Kim v Minister of Justice
[2024] NZHC 2183
•6 August 2024
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2024-485-000170
[2024] NZHC 2183
UNDER the Judicial Review Procedure Act 2016, the Extradition Act 1999, and the New Zealand Bill of Rights Act 1990 IN THE MATTER
of an application for judicial review
BETWEEN
KYUNG YUP KIM
Applicant
AND
MINISTER OF JUSTICE
Respondent
Hearing: 11 June 2024; further submissions 9 July 2024 Counsel:
B J R Keith and G K Edgeler for Applicant
A M Powell with A Bloomfield and A J Vincent for Respondent
Judgment:
6 August 2024
JUDGMENT OF LA HOOD J
Interlocutory applications in a judicial review challenge to extradition
[1]This judgment determines the following interlocutory applications:
(a)The respondent, the Minister of Justice (the Minister), applies to join the Attorney-General to the proceedings under r 4.56(1)(b) of the High Court Rules 2016 and s 14(2)(b)(i) of the Judicial Review Procedure Act 2016.
KIM v MINISTER OF JUSTICE [2024] NZHC 2183 [6 August 2024]
(b)The applicant, Kyung Yup Kim, applies for orders under s 14 of the Judicial Review Procedure Act:
(i)directing the respondent to provide further and better particulars of the grounds of defence, particularly in relation to [14.1]–[14.4] and [15.5]–[15.6] of the applicant’s statement of claim;1 and
(ii)for discovery of documents held by or available to the Minister.2
Background
[2] Mr Kim seeks judicial review of a surrender order and associated decisions of the Minister of Justice in response to a request for his extradition by the People’s Republic of China (PRC) on a charge of murder.3
[3] The extradition request was granted by the then Minister of Justice, Hon Amy Adams, on 19 September 2016. Mr Kim judicially reviewed that decision, a proceeding which made its way to the Supreme Court. The Supreme Court ultimately upheld the decision to extradite Mr Kim to the PRC, finding that diplomatic assurances provided a reasonable basis for the Minister to be satisfied that there was no real risk of Mr Kim being subjected to torture or an unfair trial, if surrendered to the PRC.4
[4] On 23 December 2023, the Minister stated by letter to Mr Kim that there was no legal barrier to surrender occurring, and that the next step was to issue an extradition order under s 31 of the Extradition Act 1999. Mr Kim, by letter dated 5 February 2024, made legal and factual submissions to the Minister, seeking an investigation into the risks posed by extradition to the PRC, and a reconsideration of the 2016 decision, on the basis of purported developments and material changes of circumstance following the earlier investigation (into the risks posed to Mr Kim on
1 Judicial Review Procedure Act 2016, s 14(2)(g)(iv).
2 Section 14(2)(h).
3 The People’s Republic of China made an extradition request in May 2011.
4 Minister of Justice v Kim [2021] NZSC 57, [2021] 1 NZLR 338; and Minister of Justice v Kim (No 2) [2022] NZSC 44, [2022] 1 NZLR 38.
surrender) by the Minister and the consequent proceedings. The Minister responded by letter dated 5 March 2024, informing Mr Kim that the decision to surrender remained appropriate, and appending a surrender order signed by the Minister on 3 March 2024.
[5] Mr Kim challenges the Minister’s decision by way of judicial review on the grounds of illegality, breach of natural justice, and irrationality/patent error of fact. In summary, Mr Kim claims:
(a)The Minister’s decision that surrender remains appropriate is unlawful because it is inconsistent with the Extradition Act and s 9 of the New Zealand Bill of Rights Act 1990 (Bill of Rights Act) due to: a failure to investigate or otherwise address the risks to Mr Kim and/or establish the efficacy of the claimed safeguards against those risks; reliance on the Supreme Court’s findings; and failure to consider, address, or give effect to a recommendation of the United Nations Committee against Torture.
(b)The Minister’s decision to decline to investigate risks to Mr Kim, or give him the opportunity to address any information relied upon, was contrary to the right to natural justice as affirmed by s 27(1) of the Bill of Rights Act and failed to address relevant considerations, and relied on irrelevant considerations and patently incorrect descriptions, findings, and assertions in the record of the proceedings.
(c)The Minister’s decisions to proceed from material errors of fact, and the decision that surrender remains appropriate in the absence of investigation or contrary evidence, are unlawful as they are irrational in light of s 9 of the Bill of Rights Act, art 3 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT),5 and the right to a fair trial.
5 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1465 UNTS 85 (opened for signature 10 December 1984, entered into force 26 June 1987) [UNCAT].
[6] Mr Kim seeks a declaration setting aside the decisions of the respondent and the surrender order; an order that the respondent take no further step in respect of the 2011 extradition request or any future request made by the PRC for the extradition; and such further remedy, including under the Bill of Rights Act, as the Court thinks fit.
Discovery application
Legal principles – discovery
[7] It was common ground that one of the reasons why discovery is not available as of right in judicial review proceedings is the expectation that, through the duty of candour, relevant material will be provided by the decision maker. However, Mr Kim submits that the informal discovery process completed to date does not comply with the duty of candour, which means a formal discovery order is required.
[8] Mr Kim submits that there is no real difference between the test for ordering discovery in judicial review proceedings and ordinary civil proceedings. He submits that the Court of Appeal’s comments in Stockman v The Health and Disability Commissioner support this conclusion. The Court said that “[t]he duty of candour imposes an obligation on the Crown which is really co-extensive with the obligation that would exist in the context of a formal obligation to give discovery”.6 However, that statement needs to be considered in the full context of the Court’s discussion of the issue, which included the following:
[33] First, as the Judge identified, the case is predominantly a judicial review case. Again, discovery is not generally regarded as necessary in such cases, which usually proceed on the basis of affidavit evidence disclosing the relevant factual material. Mr Stockman does not accept that this should be the case, describing the practice as an anachronism belonging to English classed society with no place in contemporary New Zealand law. But the judicial review process is intended to be a straightforward means of challenging the legality of decisions made by public bodies. The issues at stake are usually questions of law. Only rarely do complex factual issues arise. As a result, the practice is sound.
