McMichael v Attorney-General
[2022] NZHC 2119
•24 August 2022
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2021-485-729
[2022] NZHC 2119
BETWEEN BRENDON MURRAY MCMICHAEL
Plaintiff
AND
THE ATTORNEY-GENERAL
Defendant
Hearing: 9 August 2022 Appearances:
C J Nicholls for Plaintiff
S B McCusker for Defendant
Judgment:
24 August 2022
JUDGMENT OF ASSOCIATE JUDGE JOHNSTON
Introduction
[1] In this proceeding, the plaintiff sues the Attorney-General on behalf of the Minister of Health. The plaintiff says that the Crown, through the Minister, failed to provide a forensic health report ordered by the District Court following the plaintiff being charged with a serious offending, with the practical result that the plaintiff spent longer in prison on remand. He contends that this constituted a breach by the Crown of s 25(b) of the New Zealand Bill of Rights Act 1990 (NZBORA), and he seeks declaratory relief pursuant to the Declaratory Judgments Act 1908, NZBORA damages, and costs.
[2] The proceeding was commenced in November 2021. A defence was ultimately entered on 20 April 2022. On 9 May 2022 the plaintiff served a notice requiring the defendant to answer interrogatories. On 19 May 2022 the defendant filed and served this application pursuant to rr 8.36 and 8.40 of the High Court Rules 2016 for an order
MCMICHAEL v THE ATTORNEY-GENERAL [2022] NZHC 2119 [24 August 2022]
‘limiting’ the interrogatories (or rather that the defendant should not have to respond to them at all), supported by an affidavit sworn by Phillip Knipe, who is the Ministry of Health’s Chief Legal Advisor. On 27 May 2022 the plaintiff filed an amended statement of claim. Originally the plaintiff claimed nominal damages of $1,000. The amended claim introduced a further claim for exemplary damages of $20,000. On 31 May 2022 the plaintiff filed and served a notice of opposition to the defendant’s application. This is supported by a memorandum from counsel. Finally, the defendant filed and served a second affidavit sworn by Mr Knipe responding to the plaintiff’s notice of opposition and Mr Nicholls’ memorandum.
[3] Interrogatories are governed by Part 8 subpart 2 of the High Court Rules 2016 (rr 8.34–8.46). Although r 8.34 is expressed in very general terms – entitling a party to give notice to another party to answer interrogatories relating to matters in question in the proceeding – certain principles are well established:
(a)The process only entitles the interrogating party to information that is relevant to one or more issue in the case, relevance of course being determined by the pleadings.
(b)The Court must be satisfied that the information being sought exists. Interrogatories are not a process which entitle party to require another to create information. All a party is ever obliged to do is provide information that is already within its possession or power.
(c)Vexatious or oppressive interrogatories will not be sanctioned. The notions of vexatiousness and oppressiveness are different. Vexatiousness involves asking interrogatories for an ulterior or otherwise illegitimate purpose which would constitute an abuse of process. Oppressiveness is a more nuanced idea. It introduces the principle of proportionality. The Court will not sanction interrogatories, the answering of which would impose upon the party being interrogated a burden which is disproportionate to the potential value of the interrogatories.
[4] The interrogatories that the plaintiff wishes the defendant to answer are as follows:
1.Do you have the power to obtain from the DHBs that provide forensic mental health services to persons charged with criminal offences in New Zealand (“defendants”) (“the DHBs”) information about the numbers of assessment reports pursuant to section 38(1) if the Criminal Procedure (Mentally Impaired Person) Act 2003 (“reports”) in any particular year that the DHBs have been requested to provide to any Court of New Zealand from the DHBs and then been completed and filed with a Court?
2.If the answer to (1) is yes, in each of the past 5 calendar years (2017, 2018, 2019, 2020, 2021) please provide information as to:
(a)How many defendants each year have required reports to be completed by the DHBs? and
(b)In each year, what is the shortest, longest and average period of initial timeframe granted to the DHBs by a Court to file reports about a defendant? (where “the initial timeframe” is the period of days from the date the request is made by the Court to the date when the report/s are due for filing by the DHB in Court)
(c)In each year, what is the shortest, longest and average period of initial timeframe where the defendant has been remanded in custody or to hospital or secure facility?
(d)In each year, what is the shortest, longest and average period of the initial timeframe where a defendant is on bail?
(e)In each year, what is the shortest, longest and average period of time to complete reports? (with the completion time being the time period in days from when reports about a defendant are first requested to when those reports are filed by the DHBs in court)?
(f)In each year, what has been the shortest, longest and average period of time to complete and file reports where the defendant has been remanded in custody, hospital or secure facility?
(g)In each year, what has been the shortest, longest and average period of time to complete and file reports where the defendant has been on bail?
(h)In each year, how many defendants have not had their report/s completed within the initial timeframe set by the Court?
(i)In each year, how many defendants have not had their report/s completed by the initial timeframe set by the Court (when the defendant has been on bail)?
