McMichael v Attorney-General - [2022] NZHC 2119

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McMichael v Attorney-General

Details

AGLC: McMichael v Attorney-General [2022] NZHC 2119
Case: [2022] NZHC 2119
Decision Date: 24 August 2022

CaseChat Overview and Summary

In McMichael v Attorney-General, the plaintiff, Brendon Murray McMichael, sued the Attorney-General on behalf of the Minister of Health, alleging that the Crown failed to provide a forensic health report ordered by the District Court, resulting in the plaintiff spending longer in prison on remand. The plaintiff claimed that this constituted a breach of s 25(b) of the New Zealand Bill of Rights Act 1990 (NZBORA) and sought declaratory relief, NZBORA damages, and costs. The defendant, represented by S B McCusker, opposed the plaintiff's application for interrogatories, arguing that the information sought was irrelevant, not held by the defendant, and would be burdensome to obtain and reconfiguring.

The legal issues the court was required to decide were whether the interrogatories were relevant, whether the information existed, and whether the interrogatories were vexatious or oppressive. The court held that the interrogatories were not relevant to the case, as they were directed at material outside the scope of the proceeding and not an issue in the case. The court also found that the defendant did not hold the information in the form sought and that obtaining and reconfiguring the information would be burdensome and disproportionate to the value of the questions. The court refused to sanction the interrogatories, noting that the plaintiff could obtain the information through other means, such as applications for documentation under the Official Information Act or third-party discovery.

The court made an order absolving the defendant from answering the interrogatories and noted that no order would be made as to costs at that stage, but either party could apply if they wished the court to do so. This case highlights the importance of relevance, proportionality, and burden in determining whether to sanction interrogatories in a legal proceeding. The court's decision also emphasises that a plaintiff can still contextualise their case by reference to wider systemic issues through other means if interrogatories are not sanctioned.

Orders