…
6 Stockman v The Health and Disability Commissioner [2020] NZCA 588 at [35].
[35] Secondly, the Judge was entitled to accept the assurance from Mr Smith, for the Commissioner, that the Commissioner would continue to observe the obligation to provide informal discovery on an ongoing basis. Mr Stockman’s submission perceives the duty of candour as representing a bias in favour of public authorities which confers an unjustified benefit that allows such entities to avoid the strictures of formal discovery. We do not accept this. The duty of candour imposes an obligation on the Crown which is really co-extensive with the obligation that would exist in the context a of [sic] formal obligation to give discovery.
[36] Thirdly, this Court has made it clear that informal discovery is to be encouraged and that it is to be expected that the usual obligations will be complied with. ...
[9] Considered in context, in my view the Court was simply saying that orders for discovery are not required because the Crown will provide discovery under its duty of candour. The comments say nothing about the degree of relevance required for compliance with either the duty of candour or any order for discovery, which is the essential issue on this application.
[10] The Court’s statement that the judicial review process is intended to be a straightforward means of challenging the legality of decisions made by public bodies is a well-established principle.7 As the permanent Court of Appeal said in Attorney- General v Dotcom, judicial review proceedings are intended to be simple, untechnical and prompt.8 This fundamental principle has further resonance here given the Supreme Court’s confirmation in this case that extradition should also be an expeditious process.9
[11] Mr Kim submits that English authority on the duty of candour supports his position that an order for formal discovery is required in this case. He relies heavily on the following passage from De Smith’s Judicial Review (De Smith), the leading English text on judicial review:10
The duty has been described as a very high one to assist the Court with all of the facts relevant to the issues which the Court must decide. The duty extends to documents and other information which will assist the claimant’s case and/or which give rise to further grounds of challenge which might not otherwise occur to the claimant. The duty arises as soon as the public authority
7 At [33].
8 Attorney-General v Dotcom [2013] NZCA 43, [2013] 2 NZLR 213 at [39].
9 Minister of Justice v Kim, above n 4, at [469] and [482].
10 Ivan Hare KC, Catherine Donnelly SC and Joanna Bell (eds) De Smith’s Judicial Review (9th ed, Sweet & Maxwell, 2023) at 837.
becomes aware that someone is likely to challenge a decision affecting them and continues until the proceedings are resolved.
(footnotes omitted)
[12] The authorities cited in De Smith include R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 4), in which Lord Kerr said (dissenting as to the result but not on this point):11
[183] A respondent’s duty of candour in judicial review proceedings is summarised in Fordham’s Judicial Review Handbook, 6th ed (2012), p 125:
A defendant public authority and its lawyers owe a vital duty to make full and fair disclosure of relevant material. That should include
(1) due diligence in investigating what material is available;
(2) disclosure which is relevant or assists the claimant, including on some as yet unpleaded ground; and (3) disclosure at the permission stage if permission is resisted … A main reason why disclosure is not ordered in judicial review is because courts trust public authorities to discharge this self-policing duty, which is why such anxious concern is expressed where it transpires that they have not done so.
…
[185] … The failure to locate the documents throughout the proceedings before the Divisional Court, the Court of Appeal and the House of Lords is not merely unfortunate, it is plainly reprehensible.
[186] … An omission by government to disclose such material as was contained in the Rashid documents and its failure thereby to discharge its duty of candour was wholly unacceptable when such a fundamental right was at stake.
[13] The problem with reliance on these statements of general principle is that it ignores the frequently cited maxim that “in law context is everything”.12
[14] I accept as a general proposition that the duty of candour includes discovery of documents that will assist the claimant’s case and give rise to further grounds of challenge that might not otherwise occur to the claimant. But this general proposition cannot mean that discovery obligations in judicial review require a decision maker to undertake a general discovery exercise adopting broad relevance criteria equivalent to
11 R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 4) [2016] UKSC 35, [2017] AC 300.
12 R (Daly) v Secretary of State for Home Department [2001] UKHL 26; [2001] AC 532 at [28], per Lord Steyn; See also Wolf v Minister of Immigration [2004] NZAR 414 (HC); Hansen v R [2007] NZSC 7, [2007] 3 NZLR 1 at [115]; and Ortmann v United States of America [2021] NZCA 310 at [44] and n 36.
a Peruvian Guano test,13 which is no longer considered to be proportionate even in general civil proceedings.14 Of course, in the process of responding to a judicial review challenge the decision maker should undertake due diligence to locate those documents relevant to the pleaded case, whether they support or undermine the lawfulness of the decision. However, it is quite another thing to suggest that there is an obligation to locate every document that could possibly be relevant to the subject matter of the decision. Where the line should be drawn will always be context specific.
[15] Against that background, I am content to adopt Cooke J’s discussion of the nature of discovery in judicial review proceedings in Gama Foundation v Chief Executive of the Ministry of Social Development (as Brewer J was in the recent decision of Save the Queen Street Society Inc v Auckland Council):15
[6] The scope of orders by way of disclosure, or discovery in judicial review proceedings is properly dealt with under s 14(h) of the Judicial Review Procedure Act 2016. Section 14 partly operates as a procedural code of its own for judicial review.
