Delta! Internal movement at DCC


Note | The following emails are not an attempt to lay out All email correspondence that has taken place between parties at or on behalf of Dunedin City Council on the matter of Delta. The What if? Dunedin website owner is given to understand that further correspondence has taken place at the Council to which neither Elizabeth Kerr or contributors to the What if? Dunedin website are privy or privileged.

All documents cited at the What if? Dunedin website, in postings by correspondent Christchurch Driver [CD] and Elizabeth Kerr, about the Noble Subdivision at Yaldhurst and related court actions, have been supplied directly to Elizabeth Kerr by “the neighbour”, one of the original landowners at Noble Subdivision, who is both caveator and plaintiff/litigant.

Below, Cr Calvert has named documents with which she has been supplied independently by ‘the neighbour’. These, further documents and facts in the first instance were earlier supplied to Elizabeth Kerr by ‘the neighbour’ as plaintiff/litigant, according to their proper document status.

From: Hilary Calvert
Sent: Thursday, 14 July 2016 11:49 a.m.
To: [Officer, Dunedin City Council]
Subject: Re: Privileged and confidential – Delta securities in ChCh subdivision

Dear [name removed],

The documents to which you refer below I assume are the ones which I circulated.

They are:

Decisions made by the Court of Appeal.
A minute issued by a judge.
Submissions produced by a litigant for the purpose of filing in court.
Comments by myself about Deltya [sic] and the Noble subdivision.
An affidavit which was filed in a court proceeding on which a judgement has now been issued.

I am unsure whether you are suggesting that as a general rule documents associated with a court case are likely to be privileged.
In my view this is not the case.

Indeed privilege will usually only arise in a defensive manoeuvre, namely where discovery is requested and a litigant does not wish to provide the documents requested citing privilege as the reason. Most documents relating to court proceedings are not privileged.

Privilege belongs to the client/ litigant. In these proceedings none of the documents have been claimed as privileged, and there is no suggestion that the DCC has or would have any privilege in any of them.

If the DCC were involved in any of this litigation, and if any of it included any advice given to the Council, and if any of it was claimed as being privileged we would know this by now.

Please advise which of the 5 documents or categories of documents you think as a general rule would be legally privileged, and what you mean by “handling these documents”, particularly because I understand that for some Councillors your caution has been taken to mean that they should not read them.

Please also advise in what situations you would expect to advise Councillors that they as Councillors should take “independent advice”, since the usual expectation would be that the Council would provide advice to Councillors concerning their situation where there are legal issues whihc related to the role of Councillor.

Please also advise what you mean by “independent advice”. Do you perhaps mean that the advice you have given is in some way not independent, or that we cannot rely on your advice to be independent? If so is that the situation in other instances where you offer individual Councillor’s advice, or in fact where you circulate advice to us?

Kind regards,

Cr Calvert

From: Hilary Calvert
Sent: Thursday, 14 July 2016 11:23 a.m.
To: Elizabeth Kerr
Subject: Privileged and confidential – Delta securities in ChCh subdivision

I as a recipient of this email waive privilege if indeed there was any for the contents of this email.



Begin forwarded message:

From: [Officer, Dunedin City Council]
Date: 7 July 2016 6:32:19 PM NZST
To: “Council 2013-2016 (Elected Members)”
Cc: Sue Bidrose, Sandy Graham
Subject: Privileged and confidential – Delta securities in ChCh subdivision

Dear Councillors,

I have been made aware that documents concerning court proceedings about Delta and the Noble Subdivision have been circulated to you. While I do not know what is in those documents, I encourage you to be cautious because as a general rule documents associated with a court case can be legally privileged. If they are privileged you may be found responsible for breaching privilege if you circulate them further. Please ensure that you take independent advice to satisfy yourself that you will not be in breach of any obligations you have as elected members or be in breach of legal privilege in handling these documents.


[name removed]
Dunedin City Council

█ For more, enter the terms *delta*, *noble* or *epic fraud* in the search box at right.

