Gorgus v Attorney-General
[2025] NZHC 821
•8 April 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2023-404-001652
[2025] NZHC 821
BETWEEN ASHOR CHRISTIAN GORGUS
Applicant
AND
THE ATTORNEY-GENERAL
Respondent
Hearing: 7 April 2025 Appearances:
D J Dufty for the Applicant
H T Reid for the Respondent and NZ Police, a non-party
Judgment:
8 April 2025
JUDGMENT OF ASSOCIATE JUDGE COGSWELL
This judgment was delivered by me on 8 April 2024 at 3.30 p.m. pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date.......................................
Solicitors:
Meredith Connell, Auckland D Dufty, Auckland
GORGUS v ATTORNEY-GENERAL [2025] NZHC 821 [8 April 2025]
Introduction
[1] The plaintiff alleges mistreatment, breaches of Department of Corrections (Corrections) protocols and deprival of rights in breach of the New Zealand Bill of Rights Act 1990 as a result of an alleged assault by Corrections staff on the plaintiff and his subsequent segregation at Rimutaka Prison.
[2] It is not in dispute that the plaintiff was the subject of a use of force incident at Rimutaka Prison on 6 August 2020 (the incident) and that he was subsequently segregated until 8 September 2020 (the segregation).
[3] The issues are whether the defendant, on behalf of Corrections, knew of the plaintiff’s pre-existing brain injury, what steps were taken by Corrections to protect the plaintiff from those effects whilst incarcerated and what occurred on and after the date of the alleged assault on 6 August 2020, including during his segregation.
[4] The plaintiff has made two applications, one for particular discovery from the defendant, the Attorney-General, and one for non-party discovery against the New Zealand Police.
Approach to particular discovery
[5] The principles relating to an application for particular discovery are well known. Rule 8.19 of the High Court Rules 2016 (the Rules) provides:
8.19 Order for particular discovery against party after proceeding commenced
If at any stage of the proceeding it appears to a Judge, from evidence or from the nature or circumstances of the case or from any document filed in the proceeding, that there are grounds for believing that a party has not discovered
1 or more documents or a group of documents that should have been discovered, the Judge may order that party-
(a)to file an affidavit stating-
(i)whether the documents are or have been in the party's control; and
(ii)if they have been but are no longer in the party's control, the party's best knowledge and belief as to when the documents
ceased to be in the party's control and who now has control of them; and
(b)to serve the affidavit on the other party or parties; and
(c)if the documents are in the person's control, to make those documents available for inspection, in accordance with rule 8.27, to the other party or parties.
[6] The Court must consider whether it is in the interests of justice to order the particular discovery sought in light of its relevance or materiality to the issues in the proceeding, having regard to the proportionality and cost of the particular discovery.1
[7] The Court usually follows a four-stage approach in considering an application under r 8.19:2
(a)Are the documents sought relevant, and if so how important will they be (a criterion described as "materiality")?3
(b)Are there grounds for belief that the documents sought exist? This will often be a matter of inference. How strong is that evidence?4
(c)Is discovery proportionate (balancing the time and cost of discovery against the potential value of discovery)?5
(d)Weighing and balancing these matters, in the Court's discretion applying r 8.19, is an order appropriate?
The particular discovery application
[8] The original application filed by the plaintiff sought a range of documents over a wide time period.
1 Beverley v DC One H1 Ltd [2024] NZHC 3363 at [5]–[7].
2 Initially outlined in Assa Abloy New Zealand Ltd v Allegion (New Zealand) Ltd [2015] NZHC 2760 at [14], and subsequently widely accepted, for example in Lighter Quay Residents’ Society Inc v Waterfront Properties (2009) Ltd [2017] NZHC 818 at [16].