[7] Mr Mijatov referred to this Court’s observations in New Zealand Steel Ltd v Minister of Commerce and Consumer Affairs that there was no real difference between the test for discovery in a judicial review proceeding and an ordinary proceeding. This was because discovery must still reflect the issues in the case, and context relevance and proportionality remain the touchstones.
[8] But the requirement for relevance and proportionality are particularly important in judicial review. As Miller J said in Te Runanga O Ngati Awa v Attorney-General:
It is common ground that discovery is available in judicial review, although it is discretionary. Mr Kos maintained however, that there is no significant difference in principle between discovery in judicial review and in regular civil proceedings, citing Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55, 63 (CA). I prefer the view that judicial review is a relatively simple, untechnical and prompt procedure, and that Judges are responsible for narrowing issues and supervising the proceeding to ensure that the material placed before the Court is reduced to the necessary minimum: BNZ Investments Limited v CIR (CIV 2006-485- 697, HC Wellington, 7 December 2006, Wild J). The material must be both relevant to the proceeding and necessary in the circumstances.
13 The Compagnie Financiere et Commerciale Du Pacifique v The Peruvian Guano Co (1882) 11 QBD 55 (CA) at 63.
14 Chatfield & Co Ltd v Commissioner of Inland Revenue [2016] NZCA 614 at [21].
15 Gama Foundation v Chief Executive of the Ministry of Social Development [2021] NZHC 3146; and Save the Queen Street Society Inc v Auckland Council [2024] NZHC 1512 at [11].
In many cases, there is no room for the Peruvian Guano “train of inquiry” test.
[9] This seems to me to properly encapsulate the correct approach. As Williams J explained in Ririnui v Landcorp Farming Ltd (No 1):
Discovery is not usually granted in judicial review proceedings, for the most part because it is unnecessary. Public authorities usually disclose relevant documentation in affidavit evidence without the need for specific orders. And, as it is often said, judicial review is intended to be a short and simple means by which to test the legality of public sector decision-making affecting ordinary citizens. But on the face of it, such documents as are sought here are within the penumbra of the claim as put by the plaintiff. They are prima facie relevant.
[10] In the end the Court must make an assessment of what discovery is required to enable the applicant to fairly argue its case, whilst at the same time ensuring that the materials remain relevant, and the requirements are consistent with the objective of judicial review being a simple, untechnical and prompt procedure.
(footnotes omitted)
The issues for determination in the substantive proceedings and the parties’ positions on this application
[16] The respondent submits that the decision at issue in the proceedings is the decision by the Minister not to revisit the decision to surrender Mr Kim made by a previous Minister and upheld by the Supreme Court,16 and to execute a surrender order that will facilitate his extradition. The respondent submits that the narrow scope of the decision is important.
[17] There was some suggestion by the respondent that the decision was not a decision about whether it was appropriate to surrender a person eligible for extradition pursuant to s 30 of the Extradition Act, but rather was simply a decision pursuant to s 31 to execute a surrender order (which is mandatory following a decision under s 30). However, I consider the Minister’s decision, as set out in his letter of 5 March 2024 (and based on the briefing paper provided to him on 26 February 2024) was a decision under s 30. Although the Minister did not undertake a full-scale reconsideration of the 2016 surrender decision, he nevertheless made a decision that surrender remains appropriate. Indeed, paragraph 20 of the briefing paper states:
16 Minister of Justice v Kim and Minister of Justice v Kim (No 2), above n 4.
This is not a full-scale reconsideration of the entire original surrender decision. Instead, the focus of your consideration should be on whether the most recent information submitted by Mr Kim is so significant that you consider that it leads you to the view that, despite the previous decision and court judgments, surrender should now no longer proceed.
[18] In his letter of 5 March 2024, the Minister says “I am of the view that surrender remains appropriate. I have now signed a surrender order”. He confirms he has made the decision personally and has considered Mr Kim’s personal circumstances, the formal diplomatic assurances given by the PRC, the letter of 5 February 2024 submitted on Mr Kim’s behalf, and the extensive background to the case, including the findings of the Supreme Court and the recent report of the United Nations Human Rights Committee (UNHRC).17
[19] It follows that while it may not have been a “full-scale reconsideration of the entire original surrender decision”, in my view the Minister’s decision cannot be categorised as simply a decision to execute a surrender order. It therefore seems that the essential issue in the proceeding will be whether it was lawful for the Minister to decline to undertake a full-scale reconsideration of the 2016 surrender decision and instead to undertake a limited review of the original decision based on the information before him.
[20] Mr Kim submits that the decision was unlawful due to, among other things, declining to investigate the present risk to Mr Kim, the reliance by the respondent on the Supreme Court findings, and failure to afford Mr Kim the opportunity to adduce the information relied upon. It is pleaded that these failings are a failure to take relevant considerations into account, or the taking into account of irrelevant matters and are inconsistent with s 30 of the Extradition Act when read in accordance with art 3 of the UNCAT and s 9 of the Bill of Rights Act.
[21] Mr Kim submits that since the Supreme Court decisions the PRC Government has engaged in what the New Zealand Government has itself termed the rejection of extant international law and what the PRC Government terms “fake human rights”. He says the Law on Foreign Relations of the People’s Republic of China
17 Hon P Goldsmith, exhibit No PJG-9, Letter dated 5 March 2024 at [3] and [4].
(Foreign Relations Law) now formally rejects accepted and objective interpretations of international instruments such as the UNCAT, and the Foreign Relations Law takes precedence over diplomatic assurance. This means that the Supreme Court’s decision, inferring that the PRC would follow a “mutually acceptable” interpretation of the UNCAT,18 cannot now be considered sufficient to protect Mr Kim.
