Dunstan v Chief Executive of Department of Corrections

[2023] NZHC 2602

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-002159

[2023] NZHC 2602

BETWEEN

TANYA FELICITY DUNSTAN

Plaintiff

AND

CHIEF EXECUTIVE OF DEPARTMENT OF CORRECTIONS

Defendant

Hearing:

On the papers

Appearances:

T Dunstan in Person

S K Shaw / H T Reid for the Defendant

Judgment:

19 September 2023

JUDGMENT OF ASSOCIATE JUDGE GARDINER

This judgment was delivered by me on 19 September 2023 at 3.00 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date.......................................

Solicitors:

Crown Law, Wellington Copy to: T F Dunstan

DUNSTAN v DEPARTMENT OF CORRECTIONS [2023] NZHC 2602 [19 September 2023]

Introduction

[1]                 Ms Dunstan’s claim against  the  defendant  concerns  the  period  between  29 December 2018 and 3 January 2019 when she  was  held  on  remand  in  the  New Plymouth Remand Centre. The trial will take place over five days commencing on 30 October 2023.

[2]                 On 16 May 2023, I ordered the parties to provide standard discovery under    r 8.7 of the High Court Rules 2016, with affidavits of documents and open documents exchanged by 11 July 2023. I directed that the listing and exchange protocol in Part 2 of Schedule 9 to the High Court Rules was to apply unless the parties agreed otherwise.

[3]On 11 July 2023, the defendant filed and served their affidavit of documents.

[4]Ms Dunstan now challenges the defendant’s discovery. She contends that:

(a)the affidavit of documents is defective and inaccurately sworn;

(b)the affidavit conceals the contents of the discovery by relying on an index table identifying documents that have been unlawfully redacted as irrelevant; and

(c)the discovery  omits  relevant  records,  including  call  records  for  29 December 2018, and surveillance footage.

[5]                 Ms Dunstan seeks an order that all discovered documents are provided in an unredacted form, that the affidavit is sworn by another individual from the Department of Corrections, and for tailored discovery of the call records and surveillance footage.

[6]                 Ms Dunstan also demands that the defendant provide affidavits from certain Corrections staff.

[7]The defendant opposes the making of these orders.

Legal principles

[8]                 Standard discovery under r 8.7 requires each party to disclose the documents that are or have been in their control, and that are documents on which they rely, that adversely affect their case or the other party’s case or support the other party’s case.

[9]Documents included in discovery must be relevant to matters in issue at trial.

Relevance is assessed according to the pleadings.1

[10]             Parties are only entitled to relevant documents in discovery. It is permissible for a party to redact irrelevant parts of an otherwise discoverable document.2

[11]I consider each of the issues raised by Ms Dunstan in turn.

Redactions made to discovery

[12]             On 11 July 2023, the defendant served Ms Dunstan with their affidavit of documents and the open documents listed. There were 13 documents provided in the discovery. The following five documents contained redactions, all stated to be because of irrelevance:

(a)DUN.001.00004 - a log book dated 29 December 2018;

(b)DUN.001.0007 - movement records dated 29 December 2018;

(c)DUN.001.00010 - an email dated 31 December 2018;

(d)DUN.001.00011 - an email dated 3 January 2019; and

(e)DUN.001.00012 - offender notes dated 5 July 2019.

1      New Zealand Rail Ltd v Port Marlborough New Zealand Ltd [1993] 2 NZLR 641 (CA) at 644; and Robert v Foxton Equities Ltd [2014] NZHC 726, [2015] NZAR 1351 at [8].

2      See GE Capital Corporate Finance Group Ltd v Bankers Trust Co [1995] 1 WLR 172 (CA) affirmed in New Zealand by Radio Tarana (NZ) Ltd v 5TUNZ Communications Ltd [2014] NZHC 1870 at [82].

[13]             The defendant explains through submissions that the redactions applied to these documents fall into the following categories:

(a)the  names,  PRNs  and  custody  details  of  prisoners  other  than   Ms Dunstan;

(b)the names and phone numbers of individuals calling prisoners other than Ms Dunstan;

(c)the names of Corrections staff members requesting the documents from the Corrections IT system, which appear in the top right-hand corners of electronic documents; and

(d)phone numbers of Corrections staff members.

[14]             The defendant submits that none of the names or personal details redacted in the discovery are relevant to Ms Dunstan’s claim. They do not go to proving or disproving any of the matters in issue, and they neither support nor adversely affect either party’s case.

