa Tota Inc and

PRI about payroll records from PRI. The email attaches a spreadsheet entitled

“Options” and is an updated version of document 230 (dealt with at the start of this

analysis). It does not mention Ms Alim. Nor, the defendant says, does it contain any

information that is relevant to the issues in Ms Alim’s case. It is said to contain an

analysis of the cases based on legal advice received from LSG’s lawyers acting in

those cases, one of which is yet to be concluded. The defendant says that it is either

irrelevant or subject to litigation privilege relating to the other cases referred to.

Because it does not refer to Ms Alim’s case or her circumstances, I am satisfied that

the document is not relevant. Alternatively, to the extent that it may be relevant, I

accept that it is subject to litigation privilege as defined earlier in this judgment.22

[58] Document 249 is an email from Ms Park to Mr Bryant, the defendant’s

Financial Controller, dated 25 September 2013. It contains accrual information

about legal costs associated with various cases involving the defendant including,

then, the High Court proceedings where leave had been granted to appeal to the

Court of Appeal and to other individual employee cases, both of which have now

concluded. It covers, also, the accruals of legal fees for Ms Alim’s case, together

with another case which is still ongoing. The document includes an email to Mr

Bryant as part of the same chain, providing an updated expected legal fee cost on the

Alim case. Ms Park’s evidence is that these emails discuss legal fees and the

accruals of them but not any other relevant information. I accept that questions of

legal fee accruals to LSG, even about Ms Alim’s particular case, are not relevant to

the matters in issue between the parties and would, in any event, be subject to

litigation privilege to the extent that they relate to the preparation of the defendant’s

case.

[59] Document 250 is said to be a short covering email from Ms Park to Mr Roest

dated 18 November 2013. Its attachment is an updated spreadsheet setting out

information about the various claims that the defendant was then facing. Ms Park

says that these documents contain no information which would prove or disprove

any issues in the case and also refers to one other case which is ongoing. Although it

refers to the Alim case, it is said to provide a very basic update about the defendant’s

success in the Authority and the likely next steps. The email documents are also said

to refer to another personal grievance not related to the transfer employees from PFC

22

At [17].

and contains confidential and privileged information about that case. It is also said

to contain other updated information on a now completed case and a status update on

the annual leave case in the High Court. Despite the reference to Ms Alim, I

conclude that these documents, too, are irrelevant to the proceeding and covered by

litigation privilege in any event.

[60] Document 251 is said by Ms Park to be an email chain between her and Mr

Cheung, copied to Mr Roest, dated 14 and 15 May 2014. The emails discuss the

various cases that the defendant was facing at the time including summaries of cost

and future expected costs in the various cases and a privacy complaint. The cases

discussed are said to be the High Court proceedings, an individual employee’s case

which is ongoing, related cases such as a claim for contempt of court, an attempt by

another employee to bankrupt the defendant, and also Ms Alim’s case. In relation to

the details of the plaintiff’s proceedings, Ms Park says that these are in the nature of

a status update only and do not contain any information that would prove the issues

in the case. I agree that, as such, the documents are irrelevant to the proceeding and,

in any event, would be subject to litigation privilege.

[61] Document 252 is a spreadsheet setting out all of the costs incurred by LSG in

all of the transfer cases. It mentions Ms Alim. I agree, however, that it is not

relevant to the proceedings between these parties in that it does not discuss any of

the issues the subject of the litigation. It is, therefore, irrelevant and subject to

litigation privilege touching all of those cases.

[62] Document 256 consists of Ms Park’s handwritten notes from the Authority’s

investigation of Ms Alim’s claims which took place on 3 September 2012. It

consists of Ms Park’s evidence of records and some commentary. Although

litigation privilege is claimed in respect of these notes, I conclude that this can only

relate to Ms Park’s commentary on the evidence and so the document should be

made available to the plaintiff with appropriate redactions to deal with the litigation

privilege asserted in those commentaries.

[63] Document 257 is a duplicate of document 235 and must be treated

accordingly.

[64] Document 258 is an email from the defendant’s solicitor, Ms Douglas, to Ms

Park dealing with advice about costs in the Alim case. Ms Park forwarded it to Mr

Bryant to discuss the advice and he replied. I conclude, also, that this account of the

document and its contents make it subject to litigation privilege and it is also

irrelevant to the determination of the substantive issues between the parties.

[65] Document 259 consists of emails dated 5 December 2012 between Ms Park

and Peta Kome discussing interviews with various people conducted for the purpose

of considering whether they might be witnesses, and their evidence in this

proceeding when it was before the Authority. This information was provided by Ms

Park to Ms Douglas for the purpose of preparing for the Authority’s investigation

hearing. The defendant claims litigation privilege in it, which I uphold.

[66] Document 260 is said by Ms Park to be an email from Ms Kome to Ms Park

attaching a draft witness statement which was provided to LSG’s solicitor, Ms

Douglas, for preparation of it as such for the Authority. Litigation privilege is

claimed for this document because its dominant purpose was preparation for the

current proceedings when they were before the Authority. That claim to privilege is

upheld.