[22] Mr Kim says that instead of engaging with these issues the Minister’s amended statement of defence does not properly respond to his pleaded case because:
(a)it relies on the Supreme Court’s findings when these could not have addressed the subsequent matters pleaded;
(b)it makes extensive reference to assessments made in 2021 that the PRC would comply with its assurances to the New Zealand Government despite them pre-dating the pleaded matters in issue;
(c)it makes blanket assertions as to the ongoing reliability of the assurances given by the PRC in the context of New Zealand’s diplomatic relationship with it; and
(d)it relies on manifestly incorrect factual assertions.
[23] Mr Kim says the disclosure suffers from the same deficiencies as there is only one document that refers to the change of circumstances since the Supreme Court’s decisions, namely the 26 February 2024 briefing paper, which states:
Having consulted with officials from the Ministry of Foreign Affairs and Trade, we are of the view that recent developments in foreign policy and changes to Chinese law, such as Xi Jinping Thought, and the enactment of the Foreign Relations Law, do not affect Minister Mahuta’s 2021 assessment in respect of the reliability of the assurances in this case. There continue to be compelling reasons why China would honour the assurances in Mr Kim’s case, in particular the value it derives in respect of international law enforcement cooperation, not just in New Zealand but from other countries. This is a significant external incentive that sits somewhat outside the bilateral relationship. MFAT officials advise that China continues to strongly value cooperation in law enforcement with other countries and that this remains the case, despite developments in their foreign policy positions. MFAT officials
18 Minister of Justice v Kim, above n 4, at [217].
have also noted that there has been recent positive and constructive engagement between New Zealand and China about practical arrangements for monitoring the assurances in Mr Kim’s case. China has now formally agreed to the establishment of a temporary additional Consul position based in the New Zealand consulate in Shanghai to support the monitoring aspects of the assurances for up to twelve months (with a focus on the initial investigation phase when monitoring will take place every 48 hours). Other preliminary preparations towards operationalising the assurances have included designation by China of senior points of contact within relevant government departments, and respective designation by New Zealand and China of Senior Responsible Officers.
(Emphasis added)
[24] Mr Kim submits that the content of the “consultation” referred to in this paragraph of the briefing paper and the factual basis for the “views” of the officials adopted by the Minister remain unknown and should be pleaded and relevant documents discovered.
[25] In response, the Minister submits that this is a complex case with a significant history and excessive focus on further refining of the pleadings and formal discovery will not assist to clarify the issues or progress their efficient determination. Although the respondent does not accept he was required to, he did file an amended statement of defence following a request for further particulars. Through that pleading the respondent has now explained in detail his case, namely that Mr Kim has not established that he is personally at risk of torture by the PRC, or being subjected to an unfair trial under PRC law, due to the diplomatic assurances obtained from the PRC. These pleadings include:
(a)In 2021, Minister Mahuta’s assessment was that the PRC would uphold the diplomatic assurances.
(b)The Supreme Court and UNHRC have found the PRC assurances to be sufficient for the Minister to be satisfied that any real risk of torture and unfair trial is negated.
(c)The matters pleaded do not require any Ministerial re-examination of former Minister Mahuta’s previous assessment of the reliability of the diplomatic assurances. The assurances were negotiated over a long
period of time at high levels on both sides and have been subjected to close scrutiny by the New Zealand courts and the UNHRC.
(d)The ongoing reliability of the assurances and the context of New Zealand’s diplomatic relations with the PRC is a matter for assessment by the New Zealand Government, including the Ministry of Foreign Affairs and Trade (MFAT), which is engaged with the PRC on its request for extradition of Mr Kim and is responsible for advising on international matters.
(e)The material provided by Mr Kim was generalised information about domestic trends in the PRC that were discussed at length previously before the Supreme Court and the UNHRC. They do not take account of the effect of the diplomatic assurances given, including the express requirement that Mr Kim’s trial be conducted in a manner that complies with applicable international obligations regarding a fair trial and that during all periods of detention following surrender he will be able to contact New Zealand diplomatic or consular representatives and such representatives may visit him.
(f)The material provided does not impact on the reasons expressed by Minister Mahuta for assessing that the PRC would uphold the assurances. This included the criminal and non-political character of Mr Kim’s case and the compelling incentives of the PRC to do so not just in respect of future international law enforcement co-operation with New Zealand but also with other countries.
(g)The Minister relies on the text of assurances as circulated between New Zealand and Chinese officials on 1 February 2024. He denies that the bilateral relationship between New Zealand and the PRC has substantially worsened since the Supreme Court’s decision in April 2022. Despite areas of disagreement in the bilateral relationship the countries continue to co-operate in areas of common interest, including law enforcement co-operation and high-level political
engagement continues to occur with visits in both directions. The PRC’s continued co-operation in this case demonstrates that the ongoing priority of the PRC to the case and the continued law enforcement co-operation with New Zealand.
Assessment of arguments and decision
[26] As already noted, the Minister undertook a limited reconsideration of surrender under s 30 and did not engage in a full-scale reconsideration or investigation of the further matters put to him. The issue is whether that was lawful in all the circumstances.
[27] The respondent submits that this reasonably narrow issue should be decided on the record of the matters before the decision maker at the time the decision was made. In terms of the current risk posed due to changes in the practice and law of the PRC Government post the Supreme Court decisions, the respondent submits that the Minister clearly relied upon the Ministry of Justice (MOJ) officials’ consultation with MFAT officials as to recent developments in foreign policy and changes to Chinese law, including the Xi Jinping Thought and the enactment of the Foreign Relations Law.
