Henderson v Attorney-General
[2016] NZHC 1258
•10 June 2016
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV-2014-409-000045 [2016] NZHC 1258
BETWEEN DAVID IAN HENDERSON
Plaintiff
AND
ATTORNEY-GENERAL First Defendant
AND
ROBERT BRUCE WALKER Second Defendant
Hearing: 8 June 2016 (By way of telephone conference) Appearances:
Plaintiff in person
S M Kinsler and S K Shaw for First DefendantJudgment:
10 June 2016
Reissued:
22 June 2016
JUDGMENT OF DUNNINGHAM J On claim v Attorney-General
[1] Mr Henderson’s claim against the Attorney-General in these proceedings alleges that employees and agents of the Ministry of Economic Development were in breach of s 21 of the New Zealand Bill of Rights Act 1990, when, in 2011, they obtained, viewed and disseminated private information and records belonging to Mr Henderson. The personal materials in question were obtained when Mr Henderson’s laptop computer was seized by police and then provided to the
Official Assignee’s office in the course of Mr Henderson’s bankruptcy.
HENDERSON v ATTORNEY-GENERAL [2016] NZHC 1258 [10 June 2016]
[2] The claim is scheduled for hearing on 4 July 2016. Mr Henderson provided his brief of evidence on 11 April 2016. On receipt of the evidence, lawyers for the Attorney-General promptly advised the Court that Mr Henderson’s brief of evidence did not, in their view, comply with r 9.7 of the High Court Rules. The key complaints were that it contained inadmissible and irrelevant material, as well as matters of submission.
[3] Their memorandum to the Court recorded that the Attorney-General intended to notify Mr Henderson of the objections pursuant to r 9.11. Rule 9.11 provides that any challenge to the admissibility of a brief must be notified within 20 working days after receipt of the brief and, if the issue is not resolved between the parties in a further 10 working days, the challenging party must then give notice to the Court that there is an admissibility issue. Given the proximity of the hearing, the Attorney-General sought orders under r 1.19 abridging the timeframe for such challenges.
[4] At a subsequent telephone conference, I made timetabling directions which abridged the timeframes for dealing with the admissibility issues. They required:
(a) the first defendant to give notice to Mr Henderson of the objections to the admissibility of his brief of evidence by Friday, 29 April 2016;
(b)the parties were to confer and seek to resolve the admissibility issues by 6 May 2016; and
(c) if the issues could not be resolved, the defendant had to then notify the Court and the admissibility issues could be dealt with by way of telephone conference.
[5] A few issues were resolved informally but the majority were not. As a result, a telephone conference was convened on 8 June 2016, where I heard submissions from the parties on the Attorney-General’s challenges to admissibility. This decision sets out my rulings on the issues raised.
The objections
[6] The Attorney-General’s objections to the plaintiff’s proposed evidence are
made on the grounds that:
(a) various portions of the proposed evidence are irrelevant;
(b) various portions of the proposed evidence are opinion evidence; (c) various portions of the proposed evidence amount to hearsay; and (d) various statements are matters of submission.
[7] The Attorney-General sought rulings from the Court that the identified portions of Mr Henderson’s proposed evidence, as set out in a table of objections attached to his submissions, were inadmissible and would not be read out at trial.
[8] The Attorney-General’s particular concern was as to the extent of evidence he needed to adduce in response, if the material which he considered was irrelevant, or otherwise inadmissible, was adduced at hearing. In particular, Mr Kinsler noted that:
… the dispute is a confined one turning on the lawfulness and reasonableness for the purposes of s 21 of the New Zealand Bill of Rights Act 1990, of the first defendant’s exercise of s 171 of the Insolvency Act
2006 to require the production of documents. The plaintiff has provided a single brief of evidence from himself. The first defendant proposes to call
one witness, Mr Grant Slevin, who made the s 171 request in question. The remaining key facts should be capable of agreement. The wider facts and
assertions the plaintiff is now making in his brief of evidence are unsupported by the pleadings and irrelevant.
[9] The issues to be determined are whether the identified passages should be excluded on the basis that they:
(a) are irrelevant in breach of s 7 of the Evidence Act 2006 (the Act); (b) are inadmissible opinion evidence under s 23 to 25 of the Act;
(c) are inadmissible hearsay evidence under ss 17 to 20 of the Act; or
(d)are inadmissible points of submission in contravention of High Court r 9.7(4)(d).
[10] It is most convenient to discuss each admissibility issue in turn, with direct reference to the relevant parts of the brief in question.