[67] Document 261 is a short email from Anna Manuatu dated 3 September 2014

attaching a document called “Nisha doc”. This is an analysis of evidence prepared

for the purpose of preparing LSG’s evidence and the defendant’s claim to litigation

privilege in it, the dominant purpose being preparation for these proceedings, is

upheld.

[68] Document 262 is a duplicate of document 250 and is to be treated

accordingly. The same applies to document 263 which is also a duplicate of

document 252.

[69] Document 264 is said by Ms Park to be an email from LSG’s solicitor, Ms

Douglas, to Ms Park attaching an Authority determination on a question of recusal of

the Authority Member. Ms Park forwarded this to Mr Roest for his information. It

mentions Ms Alim’s case and contains communications from the defendant’s

solicitor. I agree that it is irrelevant to the matters at issue in these proceedings and

will also be the subject of litigation and lawyer/client privilege.

[70] Document 265 is an email chain between LSG’s solicitor, Ms Douglas, and

Rosemary Childs, then a staff solicitor with the plaintiff’s solicitors, and the

Authority about a witness summonsed by Ms Alim on 25 February 2014, which was

then forwarded by Ms Park to Sriram Bhardwaj, the defendant’s payroll officer. Mr

Bhardwaj was one of the witnesses summoned and the email concerns arrangements

for his attendance at the Authority’s investigation meeting. Ms Park explains that

she had forwarded it to the payroll officer to confirm when he was required to attend

the Authority’s investigation meeting. I agree with the defendant that this document

is not relevant to these proceedings and the main body of it is already in the

plaintiff’s solicitors’ possession. Any remaining elements will be covered by

litigation privilege in my view.

[71] Document 268 is a duplicate of document 248; document 269 is a further

duplicate of document 250; and document 270 is a duplicate of document 251. Each

of these three documents is to be treated in accordance with the decision in relation

to the primary document.

[72] Document 273 is an email chain between Ms Park and Mr Roest discussing

legal advice and options about Ms Alim’s claim. It is said to have been prepared for

the dominant purpose of proposing a settlement and contains legal advice. I accept

the defendant’s claim to both litigation and lawyer/client privilege in this document.

[73] Document 274 is said to be an email from Ms Park to “Zambion PSG

Payroll” about disclosure. Ms Park says it is irrelevant to the proceeding and that

litigation privilege is nevertheless claimed. I uphold those assertions.

[74] Document 275 is a hard copy, with handwritten notes, of an email from Ms

Park to Mr Bhardwaj about Ms Alim’s Privacy Act request. Litigation privilege is

claimed for this document and it is upheld.

[75] Document 276 is an email from Ms Park to Lilian Liu alerting the latter to a

payment of legal fees in relation to Ms Alim’s case. It is irrelevant to the proceeding

and need not be disclosed.

[76] Document 277 is an email from Ms Park to Allan Walia, and his reply,

concerning whether legal fees had been received in relation to Ms Alim’s case. It,

too, is irrelevant to the proceeding.

[77] Document 278 is an email from Ms Kome to Ms Park about arranging

meeting times with potential witnesses. I accept that it does not contain any

information that proves anything in relation to the case and is irrelevant.

[78] Document 279 is very similar, if not identical, to document 278 and is

likewise not disclosable because of irrelevance.

[79] Document 280 is an email from Ms Park to John Mahoney, LSG’s Operations

Manager, about the fact that one of his staff would be away giving evidence as a

witness at the Authority. This, too, is irrelevant to the proceeding and need not be

disclosed.

[80] Document 281 is an email from Ms Park to Shopan Dasgupta about Ms

Alim’s case, sent for the dominant purpose of LSG’s preparation for that and, in

particular, mediation. The defendant’s claim to litigation privilege in respect of it is

upheld.

[81] Document 282 is an email from Ms Park to her management team updating

them about the Authority’s determination. It is irrelevant to the proceeding or,

alternatively, is subject to litigation privilege asserted by the defendant.

[82] Document 283 is Mr Dasgupta’s reply to document 281 discussing his

personal circumstances which precluded him from replying to Ms Park’s email. I

agree that it is irrelevant to the proceeding.

[83] Document 284 is a duplicate of document 259 and should be treated as such.

[84] Document 285 is an email from Ms Kome to Ms Park discussing a draft

statement. It was prepared for the dominant purpose of preparation for proceedings

and the claim to litigation privilege is upheld.

[85] Document 286 is a further duplicate of document 259 and should be treated

accordingly.

[86] Document 287 is an email from Ms Kome to Ms Park enclosing a draft

statement, prepared for the dominant purpose of the proceedings and litigation

privilege in it is likewise upheld.

[87] Document 288 is an email from the defendant’s solicitor, Ms Douglas,

forwarding an email from the plaintiff’s solicitor, Mr Nicholson, attaching an

application for disclosure orders. The document includes its forwarding to Tinu

Kochery for his comments and his response. I accept that it was correspondence

prepared for the dominant purpose of preparation for the proceedings and is subject

to litigation privilege.