[28] There is no dispute that this was the extent of the evidence before the Minister regarding recent developments that may have affected the reliability of the assurances given by the PRC in this case. The question is whether reliance on this level of information was lawful. The respondent submits that it was, given the nature of the limited reconsideration he was undertaking. Mr Kim says that it was insufficient, as was the limited scope of the reconsideration.
[29] What is being sought by way of formal discovery must be considered in the context of the informal discovery that has already occurred, as well as the OIA requests that have been responded to. That material includes a letter dated 31 May 2024 from MFAT to counsel for Mr Kim enclosing the information provided by MFAT to MOJ that formed the basis for its comments at [39] of the briefing paper dated 26 February 2024 (quoted above). This includes an email chain between MFAT and MOJ officials between 20 and 21 December 2023 regarding the monitoring of assurances agreed
with China through establishment of a temporary consul position in Shanghai dedicated to implementing a robust system for monitoring the assurances.
[30] It also includes an email chain between 19 and 21 February 2024 setting out MFAT officials’ views on the draft briefing paper to the Minister. The 31 May 2024 letter enclosing these emails states that MFAT’s advice to MOJ to assist with preparation of the 26 February 2024 briefing paper reflected MFAT’s knowledge of China’s request to extradite Mr Kim and New Zealand’s response to date. This included the assurances the PRC has provided to New Zealand, their consideration by New Zealand’s judicial system and the UNHRC, and MFAT’s role as expert advisors to the Government on international matters including China, which is informed by MFAT’s diplomatic reporting regarding China and MFAT’s engagement with representatives of China. The letter also states:
MFAT did not otherwise specifically rely on individual documents regarding domestic developments in China in providing advice to the Ministry of Justice, but it is noted that MFAT holds a significant volume of documents including MFAT diplomatic reporting on some of the subjects you outline in your letter, which contributes to MFAT’s institutional knowledge of those matters (for example, MFAT diplomatic reporting on Xi Jinping Thought, the Foreign Relations Law, and international law enforcement cooperation). MFAT judges these documents to be outside the scope of your request, noting they were not factual material provided to the Ministry of Justice or directly relied upon by MFAT when providing its advice and do not relate specifically to Mr Kim’s extradition or the assurances provided by China. If you make a new request for these documents, MFAT will consider such a request in accordance with the OIA.
[31] It is clear from this material that the informal discovery and OIA process has resulted in Mr Kim being provided with the MFAT documents that specifically set out the advice provided to MOJ by MFAT in preparing its briefing paper. What Mr Kim now effectively seeks is all documents held by MFAT that contributed to its institutional knowledge of the matters that informed its advice to MOJ for the briefing paper (such as MFAT’s diplomatic reporting on Xi Jinping Thought, the Foreign Relations Law and international law enforcement co-operation). This is despite this material not being provided to MOJ, or directly relied on by MFAT when providing its advice, and not relating specifically to Mr Kim’s extradition or the assurances provided by the PRC.
[32] The respondent submits that rather than this being a tailored or specific request for discovery, it is in fact a general request for discovery of all matters held by MFAT that might in any way touch upon the pleaded claim.
[33] In the circumstances of the informal discovery and OIA process described above, I accept the respondent’s submission that the discovery request is closer to an application for general discovery rather than tailored discovery. I accept the respondent’s submission that given the broad scope of the material sought, unrelated specifically to Mr Kim’s case, and the likely volume of documents involved, that such a discovery exercise is likely to be time consuming and expensive.
[34] The respondent appears to require the information to analyse whether the advice provided by MFAT to MOJ for the briefing paper was correct. In other words, to analyse whether further investigation would undermine the advice provided by MFAT (and thus the Minister’s decision). In my view, this puts the cart before the horse. The essential issue is whether the Minister was lawfully entitled to make a decision based on the information provided to him and to conduct the limited reconsideration he chose to undertake. Whether it was lawful to have done so in the circumstances is yet to be determined. If it was unlawful, it is likely the Minister will be directed to fully reconsider the surrender decision, at which point general information about the risks posed by extradition to China unrelated to Mr Kim’s case may well be relevant to a full-scale review of the decision. And a failure to informally discover such material on a subsequent application for judicial review of the reconsidered decision may well require a Court order for discovery. However, based on the current issues for determination, I consider an order for discovery of this material would be disproportionate.
[35] I accept that a low threshold test for discovery of this material could be met. However, in line with the approach taken in Gama Foundation v Chief Executive of the Ministry of Social Development,19 Save the Queen Street Society Inc v Auckland Council,20 and Te Runanga O Ngati Awa v Attorney-General,21 I consider a low
19 Gama Foundation v Chief Executive of the Ministry of Social Development, above n 15.
20 Save the Queen Street Society Inc v Auckland Council, above n 15.
21 Te Runanga O Ngati Awa v Attorney-General HC Wellington CIV-2006-485-1025, 28 March 2007 at [6].
relevance threshold equivalent to the Peruvian Guano approach to be inappropriate in judicial review proceedings (especially in an extradition context). While I accept that this case engages important human rights considerations, I note the following comment of the Supreme Court in its 2021 decision:22
[470] We reiterate that there are also other rights involved: the rights of individual victims of crime and their families and the rights of society generally to ensure that those accused of serious crimes do not escape being tried and, if found guilty, being subjected to suitable sanctions.
(footnote omitted).
[36] It follows that I consider the order for formal discovery sought to be disproportionate having regard to the issues for determination, the limited possible relevance of the documents, the informal and OIA disclosure process to date, the principle that judicial review proceedings should be straightforward and prompt (especially in an extradition context), and the competing rights and interests at stake.
[37]I therefore decline the application for discovery.