[15]             I have reviewed the documents in issue in unredacted form. I can confirm that the redactions are confined to the information detailed above, together with the email addresses of Corrections staff members. This information is irrelevant to the issues in dispute in Ms Dunstan’s proceeding. The redactions have been properly made.

Affirmation of affidavit of documents

[16]             The defendant’s affidavit of documents was affirmed by Tara Helm, solicitor in the national Office of the Department of Corrections. Ms Helm affirmed that she was authorised to swear the affidavit on behalf of the Department, she understood the obligations imposed by the discovery order, and that she had diligently searched for all documents required to be discovered by the discovery order. She confirmed the process followed:

I have arranged for a review of computer and hard copy records that relate to the plaintiff’s time in custody at the New Plymouth Remand Centre. This has included materials at the Remand Centre, the plaintiff’s personal files, and also arranging an email search across the system from 29 December 2018 to 3 January 2019 and with key words of any of:

(i)Tanya Felicity Dunstan;

(ii)Tanya Dunstan;

(iii)Dunstan; or

(iv)     80941827.

[17]             The affidavit was affirmed in Wellington before Michaela Stack, a Deputy Registrar of the High Court of New Zealand. The substantive pages of the affidavit are initialled and signed by both Ms Helm and Ms Stack.

[18]             I conclude that the defendant’s affidavit of documents is not defective or inaccurately sworn.

Application for tailored discovery

[19]             Ms  Dunstan  has  applied  for  tailored  discovery  of  all  call  records  of   29 December  2018,  and   surveillance   footage   from   29   December   2018   to   3 January 2019.

[20]             Ms Dunstan is essentially asking for an order for “particular discovery” under r 8.19, as she is claiming that the defendants have omitted relevant information from their existing discovery.

[21]             When determining applications for particular discovery under r 8.19, the Court usually follows a four-stage approach, which includes asking whether there are grounds for believing that the sought documents exist.3 The grounds for belief may be established from evidence, from the nature or circumstances of the case, or from

3      Robert v Foxton Equities Ltd [2014] NZHC 726, [2015] NZAR 1351 at [8]. The four-stage test was outlined in Assa Abloy New Zealand Ltd v Allegion (New Zealand) Ltd [2015] NZHC 2760 at [14]. Stage one asks whether the documents sought are relevant, stage two asks whether there are grounds for belief that the documents sought exist, stage three asks whether discovery sought is proportionate and stage four involves the discretionary weighing and balancing of matters, asking whether an order is appropriate.

the documents filed. The documents must also be or have been in the parties’ control.4 The onus is on the applicant to establish grounds for believing that the documents exist.5

[22]             In relation to call records, Ms Dunstan made the same request under the Privacy Act 2020 in April 2022. Ms Dunstan was advised that the Department held no records of any calls made or received by Ms Dunstan between 29 December 2018 and 3 January 2019, and the Department had no records of Ms Dunstan requesting a phone call. A letter from the Department dated 24 May 2022 confirms that the Department has no records of any calls made or received by Ms Dunstan between these dates.

[23]             Regarding the CCTV footage, the defendant says that it does not hold any video footage from the New Plymouth Remand Centre from 29 December 2018 to   3 January 2019, as sites only retain footage for approximately one month.

[24]               Ms Dunstan has not established grounds for believing, contrary to what the defendant says, that that call records and surveillance footage exist.

[25]             Having said that, the search process described in the affidavit of documents describes a review of computer and hard copy records only. I consider it appropriate for an authorised representative of the defendant to depose that there has been a diligent search for call records over the dates in question, and the outcome of that search. The defendant should also confirm that there is no surveillance footage available and explain why.

Affidavits from Corrections staff

[26]             Ms Dunstan asks the Court to order the defendant to provide “affidavits from the witnesses the defence intends to call” and “affidavits from Susan Bennet and Jack Saju”.

4      Lyttelton Port Company Ltd v Aon New Zealand [2016] NZHC 2996 at [13]; and Robert v Foxton Equities Ltd [2014] NZHC 726, [2015] NZAR 1351 at [8].

5      RHH Ltd v Anderson (No 2) [2018] NZHC 2032 at [13].

[27]             Ms Dunstan’s request for affidavits from specific Corrections staff is in essence a request for the defendant’s briefs of evidence. The defendant’s briefs will be shared with Ms Dunstan prior to the trial in accordance with the timetable I have directed.

Result

[28]             The defendant is to file and serve a further affidavit concerning the call records and video footage within five working days.

[29]Otherwise, Ms Dunstan’s application for discovery is dismissed.

[30]Costs are reserved.

Associate Judge Gardiner