3 Robert Jones Holdings Ltd v McCullagh [2016] NZHC 2529.
4 See Assa Abloy (above) at [5]: “The threshold embodied in ‘grounds for belief’ is not that high.”
5 Southland Building Society v Barlow Justice Ltd [2013] NZHC 1125 at [17].
[9] Following receipt of the application the defendant undertook further document searches and filed an affidavit from a Corrections employee, Tara Elizabeth Helm, outlining the further searches undertaken, the result of those searches and giving discovery of a further tranche of documents.
[10] This, together with conferral of counsel ahead of the hearing, led to the outstanding discovery being significantly reduced and refined.
[11]What is now sought by the plaintiff is:
(a)complaints filed by the plaintiff between 28 January 2020 to the end of his segregation period on 8 September 2020 (complaints);
(b)all available emails about the plaintiff relating to the incident of 6 August 2020 and subsequent segregation in August and September 2020 (emails);
(c)all available prison inspectorate records (whether provisional or otherwise) in relation to the incident of 6 August 2020 and the segregation of the plaintiff during his time in Rimutaka Prison in 2020 (inspectorate reports).
Complaints
[12] The complaints the subject of this category of documents are referred to as “PC.01 complaints”, meaning “Prisoner Complaint forms”. They are formal written complaints by a prisoner to Corrections. It is agreed that this category of documents sought are PC.01 complaints.
[13] The defendant has already disclosed a number of PC.01 complaints made by the plaintiff against Corrections, both in the defendant’s affidavit of documents and in the affidavit of Ms Helm.
[14] The earliest date of a PC.01 complaint discovered by the defendant is 5 August 2020.
[15] In discussion with counsel, whose cooperation at the hearing today is noted, the plaintiff’s request for particular discovery of PC.01 complaints was refined to an inquiry for any PC.01 complaint made from the date of the plaintiff’s incarceration until the date of the incident – that is, from 28 January 2020 to 6 August 2020.
[16] I confine the request further to include just PC.01 complaints made that mention or refer to the plaintiff’s brain injury. That is because the allegation is that Corrections knew of the plaintiff’s brain injury and so should have been on notice of that and taken especial care of him.
[17] This refinement to the scope of discovery meets the relevance test, as Corrections’ knowledge of the plaintiff’s existing brain injury is a relevant issue for trial.
[18] The confinement of the period of inquiry from 28 January 2020 to 6 August 2020 ensures that the discovery inquiry is proportionate.
[19] Accordingly, the Attorney-General is ordered to search for and discover any PC.01 complaints from the plaintiff that mention or refer to the plaintiff’s existing head injury in the period 28 January 2020 to 6 August 2020.
Emails
[20] The Attorney-General has already undertaken some detailed searching of email records to locate emails about the incident and the segregation. Ms Helms’ affidavit addresses the steps taken, as does a further affidavit filed by Aksharee Ramsaha Joaheer.
[21] Emails that relate to or address the incident and the segregation are relevant to the issues raised by the pleadings. However, a Corrections-wide unfocused search for any email mentioning the plaintiff’s name is disproportionate and onerous.
[22] Counsel’s identification of involved individuals from other disclosed documents meets the requirement to lay an evidential foundation for a belief that such documents exist.
[23] In discussion with counsel, some particular individuals whose email records should be searched were identified. They are:
(a)Paul Livingston;
(b)Jan Constantino;
(c)Junior Telea;
(d)Sue Abraham.
(the identified individuals)
[24] The period during which that search is to be undertaken is the period 6 August 2020 to 8 September 2020.
[25] The defendant is ordered to search for and discover any emails from or to the identified individuals relating to the incident and the segregation in the period 6 August 2020 to 8 September 2020.
[26] In addition, the defendant is ordered to undertake a forensic search of Ms Helm’s emails to search for and discover any emails relating to the incident and the segregation. Ms Joaheer’s affidavit deposes to such a search being possible and given that any emails discovered may be relevant and the confined search proportionate, I order that it also be undertaken.
Inspectorate reports
[27] The defendant’s position on this category of documents is that such reports do not exist.
[28] The defendant has discovered correspondence from the Office of the Inspectorate to the plaintiff that, I am told, confirm to the plaintiff that he must undertake a different process before he is able to approach the Office of the Inspectorate directly with complaints.