Application for further particulars of the respondent’s defence
Legal principles – further particulars
[38] The Court has the power to make an order requiring the provision of further or better particulars of the grounds of defence under s 14(2)(iv) of the Judicial Review Procedure Act 2016. The Court retains an equivalent power under r 5.21(3) of the High Court Rules 2016. Whether a pleading is adequate will be influenced, amongst other things, by the nature of the case, the scope of the pleadings, the issues in dispute and the stage of the proceeding that has been reached.23
[39] The purpose of a statement of defence is to answer the specific allegations made in the statement of claim and to identify any affirmative defences. It must be clear and particular as opposed to evasive and general.24 The object is to narrow the factual issues in dispute for the benefit of the Court and the plaintiff, by giving advance
22 Minister of Justice v Kim, above n 4.
23 Body Corporate 355492 v Queenstown Lakes District Council [2020] NZHC 2590 at [29].
24 Jessica Gorman and others McGechan on Procedure (online ed, Thomson Reuters) at [HCR5.48.01].
notice of the points in issue on which evidence will need to be led at trial.25 The statement of defence should identify the factual allegations which are admitted, and to the extent they are denied, the principal reasons why they are denied.26
Assessment of arguments and decision
[40] Given my conclusions on the application for discovery, the application for further particulars can be dealt with reasonably briefly.
[41] I accept the respondent’s submission that what is required is “an assessment based on the principle that a pleading must, in the individual circumstances of the case, state the issue and inform the opposite party of the case to be met”27 and that the question for the court is, “in the circumstances of this claim, is that statement sufficiently detailed to state a clear issue and inform the opposite party of the case to be met?”28
[42] I accept the respondent’s submission that it is helpful to consider the questions posed by the Court of Appeal in Body Corporate 78246 v QBE Insurance (International) Ltd:29
(i)Has sufficient information been provided to inform the other party of the case they have to meet and to enable them to take steps to respond?
(ii)Is there a real risk that the other party may face a trial by ambush if further particulars are not provided?
(iii)Is the request oppressive or an unreasonable burden upon the party concerned?
[43] I also accept the respondent’s submission that insisting on excessively refined pleadings can be unnecessary and wasteful of costs and time, particularly in complex cases where over-pleading can obscure rather than clarify the issue.30
25 At [HCR5.48.03].
26 At [HCR5.48.03].
27 Body Corporate 384825 v Queenstown Lakes District Council [2021] NZHC 1157 at [14] citing
Price Waterhouse v Fortex Group Ltd CA179/98, 30 November 1998 at 19.
28 At [15] citing Price Waterhouse v Fortex Group Ltd, above n 27.
29 Body Corporate 78246 v QBE Insurance (International) Ltd [2015] NZHC 1360 at [18(h.)]
30 BNZ Investments Ltd v Commissioner of Inland Revenue (2008) 23 NZTC 21,821 (HC) at [45].
[44] As I have set out above, the respondent’s amended statement of defence pleads in some detail the essence of its response to Mr Kim’s claim that he is at risk of torture or an unfair trial, and that there have been no effective diplomatic assurances with respect to those risks. It is clear that the respondent’s case is that: the Minister was not required to undertake a full-scale reconsideration of the matters that had been determined in the 2016 decision; the court proceedings that followed confirmed it was open to the Minister to conclude Mr Kim is not personally at risk because he is adequately protected by the diplomatic assurances of the PRC; and that subsequent matters relied on by Mr Kim are insufficient to change the position.
[45] The essence of Mr Kim’s complaint is that the pleadings fail to engage in a detailed way with the evidence that there have been material changes in circumstances since the Supreme Court’s decision. As already noted, there was no full-scale engagement with that issue beyond the consultation with MFAT set out in the briefing paper and the emails that have been disclosed under the OIA. The issues are narrow, namely whether it was lawful for the Minister to undertake this limited reconsideration of surrender without further investigation and in reliance on the material before him.
[46] The respondent submits, and I accept, given the Minister’s approach to his task, his pleadings answer Mr Kim’s case “as completely as possible”. The Minister did not consider it was necessary to obtain any further information or do any further investigation to reach his decision, and therefore cannot plead further matters in response that do not exist. He relied on the previous findings of Ministers and the Supreme Court and some consultation between MFAT and MOJ and nothing more. Again, the application puts the cart before the horse. The Court cannot be asked to, in effect, direct the Minister to undertake a further investigation by way of an order for discovery, or via a direction that further particulars must be pleaded that will necessitate further investigation. Whether or not it was lawful for the Minister to decide to undertake a limited reconsideration based on the material before him is yet to be determined. I do not consider it appropriate to pre-judge that issue through an order for further particulars that would effectively compel further investigation.
[47] Moreover, there is no chance of trial by ambush in the circumstances. It is clear what the Minister’s position is and there does not appear to be any substantive factual proposition that could support his defence other than those already pleaded.
[48] I will deal briefly with Mr Kim’s submission that the respondent’s concessions in oral argument that torture occurs in the PRC but the Minister denies that the PRC Government engages in systematic torture, demonstrates that further particulars are required. Mr Kim submits that this partial admission leads to the inference that the Minister has in his possession but has not disclosed documents that provide a basis for his position, and he may seek to raise further similar unpleaded and undisclosed points in answer to Mr Kim’s case.
[49] However, it is clear from the respondent’s pleading that his case is, irrespective of the position regarding torture in China generally, Mr Kim has not established there is a real risk he will be tortured due to PRC’s diplomatic assurances. It seems to me that the respondent’s concession was no more than an acknowledgement of the following finding of the Supreme Court in this case:31
[199] The Ministerial briefings outlined in detail the general situation in the PRC and in particular as it relates to torture. The situation in the PRC can be summarised as having progressed from a long-standing system where torture and forced confessions were the primary method of criminal investigation to a legal structure in which torture is illegal and where efforts are being made to make sure the legal framework is complied with, including through the promotion of investigation techniques not involving torture. Despite these procedural and other reforms, however, torture persists. Some groups are at higher risk than others but there remains a risk of torture for all those facing criminal charges and also, although to a lesser degree, for convicted persons in prison.
