Henderson v Attorney-General - [2016] NZHC 1258

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 Defendant

Judgment:

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…

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 Henderson v Attorney-General

Details

AGLC: Henderson v Attorney-General [2016] NZHC 1258
Case: [2016] NZHC 1258
Decision Date: 10 June 2016

CaseChat Overview and Summary

The case of Henderson v Attorney-General [2016] NZHC 1258 concerns a claim by Mr Henderson against the Attorney-General, alleging that employees and agents of the Ministry of Economic Development violated section 21 of the New Zealand Bill of Rights Act 1990 by obtaining, viewing, and disseminating private information and records belonging to Mr Henderson in 2011. The personal materials in question were obtained when Mr Henderson’s laptop computer was seized by police and subsequently provided to the Official Assignee’s office during Mr Henderson’s bankruptcy proceedings.

The primary legal issues in this case revolved around the admissibility of Mr Henderson’s evidence, particularly the objections raised by the Attorney-General. The objections included claims that portions of Mr Henderson’s evidence were irrelevant, constituted inadmissible opinion evidence, were hearsay, or were points of submission. The court had to determine whether these identified passages should be excluded based on the grounds of irrelevance, inadmissible opinion evidence, inadmissible hearsay evidence, or inadmissible points of submission under the Evidence Act 2006.

The court addressed each objection in turn. Regarding hearsay, the court found that certain statements recounted by Mr Henderson about a journalist and Mr Walker were not testimonial in nature but were instead part of the narrative explaining the circumstances prompting Mr Henderson’s enquiries. However, these statements could not be relied on to prove the truth of their contents. The court also ruled on opinion evidence, finding that several paragraphs contained inadmissible opinion evidence that should be excluded. For example, statements expressing Mr Henderson’s opinions about Mr Walker’s motivations and the propriety of actions taken by the Official Assignee and Mr Slevin were deemed inadmissible. Furthermore, the court ruled that certain paragraphs contained matters of submission rather than factual evidence and were therefore also inadmissible.

The most contested issue was relevance. The Attorney-General argued that evidence about the criminal charges laid against Mr Henderson in 2013, more than two years after the seizure of his laptop, was irrelevant to the 2011 actions. The court agreed, ruling that the evidence about subsequent events lacked a proper foundation in the pleadings and would unduly prolong the proceedings. Consequently, paragraphs 49 to 51, which included these allegations, were ruled inadmissible.

In summary, the court ruled that several portions of Mr Henderson’s evidence were inadmissible, including specific sentences and paragraphs that were irrelevant, contained opinion evidence, or were hearsay or points of submission. The application by the Attorney-General was almost entirely successful, and an amended brief of Mr Henderson’s evidence was to be served on the first defendant by 17 June 2016, excluding the inadmissible parts.

Orders