Cullen v District Court at Auckland

[2017] NZHC 466

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-000985 [2017] NZHC 466

BETWEEN

RHYS MICHAEL CULLEN

Applicant

AND

DISTRICT COURT AT AUCKLAND First Respondent

ATTORNEY-GENERAL Second Respondent

Hearing:	8 February 2017
Appearances:	Plaintiff in Person First defendant abiding decision of the Court Simon Barr for the Second Defendant
Judgment:	16 March 2017

JUDGMENT OF MOORE J [Application for discovery]

This judgment was delivered by me on 16 March 2017 at 12:00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

CULLEN v DISTRICT COURT AT AUCKLAND & ANOR [2017] NZHC 466 [16 March 2017]

Introduction

[1]      On 10 February 2016 a search warrant was issued authorising the search of an address in Eden Terrace, Auckland, the home of the plaintiff, Rhys Michael Cullen (“Dr Cullen”).

[2]      The  authorised  issuing  officer  was  Mr  Ng,  a  Deputy  Registrar  at  the

Auckland District Court.

[3]      Dr Cullen has brought an application to judicially review Mr Ng’s actions in issuing the search warrant.  He seeks various declarations and an award of exemplary damages.

[4]      Mr Ng has not filed an affidavit.   The only affidavit filed by the second respondent, the Attorney-General, was made by the officer who obtained the search warrant, Detective Settle.

[5]      Dr Cullen complains that because Mr Ng’s actions lie at the very centre of his application an affidavit should have been filed by him.

[6]      There is a background which provides some context.  On 3 August 2016, in a memorandum prepared for a case management conference, counsel for the Attorney- General advised that he anticipated filing affidavits from the officer-in-charge and from the District Court Registrar.  However, by 8 September 2016 that position had changed  with  Crown  counsel  advising the Court  that  it  would  not  be filing an affidavit from the issuing officer, observing:

“It is noted that judicial officers generally do not tender evidence concerning their decisions that are the subject of judicial review proceedings, and the first respondent has indicated that it does not consider it appropriate to do so in this case.”

[7]      The  claimed  justification  for  that  course  was  that  the  issuing  officer’s obligations when granting the search warrant were those set out in the Search and Surveillance Act 2012 (“the Act”) and the Court could determine from the face of the record, namely the search warrant application and the warrant itself, whether those

obligations were complied with and whether the warrant should have been issued. Similarly, it was stated that the Court could assess the lawfulness of the issuing officer’s decisions regarding the non-release of the search warrant application on the basis  of  the  email  records  that  had  already  been  placed  before  the  Court  by Dr Cullen.

[8]      Thus Crown counsel considered that all relevant documents were before the

Court and advised the Court to that effect.

[9]      This  advice  was  answered  by  strongly  worded  memorandum  filed  by Dr Cullen on 3 October 2016.  There he said that if Mr Ng had made no notes and had no memory of the application he should say so.  However, if there were notes or if he had any memory of the application he should also say so.  Dr Cullen accepted that Mr Ng could not be forced to provide an affidavit but observed that if relevant information was being withheld from the Court “as a matter of District Court policy” that was unsatisfactory.

[10]     At the case management conference on 6 October 2016 Peters J set out the respective positions of the parties and observed that having discussed the matter with Dr Cullen, she did not propose to require the Attorney-General to file an affidavit from Mr Ng because she was satisfied it was unnecessary.

[11]     On 17 January 2017 Dr Cullen filed an application for discovery.   In that application he observed:

“[5]      The plaintiff believes it is possible that Mr Ng and Detective Settle were interviewed by the respondents with a view to drafting affidavits, and that as a result of that interview or interviews the second respondent decided that an affidavit from Mr Ng would not assist the respondent.”

[12]     It would appear that Dr Cullen’s suspicions arose from the change of position adopted by Crown counsel in relation to the filing of an affidavit from Mr Ng.

[13]     Dr  Cullen’s  application  was  made  following  Crown  counsel’s  refusal  to disclose  any  records  of  that  nature.    According  to  Dr  Cullen  he  received  the following reply from the Crown:

“I refer to your email of 11 January 2017 requesting a copy of any record of interview or report of discussions between this office and the issuing officer of the search warrant that is the subject of your judicial review proceedings.

We decline your request on the basis that any such communications are

privileged pursuant to s 56 of the Evidence Act 2006.”

[14]     Dr Cullen took this refusal as a concession by the Attorney-General that such documents existed and that privilege was claimed in respect of them.

[15]     On 31 January 2017 Dr Cullen’s application became before Hinton J who directed it be heard at the commencement of the substantive hearing.

[16]     Accordingly I heard argument from Dr Cullen and Crown counsel, Mr Barr, at the commencement of the hearing before me.

[17]     Discovery is clearly available on applications for judicial review under s 10 of the Judicature Amendment Act 1972.  But it is discretionary.1

[18]     McGechan on Procedure2 contains a helpful summary of the principles which apply to discovery in judicial review.   It notes that in some judicial review cases discovery may be unnecessary while in others limited discovery may suffice.  What is appropriate should be determined on a case-by-case basis in the exercise of the Court’s powers under s 10(2)(i).

[19]     The matter must be both relevant to the proceeding and necessary in the circumstances.

