| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 258 |
| Determination date | 26 November 2012 |
| Member | H Doyle |
| Representation | N Ironside ; J Goldstein, L Ryder |
| Location | Christchurch |
| Parties | Vollmer v The Wood Life Care (2007) Ltd |
| Summary | PRACTICE AND PROCEDURE – Admissibility of evidence including email, second document, disputed paragraph and series of correspondence – Authority found email only posed question and was not correspondence to which privilege would attach – Found was possibility that outcome of litigation might be affected by any admission in series of correspondence during negotiation over that period – Found series of correspondence attracted without prejudice privilege – Found Member investigating substantive matter not to be shown copy of determination - Found series of correspondence to remain privileged unless parties agreed to conditional waiver in relation to some documents – Found particular sentence in second document to be deleted but references to negotiation taking place outside scope of privilege – Found disputed paragraph’s references to without prejudice series of correspondence to be deleted |
| Abstract | Preliminary determination to determine admissibility of evidence before substantive investigation meeting. Parties disputed admissibility of correspondence. Respondent claimed correspondence subject to without prejudice privilege. Disputed documents included email with words ‘without prejudice’ and series of correspondence beginning two months earlier all marked as either ‘without prejudice’ or as ‘without prejudice save as to costs.’ Respondent indicated would waive first document in series of correspondence on condition that applicant waived privilege on another email forming part of series of correspondence (“conditional waiver”). Applicant’s claim before Authority involved claims of unjustified disadvantage and unjustified dismissal. Applicant claimed final document of series of correspondence contained threat was risk applicant would be dismissed if offer not accepted. Parties raised concerns about another document included in series of correspondence (“second document”) and paragraph in applicant’s affidavit.;AUTHORITY FOUND –;PRACTICE AND PROCEDURE: Email only posed question and was not correspondence to which privilege would attach. Series of correspondence however related to applicant raising grievance had been unjustifiably disadvantaged. Was possibility that outcome of litigation might be affected by any admission during negotiation over that period. Series of correspondence attracted without prejudice privilege. Authority noted privilege was joint and could only be waived by all parties. Authority advised parties to discuss conditional waiver issue. Statements in series of correspondence amounted to cause of action of pre-determination and breach of good faith and were elements of claims before Authority. Not more prejudicial to parties to maintain privilege than would be to order disclosure. Threats in without prejudice correspondence might fall outside privilege as not an attempt to settle matter. Not satisfied in circumstances that words used by respondent about risk of dismissal amounted to final document falling outside without prejudice privilege. Respondent’s concerns about second document more evidential and normally not matter considered by Authority at preliminary stage but sentence in second document could be problematic at substantive investigation. Member investigating substantive matter not to be shown copy of determination. Series of correspondence to remain privileged unless parties agreed to conditional waiver in relation to some documents. Particular sentence in second document to be deleted but references to negotiation taking place outside scope of privilege. Disputed paragraph’s references to without prejudice series of correspondence to be deleted. |
| Result | Orders made ; Costs reserved |
| Main Category | Practice & Procedure |
| Cases Cited | Bayliss Sharr & Hansen v McDonald [2006] ERNZ 1058;Cutts v Head [1984] 1 All ER 597;Jackson v Enterprise Motor Group (North Shore) Ltd [2004] 2 ERNZ 424 |
| Number of Pages | 5 |
| PDF File Link: | 2012_NZERA_Christchurch_258.pdf [pdf 148 KB] |