[29] Ms Helm’s affidavit records that they cannot easily confirm if there are records relating to the incident and the segregation. Ms Helm deposes that they are continuing to search for any relevant reports.
[30] For the plaintiff, counsel advises that the expression “reports” is intended to be interpreted broadly as being any communication to or from the Prison Inspectorate, and that the plaintiff recalls that he thinks he made such a complaint to the Prison Inspectorate such that a report will have been generated.
[31] Without more, I am unable to determine that there are grounds to believe that the documents sought exist. In the absence of some evidential foundation for a belief that inspectorate reports exist, I will not insist on Corrections undertaking the further broad unfocused search that would be required by making an order that the inspectorate reports be discovered.
[32] Accordingly, I decline the application for particular discovery of the inspectorate reports. Of course, should such reports be subsequently discovered, and be relevant, they should be disclosed.
Non-party discovery against NZ Police
[33] Rule 8.21 enables the Court to order discovery against a non-party if there are grounds for a belief that a non-party has or had documents that would be discoverable if the person was a party. Issues of relevance and proportionality apply.
[34] An order against a non-party must be necessary, in the sense that “other sources of evidence are unlikely to be sufficient because they are materially incomplete or unreliable. And that the documents sought may make a real difference and are not merely marginal.”6
[35] The Police prosecuted the prison officer involved in the incident. That prosecution did not result in a conviction. The plaintiff seeks the Police file relating to the prosecution.
6 Vector Gas Contracts Ltd v Contact Energy Ltd [2014] NZHC 3171 at [30]
[36] It is the Police position that they have fully complied by making their prosecution file available to the defendant in full.
[37] The defendant has reviewed the prosecution file and made available a list of those documents it considers relevant to the incident and the segregation to the plaintiff. The plaintiff is unsatisfied with that process and seeks non-party discovery against the New Zealand Police.
[38] The defendant acknowledges that it has not discovered some of the documents on the Police prosecution file, and the explanation for that is that the file contains documents relating to a wider investigation of criminality at Rimutaka Prison which are not relevant to the plaintiff’s pleaded claims, and so have not been discovered.
[39] In order to satisfy the plaintiff’s concerns, the following process is to be adopted:
(a)the defendant is to prepare a supplementary list of documents listing all documents on the Police file, including documents it considers are not discoverable on confidentiality or other identified grounds;
(b)the Attorney-General and the Police will file a joint memorandum confirming, in the case of the Police, that it has given full discovery of the Police prosecution file and that the documents listed in the supplementary list of documents are the documents the Police provided to the defendant for review.
Result
[40]Within 20 working days the Attorney-General is ordered:
(a)to search for and discover any PC.01 complaints from the plaintiff that mention or refer to the plaintiff’s existing head injury in the period 28 January 2020 to 6 August 2020;
(b)to search for and discover any emails from or to the identified individuals relating to the incident and the segregation in the period 6 August 2020 to 8 September 2020;
(c)to undertake a forensic search of Ms Helm’s emails to search for and discover any emails relating to the incident and the segregation;
(d)to prepare a supplementary list of documents listing all documents on the Police file, including documents it considers are not discoverable on confidentiality or other appropriate grounds;
(e)to file a joint memorandum, with the Police, confirming that the Police have given full discovery of the Police prosecution file and that the documents listed in the supplementary list of documents are the documents the Police provided to the defendant for review.
[41] As both parties have enjoyed a degree of success in relation to their respective positions on these applications, my initial view is that costs should lie where they fall.
[42] However, should any party seek costs, then the party claiming costs is to file a memorandum of no more than five pages which is to be responded to by the other party with a memorandum not exceeding five pages, to be filed in response within five working days. Costs issues will be determined on the papers.
[43] I make no order as to costs in favour of the plaintiff in relation to his application for non-party discovery against the New Zealand Police.
Associate Judge Cogswell
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