KYUNG YUP KIM AND MINISTER OF JUSTICE ATTORNEY-GENERAL
[2024] NZHC 3662
•4 December 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 3662
UNDER the Judicial Review Procedure Act 2016, the Extradition Act 1999, and the New Zealand Bill of Rights Act 1990 BETWEEN
KYUNG YUP KIM
Applicant
AND
MINISTER OF JUSTICE
First Respondent
ATTORNEY-GENERAL
Second Respondent
Hearing: 14 November 2024 Counsel:
B J R Keith and G K Edgeler for Applicant
A Bloomfield and O Kiel for First and Second Respondents
Judgment:
4 December 2024
JUDGMENT OF LA HOOD J
(Application for leave to appeal)
[1] Mr Kim seeks judicial review of a surrender order 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.1
[2] In an interlocutory judgment dated 6 August 2024, I declined Mr Kim’s applications for discovery and for further and better particulars of the statement of defence (the Judgment).2 He seeks leave to appeal that decision.
1 The People’s Republic of China made an extradition request in May 2011.
2 Kim v Minister of Justice [2024] NZHC 2183 [the Judgment].
KIM v MINISTER OF JUSTICE [2024] NZHC 3662 [4 December 2024]
[3] For convenience, I set out my summary of the background to the interlocutory applications in the Judgment:
[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] 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 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), and the right to a fair trial.
[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.
Legal principles for leave to appeal
[4] The criteria for granting leave to appeal under s 56(3) of the Senior Courts Act 2016 were summarised by the Court of Appeal in Greendrake v The District Court of New Zealand as follows:3
(a)a high threshold exists;
(b)the applicant must identify an arguable error of law or fact;
(c)the alleged error should be of general or public importance warranting determination or otherwise of sufficient importance to the applicant to outweigh the lack of general or precedential value;
(d)the circumstances must warrant incurring further delay; and
(e)the ultimate question is whether the interests of justice are served by granting leave.
Issues
[5]I will address the application by reference to the following issues:
(a)Is there an arguable error of fact or law?
(b)Are the arguable errors of general or public importance or otherwise of sufficient importance to Mr Kim to require leave?
(c)Do the circumstances warrant further delay and ultimately are the interests of justice served by granting leave?
3 Greendrake v The District Court of New Zealand [2020] NZCA 122 at [6].
Is there an arguable error of fact or law?
Is it arguable that I erred in my assessment of the essential issue for determination in the substantive proceedings because the approach to judicial review in Bill of Rights cases has been fundamentally altered by recent Supreme Court authority?
[6] Mr Kim submits that I erred in my assessment of the overarching issue for determination in the substantive proceedings. I said it “seems 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.”4
[7] I note that my framing of the essential issue was for the purposes of determining the applications for discovery and further particulars. I was not purporting to limit what Mr Kim is entitled to argue at the substantive hearing, and I reject Mr Kim’s submission that it has had this effect.5 There was a dispute about the scope of the Minister’s decision and the issues that arise from it. It was therefore incumbent on me to resolve that dispute to determine whether orders for discovery and further particulars were proportionate in the context of the issues for determination. Moreover, I was not purporting to identify all the issues to be determined, but rather the essential, overarching issue in the case.
[8] The framing of the essential issue was to allow me to “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”.6
[9] Mr Kim says the Court’s role in this case, where fundamental human rights are engaged, is to reach its own view on the appropriateness of Mr Kim’s extradition with limited (if any) regard to the context of the Minister’s decision. The Court will have to form its own view irrespective of the material before the Minister and therefore
4 The Judgment, above n 2, at [19].
5 My decision does not limit the arguments Mr Kim can advance. I simply declined to make orders that he be provided with further material for the purpose of making those arguments.
6 At [15] citing Gama Foundation v Chief Executive of the Ministry of Social Development [2021] NZHC 3146 at [10].
discovery is necessary of all material held by Ministry of Foreign Affairs and Trade (MFAT) that contributed to its institutional knowledge when providing its advice. This is despite such material not being reviewed or directly relied on by MFAT when providing its advice to the Ministry of Justice (MOJ), not being provided to the MOJ or the Minister, and not relating specifically to Mr Kim’s extradition or the assurances provided by the PRC.7
[10] Mr Kim submits this approach is required because the Supreme Court’s decisions in A (SC 70/2022) v Minister of Internal Affairs and Moncrief-Spittle v Regional Facilities Auckland Ltd have fundamentally changed the approach to applications for judicial review in human rights cases.8 He says these cases hold that the Court must consider all matters afresh and substitute its discretion for that of the decision maker. Mr Kim submits that this means the Court can take into account any evidence available at the date of the Court hearing, whether or not it was (or should have been) before the decision maker, including material that has come into existence since. This, it is submitted, means that the MFAT material sought must be discovered in these proceedings and placed before the Court for it to exercise its own discretion about the risk of torture or unfair trial. It follows that my framing of the essential issue on this judicial review is, at least arguably, wrong.
