Attorney-General v Pickering HC Hamilton CP24/98

[2001] NZHC 328

IN THE HIGH COURT OF NEW ZEALAND
HAMILTON REGISTRY CP24/98

BETWEEN: ATTORNEY-GENERAL
Plaintiff

AND: R.J. PICKERING
Defendant

Hearing: 3 May 2001
Counsel: I.C. Carter for Plaintiff
A. Hope for Defendant

Judgment: 3 May 2001

JUDGMENT OF HAMMOND J

INTRODUCTION

[1] By an oral judgment delivered on 6 July 1998, Doogue J enjoined Mr Pickering with respect to the use and supply of a zinc based product known as “Fertex”. This was used for the control of facial eczema in animals, by injection.

[2] The injunctions granted by Doogue J were:

[a] An order by way of injunction that the defendant is prohibited from manipulating animals contrary to regulation 3 Animals Protection (Codes of Ethical Conduct) Regulations 1987, or being a party to such manipulations.

[b] An order by way of injunction that the defendant shall not sell any unlicensed animal remedy contrary to s 40(2) Animal Remedies Act 1967.

[c] An order by way of injunction that the defendant shall not knowingly use any unlicensed animal remedy contrary to s 40(5) Animal Remedies Act 1967.

[3] The Attorney-General took the view that there have been breaches of the injunction. On 6 December 1998 an application was made for leave to issue a Writ of Arrest. In the course of giving directions to deal with that application, Penlington J directed that Mr Pickering was to file and serve affidavits in opposition to the Attorney-General’s affidavits, by a stated time. Mr Pickering did not wish to disclose his case in advance. He sought, instead, an order under R249 of the High Court Rules, accepting oral evidence from him.

[4] Mr Pickering did not accept that judgment and appealed to the Court of Appeal. By a judgment of that Court delivered by McGechan J on 28 February 2001, Penlington J’s orders were quashed. Mr Pickering was granted leave, “to give and adduce oral evidence at the hearing of the application for the Writ of Arrest”.

[5] The Attorney-General has filed a number of affidavits in support of the application. There may be some cross-examination of those deponents. Timeous notice will need to be given, in the usual way. Mr Pickering will have his evidence adduced orally at the hearing.

[6] I have allocated a fixture for two weeks commencing 10 September 2001 before Anderson J for the disposal of this application. That is an extraordinary length of time for a Writ of Arrest application. Unfortunately, the volume of evidence is considerable, and Mr Pickering obviously intends to contest every point.

THE PRESENT APPLICATION

[7] What has brought the proceeding before this Court again today, is that the Attorney-General also wishes to advance evidence from certain other farmers in support of her application. But those persons have refused to make affidavits. The Attorney-General cannot compel those persons to make an affidavit. So these several applications have been made under R509 of the High Court Rules that the named person appear and be examined on oath before this Court, on the grounds that the stated person has knowledge of facts relevant to the proceeding, and has refused, and continues to refuse to make an affidavit as to those facts.

[8] The precise terms of these applications are all identical. As a matter of convenience, I reproduce hereunder that relating to Mr Stocker:

“A. To Gregory David Stocker to appear and be examined on oath before the High Court at Hamilton, or before such person as the Court appoints, as to the obtaining and use of the product described by reference to the name “Fertex” and any similarly named product and as to any communications between Gregory David Stocker and Robert James Pickering concerning the product described by reference to the name “Fertex” or any similarly named product.

B. In such terms as the Court thinks just, for the attendance of Gregory David Stocker before the High Court at Hamilton, or before such person as the Court appoints, for the purpose of being examined on oath, and for the production of:

(i) Invoices, receipts, bank statements, marketing and promotional material, correspondence and/or record of payment relating to the product described by reference to the name “Fertex” and any similarly named product; and

(ii) Any container or containers used to store the product described by reference to the name “Fertex” and any similarly named product whether such container or containers is/are now empty, full or partly full.

C. For a transcript of the sworn testimony given by Gregory David Stocker to be taken and that such transcript and testimony shall be treated as evidence filed in the proceeding and available for use by any party.

