K H N BERRYMAN AND M BERRYMAN AND HER MAJESTY’S SOLICITOR- GENERAL FOR NEW ZEALAND AND T SCOTT Hearing: 3 November 2004
[2004] NZHC 1221
•3 November 2004
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2003-485-1041
BETWEEN K H N BERRYMAN
First Plaintiff
AND
M BERRYMAN
Second Plaintiff
AND
HER MAJESTY’S SOLICITOR- GENERAL FOR NEW ZEALAND
First Defendant
AND
T SCOTT
Second Defendant
Hearing:
3 November 2004
Appearances: Dr R Moodie for the Plaintiffs
K Murray for the First Defendant
No Appearance for the Second DefendantH Hancock and R Schmidt for the New Zealand Defence Force B Corkill as Amicus Curae
Judgment: 17 December 2004
JUDGMENT OF ASSOCIATE JUDGE D I GENDALL
Introduction
[1] This is an application by the plaintiffs for the Court to order the New Zealand Defence Force, which is not itself a named party to these proceedings, to make discovery of certain documents.
[2] This discovery application arises out of the plaintiffs’ application for judicial review first, of the coroner’s inquest into the death of Mr Kenneth Richards on or
K H N BERRYMAN And Anor V HER MAJESTY’S SOLICITOR-GENERAL FOR NEW ZEALAND And Anor HC WN CIV-2003-485-1041 [17 December 2004]
near the plaintiffs’ property, and secondly, of the Solicitor-General’s subsequent decision not to order a new inquest.
[3]The discovery application is opposed by the New Zealand Defence Force.
Background facts
[4] In January 1984 the plaintiffs entered into a lease agreement for a farm property, Te Rata Station in Retaruke, near Owhango. The plaintiffs subsequently purchased the property in 1988.
[5] Soon after taking residence at Te Rata, the plaintiffs realised that the property was difficult to access. Accordingly, in 1985 they decided to re-establish an old bridge, which was suspended over the lower Retaruke river, so as to provide direct access to the property.
[6] Having been refused assistance by the District Council, the plaintiffs approached the New Zealand Army to build the bridge for them free of charge. The Army agreed and the plaintiffs then formally engaged the New Zealand Army School of Military Engineering, which is part of the New Zealand Defence Force, to build the bridge. It was agreed that the plaintiffs would provide the building materials and obtain the necessary building approvals, and that the Engineering unit would supply the design, plans, and labour to build the bridge. The Engineering Unit did not receive any payment for its work, rather it was seen to be a training exercise.
[7] In February and March 1986, using second-hand, untreated Oregon timber purchased by the plaintiffs, the Engineering unit built a timber suspension bridge, (“the access bridge”), at the site of the old bridge. The New Zealand Defence Force contends that the plaintiffs’ decision to use second-hand untreated timber for the bridge was purely a cost-saving measure on their part. The plaintiffs, however, claim that a representative of the New Zealand Army had approved the use of the oregon timber for the bridge construction prior to their purchasing it. The new
bridge had a maximum load of 5 tonnes, and a maximum speed of 5 kilometres per hour.
[8] On 23 March 1986, the plaintiffs signed an Agreement of Satisfaction, which recorded their satisfaction with the materials, design and construction of the bridge, and acknowledged that they accepted full responsibility for it. According to the plaintiffs, the New Zealand Army had indicated that if the plaintiffs did not sign the agreement, the bridge would be removed.
[9] In January 1990, the plaintiffs agreed to allow a beekeeper, Mr Kenneth Richards, to access their property up to four times a year to tend to his beehives. On 22 March 1994, Mr Richards died when the utility truck he was driving fell through the access bridge.
[10] There were several incidents that arose out of Mr Richards’ accident. On 30 August 1994 the New Zealand Army convened a Court of Inquiry, which investigated, and subsequently produced a report into, the construction of the suspension bridge, and its eventual collapse.