[11] If Mr Kim’s interpretation of these decisions is correct, I agree with his submission that they have “revolutionised” the law of judicial review in cases involving Bill of Rights compliance. It would turn judicial review in such cases into the equivalent of a full merits appeal (although it seems without even the requirement for the Court to be persuaded that the decision was wrong).9
[12] I do not accept it is arguable that these decisions have revolutionised the law in the way suggested.10
7 At [31].
8 A (SC 70/2022) v Minister of Internal Affairs [2024] NZSC 63, [2024] 1 NZLR 372; and Moncrief- Spittle v Regional Facilities Auckland Ltd [2022] NZSC 138, [2022] 1 NZLR 459 [Moncrief- Spittle].
9 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 [Austin, Nichols].
10 A (CA677/2020) v The Minister of Internal Affairs [2022] NZCA 257.
[13] My reading of the relevant passages in A (SC 70/2022) v Minister of Internal Affairs (where the Court also discusses its decision in Moncrief-Spittle)11 is that the Court was doing no more than confirming the established principle that substantive rights compliance is a legal issue for the Court not a matter of discretion.12 The Court concluded that if the statutory grounds for the decision were satisfied it is likely to be a justified limit on rights; and a failure to address rights compliance would not be fatal to the validity of a decision, but that did not mean those advising the Minister should feel free not to address it.13
[14] There is no suggestion in these passages that the Court intended to fundamentally alter the approach to judicial review in human rights cases by requiring the Court to start afresh and substitute its own discretion for that of the decision maker. In fact, an earlier passage in the judgment suggests no such intention. In the statute under consideration there was an express power for the Court to substitute its own discretion for that of the Minister. The Court described such a power as “unusual” and a “major modification of the normal approach to judicial review” that “should be exercised with some caution”.14 This is difficult to reconcile with Mr Kim’s submission that the Court made such a major modification to judicial review in human rights cases without expressly saying so.
[15] The Court’s role on judicial review is always context specific. It is required to ascertain the legal limits or controls on the power conferred by the statute.15 This requires consideration of the statutory scheme, the nature of the decision, the nature of the decision maker, and whether fundamental rights are engaged. If fundamental rights issues are engaged, the exercise of the power must be consistent with those rights. However, rights-consistency must be assessed by reference to all the circumstances in which the decision was made.
11 At [137]–[141].
12 See New Health New Zealand Inc v Director-General of Health [2023] NZHC 3183 at [11]–[15].
13 At [140].
14 At [86] and [93].
15 I agree with Cooke J that the Court’s approach to judicial review is governed by the express and implied legal limits or controls on the power conferred by the statute: Patterson v District Court, Hutt Valley [2020] NZHC 259 at [14]–[16]; New Zealand Council of Licensed Firearms Owners Inc v Minister of Police [2020] NZHC 1456 at [83]–[85]; Unison Networks Ltd v Commerce Commission [2007] NZSC 74, [2008] 1 NZLR 42 at [53]–[55]; and One Foundation v The Minister of Internal Affairs [2023] NZHC 3869 at [14]–[17].
[16] In this case, the Supreme Court has decided how the Court should approach reviewing a decision to extradite Mr Kim to the PRC under s 30 of the Act. The Court declined to make definitive general statements about the standard of judicial review in extradition cases.16 However, it noted the need to have regard “to the executive’s assessment of certain aspects of the extradition decision where the executive possesses particular expertise or some other form of competence relative to the court” would mean “that a correctness standard would be difficult to apply in practice”.17 It then said that if the Court “taking into account the Minister’s expertise where appropriate, considers that there are substantial grounds for believing Mr Kim will be at risk of torture or that he will not receive a fair trial, then it would be unlikely to conclude that it was reasonably open to the Minister to decide to surrender Mr Kim to the PRC”.18
[17] In reaching its ultimate conclusions, the Court was “satisfied the further assurances provided a reasonable basis on which the Minister of Justice could be satisfied that there was no real risk that Mr Kim would be subject to an act of torture on surrender to the PRC.”19 And “we are satisfied the further assurances provided a reasonable basis on which the Minister could be satisfied that there was no real risk Mr Kim would face an unfair trial on surrender to the PRC.”20
[18] It follows that the Supreme Court in this case did not approach its task in the way that Mr Kim now suggests is mandated, by starting afresh and substituting its discretion for that of the Minister.21
[19] It is clear the Minister did not undertake a full-scale reconsideration of the surrender decision in this case. He concluded that surrender remained appropriate
