How court went yesterday

August 5, 2022

Our legal team - Gary Judd QC and Brigitte Morten -  finished up in court late yesterday afternoon. As an interlocutory (procedural) hearing, it was held in chambers before Associate Justice Johnston. We may not tell you verbatim the words of the judge or opposing counsel in a chambers hearing. But the lawyers have provided the following report:

The hearing focused on -

  1. When Minister Mahuta proactively released Cabinet Papers that included Crown Law advice, was that release enough to waive privilege? In other words, did it waive the normal rule that a lawyer’s advice to their client is confidential?
  2. If privilege was waived on the advice referred to in the Cabinet Paper, is it waived over the full advice? If the Water Users' group should not see all the legal advice that went to the Minister on this issue and could have been covered by the references in the Cabinet Papers, what principles would distinguish what must be disclosed, from what need not be revealed to us?
  3. Indirectly, it also included: If privilege is waived, should confidentiality orders allow only the Water Users’ Group legal team see it, or should it be available to the court and the public? But our lawyers think that if the Court accepts that the Crown waived privilege that means it will certainly be available to the court and probably to the public as well.

Counsel worked their way through these questions systematically. We argued for the Water Users' Group that the proactive and voluntary release of Cabinet Papers meant that privilege was waived. The Crown claimed it was a mistake that the Crown Law advice references were included - it is usually redacted before it goes out. Much time was spent on  section 65 of the Evidence Act, and case law on whether this was a mistake (as defined by the law) or not.

On whether privilege was waived over all the advice, the arguments focused on relevancy of the advice to the substantive issues in the this case, and whether it would be unfair to keep it from the Water Users' Group.  

There was also argument about particulars. We say on a specific point in our Statement of Claim, the Crown has not provided enough for us to know what their defence is. This led to an interesting assertion by the Crown that their advice mentioned in the Cabinet Paper is not just on legal rights and Crown obligations (from  the Treaty and its principles), but also on non-legal rights based in te ao Maori. We are reflecting on the significance of this and will report further.

Separate to the interlocutory application regarding privilege, we had also requested that the court set a timetable to the main hearing.  Associate Justice Johnston was understanding about the reasons for our request for urgency. But he indicated that the Court timetables were very full, and we need his decision on today’s application regarding privilege, before scheduling a substantive hearing.

So what happens next?
There is no requirement that a Judge deliver his decision within a certain timeframe but the Judge indicated it would not be delayed. If we get it in a month we’ll be pleased. After that there will be a case management conference and possibly a date set for the full hearing. Regrettably the Wellington High Court bookings could push the hearing out as late as mid 2023.

Thank you for your interest and support.

Stephen Franks
Board Member

P.S. I was particularly interested in the report by legal team about 'non-legal rights'. It seems possible that the Government is now relying on claims and entitlements being made up on the fly but people are being told that they must accept them as Treaty obligations. We will be looking at this issue closely.

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