[20]     Having reviewed the material provided to me by Mr Barr and taking into account the issues raised by Mr Cullen in his application I am satisfied that this is a

1      Environmental Defence Society Inc v South Pacific Aluminium Limited [1981] 1 NZLR 146 (CA) at 148.

2      Andrew Beck and Others McGechan on Procedure (Thomson Reuters, online looseleaf ed) at

[HR8.5.03].

case  where  the  Court  should  not  order  discovery  of  the  particular  documents

Dr Cullen seeks.  My reasons follow.

[21]    In the course of argument Mr Barr tendered a tabulated folder entitled, “Documents for which the Second Respondent Claims Privilege”.  He advised that the folder contained copies of all correspondence between Crown counsel, in-house counsel for the Ministry of Justice (“the Ministry”) and Mr Ng in relation to the question of whether Mr Ng should make an affidavit.  He invited me to review the documents because, in his submission, the trail of communication reflected a process involving the provision of legal advice which revealed not only that the communications in question should properly attract privilege and also, in any event, did not support the inference that any decision not to tender an affidavit from Mr Ng was influenced by tactical or strategic reasons of the sort suggested by Dr Cullen.

[22]     Dr  Cullen  advised  that  he  was  content  with  that  approach.    He  had  no objection   to   me   sighting   this   documentation   in   his   absence   and   making determinations in relation to it.

[23]     First, for the reasons more fully set out in my substantive judgment on the judicial review,3 the questions which Dr Cullen poses and the criticisms he makes of the exercise of Mr Ng’s powers to issue the warrant, are capable of being resolved by reference to Court record and, in particular, the application for a search warrant and the warrant itself.

[24]     Secondly, I have read the material Mr Barr placed before me with Dr Cullen’s

consent.   It contains 13 separate communications between 1 September 2016 and

13 September 2016 involving Crown counsel, in-house counsel for the Ministry and

Mr Ng.

[25]     Of the 13 emails only three appear to have any relevance to the decision not to file an affidavit from Mr Ng.  None of the documents reveals any foundation for Dr Cullen’s expressed suspicion that the reason for the change of stance “… was that

the second respondent had conducted some sort of in-house intellectual review of its

3      Cullen v District Court at Auckland & Anor [2017] NZHC 465.

earlier decision” and as a consequence had decided that Mr Ng’s evidence would be

unhelpful to the respondent’s case.

[26]     I am completely satisfied that the documents in question have no relevance or bearing to any of the issues I am required to decide on the substantive application. And for that reason I am also satisfied that there is no proper basis to order discovery of the emails.

[27]     Thirdly, I am satisfied that the communications contained in these emails were intended to be confidential and were made in the course of and for the purpose of the provision of legal advice and services and is protected under the Evidence Act

2006.4    While there is no requirement to go further, to the extent it may provide

Dr Cullen  with  some  reassurance,  I  can  confirm  none  of  the  communications provides any support for the suspicions he harboured as reflected in his communications of 17 January 2017.  There is nothing in the material provided to me which would suggest any improper or ulterior motive for Mr Ng not to make an affidavit.

[28]     Fourthly, although not directly on point but relevant in a contextual way, it is the  convention  that  judicial  officers  should  generally not  make  affidavits  or  be required to give evidence in relation to the discharge of their judicial functions.  An example of this approach can be seen in Shaw v Attorney-General where Durie J

discussed the principle in the following way:5

“[27]    Consistent with the approach taken in respect of judicial officers is the opinion of the English Court of Appeal in Warren v Warren [1997] QB

488; [1996] 3 WLR 1129 that judicial officers are not compellable witnesses in relation to their judicial functions, although they remain competent to give evidence where that evidence is vital. There the Court set aside a witness

summons  requiring  a  Judge  to  tender  evidence  on  the  extent  of  an undertaking in matrimonial proceedings.  Similarly, in Rota v Tukiri [2001] 1

NZLR 715, Penlington J set aside a witness summons requiring a Judge to give evidence of his impressions of witnesses in a criminal hearing that the Judge had earlier terminated.”

4      Evidence Act 2006, s 54.

5      Shaw v Attorney-General (2002) 16 PRNZ 761.

[29]     Similarly, Randerson J in Abbott v Coroner’s Court of New Plymouth made the following comments in a case where a Coroner had filed an affidavit in judicial review proceedings.6   His Honour observed:

“[22]    During the hearing before me, I expressed some concerns about the Coroner’s affidavit.   It is well established that judicial review proceedings generally proceed on the basis of the evidence before the decision-maker at the time of the decision (Roussel Uclaf Australia Pty Limited v Pharmaceutical Management Agency Limited [1997] 1 NZLR 650, 658 (CA)). It is not appropriate for the decision-maker to file an affidavit after the event seeking to offer further explanations for the decision made. While I accept that the Coroner acted in good faith in an attempt to assist the Court, material of this kind should not have been filed. I intend to ignore it.”

Result

[30]     The application for discovery is refused.

[31]     Given the nature of the application I am satisfied this is a proper case to direct costs to lie where they fall but in the event the Attorney-General considers

otherwise I reserve leave to file memoranda.

Moore J

Solicitors:
Crown Law Office, Wellington

Copy to:

The Applicant

6      Abbott v Coroner’s Court of New Plymouth HC New Plymouth CIV-2004-443-660, 20 April

2005.