16 Minister of Justice v Kim [2021] NZSC 57, [2021] 1 NZLR 338 at [51].
17 At [49].
18 At [50].
19 Minister of Justice v Kim (No 2) [2022] NZSC 44, [2022] 1 NZLR 38 at [40].
20 At [76].
21 I have not overlooked Mr Kim’s reliance on AAA (Syria) v Secretary of State for the Home Department [2024] 1 All ER 1, [2023] UKSC 42. In that case, the United Kingdom Supreme Court held that it was a question of law for the Court’s determination whether a policy of removal of asylum seekers to Rwanda was rights-compliant. In the context of that case, this required the Court to form its own view about whether there were substantial grounds for believing there was a risk of ill treatment in Rwanda. It does not appear that the Court went as far as suggesting that its task was to start afresh and substitute its view for that of the decision maker (for example, the Court held that the government’s assessment of the risk of ill treatment was an important element of the evidence the Court was required to take into account, at [57]). But even if I am wrong about this, it is the New Zealand Supreme Court’s approach that must be determinative.
based on the history of the case, the Supreme Court’s decisions, the recent information submitted to him by Mr Kim, Mr Kim’s personal circumstances, and the diplomatic assurances given by the PRC. 22 The question is whether, in all the circumstances, he was reasonably entitled to reach that conclusion.
[20] I therefore do not accept it is arguable that I have erred in my assessment of the essential issue for determination in the substantive proceedings because the approach to judicial review in human rights cases has been fundamentally altered by recent Supreme Court authority.
Is it arguable that I erred in my assessment of the essential issue for determination in the substantive proceedings because the pleadings must determine the issues (for the purpose of a discovery application)?
[21] Mr Kim submits that the issues for resolution must be determined by the pleadings.23 He says that because he seeks prohibition of the Minister taking any further steps in respect of the 2011 extradition request (or any future request), I was (at least arguably) wrong to hold that the matter could be sent back for reconsideration if the Minister’s approach was unlawful.
[22] I do not accept that the pleading of a preferred remedy is capable of determining the essential issue for consideration on a discovery application. I note the pleading also seeks “such further remedy, including under the Bill of Rights Act, as this Honourable Court thinks fit”, which could obviously include an order that the Minister reconsider the decision.
[23] Each of the pleaded causes of action in the statement of claim directly attack the approach taken by the Minister of limited reconsideration, including due to the absence of investigation, the reliance on the findings of the Supreme Court, and failure to afford Mr Kim the opportunity to address information relied upon. Thus, the pleading itself supports my framing of the overarching issue as being whether it was lawful for the Minister to undertake a limited rather than full-scale reconsideration of the surrender decision.
22 The Judgment, above n 2, at [17]–[18].
23 Chatfield & Co Ltd v Commissioner of Inland Revenue [2016] NZCA 614, (2016) 27 NZTC 122- 084.
[24] Mr Kim relies on the Court of Appeal’s statement in Chatfield & Co Ltd v Commissioner of Inland Revenue that orders for discovery must be based on the pleaded case.24 But that statement does not mean that the inclusion of matters in a pleading must determine the scope of discovery. The decision in Chatfield is authority for the proposition that a party cannot obtain an order for discovery unless they have, at the very least, pleaded the issue (it was a case where there was no pleading that raised the issue for which discovery was sought).25 It is not authority for the proposition that pleadings are determinative of an assessment of the essential issues for the purpose of deciding whether discovery is proportionate.
[25] As the respondent submits, s 14(2)(a) of the Judicial Review Procedure Act 2016 gives a Judge the power to make orders and directions settling issues to be determined at the hearing. In order to make an assessment of whether discovery is required to enable an applicant to fairly argue their case, the Court’s assessment must be based on all relevant matters including the essential issues for determination, the evidence filed, and the pleadings.
[26] Accordingly, I consider the pleadings in this case support my framing of the overarching issue. But, even if I am wrong about this, I do not accept it is arguable that I erred because the pleadings must be determinative of the issues for the purpose of a discovery application.