[11] In 1996, charges were laid against the plaintiffs under sections 16 and 17 of the Health and Safety in Employment Act 1992 in relation to Mr Richard’s death, but they were later dropped.
[12] Additionally, in early 1997, the second defendant held a coroner’s inquest into Mr Richards’ death. The plaintiffs allege that despite requests made to it, the New Zealand Army refused to make available its report into the accident. However, members of the Army did give evidence at the inquest. On 20 June 1997, the coroner released his findings about the accident, after giving proper notice to the plaintiffs that these findings adversely reflected on them.
[13] The plaintiffs, in their Statement of Claim, describe the coroner’s key findings in the following way. The coroner found, first, that the plaintiffs were responsible for the inspection and maintenance of the bridge, and that they ought to have known that an upgrade was due. Second, that the access bridge had been
properly designed and constructed by the Army, such that the problem was with inadequate maintenance, for which the Army had no responsibility. Third, that Mr Richards did not contribute to his own death. Fourth, that the ultimate responsibility for maintaining the bridge lay with the plaintiffs, regardless of who actually owned the bridge and surrounding land, because it was built at their request, and for their benefit.
[14] The plaintiffs were dissatisfied with the coroner’s findings. They believe that the real cause of the accident was a serious flaw in the Army’s design and construction of the transoms, which gave way when Mr Richards drove over the bridge. In particular, the plaintiffs insist that the oregon timber which was used, and which according to them had earlier been expressly sanctioned by the Army, was unsuitable for the transoms, and that the transoms had not been waterproofed properly even though sufficient damp course had been provided to the Army for that very purpose. The plaintiffs have questioned whether the Army personnel were entirely honest at the coroner’s inquest.
[15] On 23 July 2001, the plaintiffs contacted the first defendant to request a new inquest into Mr Richards’ death, pursuant to s38(2) of the Coroners Act 1988. This was refused on the basis that there was no justification for undertaking a new inquest so many years after the completion of the first.
[16] On 10 June 2002, the Ombudsman ordered the New Zealand Army to publicly release its report concerning Mr Richards’ death, which had not been made available earlier to the plaintiffs and the coroner. The plaintiffs claim that the report contained substantial new evidence that was not available at the time of the inquest. For instance, they say it revealed that the bridge design was “unsatisfactory”, that the two transoms had not been made up properly, that the use of untreated Oregon timber was “unwise”, and that the bridge had not been properly inspected post- construction. Furthermore, the report seems to have concluded that Mr Richards’ car was travelling at 19kmh, which was almost four times the maximum speed.
[17] In light of the emergence of these facts, the plaintiffs again requested that the first defendant exercise its s 38 power to order a new inquest, or alternatively, that
the first defendant apply for such an order from the High Court, pursuant to s 40(3). Both applications were refused by the first defendant on the basis that there were no new material facts, and that an application under s 40 did not assist the plaintiffs any further.
[18] A few months later, in December 2002, the plaintiffs requested, for the third and final time, the first defendant to reconsider its position and order a new inquest. Again the first defendant refused, citing insufficient public interest.
[19] Accordingly, on 30 May 2003, the plaintiffs applied for a judicial review of the first defendant’s refusal to exercise its statutory power to order a new coroner’s inquest. The plaintiffs claim that the first defendant’s refusal breached the principles of natural justice and was unreasonable, and that the first defendant failed to take into account all relevant considerations, took into account irrelevant considerations, and made mistakes of fact. In that proceeding the plaintiffs seek a declaration that the first defendant’s decision is invalid, and an order quashing that decision and directing the first defendant to order a new inquest.
[20] The plaintiffs also seek a judicial review of the second defendant coroner’s findings on the following grounds. Namely, that the coroner breached the principles of natural justice, failed to take into account relevant considerations and took into account irrelevant considerations, made mistakes of fact, acted for an improper purpose, and that his findings were unreasonable. Again, the plaintiffs seek a declaration that the findings were incorrect, and an order that the findings be quashed and directing the coroner to reconsider the matter or order a new inquest.
