Gorgus v Attorney-General - [2025] NZHC 821

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NZHC 821
Decision Date: 8 April 2025

CaseChat Overview and Summary

The High Court of New Zealand heard an application for particular and non-party discovery brought by Ashor Christian Gorgus against the Attorney-General and the New Zealand Police. Gorgus alleged 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 him and his subsequent segregation at Rimutaka Prison. The issues in the case were whether the defendant 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. The plaintiff made two applications, one for particular discovery from the defendant, the Attorney-General, and one for non-party discovery against the New Zealand Police.

The Court considered the principles relating to an application for particular discovery, which requires that the documents sought are relevant and material to the issues in the proceeding, there are grounds for belief that the documents sought exist, and discovery is proportionate. The Court also considered the application for non-party discovery, which requires that the documents sought are necessary and relevant, and other sources of evidence are unlikely to be sufficient.

In relation to the particular discovery application, the Court ordered the Attorney-General 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, 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, and to undertake a forensic search of Ms Helm’s emails to search for and discover any emails relating to the incident and the segregation. The Court declined the application for particular discovery of the inspectorate reports, as there was no evidential foundation for a belief that such reports exist.

In relation to the non-party discovery application, the Court ordered the Attorney-General 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, and 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. The Court made no order as to costs in favour of the plaintiff in relation to his application for non-party discovery against the New Zealand Police.

The Court ordered the Attorney-General within 20 working days 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, 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, to undertake a forensic search of Ms Helm’s emails to search for and discover any emails relating to the incident and the segregation, 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, and 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. The Court made no order as to costs in favour of the plaintiff in relation to his application for non-party discovery against the New Zealand Police.

Orders