N v Attorney-General
[2016] NZHC 547
•1 April 2016
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2008-485-2041 [2016] NZHC 547
BETWEEN N
Plaintiff
AND
THE ATTORNEY-GENERAL Defendant
CIV-2010-485-1167
BETWEEN A Plaintiff
ANDTHE ATTORNEY-GENERAL Defendant
CIV-2009-485-944
BETWEEN E Plaintiff
ANDTHE ATTORNEY-GENERAL Defendant
Hearing: 4 February 2016 Counsel:
K R Ross with R M Hay for Plaintiffs
D W Jacyk with M K Nicholson for DefendantJudgment:
1 April 2016
JUDGMENT OF ELLIS J
I direct that the delivery time of this judgment is
3.45 pm on the 1st day of April 2016
N v THE ATTORNEY-GENERAL [2016] NZHC 547 [1 April 2016]
[1] The three plaintiffs (to whom I shall refer as N, A and E) are claimants in what is known as the DSW Litigation Group. They have applied for orders for standard discovery against the Ministry of Social Development (the Ministry). Informal discovery has already been provided by the Ministry and I record at the outset that I have no doubt that the Crown has attempted to take a co-operative and principled approach to the disclosure of relevant documents not only to N, A and E but to others in the Group. Unfortunately, however, difficulties have arisen. The issues raised by the present application are not confined to N, A and E.
Background
[2] Since 2004 some 560 historic abuse claims have been made against the Ministry. Broadly, the claims are made by those who were children who were previously either in the care of, or had a significant relationship with, the Ministry’s predecessor agencies. They make allegations of abuse, maltreatment and other failures of care. The plaintiffs in the DSW Litigation Group comprise a subset of these claimants. Cooper Legal has acted for the plaintiffs throughout.
[3] On 18 April 2012 the Ministry wrote to the Privacy Commissioner explaining the position it had taken in relation to the records and documents it holds or controls and their disclosure to claimants and potential claimants. The Ministry said:
Critical to achieving resolution [through settlement of the claims] is the sharing of information relevant to each claim. The Ministry holds a significant number of records of potential relevance. The records fall into one of three categories – Personal files for an individual client, staff member or caregiver; Family Files that relate to other members of the client’s family and possibly themselves; and Administration Files of various types relating to the Ministry’s institutions and homes.
The Ministry’s approach to releasing information to Cooper Legal on behalf of their clients is to provide as much as possible under the provisions of the law. To that extent, where a client has filed proceedings Personal and Family Files relating to the client are provided in their entirety, with no redactions. Where a client has not filed proceedings, the Personal and Family files are provided with third party information redacted under the provisions of the Privacy and/or Official Information Acts. Understandably, Cooper Legal would like access to the full unredacted client and family files in all instances. As a matter of principle the Ministry has no issue with that, but we also recognise the need to meet our obligations under the legislation.
A similar situation exists with the Administration Records. These records vary from the very mundane that hold no personal client information at all,
through to things such as admission registers and daily diaries that contain the names of many other people and more detailed personal information not related to the client. These records can be of significant assistance to both parties in assessing an individual claim. Again as a matter of principle, the Ministry would like to make these records as freely available to Cooper Legal as possible, but is retrained by the legislation.
[4] Accordingly, up until the end of 2013 the Ministry was providing Cooper
Legal with the full Personal and Family files of the claimants without redaction.
[5] Between August and October 2013 Cooper Legal applied for a number of particular discovery orders in relation to other documents. Those applications were eventually resolved by consent in September 2014. A joint memorandum recorded the parties’ agreement:
5.… that if third party information is provided by the defendant as part of the above discovery orders, other than relevant information relating to:
5.1 members of a plaintiff’s family;
5.2caregivers, social worker and/or staff members who provided care and/or supervision of a plaintiff;
5.3 other third parties referred to in a plaintiff’s records
that information will not be disclosed by counsel for the plaintiffs to their clients or any other person (other than an expert witness appointed by counsel for the plaintiffs) without further order of the Court.
[6] Although the wording is a little opaque, the agreement seems to be that:
(a) relevant third party information of the kind referred to at 5.1 to 5.3 would be provided and would be able to be sighted by the plaintiff upon whose file the information appeared; but
(b)other third party information would be made available on a counsel to counsel basis.1
[7] But it appears that in the context of addressing the discovery applications, and in light of the 2012 amendments to the High Court Rules dealing with discovery,
1 It is arguably implicit that the information provided on either basis would not be redacted.
in late 2013 the Ministry reviewed its disclosure processes. This resulted in the Ministry taking a narrower approach to relevance which, it considered, was in keeping with those new rules. So, a letter from Crown Law to Cooper Legal dated
12 December 2013 advised:
You therefore may notice more redactions in the documents that you will receive in discoveries. Of course if those redactions raise any concerns with you that there may be information that you consider to be relevant that has been redacted, then please let me know.
The Ministry is happy to consider any explanation you may have as to why that further information may be relevant in terms of the test in rule 8.7.
[8] There is, perhaps, something of a “Catch 22” aspect to the suggestion that plaintiffs’ counsel should “explain” to the Ministry why they regarded information they had not seen as relevant.
