A v Minister of Internal Affairs
[2020] NZHC 287
•26 February 2020
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2017-485-0032
[2020] NZHC 287
UNDER the Judicature Amendment Act 1972 and Part 30 of the High Court Rules IN THE MATTER OF
an application for judicial review of the suspension and cancellation of a passport
BETWEEN
A
Applicant
AND
MINISTER OF INTERNAL AFFAIRS
Respondent
Hearing: 20 February 2020 Counsel:
Applicant in person (via telephone)
A L Martin and G M Taylor for respondent B J R Keith, special advocate
Judgment:
26 February 2020
RESERVED JUDGMENT OF DOBSON J
[Application to administer interrogatories]
[1] In November 2018, the applicant filed and served a notice purporting to require the respondent to answer some 222 interrogatories. The applicant had not sought leave to administer interrogatories. During a closed court interlocutory hearing, I reviewed with counsel for the respondent and the special advocate how that signalled initiative by the applicant should be dealt with. Mr Martin agreed to file a memorandum outlining the grounds that the respondent would rely on to oppose a grant of leave to administer interrogatories, if indeed leave was sought. That memorandum was filed and served in December 2018.
A v MINISTER OF INTERNAL AFFAIRS [2020] NZHC 287 [26 February 2020]
[2] The proceeding then went into abeyance for a period of some 12 months, culminating in a further hearing on 14 November 2019, following which I dismissed an application for the proceeding to be struck out.1 In that judgment, I directed that any application for leave to administer interrogatories was to be filed and served by 20 January 2020.
[3] That step was then taken by the applicant (the application) and was accompanied by a revised notice comprising 120 questions. I have subsequently received memoranda from all involved on the issues raised by the application. I then convened a hearing on the application, with the applicant attending by telephone and counsel for the respondent and the special advocate in court for chambers.
[4] The application was opposed by the respondent on the general ground that the questions were intended to circumvent the constraint on the applicant having access to otherwise discoverable material that the Court has accepted as being classified security information (CSI).2 Further, that the questions posed went beyond what is necessary and relevant to argue the issues raised by the application for judicial review. This argument was maintained notwithstanding the prospect of the applicant amending her statement of claim once all forms of disclosure have been completed.
[5] Interrogatories are only rarely allowed in judicial review and an applicant is required to satisfy the Court that the proposed questions are “appropriate, relevant and necessary to fairly dispose of the proceedings”.3
[6] Mr Keith submitted that the Court should see the application as the means by which the applicant can engage with the case and the Court should treat the questions as an attempt by her to clarify the nature of the matters held against her and the circumstances in which the decisions were made.
[7] With respect, the proposal to use interrogatories for that purpose is inconsistent with the statutory process required where CSI exists in proceedings under the
1 A v Minister of Internal Affairs [2019] NZHC 2992.
2 Passports Act 1992, s 29AB, as in force at the relevant time.
3 Deliu v New Zealand Law Society [2013] NZHC 1584 at [47], and more generally Robert Osborne and others McGechan on Procedure (online ed, Thomson Reuters) at [JR 14.08].
Passports Act 1992. Resort to interrogatories cannot be seen as a means of redressing the procedural unfairness that otherwise exists. I do not accept that these circumstances justify an approach to an application for leave to administer interrogatories on a basis different from that which normally applies.
[8] Part of the difficulty for the applicant in accepting this approach is that the unclassified summary of the materials available to the decision-makers leaves her to speculate on the detail of the information relied on and the reasoning applied. That is a reflection of the statutory procedure the Court is required to adopt, and it would indeed subvert the process required under the Passports Act if such additions to the reasons for the decisions and circumstances in which they were made were permitted by way of interrogatory.
[9] The applicant treated her questions as comprising six categories, intended to elicit:
· category 1 – what was considered by the decision-makers;
· category 2 – what was not considered by the decision-makers;
· category 3 – clarification of the evidentiary record that was in issue both before the decision-makers, and before those providing the recommendations to the Minister to cancel the applicant’s passport;
· category 4 – information about the scope of possible adverse consequences of the decision to cancel the passport;
· category 5 – evidence going to the alleged lack of credibility and the unreasonableness of the decision; and
· category 6 – information about the mode and/or lawfulness of the gathering of information that was relied on.
[10] During the course of argument, I indicated to counsel and the applicant that I did not accept that the need to include in any given answer information that has been accepted as CSI, or for which the respondent would maintain a claim to status as CSI, was of itself a sufficient ground to disallow an interrogatory on that point. Subject to meeting the requirements for necessity and relevance, an answer that would only be available to the special advocate but not the applicant might still be recognised as a permissible interrogatory.
[11] However, if an answer to any interrogatory that would contain CSI reflected information that was already available to the special advocate, then given the inevitability it could not be shared with the applicant but was available to be used in her interests, the applicant could not make out the requirement for necessity that the interrogatory be answered in the first place.