[50] I therefore do not consider that the concession made by the respondent leads to an inference that there is an undisclosed basis for the position, or that the respondent may seek to raise further unpleaded and undisclosed points.
[51]I therefore decline Mr Kim’s application for further particulars.
31 Minister of Justice v Kim, above n 4.
Application to join the Attorney-General as a party
Legal principles – joining the Attorney-General
[52] The Court may join the Attorney-General as a respondent under r 4.56 of the High Court Rules, which relevantly provides:
A Judge may, at any stage of a proceeding, order that—
…
(b)the name of a person be added as a … defendant because—
the person ought to have been joined; or
(ii)the person’s presence before the court may be necessary to adjudicate on and settle all questions involved in the proceeding.
(2)An order does not require an application and may be made on terms the court considers just.
[53] In the judicial review context, ss 13 and 14 of the Judicial Review Procedure Act 2016, supplement the Court’s powers. Section 14(2)(b) specifically provides that the Court may direct at a case management conference that a person be named as a respondent. Section 13(2) provides that the purpose of a case management conference is to ensure that an application is determined in a convenient and expeditious manner, and that all matters in dispute may be effectively and completely determined.
[54] The courts in New Zealand have long taken a flexible, liberal approach to the joinder of a party to civil proceedings.32
[55] The Court of Appeal considered the scope and application of the predecessor to r 4.56 in Newhaven Waldorf Management Ltd v Allen.33 The Court found:
32 Mainzeal Corporation Ltd v Contractors Bonding Ltd (1989) 2 PRNZ 47 (HC); Chan v Seyip Association of NZ Inc [2008] NZAR 37 (HC) at [12]; and Newhaven Waldorf Management Ltd v Allen [2015] NZCA 204, [2015] NZAR 1173 at [44].
33 Newhaven Waldorf Management Ltd v Allen, above n 32.
(a)What is now r 4.56(1)(b) is underpinned by older authority confirming all persons “materially interested in the subject” ought to be parties to the suit.34
(b)Rule 4.56(1)(b)(ii) imposes no bright line jurisdictional threshold; rather, it imposes a flexible standard, the application of which will depend on contextual analysis. Jurisdiction and discretion have become intertwined.35
(c)The rule imposes a “fairly low threshold”.36 What matters in civil proceedings is the impact of the case on the party to be joined.37
Assessment of arguments and decision
[56] The respondent relies on the following statement of principle from John McGrath QC (as he then was) in an article prepared when he was the Solicitor- General:38
The Attorney-General is either plaintiff or defendant on behalf of the government in its civil litigation. Moreover, the Attorney-General has a separate responsibility to represent the public interest on behalf of the general community by enforcing the law as an end in itself. In that capacity, the Attorney-General must act independently of the political interests or preferences of the government of the day and is a guardian of the public interest. This role may be controversial, as it sometimes is when the Attorney- General takes the view that a statutory body is acting on an incorrect perception of the law … the Attorney-General must decide such matters as a Law Officer rather than as a Cabinet Minister.
34 At [45] citing McKendrick Glass Manufacturing Company Ltd v Wilkinson [1965] NZLR 717 (SC) at 723.
35 At [53] citing Puredepth Ltd v NCP Trading Ltd [2010] NZCA 392 at [16].
36 At [46] citing Beattie v Premier Events Group Ltd [2012] NZCA 257 at [24]. The Court of Appeal in Attorney-General v Dotcom, above n 8, at [37] said the High Court Rules give judges a “wide discretion” to add parties to a proceeding in the circumstances described in r 4.56.
37 As Lord Denning MR put it in Gurtner v Circuit [1968] 2 QB 587 (CA) at 595 “It seems to me that when two parties are in dispute in an action at law, and the determination of that dispute will directly affect a third person in his legal rights or in his pocket, in that he will be bound to foot the bill, then the Court in its discretion may allow him to be added as a party on such terms as it thinks fit.”
38 John McGrath QC “Principles for Sharing Law Officer Power: The Role of the New Zealand Solicitor-General” (1998) 18 NZULR 197 at 204.
[57] In Canterbury Regional Council v Attorney-General, Miller J described the Attorney-General’s responsibilities as follows:39
[25] The Attorney is the principal legal advisor to the Crown and the Crown’s representative in the Courts, Minister with responsibility for prosecutions, plaintiff or defendant for the Crown in litigation by or against the government, and senior law officer of the Crown. In the first of these capacities he may be heard to explain matters affecting the Crown’s prerogatives or public policy, in which the state speaks with one voice, while in the last two he has a special responsibility for the protection of public rights, representing the community and the public interest.
(footnotes omitted)
[58]In Attorney-General v Institute of Professional Engineers New Zealand Inc,
Collins J described the Attorney-General’s role in this way:40
[63] It was not necessary, however, for the Attorney-General to bring this proceeding on behalf of Mr Stannard. The Attorney-General could bring this proceeding in his own capacity as the principal law officer of the Crown. As noted by the late Sir John McGrath QC, the Attorney-General has a “responsibility to represent the public interest on behalf of the general community by enforcing the law as an end in itself”. This role may be discharged in one of three ways. The Attorney-General may bring an action in his or her own capacity to enforce public rights, he may authorise relator proceedings to enforce public rights, or he may seek to intervene in private litigation to protect the public interest.
