Hager v Attorney-General - [2018] NZHC 1017

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE

CIV-2014-485-11344 [2018] NZHC 1017

UNDER
the Judicature Amendment Act 1972, Part 30

of the High Court Rules, the Bill of Rights Act 1990, and the Search and Surveillance Act 2012

IN THE MATTER

of an application for judicial review

AND IN THE MATTER

of a search warrant issued by Judge
I M Malosi of the Manukau District Court on
30 September 2014

BETWEEN

NICOLAS ALFRED HAGER Applicant

AND

HER MAJESTY’S ATTORNEY-GENERAL First Respondent

THE NEW ZEALAND POLICE Second Respondent

THE MANUKAU DISTRICT COURT Third Respondent

CIV-2016-485-203

UNDER the Bill of Rights Act 1990

INTHE MATTER of production orders issued by unknown issuing officers on 22 and 29 October 2014

BETWEEN NICHOLAS ALFRED HAGER Plaintiff

ANDHER MAJESTY’S ATTORNEY- GENERAL
First Defendant

THE NEW ZEALAND POLICE Second Defendant

NICOLAS ALFRED HAGER v HER MAJESTY’S ATTORNEY-GENERAL [2018] NZHC 1017 [10 May 2018]

Hearing: 7 May 2018

Counsel:

F E Geiringer for Applicant/Plaintiff
B J Horsley and Z A Fuhr for Respondents/Defendants

Judgment:

10 May 2018

JUDGMENT OF THOMAS J (DISCOVERY AND DISCLOSURE)

[1] On 2 October 2014, the second defendant/respondent, the New Zealand Police, obtained a search warrant for, and executed the warrant at, the home address in Wellington of the plaintiff/applicant, Nicholas Hager. In December 2015, Clifford J ruled, as a result of Mr Hager’s application for judicial review, that the warrant and search were fundamentally unlawful. Questions relating to the lawfulness of the information inquiries undertaken by the police and the question of damages for a breach of the New Zealand Bill of Rights Act 1990 (NZBORA), both of which had been claimed by Mr Hager, were deferred pending a substantive hearing which is scheduled to commence on 18 June 2018 (the first proceeding).1

[2] In the meantime, Mr Hager has commenced a second claim under NZBORA relating to production orders and other investigations undertaken by the police in relation to Mr Hager (the second proceeding).2 He seeks declarations that their actions were unlawful and amounted to an unreasonable search and seizure under NZBORA, orders that all information unlawfully obtained as a result be destroyed, general damages and exemplary damages. The second proceeding will also be heard at the fixture commencing 18 June 2018.

[3] Mr Hager is an investigative journalist. The actions complained of by him stem from his authorship of the book Dirty Politics: How Attack Politics is Poisoning New Zealand’s Political Environment (Dirty Politics), published in August 2014 during the general election campaign of that year. He had been supplied with a USB

1 CIV-2014-485-1134.
2 CIV-2016-485-203.

stick containing “thousands of documents” which appeared to have originated from an attack hacking into the Whale Oil website. Indeed, Mr Hager publicly acknowledged he was aware material had been hacked from the computer of the author of that website, Cameron Slater. The hacker was personally known to Mr Hager, as was the person who had provided the material to him.…

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.

Continue reading Hager v Attorney-General

Details

AGLC: Hager v Attorney-General [2018] NZHC 1017
Case: [2018] NZHC 1017
Decision Date: 10 May 2018

CaseChat Overview and Summary

In Hager v Attorney-General, Nicholas Hager, an investigative journalist, sought declarations that the police had breached their obligations to him under the Official Information Act 1982 and Privacy Act 1993. Hager also sought orders for the police to comply with those obligations. The police had previously been found to have breached Hager's rights under the New Zealand Bill of Rights Act 1990 when they searched his home. Hager's claims in relation to the Official Information Act and Privacy Act were heard in the context of a substantive hearing which was scheduled to commence on 18 June 2018. The court considered whether the police had breached an alleged undertaking to comply with Hager's requests under the Official Information Act and Privacy Act. The court found that the alleged undertaking was not given. The court also found that Hager had been provided with information to which he was entitled under the Official Information Act and Privacy Act. The court further found that the police had complied with discovery orders, although some legitimate criticism could be levelled at the way in which the police had attended to discovery. The court found that a declaration of non-compliance with discovery orders was not appropriate. The court also found that the police had complied with their discovery obligations and ordered the police to provide a complete set of all documents discovered since the previous confidentiality rulings. The court reserved costs pending the conclusion of the substantive hearing.

Orders