Posted by Elizabeth Kerr

Election Year. This post is offered in the public interest.

Notes |
Can legal professional privilege be waived?
Yes. Legal professional privilege can be waived by the client – that is, the client can choose to release the information that is privileged.


Filed under Business, Construction, DCC, DCHL, Delta, Democracy, Dunedin, Economics, Finance, Housing, Infrastructure, Name, New Zealand, OAG, Ombudsman, People, Politics, Project management, Property, Public interest, Resource management, Site, Town planning, Transportation, Travesty

7 responses to “Delta! Internal movement at DCC

  1. Hype O'Thermia

    Hilary Calvert in laser strike mode?
    And that’s a nice set of mix’n’match petards she’s handed to the DCC.

  2. Calvin Oaten

    Cr Calvert succinctly suggests the old adage, ‘that a little knowledge can be a dangerous thing’.
    This ‘trimester is seeing an awful lot of ‘pigeons returning to roost’ in its dying months. Making for a very interesting election, methinks.

  3. Hype O'Thermia

    “Coo coo” she murmured, luring them onto the bird-limed branches.

  4. Diane Yeldon

    Cr Calvert asks good questions here. It’s a shame she didn’t get the opportunity to do this publicly at a council meeting. So fair enough IMO to put it here in the public domain, since Delta’s woes are a matter of public interest.
    There’s two legal issues involved here which I think the writer of the email is not properly taking into account. The first is professional legal privilege, which gives the litigants a chance to privately and confidentially work out their best case with their lawyers.

    And the second is the principle of open justice. Quoting: “The courts are generally open to the public so that the delivery of justice can be observed by the public. Subject to specific statutory exceptions, members of the public and the news media have the right to attend court hearings. This is referred to as the principle of ‘open justice’. Open process maintains public confidence in the justice system.”

    So to advise councillors as follows: “….as a general rule documents associated with a court case can be legally privileged.” is IMO misleading. Using the word ‘can’ seems to me to be hedging, and possibilities are no basis for defining ‘general rules’. The ‘general rule’ IMO is the opposite – that documents relating to a court case (not just private communications between lawyer and client) are public unless there is good reason for them to be otherwise. Otherwise, the honesty and competence of court decisions could not be publicly scrutinised, since no-one would be able to talk about any court case while it was going on in an informed way. If there’s no public interest and discussion while the case is going on, how can the eventual decision be evaluated? And when a council company is involved, public interest is only to be expected.

    The email could be read as implying that if councillors were to find themselves in trouble for breaching legal privilege in this case, they would have to fend for themselves, without the support of the DCC, regardless of whether or not the councillors were acting in good faith and not recklessly. But it’s part of the councillors’ job to ask questions and I wouldn’t like them to be unnecessarily deterred. Leaving them high and dry when doing their job as they saw it would be a strange contrast to the DCC’s decision (as far as I know) to be paying for Mayor Cull’s defamation defence when IMO he was being reckless. I wonder who makes these decisions and on what basis.

    Since the system is supposed to work by the councillors collectively telling the management what to do, anything which looks the remotest bit like management telling councillors what to do, and what not to do, should be treated with the utmost caution. This email may have been well-intentioned but it can unfortunately be interpreted as an attempt to muzzle councillors. Such advice is probably better coming directly to councillors from the CE at a public meeting where questions on the matter can be openly asked and answered.

    • Hype O'Thermia

      Diane, it was a try-on. The average person, receiving a message like that about the need to be very cautious or you could be in trouble, would likely back off and shut up.
      Wrong person this time. Not all women with long blonde hair are Pearl White, tied to the railway lines and frightened the hero won’t reach her before the train does.

  5. JimmyJones

    Diane Yeldon: I think you are being too generous when you say: This email may have been well-intentioned but it can unfortunately be interpreted as an attempt to muzzle councillors. To me it is a very clear attempt to bully councillors into keeping the named documents secret. It looks like Hilary Calvert dislikes being bullied and has done a good job of saying so.

  6. Gurglars

    Nothing so enjoyable as a little petarding!

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