Hearsay evidence
[11] A hearsay statement is defined in s 4 of the Act as being a statement that is made by a person other than a witness and is offered in evidence at the proceeding to prove the truth of its contents.
[12] As explained in Cross on Evidence:1
The mere fact that evidence of a witness includes evidence as to words spoken by another person who is not called on is no objection to its admissibility. … If the speaking of words is a relevant fact, a witness may give evidence that they were spoken. A question of hearsay only arises when the words are relied on “testimonially” ie as establishing some fact narrated by the words.
[13] The first challenge to Mr Henderson’s brief of evidence relates to paragraph
30 where he recounts that in May 2011 he was contacted by a journalist from the National Business Review. That journalist is said to have told Mr Henderson about contact he had had from Mr Robert Walker, the liquidator of certain companies Mr Henderson was involved in, saying he had seen interesting personal material on Mr Henderson’s computer. Mr Henderson concludes “I was deeply concerned about this”, and then goes on to say that this prompted a chain of enquiry by him, including raising the issue with Police, and contacting the Official Assignee.
[14] In my view, this is not evidence of a testimonial nature. Rather, it is evidence given by way of background to explain what prompted Mr Henderson to make the enquiries that he did about whether personal material from his laptop was being retained and accessed. In my view, this is a logical part of the narrative of
Mr Henderson’s evidence as it describes what triggered his concerns and enquiries.
1 Mathew Downs and Others (eds) Cross on Evidence (online looseleaf ed, LexisNexis) at EVA
17.5.
It cannot, however, be relied on by Mr Henderson to prove the truth of its contents, as neither the journalist, nor Mr Walker are intended to be called as witnesses and cross-examined on whether such statements were in fact true. The objection to paragraph 30 is therefore not upheld, but on the basis that the evidence is not to be used testimonially.
[15] These parts of the evidence are also challenged on the basis they are not relevant evidence and I will deal with them under that head of objection.
Opinion evidence
[16] Many of the objections were advanced on the basis that the evidence comprised statements of Mr Henderson’s opinion, as opposed to factual evidence about what occurred, and therefore breached the constraints on admitting opinion evidence contained in s 23 of the Act.
[17] Section 23 itself sets out the general prohibition on opinion evidence. Such evidence may be allowed, under s 24, if the opinion is “necessary to enable the witness to communicate, or the fact-finder to understand, what the witness saw, heard, or otherwise perceived”. It may also be allowed where it is an expert opinion proffered under s 25, but clearly that exception is not relevant in the present case.
[18] Parts of paragraph 34 relate an opinion of a journalist which was conveyed to Mr Henderson by telephone. They are therefore both hearsay and opinion evidence, and are not salvageable on any other grounds. The sentence beginning “He was appalled by what had gone on …” is therefore inadmissible and is to be deleted. The next sentence beginning “He undertook …” can remain, as it simply narrates Mr Henderson’s recollection of what the journalist told him he would do next.
[19] The next paragraph is objected to is paragraph 35. It makes reference to a transcript of a conversation recorded between Mr Walker and the journalist. Mr Henderson says “I produce a copy of that transcript. The transcript itself is self-explanatory”. That part of the evidence is factual, although without knowing the content of it, I cannot determine its relevance and of course it is hearsay if it is relied
on as to the truth of its contents. With the caveat that the content of the transcript itself may be inadmissible, I see no reason to exclude those three sentences.
[20] However, the balance of the paragraph sets out Mr Henderson’s opinion about Mr Walker’s motivations, including statements such as “Mr Walker harbours deep enmity towards me”, and “Mr Walker had contempt for the Privacy Act and for my rights to privacy”. I rule the balance of this paragraph to be inadmissible opinion evidence.
[21] In paragraph 38, the fourth sentence is objected to. It states Mr Henderson’s conclusions as to what Mr Walker had or had not communicated to the police. Again, I accept that this is opinion evidence. The fourth sentence of paragraph 38 is ruled inadmissible.
[22] The third sentence of paragraph 39 reads: “I consider that Mr Slevin was very cavalier about this”. Again this is clearly opinion evidence and I rule it inadmissible.
[23] The third sentence of paragraph 41 reads “That is because I co-operated fully and voluntarily with every request for information by the Official Assignee”. I accept that Mr Henderson is entitled to give evidence about his level of compliance with requests for information made by the Official Assignee. Although it would have been preferable to demonstrate this by setting out examples of his compliance instead of simply stating his conclusion as to his level of compliance, it is an assertion that can be tested through cross-examination if it is relevant and I decline to rule it inadmissible.