Current application
[21] The plaintiffs have now applied (under an application dated 8 October 2003 headed “Interlocutory Application by Plaintiffs for Non-Party Discovery”) for an order from this Court directing the New Zealand Defence Force to make discovery of the transcript and notes of evidence from the Army Court of Inquiry in September 1994 and another report exhibited to the Army Inquiry Report written by an Army engineer.
[22] The plaintiffs rely on section 27(1)(b) of the Crown Proceedings Act 1950 as authorising the Court to order discovery against the Crown. It provides:
27 Discovery
(1)Subject to and in accordance with rules of Court,—
(a)In any [proceedings (other than criminal proceedings)] to which the Crown is a party or third party, the Crown may be required by the Court to answer interrogatories if the Crown could be required to do so if it were a private person of full age and capacity; and
(b)In any such proceedings as aforesaid the Crown may be required by the Court to make discovery of documents and produce documents for inspection if the Crown could be required to do so if it were a private person of full age and capacity:
Provided that this section shall be without prejudice to any rule of law which authorises or requires the withholding of any document or the refusal to answer any question on the ground that the disclosure of the document or the answering of the question would be injurious to the public interest.
…
(3)Without prejudice to the proviso to subsection (1) of this section, any rules made for the purposes of this section shall be such as to secure that the existence of a document will not be disclosed if—
(a) The Prime Minister certifies that the disclosure of the existence of that document would be likely to prejudice—
(i)The security or defence of New Zealand or the international relations of the Government of New Zealand; or
(ii)Any interest protected by section 7 of the Official Information Act 1982; or
(b) The Attorney-General certifies that the disclosure of the existence of that document would be likely to prejudice the prevention, investigation, or detection of offences.]
Parties’ arguments
Plaintiffs’ arguments
[23] As stated above, the plaintiffs submit that the Court has jurisdiction to order the New Zealand Defence Force to make discovery of the Army’s notes of evidence, by virtue of section 27 of the Crown Proceedings Act 1950, (“the Act”). According
to the plaintiffs, section 27 can be invoked because the judicial review application is a “proceeding”, for the purposes of section 27, and the Crown is a party to it.
[24] Following an amendment in 1983, the plaintiffs no longer have to establish that this is a “civil proceeding” falling within the definition in the Act, but simply that it is “any proceeding other than a criminal one”. Clearly a judicial review proceeding is a proceeding that is not criminal in nature.
[25] The plaintiffs claim that, for the purposes of seeking discovery under section 27 of the Act, it is sufficient that one branch of the Government is a party to the proceeding. That is, since the first defendant in the judicial review is the Solicitor- General, who of course forms part of the Government, the requirements in section 27 are satisfied, notwithstanding that discovery is sought against a separate branch of Government.
[26] The literal words “in any proceedings…to which the Crown is a party” are thus satisfied here. Furthermore, there is nothing in the provision which precludes such an interpretation of the section.
[27] The plaintiffs acknowledge that even if section 27 is prima facie applicable, an order is nevertheless in the Court’s discretion. The plaintiffs advance two key reasons why the Court ought to exercise its discretion in this instance.
[28] First, the Army cannot seek to protect its documents through rule 158 of the Armed Forces Discipline Rules of Procedure 1983, as it has sought to do here. Rule 158 provides:
158. Admissibility of record of proceedings, etc-
(1) Subject to the succeeding provisions of this rule, the record of proceedings, and any evidence in respect of the proceedings, including any confession, statement, or answer to a question made or given by a person during the proceeding, shall not be admissible in evidence against any person in any other proceedings, judicial or otherwise.
[29] The reason the Army cannot rely on rule 158 here is that the documents sought by the plaintiffs would not be used in evidence “against any person”. They
would merely be used to assist the coroner in establishing “the circumstances of the death”: Coroners Act 1988, s 15(1)(a)(v).