D. Imposing such terms, as the Court thinks just, as to the examination and the costs of and incidental to the application and examination.”

[9] Mr Pickering opposes these applications. His counsel, to a large extent relying on what he perceives to be the recent observations of the Court of Appeal (para 4 supra) has submitted that:

•   By analogy with the criminal law, the Attorney-General should not be allowed to examine witnesses under orders made pursuant to R509, knowing in advance that the witnesses are in effect hostile.

•   That by analogy with the criminal law, the Attorney-General should not be allowed to proceed to a hearing without first disclosing, before the hearing, the evidence she will call at the hearing.

•   That the Attorney-General should not be allowed to proceed to a hearing without having first established prima facie evidence of the claims against Mr Pickering.

•   That it would be unjust to put Mr Pickering to the significant expense of preparing the defence of a claim at a time when the Attorney-General does not have admissible evidence to prove it.

THE NATURE OF AN APPLICATION FOR A WRIT OF ARREST

[10] An application for a Writ of Arrest under the High Court Rules is sui generis. Because it is an extreme remedy, to be exercised only in cases which clearly warrant it, it has been thought necessary to adopt certain features which are like those in criminal law proceedings. Some of these features are discussed by the Court of Appeal at para 7 et seq of the judgment to which I have referred. In particular, the proof required is beyond reasonable doubt. Another is the holding of the Court of Appeal in this case that a respondent ought not be required to give evidence (if evidence is to be given at all) until completion of the Attorney-General’s case. But it is significant that the Court of Appeal noted that it is “not necessarily helpful” to seek to categorise applications for a Writ of Arrest as “of a criminal nature”. This is a civil proceeding, but of a particular kind.

[11] The High Court Rules are not at all explicit on the procedure to be adopted. Historically, in my experience - and doubtless reflecting the Chancery origins of the remedy - applications of this kind have been supported by affidavits, if there is to be evidence at all. Deponents can be cross-examined on those affidavits in the usual way. That is now subject to the ruling which the Court of Appeal has already given that Mr Pickering cannot be required to disclose his case, by affidavit, in advance.

THIS CASE

[12] The difficulty in this instance is that Mr Pickering wants to go further. He wants to control what the Attorney-General can do. In fact, as I said to Mr Hope during the course of his submissions, it is inescapable that what Mr Pickering really seeks to do is to treat this application for a Writ of Arrest in almost all respects as if it were a criminal proceeding. In terms of the recent observations of the Court of Appeal, that cannot be correct.

THE RULE 509 APPLICATION

Rule 509 of the High Court Rules provides as follows:

“509. Person refusing to make affidavit-

(1) If any person having knowledge of facts relevant to [a proceeding or interlocutory application] refuses to make an affidavit as to those facts, any party may apply for an order to such person to appear and be examined on oath before the Court, or such person as the Court appoints, as to the matters concerning which he has refused to make an affidavit.

(2) Upon any application under subclause (1), the Court may-

(a) Make such orders, as the Court thinks just, for the attendance of that person before the Court, or before the person therein named, for the purpose of being examined as aforesaid, and for the production of any documents specified in the order; and

(b) May impose such terms, as the Court thinks just, as to the examination and the costs of and incidental to the application and examination.

(3) Any person who disobeys any order made under subclause (2) shall be liable to proceedings for contempt.”

[13] As I understood it, Mr Carter’s proposition was that if at all possible the evidence of these eight persons should be taken prior to the fixture on 10 September 2001. Quite apart from any matters of principle, there are distinct practical difficulties in any such course. Anderson J would not be available to take this evidence before 10 September. And, even if time could be made available in my list - which is distinctly problematical - I ascertained today that this evidence is contentious. Mr Hope said it will “definitely” be subject to cross-examination. Because there are issues of that character, and of credibility involved, it is of real importance that the evidence be taken before Anderson J.

[14] If, therefore, the orders are to be granted at all, it appears to me that the taking of this evidence should be at the commencement of the hearing on 10 September 2001. Such a course has another practical advantage. To the extent that Mr Hope has arguments he wishes to advance that this evidence should not be led at all, a preliminary taking of evidence of this kind could function in precisely the same way as a voir dire in a criminal trial. This proposed evidence could be sifted out at the outset, and before the merit hearing proper.