Is it arguable that I erred in concluding discovery was not required to fairly argue the case on Air Nelson grounds?
[27] Mr Kim submits that it is at least arguable that discovery was required for Mr Kim to fairly present his case on Air Nelson grounds (that information available to officials briefing the Minister should have been put before the Minister).26 He particularly relies on Dobson J’s decision in the High Court in A v Minister of Internal Affairs.27 Mr Kim says the decision establishes that in order to advance a case on Air Nelson grounds, discovery “will extend to all information available to the report-
24 Chatfield & Co Ltd v Commissioner of Inland Revenue [2016] NZCA 614, (2016) 27 NZTC 122- 084.
25 At [31]–[32].
26 Air Nelson Ltd v Minister of Transport [2008] NZCA 26, [2008] NZAR 139 [Air Nelson].
27 A v Minister of Internal Affairs [2018] NZHC 1328, [2018] 3 NZLR 583.
writers so that that extent of information may be assessed for criticisms of the competence or balance of the recommendation subsequently relied upon by the Minister.” 28
[28] Although I accept Mr Kim’s submission as a statement of general principle, again context is everything.29 What is meant by material “available” to the officials must be context specific. In this case, the briefing officials were the MOJ, who in turn relied on advice from MFAT. The discovery application is focused on “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).”30
[29] In this context, what is meant by material “available” to the briefing officials, could, at one end of the spectrum, mean the entirety of the MFAT’s files. At the other end of the spectrum, it might only encompass material actually viewed and directly relied upon by the MFAT officials when providing the advice (there is no dispute here that there was no such material in this case).31 Here, Mr Kim says it should mean material “available” to the MFAT officials that contributed to the institutional knowledge and expertise they relied on to advise MOJ.
[30] The question is whether Mr Kim’s proposed meaning of “available” should be preferred. Or whether adopting it would result in a disproportionate order for discovery when the material was not provided to the MOJ officials, nor viewed or directly relied on by MFAT when providing its advice, and did not specifically relate to Mr Kim or the assurances provided by the PRC.32
[31] I consider what is being sought here is not material required to assess whether the ministerial briefing paper summarised matters in a “fair, accurate and adequate”
28 At [81]. See also [47].
29 R (Daly) v Secretary of State for Home Department [2001] UKHL 26; [2001] AC 532 at [28] per Lord Steyn.
30 The Judgment, above n 2, at [31].
31 At [30]–[31].
32 At [31].
way.33 Rather, what is being sought is general material that might be relevant to whether the officials had the institutional knowledge and expertise they purported to have. This is distinguishable from A v Minister of Internal Affairs, where it appears documents directly relied on to brief the Minister were unfairly, inaccurately, or inadequately summarised.34 Likewise, Air Nelson is distinguishable as it involved officials failing to include in the briefing paper a fair and accurate picture of specific and directly relevant information raised by Air Nelson during a consultation process.35
[32] I have not been referred to any authority where discovery has been ordered of general material that contributed to the institutional knowledge and expertise of the officials providing advice to a decision maker.
[33] Therefore, I do not accept it is arguable that discovery must be ordered because the material sought is required to enable Mr Kim to fairly advance his case on Air Nelson grounds.
Is it arguable that I erred in finding that discovery would be disproportionate?
[34] In terms of proportionality, Mr Kim says that I was (at least arguably) wrong to find that “given the broad scope of the material sought, unrelated specifically to Mr Kim’s case, and the likely volume of documents involved, … a discovery exercise is likely to be time consuming and expensive”.36
[35] Mr Kim submits there was no evidential basis for my finding in the absence of a preliminary search and affidavit evidence to support it. However, MFAT’s letter of 31 May 2024 stated that it 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
33 A v Minister of Internal Affairs [2024] NZSC 63, [2024] 1 NZLR 372 at [148].
34 At [20], although it is difficult to be certain given the secrecy of the proceedings.
35 Air Nelson, above n 26, at [40]–[56].
36 The Judgment, above n 2, at [33]. I also do not accept that I erred by framing the order sought as an order for general discovery. What I actually said at [33] was that 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.”
international law enforcement cooperation).”37 This, combined with submissions to the same effect from senior Crown counsel, provided a clear basis for the finding.