(footnotes omitted)
[59] The respondent also relies upon the principle that the “historic role as guardian of the public interest … gives the Attorney-General a special status in relation to the courts”.41
[60] I accept the respondent’s submission that the absence of case law concerning contested applications to join the Attorney-General to judicial review proceedings concerning the Executive Government likely reflects that such joinder is frequently obtained without opposition. Indeed, Mr Kim named the Attorney-General as a
39 Canterbury Regional Council v Attorney-General [2009] NZAR 611.
40 Attorney-General v Institute of Professional Engineers New Zealand Inc [2018] NZHC 3211, [2019] 2 NZLR 731.
41 Attorney-General v Blake [1998] Ch 439 (CA) at 459.
respondent in the three prior applications for judicial review in relation to the decisions of successive Ministers of Justice to extradite him to the PRC.42
[61] I accept Mr Kim’s submission that there is no consistent practice around whether the Attorney-General is named in judicial review proceedings challenging Ministerial or other Crown decisions or indeed in extradition proceedings. However, I accept the respondent’s submission that this is irrelevant to the point of principle I must decide.
[62] I also consider that Mr Kim has not identified any prejudice that will arise from the addition of the Attorney-General as a respondent. The respondent has confirmed that if added the Attorney-General would be responsible for defending the proceeding and filing all relevant documents, including submissions. There would not be two sets of submissions, one from the Minister and one from the Attorney-General. There cannot therefore be any increase in cost or time associated with the joinder.
[63] Mr Kim relies on the Court of Appeal’s decision in Attorney-General v Dotcom where the Court of Appeal held the touchstone for whether a respondent should be joined in judicial review is whether that will “allow the application for review to be determined in a convenient and expeditious manner” and “all matters in dispute … [to be] effectively and completely determined”.43 This follows from the already noted fundamental principle that judicial review proceedings should be simple, untechnical, and prompt.44
[64] I accept the respondent’s submission that the nature of this particular case means the Attorney-General is the appropriate representative of the “constant and weighty public interest in extradition”.45 This public interest has domestic and
42 For example, in CIV-2016-485-843 which resulted in Kim v The Minister of Justice [2016] NZHC 1491, the Attorney-General was named by Mr Kim’s counsel as the second respondent in the statement of claim “pursuant to s 14(3) of the Crown Proceedings Act 1950 in respect [of] the New Zealand Government’s domestic and international obligations in respect of the Death Penalty, Torture, Arbitrary Detention, and Fair Trial rights, and the common law”. See also CIV-2012- 485-002506 ([2014] NZHC 1383); and CIV-2016-485-843 (above n 4).
43 Attorney-General v Dotcom, above n 8, at [38] citing provisions of the Judicature Amendment Act 1972 now embodied in the Judicial Review Procedure Act 2016, s 13.
44 At [39].
45 Tukaki v Commonwealth of Australia [2018] NZCA 324, [2018] NZAR 1597 at [31] citing HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25, [2013] 1 AC 338 at [8(4)].
international dimensions. Extradition is the manifestation of the “international network of mutual assistance” required to repatriate fugitive offenders.46 The interest is weighty because, as already noted, there is a strong public interest in the repatriation of fugitives from justice.47 This claim includes allegations about the New Zealand Government’s performance of its international obligations under the UNCAT.48 The Attorney-General is the appropriate Crown respondent to address such allegations.
[65] In addition, it is appropriate for the Attorney-General to be joined because the claim alleges breach of the Bill of Rights Act and seeks corresponding relief. Liability for breach of the Bill of Rights Act sheets home directly to the Crown and the Attorney-General is the appropriate representative of the Crown in proceedings claiming Bill of Rights Act relief.
[66] In addition, I accept the respondent’s argument that as a party to Mr Kim’s challenge to the Minister’s surrender order, the Attorney-General can represent the interests of other Crown agencies responsible for executing the surrender order. The Attorney-General can serve as a contradictor who can make the case in support of the decision under review more appropriately and completely than the respondent can, including because:
(a)The role of the Minister of Justice in extradition is limited: he notifies the District Court that extradition is sought and requests the issue of an arrest warrant,49 and he decides whether to issue a surrender order once eligibility has been determined by the Court.50
(b)Steps to implement the order are then taken by MFAT and the New Zealand Police. MFAT will support the progression of the extradition including through engagement with the country requesting
46 United States v Burns [2001] SCC 7, [2001] 1 SCR 283 at [73].
47 Bujak v Minister of Justice [2009] NZCA 570 at [56] citing Soering v United Kingdom (1989) 11 EHRR 439 at [89].
48 Above n 5; and International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 16 December 1966, entered into force 23 March 1976).
49 Extradition Act 1999, s 19.
50 Section 30.
extradition, in this case, the PRC, which has a legitimate interest in seeing that order implemented without delay.
(c)In this extradition, MFAT will be responsible for monitoring Mr Kim’s treatment following surrender, and continuing engagement with the PRC regarding Mr Kim as needed, in accordance with the diplomatic assurances agreed between the PRC and New Zealand.
[67] I also accept the respondent’s submission that as the appropriate contradictor there is no basis for limiting the Attorney-General’s role and she should be a party with the full rights this entails.
[68] I therefore grant the Attorney-General’s application to be joined as a respondent.
Costs
[69] My preliminary view is that the respondent is entitled to costs on the three applications on a 2B basis with certification for second counsel. If costs cannot be agreed, the parties should file memoranda within 10 working days (limited to five pages), and reply memoranda (limited to two pages) five working days thereafter. Costs will be determined on the papers.
La Hood J
Solicitors:
Amanda Hill Law, Lower Hutt for Applicant Crown Law Office, Wellington for Respondent
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