[24] The next challenge is to paragraph 42, where Mr Henderson sets out his views on the propriety of the actions of the Official Assignee and Mr Slevin when accessing the contents of his personal computer. I accept that this is opinion, and is a matter more appropriately raised in submissions based on the evidence presented. Accordingly, I rule this paragraph inadmissible.
[25] In paragraph 44, the objection is to the word “reluctantly” in the sentence “Mr Slevin reluctantly engaged with me in respect of these issues”. I accept the proper course would be to set out the factual circumstances of Mr Slevin’s engagement so that, in submissions, the view that the engagement was “reluctant” could be explained. However, as for paragraph 41 discussed above, I consider that is the counsel of perfection. Bearing in mind that Mr Henderson is a lay litigant, I do not consider this phrase is so objectionable that it should be excised. If the willingness of Mr Slevin’s engagement is relevant, it can be explored in cross-examination.
[26] The last challenge under this head is to the sentence in paragraph 52 which reads “I consider that Mr Slevin deliberately left this material out of his response to my request”. That is clearly an opinion which should be excluded. If the evidential foundation for such an opinion is revealed in evidence, then it is a matter that can be stated in submissions. This sentence is ruled inadmissible.
Submission evidence
[27] Some paragraphs were objected to on the basis they contained matters of submission and therefore should be excluded to ensure the brief complies with the requirements of the High Court Rules. That is, of course, a common difficulty when lay litigants prepare evidence, when their role as witness and as advocate is often blurred.
[28] I accept there are several paragraphs which make submissions rather than set out the facts of what occurred and therefore should be excluded from the brief of evidence. Some of these, such as paragraph 42, have already been ruled inadmissible as opinion evidence. The evidence I rule as inadmissible because it makes submissions rather than gives evidence, is the second sentence of paragraph 52 and all of paragraph 54.
Relevance
[29] The most contested matters related to the question of relevance. Section 7 of the Act sets out the fundamental principle that evidence must be relevant and that:
(2) Evidence that is not relevant is not admissible in a proceeding.
[30] While the threshold for admissibility in s 7(3) is low,2 admissibility of marginally relevant evidence will also be tempered by consideration of s 8 of the Act which provides that a judge must exclude evidence if its probative value is outweighed by the risk that the evidence will have an unfairly prejudicial effect on the proceeding or will needlessly prolong the proceeding.
[31] The evidence which is said to be irrelevant is evidence about the fact the criminal charges were laid against Mr Henderson by the Official Assignee in 2013 along with statements alleged to have been made by employees and agents of the Ministry suggesting they had improper motives for doing so.
[32] The Attorney-General argues that the circumstances in which the criminal charges were laid, more than two and a half years after the seizure of the laptop, were of no relevance to whether the actions taken in relation to Mr Henderson’s computer records were in breach of the rights under s 21 of the New Zealand Bill of Rights Act. Furthermore, Mr Kinsler says there is nothing in the pleadings which provides a foundation for arguing that this evidence is relevant. Given the evidence has a “conspiratorial flavour” to it and is intended to suggest that officials acting on behalf of the Ministry, and lawyers acting on behalf of the prosecution, have acted in bad faith in these subsequent stages in the administration of Mr Henderson’s bankruptcy, there is a strong onus on Mr Henderson to particularise in his pleadings why these allegations are relevant.
[33] This requirement was discussed in Commissioner of Inland Revenue and Chesterfields Preschools Ltd,3 where, in the context of considering an application to strike out pleadings, the Court observed that where allegations in the nature of misfeasance in public office are made, there is a particular onus on the plaintiff to identify, with some rigour and specificity, all elements of the cause of action so that
the defendant can respond to those pleadings. In such circumstances it was
2 Wi v R [2009] NZSC 121, [2010] 2 NZLR 11 at [8].
3 Commissioner of Inland Revenue and Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2
NZLR 679.
important that “both the Court and the defendant parties should have a clear
understanding of what is being alleged and against whom”.4
[34] Mr Kinsler’s concerns regarding the evidence Mr Henderson proposes to give about events which occurred in late 2013 and early 2014, is that it is entirely unclear from the pleadings how those events are relevant to the pleaded breach of the New Zealand Bill of Rights Act, and therefore whether the Attorney-General will be required to call further witnesses to refute the allegations which seem to be being made about the subsequent prosecution of Mr Henderson being pursued for an ulterior motive.