[9] In any event, this change of approach led the plaintiffs’ lawyers eventually to
draw the matter to the attention of the Court. As a result, on 1 April 2015
MacKenzie J directed that counsel for the plaintiffs should either make a representative application for standard discovery or for tailored discovery in order to enable the issues to be resolved. The present applications for standard discovery were filed on 2 July 2015.
Discussion
[10] It is clear to me that the background set out above has been productive of a number of difficulties and inconsistencies in approach. These have arisen principally because of:
(a) the sheer number of claims and the logistical difficulties this presents for the Ministry;
(b) potentially parallel disclosure processes under the Privacy and Official
Information Acts and in the course of litigation;
(c) the informality of the discovery process to date;2
(d)the Ministry’s change from a liberal to a more conservative approach to the issue of relevance from the beginning of 2014 onwards; and
(e) the fact that some of the claimants are related which has resulted in the disclosure of the same documents from Family files with different redactions in each.
[11] I also record at this point that my own comparison of a sample of the redacted documents with the original of those documents (an exercise helpfully facilitated by the provision of a bundle of such documents by counsel for the Ministry) gives me some concern that some of the material redacted is plainly relevant to the claim of the particular plaintiff concerned. Again, that is not meant as a criticism of the effort or bona fides of those charged with the disclosure but rather as an indicator that the redaction of parts of otherwise relevant documents can be fraught with difficulty. There is also the point that the content of the documents in question by and large constitutes personal information related to the particular plaintiffs themselves. Absent some clearly articulated and contestable claim for third party confidentiality it is difficult to see how the redactions could be warranted.
[12] The Court is therefore faced with a situation where not only is there no sworn affidavit of documents and, accordingly, no presumption in favour of the validity of the redactions, but one in which there is an actual basis for doubt in that regard.
[13] After hearing at length from the parties, however, it is clear that, as Mr Jacyk for the Ministry submitted, the orders for standard discovery sought by the plaintiffs are not the answer. Such orders would seem to me to involve an unnecessary and
ultimately unproductive reinvention of the wheel.
2 The absence of a formal discovery process under the rules also means that there is no real legal framework within which to have disputes about redactions. By way of example only, there has been no formal compliance with r 8.16(1)(c) which requires that a schedule of disco verable documents provided in accordance with r 8.15 identify documents that are in the control of the Ministry for which confidentiality is claimed “stating the nature and extent of the confidentiality”. It is precisely this absence of legal structure that caused MacKenzie J to require that formal applications be made under the rules.
[14] Nor do I consider that the answer lies in making some kind of order for tailored discovery with directions to:
(a) list all the documents that have already been informally provided to the plaintiffs in accordance with the High Court Rules; and
(b)articulate clearly the reasons for any redactions made on a document by document basis.
[15] That is because even directions of this kind would not resolve the issues. Almost inevitably, the specific justifications for the redactions would subsequently be contested. The matter would almost certainly return to the Court for resolution in six months time. As I attempted to convey at the hearing, such an outcome is not, in my view, consistent with r 1.2 and the overriding objectives of the High Court Rules.
[16] Although I urged counsel to reach agreement about some form of pragmatic solution, that did not prove to be possible. Mr Jacyk advised that the Ministry wished to have the matter resolved on a “principled” basis. While that is understandable, it is also easier said than done against the background of what has already informally occurred. But what is plain to me is that the guiding principles must reflect the objectives contained in r 1.2.
[17] In the end I consider that the most just, expeditious and inexpensive way forward is for the Ministry to provide a set of documents to counsel for the plaintiffs which contains both the redacted version and a clean copy of each of the disputed documents. The clean copies are to be provided strictly on a counsel to counsel basis only. In the event that Cooper Legal then wish to:
(a) show the relevant plaintiff a clean copy of any document (or part of a document) that has been redacted; or
(b)use the information contained in a redacted portion in some way in the litigation (for example by contacting a third party who may be named in it, or as a basis for cross-examination) –
they are to seek the specific consent of the Crown. If that consent is not forthcoming then an application may be made.
[18] Directions of this kind appear to me to be broadly consistent with the position that was arrived at by consent in September 2014. They also reflect the most likely ultimate outcome in the event that the Court were to direct a more laboured process of tailored discovery of the kind outlined at [14] and [15] above.
[19] I emphasise that, in directing the solution above, the Court is unlikely to be interested in later entertaining academic disputes about the correctness or not of the redactions. The point of framing the directions as I have is that the Court will intervene further only in the event that the redactions can be shown to have some real and potentially adverse consequence in the litigation.
[20] My preference is not to couch these directions specifically in terms of orders for standard, tailored or particular discovery. In particular, to require formal, rule- compliant, lists of documents now does not seem necessary or desirable and it was not my understanding that this is what the plaintiffs want. That said, however, if the Ministry wishes me to regularise the position in that way I would be prepared to do so. I would, however, wish to seek further submissions from counsel as to the precise form such orders should take.
[21] Counsel for the Ministry is, accordingly, to advise the Court within five working days whether the Ministry wishes to have these directions articulated in formal discovery terms. If no such advice is received the directions I have set out at
[17] above will simply take effect on the expiry of that five working day period.
Solicitors: Cooper Legal, Wellington, for Plaintiffs
Crown Law, Wellington, for Defendant
Rebecca Ellis J
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