[30] Second, the plaintiffs submit that the Court should order the Army to make discovery of its documents in order to uphold the integrity of the administration of justice. The plaintiffs’ main complaint is that, given the election made by the Army to give evidence and make submissions at the coroner’s inquest, it was bound to be transparent and consistent, and it was not. The plaintiffs suggest that the Army may have presented selective evidence and withheld certain facts at the coroner’s inquest, thereby undermining the value of that procedure. Thus, in order to put things right, the plaintiffs say that the entire evidence must be made available to the coroner.
New Zealand Defence Force’s arguments
[31] The New Zealand Defence Force, (“the Defence Force”), submits that there are two reasons why the Court should not order discovery of the documents sought by the plaintiffs.
[32] First, the Defence Force argues that it is not a party to the judicial review proceeding so section 27 of the Crown Proceedings Act 1950 does not apply. This is reinforced by the fact that the plaintiffs applied for non-party discovery. Furthermore, apart from statute, the Crown cannot be compelled to make discovery: Bird v Auckland District Land Registrar [1952] NZLR 462 (SC).
[33] Second, even if the Defence Force is a party to the proceeding, by virtue of being part of the Crown, there is a strong policy reason why the Court should not exercise its discretion here to order the Defence Force to produce the documents for inspection.
[34] In particular, it is submitted that an order for discovery would threaten the long-standing and important legal principle that evidence at a military court of inquiry shall not be admissible against any person in any other proceedings - Rule 158 of the Armed Forces Discipline Rules of Procedure 1983, (“the Discipline Rules”).
[35] The Defence Force further submits that without the protection of this rule, it is unlikely that witnesses, who are not permitted to have legal representation, would give evidence in a frank manner, and that this would have the effect of undermining the inquisitorial nature of the Army’s court of inquiry procedures. The very purpose of the court of inquiry is to ascertain the facts in an informal, confidential and expeditious way: Neave v R (1995) 9 PRNZ 40, 52. The Defence Force submits that the integrity of the court of inquiry process should not be compromised in this case.
My decision
[36] The parties are agreed that the Defence Force, from whom the plaintiffs seek discovery, is part of the Crown.
[37] Historically, the Crown has enjoyed absolute immunity from discovery. The discovery provisions in the Crown Proceedings Act 1950 have partially eroded that immunity. Nevertheless, apart from those provisions, the Crown cannot be compelled to make discovery: Bird v Auckland District Land Registrar [1952] NZLR 462 (SC).
[38] Thus, in order to get discovery, the plaintiffs must establish that their application falls within section 27 of the Crown Proceedings Act 1950, the relevant part of which provides: “in any proceedings…to which the Crown is a party or third party, the Crown may be required by the Court…to make discovery of documents”.
[39] Although counsel for the Defence Force acknowledges that it constitutes a part of the Crown, he submits that it is neither a party, nor a third party, to the judicial review proceeding, and that section 27 is therefore inapplicable. Counsel for the Defence Force places reliance on Johnston v Price Waterhouse [2001] NZAR 9 in which the High Court indicated that non-party discovery against the Crown is not yet possible under our current statutory framework.
[40] Although the plaintiffs’ application here is indeed for non-party discovery against the Crown, I am not prepared to treat that description of their application as being determinative of the substantive issues. I shall therefore proceed on the basis
that this is an application for discovery against the Crown as a party to the proceeding.
[41] The judicial review proceedings were instituted against the Solicitor-General, who is the Government’s chief legal adviser, and the second law officer of the Crown (after the Attorney-General). Accordingly, the Solicitor-General too is part of the Crown.
[42] The critical issue, therefore, is whether, for the purpose of ordering discovery under section 27, it is sufficient that any part of the Crown is represented in the proceeding, or alternatively, whether the specific part of the Crown from whom discovery is sought must itself be a party to the proceeding. Or, in other words, can the plaintiffs here obtain discovery from the Defence Force on the basis that the Crown, via the Solicitor-General, is a party to the judicial review proceeding, notwithstanding that the Defence Force is not specifically named or involved in that proceeding?