[35] At present, the Attorney-General plans to call Mr Slevin, as its sole witness, to explain the circumstances in which the laptop containing the information Mr Henderson says was wrongly retained and copied, to refute the allegations that this action was not authorised under s 171 and was unreasonable. If the allegations are to expand to include actions taken some two and a half to three years later, involving a range of other individuals, that would significantly expand the issues to be determined in the hearing, without there being a proper foundation in the pleadings for doing so. Mr Kinsler says the evidence which raises these allegations should therefore be ruled inadmissible on the basis it is irrelevant to the matters pleaded and, even if tangentially relevant, its probative value is vastly outweighed by the prejudicial effect it would have on the proceedings, including to unduly prolong the proceedings.
[36] Mr Henderson, however, says the evidence is relevant to the motivation of the Official Assignee’s lawyer, Mr Slevin and tends to suggest that his role in accessing, copying and/or retaining the personal material contained on Mr Henderson’s computer, was improper and therefore unreasonable. It also goes to the credibility of Mr Slevin who, he reminds me, is an officer of the Court. Furthermore, the allegation that the Official Assignee apologised for Mr Slevin’s behaviour in 2014, which Mr Henderson refers to in paragraph 52 of his evidence, is, in Mr Henderson’s submission, symptomatic of the issues which underlie the
obtaining of his personal records from the computer.
4 Commissioner of Inland Revenue and Chesterfields Preschools Ltd, above n 3, at [87].
[37] The entirety of paragraphs 49, 50 and 51 are objected to on the basis that they lack relevance (as well as because they contain some elements of hearsay and submission). These paragraphs include an allegation that the prosecuting lawyer told Mr Henderson that the purpose for laying the criminal charges was to support the Assignee’s objection to his discharge from bankruptcy, and an allegation that emails he obtained under the Privacy Act and Official Information Act revealed that “several of the officers in the Insolvency Service, including Mr Slevin, were congratulating themselves on having laid the criminal charges against him”.
[38] The connection of these allegations to the allegations about the claimed unreasonableness of the search and retention of his personal information in 2011 is not articulated in the pleadings. I am therefore unable to discern how the subsequent decision to lay charges against Mr Henderson (which was made with, it appears, the input of a number of officers in the Insolvency Service and progressed with the assistance of the solicitors holding the Crown warrant in Christchurch), bears any relevance to the actions of Mr Slevin in obtaining, and subsequently dealing with any personal information held on Mr Henderson’s laptop in 2011. It appears to be adduced on the basis that it shows something of a propensity by Mr Slevin and others to act without impartiality to Mr Henderson. However, even if it was sought to introduce the evidence on this basis I would rule it inadmissible relying on s 8 considerations.
[39] If I allowed this evidence in, it would open the first defendant up to ill- defined and vague allegations of bad faith by a number of officers in the Insolvency Service and by the lawyers acting for it, which would take considerable effort to rebut because of their lack of particularisation and which would quite unjustifiably prolong the proceedings, when they have no or marginal relevance to the issue in dispute.
[40] I am therefore satisfied, by some margin, that the material in paragraphs 49 to
51 are simply not relevant to the pleaded allegations and are therefore ruled
inadmissible, even without considering the elements of hearsay and submission in them.
[41] As a consequence, the reference, in paragraph 52, to the Chief Executive apologising for unprofessional behaviour by his staff is equally irrelevant. The lack of professionalism is not demonstrably connected, via the pleadings, to the events in
2011 which formed the substance of the allegations. It, too, is ruled inadmissible.
Outcome
[42] In summary therefore, the following portions of Mr Henderson’s evidence are
ruled inadmissible:
(a) the second sentence of paragraph 34;
(b) paragraph 35 from the fourth sentence onwards; (c) the third and fourth sentence in paragraph 38; (d) the third sentence in paragraph 39;
(e) paragraph 42;
(f) paragraphs 49 to 51; (g) paragraph 52;
(h) paragraph 54.
[43] The application by the Attorney-General has been almost entirely successful. Even where I have declined to rule the evidence inadmissible, I have acknowledged that it has shortcomings. Costs would normally follow the event although, as I have not heard from the parties, the issue is reserved.
[44] An amended brief of the plaintiff’s evidence, which removes all parts which have been ruled inadmissible, is to be served on the first defendant by 17 June 2016.
Solicitors:
Meredith Connell, Wellington
Luke Cunningham Clere, Wellington
Copy to: Mr D I Henderson, Christchurch
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