Request for Crown Law opinion
Request for Crown Law opinion that Creative NZ referred to in correspondence—withheld under s 9(2)(h)—legal professional privilege attached to information—whether partial disclosure of contents of opinion sufficient to constitute waiver—s 9(2)(h) applied
A man challenged Creative New Zealand’s right to promote the ‘toi iho—Maori made mark’ scheme on the basis that it specifically excluded people based solely on their race and was therefore contrary to the Human Rights Amendment Act 2001. During an exchange of correspondence on this issue, Creative New Zealand advised the man that it had ‘sought and received advice on the issues [he had] raised [and] believed that [it was] acting properly under legislation and that this initiative is not in breach of the Bill of Rights or the Human Rights Act’. However, Creative New Zealand advised that it would also seek a legal opinion from the Crown Law Office in respect of the man’s objections. A few weeks later, Creative New Zealand advised that it had ‘received an opinion from the Crown Law Office which confirms our understanding that Creative New Zealand is unlikely to be found in breach of legislation in setting up and promoting the Maori made mark’.
To aid in his preparation for a meeting with Creative New Zealand, the man requested copies of information that pertained to Creative New Zealand’s opinion that the scheme was legally defensible, including the opinion it had received from Crown Law.
In response, Creative New Zealand submitted that the advice provided by Crown Law was covered by legal professional privilege and therefore would be withheld under section 9(2)(h) of the OIA.
Creative New Zealand confirmed to the Ombudsman that the legal opinion had been sought by the Chief Executive in response to the complainant’s indications that he was considering a complaint to the Human Rights Commission. In these circumstances, the Ombudsman was satisfied that legal professional privilege attached to the information contained in the opinion.
Creative New Zealand also advised that it did not consider it had done anything which would amount to waiver. It did not consider the contents of the advice had been disclosed in any way. However, after considering the contents of the correspondence exchanged between Creative New Zealand and the complainant prior to the request being made, the Ombudsman noted that Creative New Zealand had disclosed the following information to the complainant:
I have now received an Opinion from the Crown Law Office which confirms our understanding that Creative New Zealand is unlikely to be found in breach of legislation in setting up and promoting the Maori Made Mark.
It seemed to the Ombudsman that partial disclosure of the contents of the opinion had taken place. The issue was therefore whether this partial disclosure constituted waiver of the privilege to the extent that it was no longer necessary to withhold the information in order to maintain the privilege.
In considering this issue, the Ombudsman was mindful that successive Ombudsmen had taken the view that, where it appears likely that a Court would hold privilege to have been impliedly waived if the issue were before the Court, then section 9(2)(h) would not apply. The Ombudsman therefore referred to a number of Court decisions on implied waiver. Significant amongst these was Tau v Durie where waiver had been implied notwithstanding that none of the specific legal advice had been directly disclosed, rather the pleadings were merely implicitly suggesting favourable content. The Ombudsman also noted that the High Court of Australia in Mann v Carnell had held that there was ‘no over-riding principle of fairness operating at large’ but that it was ‘inconsistency between the conduct of the client and maintenance of the confidentiality’ that effects waiver. The Ombudsman considered that by commenting on the opinion, Creative New Zealand’s conduct had created such an inconsistency.
Finally, the Ombudsman noted the decision of France J in Ophthalmological Society v Boulton and ors (26/9/2002), who held that the degree of disclosure in that case (which was similar to that by Creative New Zealand) was sufficient to be capable of constituting waiver. When making this decision, France J said that whether the consequences of disclosure warranted waiver being imputed was a matter of discretion. However, waiver was not imputed in that case because the party seeking production had acknowledged that the information in question was irrelevant to the issues before the Court. The Ombudsman noted that the same could not be said here, as under the OIA, the requested information is the only relevant information.
After considering the circumstances of this case in light of the Court’s approach to the question of waiver, it was the Ombudsman’s initial view that the degree of disclosure was such that it was not necessary to withhold the opinion to maintain the privilege because, if the issue were before a Court, it was likely that the Court would hold that the privilege had been impliedly waived.
The Crown Law Office, acting for Creative New Zealand, disputed the Ombudsman’s view. Following discussions with that Office and before any recommendation was made, the Ombudsman was advised that the Court of Appeal had allowed, in part, an appeal against France J’s decision in the Ophthalmological Society case. Given that the Ombudsman’s view had been formed on the basis of the earlier law, he agreed to reconsider the matter in light of the Court of Appeal’s decision.
Upon receipt of the Court of Appeal’s decision, the Ombudsman considered its comments carefully. He noted that it had adopted the waiver test in Mann. However, it also made pertinent comments on three leading High Court decisions on implied waiver, namely:
Equiticorp Industries Group Ltd v Hawkins  2 NZLR 175;
Cory-Wright and Salmon Limited (in receivership and liquidation) v KPMG Peat Marwick (1992) 5 PRNZ 518; and
Tau v Durie  2 NZLR 190.
In particular, the Ombudsman noted the Court of Appeal effectively said that Tau may be seen as an incorrect imputation of waiver on the grounds that:
…while it might be said that it is unfair in the abstract for a party to blow hot by making [a claim relating to the existence of a favourable legal opinion], while blowing cold on disclosure, the reference to the advice was arguably not inconsistent with the maintenance of confidentiality in its contents. That indeed is the view reached by Gallen J in Cory-Wright and Salmon.
Further, the Court of Appeal appeared to have confirmed as correct the observation by Gallen J that:
There is nothing intrinsically unfair in saying “I have brought these proceedings because I have obtained legal advice to support such action”. That must apply in almost every case.
These aspects, together with the Court’s reference to the emphasis placed by Wylie J in the Equiticorp case on the need for an ‘abuse’ of privilege (as distinct from broader notions of fairness), and its rejection of France J’s analysis of waiver, persuaded the Ombudsman that his previously expressed opinion no longer reflected the law as he now understood it.
However, before finalising his view, the Ombudsman considered whether there were any factors favouring release of the information in the public interest that were strong enough to outweigh the public interest in maintaining the privilege. Having regard to the overall circumstances of the complaint, the Ombudsman did not identify any factors that would persuade him to conclude that the public interest in disclosure outweighed the reasons for withholding the information at issue in terms of section 9(2)(h).
With the benefit of the Court of Appeal’s decision, the Ombudsman formed the view that the decision by Creative New Zealand to refuse the request for the Crown Law Office legal opinion was justified on the grounds that section 9(2)(h) did apply to the opinion and any public interest in disclosing the opinion did not outweigh the need to maintain legal professional privilege.
This case note is published under the authority of the Ombudsmen Rules 1989. It sets out an Ombudsman’s view on the facts of a particular case. It should not be taken as establishing any legal precedent that would bind an Ombudsman in future.