[43] The Crown is defined in section 2 of the Crown Proceedings Act 1950 as “Her Majesty in right of Her Government in New Zealand.” Thus, “the Crown” for the purposes of this Act is the Queen of England, or the New Zealand Governor- General acting on her behalf. In modern times, the powers vested in the monarch are no longer exercised by the Queen, or the Governor-General, but by a variety of public bodies, departments, and their responsible Ministers. Nevertheless, the fact that the powers have, over time, devolved to these bodies does not change the fact that the Crown remains a single entity.
[44] When one begins to view the Crown as a single entity, whose powers and functions have been devolved to various bodies, it becomes clear that it does not matter which part of the Crown is a party to the proceeding, since the Crown is ultimately responsible for all its constituent parts. In this sense, the Crown is akin to a “complex and highly organised corporation aggregate of many”: F W Maitland “The Crown as Corporation” (1901) 17 LQR 131, 140.
[45] Thus, on a strict interpretation of section 27, provided that one constituent part of the Crown is being proceeded against, in my view it can accurately be said that the Crown is a party to the proceeding, and so the Crown, in whichever manifestation, may be required to make discovery. By analogy, a corporation can not avoid making discovery simply by saying that the proceeding is against only one of its branches, so the other branches need not make available any relevant materials.
[46] Applying this principle to the present case, the fact that the Solicitor-General is a party to the judicial review proceeding means that the Crown, and this includes all its constituent parts, is a party. The plaintiffs are therefore prima facie entitled to seek discovery against any part of the Crown. The Solicitor-General and the Defence Force are simply different manifestations, or different parts of the machinery, of the same entity.
[47] Accordingly, Johnston v Price Waterhouse, is clearly distinguishable from the present case because in that case the Crown was not, in any way, a party to that proceeding.
[48] In my view, the plain words of section 27 permit this conclusion, and moreover, this conclusion is consistent with the general trend emerging in our legal framework, whereby we are steadily moving towards a principle of greater openness. Section 27 of the Crown Proceedings Act 1950, and its 1983 amendment which opened up discovery for any proceeding, is one such example of this trend. So too is the Official Information Act 1980, which contains a presumption in favour of disclosure. Moreover, in the discovery context itself, the High Court Rules, as amended in 1986, seek to promote openness between parties by requiring them to “put as many cards on the table as possible”: Green v Commissioner of Inland Revenue [1991] 3 NZLR 8, at 11.
[49] The conclusion that I have expressed above is also reinforced by the potential consequences of holding otherwise. For instance, if the plaintiff is unsure which Department, or public body, to proceed against, so instead proceeds generically against the Attorney-General (as is the procedure envisaged in s 14(2)(c) of the Crown Proceedings Act 1950 in the event of an uncertainty), the plaintiff will only
be able to obtain very limited discovery, namely, that which is in the Attorney- General’s possession. In my view, Parliament can not have intended that where it is difficult to identify and isolate the responsible agency, given that they may from time to time change in name and function, a plaintiff should not be entitled to proper discovery.
[50] This conclusion should not provide cause for concerns that it might be open to abuse by plaintiffs who seek to paralyse, or cause great expense to, the Crown by making frivolous requests, or who seek to embark on so-called fishing expeditions to see what may be dragged up. My conclusion is simply that where any part of the Crown is a party to the proceeding, the plaintiff has a prima facie entitlement to discovery against another part of the Crown. I use the phrase prima facie here because there are still several, fundamental limitations on a plaintiff’s ability to obtain an order for discovery.
[51] First, discovery will not be ordered where it would be injurious to the public interest: s27(1)(b). Second, discovery will be ordered only where it complies with general discovery principles, namely, where the material sought is necessary and relevant to the proceeding. Third, discovery can not be ordered if the material falls within the limitations canvassed in s27(3). Fourth, even if the plaintiff is able to overcome each of these obstacles, s 27 vests in the Court a residual discretion to determine in every case whether it is appropriate to order discovery against another part of the Crown.
