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13 May 2008
On August 1 2007 the Evidence Act 2006 came into force in New Zealand. The act was designed to simplify the law of evidence and has had the effect of largely codifying most of New Zealand’s common law evidence rules. However, the act has effected some substantive and troubling changes.
One of the main and unintended changes is to legal professional privilege as it applies to advice obtained from practitioners outside New Zealand and Australia. The changes were made at a late stage and have removed legal professional privilege as it applies to legal advice obtained from overseas practitioners.
The act provides for privilege in respect of communications between the person and a legal adviser in the usual way; rather, it is the definition of 'legal adviser' which has resulted in the change. As defined by Section 51 of the act, the term covers a lawyer, a registered patent attorney or an overseas practitioner. An 'overseas practitioner' is defined to include Australian lawyers and Australian patent and trademark attorneys, but legal advisers in other jurisdictions will be included only if their country is specified by an order in council made by the government's Executive Committee.
It was assumed that orders in council would be issued at the time the act came into force, but no order in council has yet been made. Accordingly, the protections of privilege do not extend to communications with legal practitioners outside New Zealand and Australia, as they are not 'legal advisers' in terms of the act. This extends to overseas practitioners' communications with clients in New Zealand (and vice versa), as well as to communications between New Zealand legal advisers and overseas practitioners.
Some privilege protection may be gleaned from Section 56, which provides a privilege for preparatory materials for proceedings, effectively codifying what had previously been referred to as 'litigation privilege'. In order to fall within this category of protection, the communication or information must be made, received, compiled or prepared for the dominant purpose of preparing for a proceeding or an apprehended proceeding. The privilege covers certain communications made for the dominant purpose of preparing for a proceeding or apprehended proceeding. The covered communications include:
The risk of legal advice provided by overseas practitioners being discoverable in proceedings is deeply worrying for New Zealand's legal and business professionals. Accordingly, the New Zealand Law Society has written to the secretary for justice, the matter has been raised in Parliament with the minister of justice and members of the legal profession have raised the issue, asking that it be dealt with as a matter of urgency. Disappointingly, no remedial action has yet been taken by the minister or by Parliament.
For further information on this topic please contact Allison Ferguson or Nicola Dabb at Wilson Harle by telephone (+64 9 915 5700) or by fax (+64 9 915 5701) or by email (email@example.com or firstname.lastname@example.org).
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