[15] Before I deal with whether, in terms of s509 itself, the application is made out, I deal briefly with the other matters raised by Mr Hope.

• As to whether this evidence should be excluded because the witnesses are hostile, I make these observations. They are, of course, not binding on the trial Judge. First, it has long been the rule that the Crown should not call a witness known to be hostile in order to thereby secure the admission of inadmissible hearsay, and the like. As to hostile witnesses, the rule is that the witness must be proved hostile in the sense that he or she is unwilling to tell the truth. I am not at all convinced, on what is before me at the moment, that these prospective witnesses are hostile in that sense: they just do not want to make affidavits at this time, which is the very reason for the application. One has even said that he will tell the truth “if required to”. This objection is premature. It is even conceivable that, if these persons are ordered to attend, they may yet resile and make affidavits.

• As to the disclosure point, the Crown has made disclosure of the information on which the Attorney-General believes that breaches have occurred. Mr Pickering has the material the Attorney-General is relying on.

• The third concern raised by Mr Hope is in one sense an analogy to the s347 procedure under the Crimes Act 1961. There is nothing, that I am aware of, in the nature of the civil remedy for a Writ of Arrest which should lead to anything like that kind of conclusion. An applicant for a Writ of Arrest takes his or her chances in the litigation in the usual way. And, if unsuccessful, she may well have to face a higher than usual order for costs, perhaps in a totally unwarranted application extending as far as solicitor and client costs. I can see no warrant for introducing a hurdle of the kind Mr Hope seems to have in mind.

• The suggestion that it would be unjust to put Mr Pickering to the expense of a defence when there is no admissible evidence falls at the same hurdle as the first point.

[16] In my view, therefore, this application should be treated as a straight-forward R509 application.

• It is clear that all the prospective proponents have refused to make affidavits.

• In my submission the affidavits filed in support of these R509 applications do clearly establish that the particular reluctant deponent does have knowledge of facts which are relevant to the application for leave to issue a Warrant of Arrest.

• I accept Mr Hope’s submission that in an application of this kind, this Court has a discretion whether to make orders, and the terms of those orders. Like any discretion of that character, it has to be exercised judicially. Mr Hope’s submissions under this head could, without doing him any injustice, be put under two heads: that what is happening here is unfair; and that the Attorney-General is using a sledge hammer to crack a nut. To some extent, those two heads overlap. To understand the point, it is necessary to appreciate that two of the heads of activity which were enjoined by Doogue J relate to s40(2) and s40(5) of the Animal Remedies Act 1967. The penalties there, in criminal law terms, could only be a small fine per occurrence. The first head, relating to the 1987 Regulations, may be problematical, at a merit hearing, because those Regulations have now been repealed. Mr Pickering is saying that if there are breaches (which is disputed) they are breaches of relatively minor provisions (and presumably, therefore, a Writ of Arrest should not issue).

[17] The answer to all of this is that matters of that kind are for Anderson J, in due course. This Court has an interest in seeing its own orders enforced, and if it is said - as is said here by the Attorney-General that there have been numerous breaches at that of an injunction granted in her favour, then it cannot, by any stretch of the imagination, be said that it is unfair on the respondent that those matters are tested in Court.

[18] In my view the applications should all be granted. The terms of the order will be as applied for, with these two additional features: the taking of the evidence is to be on 10 September 2001, or at such date and time thereafter as Anderson J may direct; and secondly, the taking of that evidence is without prejudice to whatever lawful objections as to the admissibility of the evidence may then be made on Mr Pickering’s behalf.

[19] The practical effect of these orders is that the Attorney-General will be able to serve the eight persons concerned with orders when sealed. That will ensure their attendance in Court in functionally the same way as a witness summons. Their evidence can be taken before the merit hearing, and any objections which may be made to the admissibility of the evidence can be made at that time. I do not believe there will be any difficulty in settling the precise terms of the orders. If there is, counsel can see me in Chambers or attend by telephone conference in the usual way.

[20] Costs will be reserved.

Application allowed.