[52] In the end, I am not prepared to restrict the notion of “the Crown” in s 27, in the manner suggested by counsel for the Defence Force, because to do so would undermine the policy of greater openness, and because there are already ample safeguards to prevent any possible abuse of this provision.
[53] Accordingly, the plaintiffs are prima facie entitled to an order for discovery against any part of the Crown, pursuant to s 27, provided that none of the restrictions outlined above apply. I will now turn to consider each of these potential restrictions.
[54] The Defence Force submits that disclosure here would be injurious to the public interest because it would circumvent the important principle, codified in rule 158 of the Discipline Rules, that evidence given at an Army inquiry will not be used against its participants, and that to do otherwise would undermine the integrity of the process which is dependent on the frankness of the witnesses.
[55] I am satisfied that rule 158 is not applicable in the present context. First, I do not believe that the evidence from the Army’s inquiry, if discovered to the plaintiffs, would in terms of the rule be used against any person. Although a coroner is able to make adverse findings against individuals, provided of course appropriate notice is first given, the coroner’s inquest is in the nature of an inquisitorial process, the purpose of which is to establish the cause of death, and the circumstances surrounding a death, rather than apportioning blame: s 15(1)(a). A helpful description of the purpose of a coroner’s inquest can be found in the judgment of Lord Lane CJ in R v South London Coroner ex parte Gray (Times LR, 9 July 1982):
Once again it should not be forgotten that an inquest is a fact-finding exercise and not a method of apportioning guilt. The procedure and rules of evidence which are suitable for one are unsuitable for the other. In an inquest it should never be forgotten that there are no parties, there is no indictment, there is no prosecution, there is no defence, there is no trial, simply an attempt to establish facts. It is an inquisitorial process, a process of investigation quite unlike a criminal trial.
[56] That the coroner’s inquest is in the nature of an inquisitorial process is further confirmed by s 26(5) of the Coroners Act 1988 which empowers the coroner to admit any evidence, regardless of whether that evidence would be admissible in a Court of law.
[57] Second, even if it can be said that the notes of evidence from the Army’s inquiry might be used against a person, rule 158 of the Discipline Rules is directed at the admissibility of that evidence, whereas the current application is concerned only with its discoverability. Admissibility and discoverability are two distinct notions: M v L [1999] 1 NZLR 747, 762. Documents which are relevant to the proceeding may be discoverable, irrespective of admissibility: Comalco New Zealand Ltd v Broadcasting Standards Authority [1995] 3 NZLR 469.
[58] Even if I am wrong as to the proper scope of rule 158, I am nevertheless not satisfied that ordering discovery of the notes of evidence would be injurious to the public interest. On the contrary, I believe there is a reasonable argument that a refusal to order disclosure might be more injurious.
[59] The coroner, in conducting his/her inquest, should have access to all relevant information, especially where a person may be adversely affected by the verdict: Re Erebus Royal Commission: Air New Zealand Ltd v Mahon [1983] NZLR 662 (PC) at 671. Therefore, refusing the plaintiffs’ application for discovery might in an indirect way send a message which undermines the fact-finding nature of the coroner’s inquest, and may consequently lead to some loss of public faith in the legitimacy of that process.
[60] Turning to the second restriction, an order for discovery under s 27(1)(b) of the Crown Proceedings Act 1950 should only be made where the Crown would be required to make discovery if it were a private person. That is, the plaintiffs’ application is subject to general discovery principles, the most pertinent of which is whether the material sought to be discovered is relevant to the proceeding in the sense that it contains information which may either directly or indirectly enable the party seeking discovery either to advance his or her own case, or to damage the adversary’s case: Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55 (CA) at 63; affirmed in New Zealand Rail Ltd v Port Marlborough New Zealand Ltd [1993] 2 NZLR 641 (CA).