(j)In each year, how many defendants have not had their report/s completed by the initial timeframe set by the Court (when the defendant has been remanded in custody or hospital or other secure facility)?
(k)In each year, what is the percentage of defendants who’s reports have not been completed within the initial timeframe?
(l)In each year, what is the percentage of defendants who had been remanded in custody or hospital or secure facility who’s reports have not been completed within the initial timeframe?
(m)In each year, what is the percentage of defendants who had been on bail whose reports had not been completed in accordance with the initial timeframe?
(n)In each year, in cases where an extension has been sought to file report/s for any defendant, what is the shortest, longest and average period of time in days past the initial timeframe for the report/s to then be filed in court (“delay period”)?
(o)In each year, what is the shortest, longest and average period of delay period when the defendant is in custody, hospital or other secure facility?
(p)In each year, what is the shortest, longest and average delay when the defendant is on bail?
3.In each year, what has been the total funding allocated to DHBs to pay for forensic mental health services to enable reports to be provided to the Courts of NZ about defendants?
4.In each year, what has been the total funding per capita of the NZ population allocated to DHBs to pay for forensic mental health services to provide reports to the Courts of NZ about defendants?
5.In each year, what is the total funding allocated to DHBs per capita of the prison population (whether on remand or sentenced) for forensic mental health services to provide reports to the Courts of NZ about defendants?
6.In each year, what has been the average number of funded forensic mental health nurses (being nurses who provide screening advice to the Courts about whether or not reports should be requested by a Court about a defendant) employed by or contracted to the DHBs to? (i.e. how many funded forensic mental health nurse positions are there?)
7.In each year, what has been the average number of actual forensic mental health nurses employed or contracted to the DHBs? (i.e. how many of those funded positions are actually filled?)
8.In each year, what has been the average number of persons who are legally able to write reports funded by or contracted to the DHBs? (i.e. how many funded positions are there?)
9.In each year, what has been the average number of persons who are legally able to write reports actually employed by or contracted to the DHBs? (i.e. how many of those funded positions are actually filled?)
10.In each year, what has been the total amount of funding allocated to train doctors who wish to specialise in psychiatry in NZ?
11.In each year, what has been the total number of new NZ-trained doctors who have qualified as psychiatrists?
[5] In the course of his submissions, Mr McCusker carefully parsed the interrogatories, reducing them into five categories.
[6] The first category includes only Interrogatory 1. Prima facie I would have thought that this interrogatory is objectionable because it does not ask a question of fact, but rather a question of law. However, the Crown does not take that point. Indeed, Mr McCusker answered the interrogatory in the course of his submissions. The answer is yes; the Minister of Health has the power to require the 20 District Health Boards (now Health NZ) to provide any information.
[7] The second category consists of Interrogatories 2(a)-(p). Those are predicated on an assumption that the answer to Interrogatory 1 is yes, as it is, and seeks statistical information in relation to a five-year period from 2017 and 2021.
[8] The third category consists of Interrogatories 3-5 which seek financial information.
[9] The fourth category consists of Interrogatories 6-9 which seek further and slightly different statistical information.
[10] The final category consists of Interrogatories 10 and 11 which seek information relating to the financing and training of doctors and the number of psychiatrists in the country.
[11] The first point that Mr McCusker makes is that the Minister of Health does not currently have any of the information sought in Interrogatories 2 to 11, at least in the form that it is described in the interrogatories. He goes on to say that the expectation is that some or even most of that information is likely to be held by other entities,
including the District Health Boards (or Health NZ), the Ministry of Justice and the Ministry of Education. But he adds that it is unlikely to be held in the configuration that the interrogatories contemplate. The evidence is that it would be necessary to take whatever raw data is available from the various sources and reconfigure this in order to respond to the interrogatories as formulated. Furthermore, Mr Knipe’s evidence is that that would take considerable effort, not only by Ministry of Health officials, but also, he expects, by officials from the Health Boards (or Health NZ) and the other ministries or departments already referred to.
[12] Mr McCusker submitted that in any event the second category of material is not relevant to any issue between the parties. That contention is advanced on the basis that Mr McMichael is the only plaintiff in this proceeding, that his claim relates only to his own circumstances, and therefore that the circumstances of others who may have faced similar difficulties over the last five years are irrelevant.
[13] Mr McCusker submitted that relevance could be tested by asking what orders the Court might ultimately be prepared to make. In this regard, he submitted that whilst, if the plaintiff were successful, the Court might make a declaration to the effect that his rights had been breached, there was no realistic prospect of the Court making a wide-ranging declaration to the effect the Crown had, over the last five years, breached the rights of innumerable unnamed parties whose particular circumstances were not in evidence. In relation to this point, Mr Nicholls submitted that if all of the evidence that is sought by the interrogatory were before the Court in the form of answers, it was at least conceivable the Court may consider making an order of the sort I have described. He added that there is some precedent for this in Taylor v Attorney-General where the Court made a wide-ranging order relating to NZBORA breaches of prisoners voting rights.1
[14] However, as Mr McCusker submitted, Taylor was a case in a different category. In Taylor the Court was being invited to make a declaration of inconsistency as between NZBORA and other legislation. Here the Court is being invited to make a declaration relating to the Crown’s actions.