[36] In my decision I accepted that a low threshold test for discovery could be met.38 Mr Kim says such a threshold should be applied here given the human rights issues at stake. I accept I did not analyse the authorities that Mr Kim submitted require adoption of a lower threshold for discovery in human rights cases. However, it is not an error to fail to address every argument advanced by a party.39
[37] In any event, I do not consider the United Kingdom cases relied on by Mr Kim, of R (Al-Sweady) v Secretary of State for Defence and Tweed v Parades Commission for Northern Ireland,40 establish that there is generally a lower threshold for discovery in judicial review proceedings involving rights compliance. They are simply authority for the proposition that the issues that might arise in highly fact dependent human rights cases may require discovery in circumstances where it might not otherwise be appropriate.
[38] Moreover, in my decision I accepted that this case engages important human rights issues,41 but this had to be balanced against the principle that judicial review proceedings should be straightforward, uncomplicated and prompt (especially in an extradition context),42 as well as the other important rights involved in this case. 43 They include the rights of victims of crime and their families and society generally to ensure that those accused of serious crimes do not escape being tried and, if found guilty, subject to suitable sanctions.44
37 At [30].
38 At [35].
39 Medical Officer of Health (Wellington Region) v Lion Liquor Retail Ltd [2018] NZHC 1123, [2018] NZAR 882 (HC) at [42].
40 R (Al-Sweady) v Secretary of State for Defence [2009] EWHC 2387, [2010] HRLR 2; and Tweed v Parades Commission for Northern Ireland [2006] UKHL 53, [2007] 1 AC 650.
41 The Judgment, above n 2, at [35].
42 At [36].
43 At [35].
44 At [35].
Application for further particulars
[39] Mr Kim appears to accept that the Minister’s ability to provide further particulars in response to specific pleadings of the statement of claim is not realistically possible without the order for discovery. However, he submitted that there could still be an individual pleading to each particular to the effect that the respondent has no knowledge of and therefore denies it. I do not accept that going through this process would be more helpful than the current general denial. Either way, there is a bare denial of allegations that puts Mr Kim to proof. There is therefore no arguable error in relation to the application for further particulars unconnected to the application for discovery.
Overall assessment on arguable errors
[40] I do not accept the specific errors or law and fact alleged by Mr Kim are arguable. However, I do accept it is arguable that another Court may take a different view, on an overall assessment, of whether discovery is proportionate given the competing rights and interests at stake.
Are the arguable errors of general or public importance or otherwise of sufficient importance to Mr Kim?
[41] For the reasons given, I consider the only arguable appealable error is that the Court of Appeal may take a different view, on an overall assessment, of whether discovery is proportionate. While I accept that there could be some benefit in the Court of Appeal providing further guidance on the scope of discovery in judicial review proceedings, I do not consider this is a matter of general or public importance that justifies granting leave.
[42] On the other hand, I accept that the matter is of considerable importance to Mr Kim given what is at stake for him. I accept that my decision precludes Mr Kim from reviewing a large volume of general material that contributes to MFAT’s institutional knowledge and expertise when providing their advice to MOJ. But I do
not consider such a review is necessary for him to fairly argue his case given the essential issues for determination.45
Do the circumstances warrant further delay and ultimately are the interests of justice served by granting leave?
[43] There can be no doubt that the order for discovery will delay the proceedings to enable the identification, collation, disclosure and analysis of the volume of material sought.
[44] Mr Kim says that it is more efficient to complete this process now than at the time of any reconsideration should the Minister’s decision be found to be unlawful at the substantive hearing or subsequent appeal. However, I consider the Court must deal with the current issues before it rather than attempt to predict possible future outcomes given the history of this case, the competing rights and interests at stake, and the high public interest in expedition. For the same reasons, I consider the overall interests of justice are not served by granting leave.
[45] Accordingly, the high threshold for granting leave has not been met and I decline the application.
[46] Finally, it is important to note that the duty of candour continues throughout these proceedings. That duty includes providing informal discovery of any documents known by the respondents, MOJ and MFAT to support Mr Kim’s case or adversely
45 I remain of the view that Mr Kim effectively seeks that the Court pre-judge whether it was lawful for the Minister to undertake a limited reconsideration of the surrender decision through interlocutory orders for discovery and further particulars that would effectively compel further investigation. If Mr Kim succeeds in his claim that the Minister’s limited review was unlawful, access to the material may well become relevant and discoverable if reconsideration is ordered: the Judgment, above n 2, at [34] and [47].
affect the respondents’ case. Given the respondents’ model litigant obligations, I expect an assiduous and exacting approach will be taken to this important duty.
La Hood J
Solicitors:
Amanda Hill Law, Lower Hutt for Applicant
Crown Law Office, Wellington for First and Second Respondents
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