[61]That long-established test of relevance set out in the judgment of Brett LJ in
Peruvian Guano Co at 63 states:
It seems to me that every document relates to the matters in question in the action, which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may – not which must
– either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary. I have put in the words ‘either directly or indirectly’ because, as it seems to me, a document can properly be said to contain information which may enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary, if it is a document which may fairly lead him to a train of enquiry, which may have either of those two consequences…
[62] This “train of enquiry approach” from the Peruvian Guano test has been the subject of some criticism by a number of Judges and commentators over the years. Some have suggested that the test results in a “monumentally inefficient” process, and indeed the test has been the subject of recent judicial criticism in New Zealand in Air New Zealand Limited v Auckland International Airport Limited (HC AK, M1634-SD00, 30 April 2001, Priestley J). In this case Priestley J noted that the documents under scrutiny in the Peruvian Guano case were few in number and significantly fewer than were likely to be involved in the case before him.
[63] Notwithstanding this, the Court of Appeal in M v L [1999] 1 NZLR 747, 750 have referred to and implicitly adopted this test for relevance in New Zealand as set out in Peruvian Guano, although in doing so, it was noted that it is an “expansive” test. As I have noted, these principles were also affirmed in New Zealand Rail Limited v Port Marlborough New Zealand Limited. And see also McGechan on Procedure, paragraph HR295.03:
The words of Brett LJ (in Peruvian Guano) are still relevant today.
[64] Applying this expansive test for relevance here, I am satisfied that the notes of evidence and material sought from the Army’s inquiry may assist the plaintiffs in advancing their contention that the coroner failed to take into account relevant considerations, or that he made mistakes of fact in reaching his verdict. An order for discovery is therefore necessary and appropriate here.
[65] The restrictions contained in s 27(3) do not apply here, as the Prime Minister has not certified that disclosure of the Army’s notes of evidence is likely to prejudice the security or defence of New Zealand.
[66] Having regard to all those considerations, and the residual discretion contained in s 27, I am satisfied that this is an appropriate case for an order for discovery to be made against the Defence Force. From a general point of view, it is imperative that a coroner have access to all relevant available information at the time when investigating the circumstances of a person’s death, especially where an adverse finding, which may carry with it significant social stigma, is likely to be made.
[67] The plaintiffs claim that they have suffered appreciably from the coroner’s 1997 verdict, and his denunciation of their conduct. Whether or not that may be the case, I am of the view that the plaintiffs should not be prevented from having the opportunity of obtaining discovery here, a discovery which might turn out to include material which fits the description of “additional material of probative value which, had it been placed before the decision-maker, might have deterred him from making that finding”: Re Erebus Royal Commission at 671.
Conclusion
[68]That said, the plaintiffs’ application argued before me has been successful.
[69]Orders as to discovery are made therefore in the following terms:
The New Zealand Defence Force shall within 30 working days of the date of this judgment either:
(a) Produce for inspection those of the following documents which have not already been made available to the plaintiff for inspection:
(i)Exhibits A and D of the Court of Inquiry Report into the construction of a wooden suspension bridge over the lower Retaruke River, Te Rata.
(ii)Pages 8-11 of the above mentioned Court of Inquiry Report, being evidence of the second witness: Major J R Armstrong;
(iii)Pages 12-15 of the above mentioned Court of Inquiry Report, being evidence of the third witness: Mr M J Vincent;
(iv)Pages 19-20 of the above mentioned Court of Inquiry Report, being evidence of the fourth witness: Mr G Butcher;
(v)Transcript of Court of Inquiry.
or
(b) If there are no such documents as listed in subparagraph [69](a) above in their custody, power or possession, file an affidavit stating that the documents are not in their possession, custody or power and stating to their knowledge, information and belief where the documents are and in whose possession, custody or power they are in and serve such affidavit on the plaintiffs.
[70]Costs are reserved.
[71] As a next event, this matter is to be listed for call in the Associate Judge’s Chambers List on 1 March 2005.
Associate Judge D I Gendall
Delivered at 2.30pm on 17 December 2004.
Solicitors:
Buddle Findlay, Christchurch for Plaintiffs Crown Law Office, Wellington for Defendants
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