1 Taylor v Attorney-General [2015] NZHC 1706.
[15] In the end, my view is that it is virtually inconceivable to imagine that in a case such as this, which is closely focused on Mr McMichael’s particular experience, the Court would be prepared to make a declaration which went beyond a determination that Mr McMichael’s NZBORA rights had been breached.
[16] In the course of argument, Mr McCusker summarised this argument colourfully by saying that the High Court is not a commission of inquiry. In doing so, he was echoing views expressed by Associate Judge Bell in Wright v Attorney-General (No. 3).2 That case appears to me to be closely akin to this. The plaintiff was suing the Attorney-General in respect of his arrests by Police in late 2009 and early 2012, alleging that his compulsory detention and treatment as a patient under part 1 of the Mental Health (Compulsory Assessment of Treatment) Act 1992 involved breaches of his NZBORA rights. The interrogatories that the plaintiff sought to administer in the Wright case were, like the interrogatories here, of an expansive nature, and directed at demonstrating wide-ranging difficulties within the system.
[17]Here is how Associate Judge Bell dealt with the application:
[4] In Mr Wright’s view, there were and are systemic defects in the Police and health services, with regard to Wright’s observance. He sees this proceeding as an opportunity to expose those failings. He wants to involve Ministry of Health, although it was not involved in his treatment by the District Health Board. His proposed interrogatories are extensive and cover not only his arrests and compulsory treatment, but also court practices and procedures. He misconceives how the common law works. It does not act as a wide-ranging commission of inquiry. Instead, in a case about breaches of rights under the New Zealand Bill of Rights Act, it decides whether in the circumstances before the court the state breached the plaintiff’s rights and gives remedies appropriate to the breach. Its inquiry and orders do not go beyond the circumstances of the alleged breach. Such one-off findings may nevertheless be useful. The state can be accepted to learn from adverse rules that it has infringed rights, and to alter its practices.
[18] The same principle applies here Mr McMichael is quite within his rights to pursue this claim to the extent that it relates to his personal circumstances. Despite Mr Nicholls’ suggestion to the contrary, he is not representing any other parties. This is not a class action. Mr McMichael’s proceeding relates only to his circumstances.
2 Wright v Attorney-General [2021] NZHC 18; [2021] 2 NZLR 201.
[19] It follows that wide-ranging interrogatories of a statistical nature such as those in Interrogatories 2–11 do not on their face relate to any issue in this case.
[20] Mr McCusker’s third submission was that the proposed interrogatories were vexatious or oppressive. As I understood his argument, he only ran those two terms together because that is how they appear in the Rules. He did not suggest, and nor would there have been grounds for a suggestion, that Mr McMichael is acting vexatiously. The Court has no reason at all to doubt that Mr McMichael is genuine in wishing to expose what he sees as the inadequacies of the country’s health system in relation to forensic reports. Mr McCusker’s argument was simply that, based on the evidence before the Court, gathering this information and reconfiguring it so as to respond to the interrogatories sought would be burdensome, and require “enquiry out of all proportion to the value of the question”..
[21]I agree.
[22] Mr Nicholls submitted that the Minister of Health, or Ministry of Health, was far better placed legally and in terms of resources to gather this material together than Mr Michael is, which is almost certainly correct, but does not advance matters to any extent.
[23] Again, I accept Mr McCusker’s submission in relation to this. As already said, the view I take is that the proposed interrogatories are directed at material that is outside the scope of this proceeding. Or, to put it differently, not directed at an issue in the case. It follows from that, that any significant effort is almost bound to be disproportionate.
[24] The Court’s refusal to sanction the proposed interrogatories does not leave Mr McMichael in a position where he cannot, at trial, contextualise his own case by reference to a wider systemic issue. For a start, the delays with the provision of forensic psychiatrist reports in the context of sentencing decisions are notorious. It may well be that the trial judge is able to take judicial notice of the wider issue. It seems to me that what the plaintiff is really seeking to do in administering these interrogatories is to push onto the Crown responsibility for securing information
which, in part at least, he is able to obtain by other means. Carefully constructed applications for documentation under the Official Information Act might be one avenue. An application or applications for third-party discovery might be another. It seems to me that by a combination of these methods, Mr McMichael and his counsel are likely to be able to place adequate information before the Court, which would enable them to set his own case in proper context, and at least invite the Court to infer that it is an example of a systemic failure.
[25] For those reasons, I make an order absolving the defendant from answering the interrogatories in the plaintiff’s notice.
[26] As for costs, I note that the plaintiff is legally aided. At this stage, I make no order as to costs. If either party wish for the Court to do so, they may come back by memorandum in the usual way.
Associate Judge Johnston
Solicitors
Chris Nicholls, Lower Hutt for plaintiff
Luke Cunningham & Clere, Wellington for defendant
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