[12] It seems likely that the position I have described in the preceding paragraph will apply to a significant number of the interrogatories the applicant seeks to administer. During the hearing, the special advocate suggested that an initial step in resolving the present application would be for him to confer with Crown counsel as to the extent to which the questions sought to be asked would be answered by the provision of CSI, and the special advocate confirming the extent to which such CSI has been disclosed to him. Such a process would enable him to report by way of memorandum to the applicant, copied to Crown Law and the Court, on the extent to which the answers to the proposed interrogatories would involve the disclosure of CSI, and the extent to which the special advocate already has access to such CSI.
[13] I urged counsel to co-operate along those lines as promptly as possible, and now confirm a direction for that to occur.
[14] A substantial portion of the proposed questions (certainly those within the applicant’s categories 1 and 2 plus, on her designation, some of those in category 5), seek explanations for the challenged decisions, either by way of positive reasons explaining why the decisions were made or in the negative sense seeking acknowledgements that certain considerations were not in fact taken into account. Given the constraint on administering interrogatories in judicial review, I would not
be prepared to grant leave for questions of this type. The challenged decisions made in exercise of statutory powers must stand on the contemporaneous record created at the time. Questions that are the equivalent of cross-examination of the decision-maker as to why other factors were not taken into account, or challenging the reasonableness of grounds that were taken into account, will not be relevant in a judicial review of this type where the Ministers’ decisions must stand, without any embellishment or qualification added after the event.
[15] A further category of question seeks clarification of matters in the documents that have been provided to the applicant and which are, on their face, inconsistent, or unclear. For example, question 73 cites discrepancies between the number of pages of certain discovered documents, and the number of pages provided in redacted versions that have been provided to the applicant. Ms Taylor accepted that questions of that mechanical nature should not require an interrogatory to be resolved. As in conventional proceedings, counsel for a party providing discovery should be prepared to volunteer clarification of such matters in response to informal requests. I direct that Crown Law ought to provide responses to questions of that type by way of correspondence to the applicant, copied to the special advocate.
[16] I had a number of exchanges with Ms Taylor about the respondent’s grounds for opposing questions in category 4 seeking information about the scope of possible adverse consequences of the decision to cancel the applicant’s passport. My provisional view was that if the applicant makes out that the cancellation decision was unlawful, then the extent of adverse consequences flowing from that may be relevant to a decision whether to grant relief and, if so, in what form. Taking a hypothetical example, if the New Zealand Government’s practice is, say, to advise the government of a country or countries in respect of which the holder of a cancelled passport was perceived to be a threat to its security, or if the government has a practice of advising Interpol or security agencies in certain other countries of such cancellations, then the adverse consequences for the applicant may well be relevantly different from the consequences if such consequential steps are not taken.
[17] I accept that such questions may in part require disclosure of CSI, but I have ruled that factor is not of itself sufficient to disallow any given interrogatory.
[18] Ms Taylor maintained the respondent’s opposition to questions of this type on the basis that the only relief sought in the judicial review is a declaration of invalidity so that any prospect of additional orders intended to correct specific forms of prejudice arising from the cancellation decision and that it would be so exceptional as not to warrant acknowledgement.
[19] I accept that the applicant has numerous substantial hurdles to overcome before such information becomes relevant to her judicial review, but do not accept that such prospects should be entirely disregarded.
[20] A number of the questions seek general answers as to the practice adopted by the New Zealand Government, not necessarily confined to the specific circumstances of the applicant’s case. I am satisfied that such questions do satisfy the necessity and relevance tests, and direct that they should be answered, subject as with all else to the limited disclosure regime to be worked on between Crown Law and the special advocate.
[21] After hearing argument from Ms Taylor and Mr Keith, in reply the applicant conceded that the information sought in some of the proposed questions was either approached in other ways, or not appropriately pursued by way of interrogatory. This concession was made in respect of questions 50, 73-77, 82, 88, 89, 105 and 118. The applicant also conceded that questions 27 and 28 were substantially answered.
[22] I sought to avoid any repetition of the protracted iterative process that was involved in settling the terms of the unclassified summary of CSI to be provided to the applicant. However, after hearing counsel I accept that the present application may need to be revisited to address residual issues that arise. In the first instance, my decision on the matters as argued thus far can be summarised as follows:
(a)I disallow the proposed interrogatories in categories 1 and 2, and others that question reasons for considerations not taken into account in the challenged decisions.
(b)Any other proposed interrogatories, responses to which would disclose CSI, are to be the subject of dialogue between Crown Law and the special advocate, with the special advocate to produce a memorandum confirming that the answers to such questions would involve disclosure of CSI, and confirming whether those items of information are CSI to which he already has access. I invite a memorandum to this effect to be filed by 6 March 2020, ideally reporting on completion of that task or at least providing a progress report.
(c)I accept that questions in category 4 meet the threshold of necessity and relevance, subject to Crown Law dealing in the first instance with the special advocate as to the nature of the information necessarily disclosed and providing answers to them.
(d)Other matters of clarification of items disclosed to the applicant are to be addressed by way of correspondence between the applicant and Crown Law.
[23]There is no question as to costs on the application.
Dobson J
Solicitors:
Crown Law, Wellington for respondent
Copy to:
The applicant
B J R Keith, Wellington
2
2
0