[88] Document 289 is an email reply from Winter Chan to Ms Park connected to

the email chain referred to as document 251. I accept that it is irrelevant to these

proceedings or, alternatively, that litigation privilege can be asserted in it.

[89] Finally, document 388 is an email between Mr Kochery and Maggie Chan,

Ms Park, and LSG’s solicitor, Ms Douglas. I accept that it was prepared for the

dominant purpose of preparation for these proceedings and the defendant’s claim to

litigation privilege in it is upheld.

A waiver of privilege?

[90] The second issue for decision identified at [6] of this judgment is whether the

defendant has waived litigation privilege (if it exists) in documents by disclosing

similar ones.

[91] Whether an assertion of privilege can be said to have been negated or waived

is always an intensely factual question in each case. Although I accept that it may 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 cannot be said to

be the case here. The plaintiff has failed to establish her claim to waiver of privilege

by the defendant.

Inadequate description of documents for which privilege claimed?

[92] Finally, I turn to the separate question whether the documents in which

privilege is claimed by the defendant are described sufficiently in its list of

documents. This final question turns, first, on the requirements of the Regulations

governing matters of disclosure.

[93] Regulation 42 provides a number of relevant measures. A party’s notice

requiring disclosure must be in Form 6 of the Regulations. This requires that the

other party prepare “a concise and ordered list or index of those [relevant]

documents” and that the documents described:

… must be listed and numbered in a convenient sequence … as concisely as

possible, but describe each document or, in the case of a class of documents

of the same nature, describe the class sufficiently to enable the class to be

identified.

[94] The requirement to make a concise and ordered list or index of the documents

is provided substantively in reg 42(3)(a) of the Regulations.

[95] Regulation 44 permits a party served with a Form 6 notice to object to the

disclosure of any documents or class of documents by giving to the party requesting

the disclosure, a notice of objection in Form 7. That must specify the document or

documents to which the objection relates and the grounds of objection. Regulation

44(3) sets out the “only” grounds upon which objections may be based and including

that the document or class of documents “is or are subject to legal professional

privilege …”.

[96] If recourse to this is required, Rule 8.16(3) of the High Court Rules refers to

a listing or other identification of documents required to be discovered, albeit as an

attachment to an affidavit. It provides:

The description of documents for which privilege is claimed under subclause

(1)(b) must be sufficient to inform the other parties of the basis on which

each document is included in a group under subclause (2).

[97] Whether the High Court Rules govern the position is controversial.

Regulation 6 of the Employment Court Regulations provides materially:

6 Procedure

(1) Every matter that comes before the court must be disposed of as

nearly as may be in accordance with these regulations.

(2) If any case arises for which no form of procedure has been provided

by the Act or these regulations or any rules made under section

212(1) of the Act, the court must, subject to section 212(2) of the

Act, dispose of the case—

(a) as nearly as may be practicable in accordance with—

(i) the provisions of the Act or the regulations or rules

affecting any similar case; or

(ii) the provisions of the High Court Rules affecting any

similar case; or

(iii) the provisions of the rules (other than those on

registrable Australian judgments) in the Trans-

Tasman Proceedings Regulations and Rules 2013,

but only insofar as the case is or involves a

proceeding in which an initiating document is to be

or has been served on a defendant in Australia under

section 13 of the Trans-Tasman Proceedings Act

2010; or

(b) if there are no such provisions, then in such manner as the

court considers will best promote the object of the Act and

the ends of justice.

[98] I consider that the Regulations do provide for a form of procedure for dealing

with the disclosure of documents so that reg 6(2)(a)(ii) is not engaged. Rule 8.16(3)

of the High Court Rules can, nevertheless, provide a degree of guidance in the

interpretation and application of the Regulations, but cannot override or substitute

for them.

[99] The question then becomes whether the Regulations have been complied with

sufficiently in the identification of documents for which privilege is claimed.

[100] To enable a party effectively to take objection to a claim to privilege, I

consider that the documents in respect of which the defendant asserts privilege must

be identified by their date, a brief description of their general nature, and details of

the sender and recipient of such documents if that is appropriate. Such descriptions

will not disclose the content over which privilege is claimed but will, at the same

time, enable the party seeking the documents to object to their non-disclosure in an

informed manner.

[101] If, therefore, the documents to which the defendant has asserted privilege for

their non-disclosure had not been so listed according to [100] above, the defendant

would have been required to provide these details to the plaintiff. That has, however,

now been done by Ms Park’s affidavit. No further orders are therefore required.

[102] Costs in respect of this interlocutory application are reserved. I record that

the defendant has been successful in its case for litigation privilege whilst the

plaintiff may or may not originally have been successful in her claim to more precise

listing of them.

GL Colgan

Chief Judge

Judgment signed at 12 noon on Wednesday 29 July 2015