Nuku v Attorney-General - [2018] NZHC 2941

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-2786 [2018] NZHC 2941

BETWEEN
KARL NUKU

Plaintiff

AND

ATTORNEY-GENERAL Respondent

Teleconference: 12 November 2018

Counsel:

Plaintiff in Person
S M Kinsler for Respondent

Judgment:

13 November 2018

JUDGMENT OF CHURCHMAN J

[1] Mr Nuku initially started these proceedings as an application for judicial review. He subsequently added to his claim for relief a claim for Baigent damages in the sum of $20,000.

[2] Fitzgerald J, on 30 May 2018, granted leave to amend the pleadings to add claim for Baigent damages although she noted the caution previously expressed by the Court of Appeal about damages claims being brought into judicial review proceedings.1

[3] Mr Nuku subsequently made an application seeking answers to interrogatories.

[4] On 5 September 2018, Fitzgerald J issued a further minute. By consent the proceedings were transferred for hearing from Auckland to Wellington and the scheduled mid-October 2018 hearing in Auckland was vacated.

1 See Attorney-General v Dotcom [2013] 2 NZLR 213 (CA) at [40]-[48].

NUKU v ATTORNEY-GENERAL [2018] NZHC 2941 [13 November 2018]

[5] Mr Nuku had indicated that he intended issuing subpoenas including subpoenas duces tecum requiring the witness to produce documentation. The subpoenas were intended to relate to Detective Reid and Ms Temm.

[6] It was agreed that the respondent would file and serve its evidence and that after reviewing the evidence Mr Nuku would decide whether he proposed issuing subpoenas. Fitzgerald J set out a timetable for the issue of subpoenas and any application to set them aside.

[7] Mr Nuku issued subpoenas against Byron Roy Lyford Reid and Stephanie Margaret Temm. Mr Reid and Ms Temm had provided briefs of evidence and were to be called by the respondent.

[8] The respondent applied to set the subpoenas aside and relied on a variety of grounds including that:

(a) the information sought to be produced by Mr Reid was irrelevant;

(b)Mr Nuku appeared to be using the notice to produce under r 8.32 as an attempt to obtain non-party discovery from the Commissioner of Police;

(c)there was a lack of specificity in relation to documents sought by way of subpoena in relation to a Debra Gower;

(d)documents sought in respect of the Independent Police Conduct Authority (IPCA) were irrelevant and covered by statutory privilege; and

(e)documents appeared to be sought for a collateral purpose being to impugn Police and/or seek to determine Mr Nuku’s convictions.

[9] In relation to Ms Temm, it was submitted that the documents sought to be produced were irrelevant and an abuse of process given that tailored discovery orders in relation to the CCTV footage were previously made by this Court, and complied

with, and that in relation to the remaining documents referred to, the proper course was to provide further tailored discovery.

[10] The respondent indicated that it anticipated being in a position to provide such further discovery by affidavit by 30 November 2018.

[11] Both parties filed detailed…

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.

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Details

Case: [2018] NZHC 2941
Decision Date: 13 November 2018

CaseChat Overview and Summary

The High Court of New Zealand presided over a case involving Karl Nuku, who brought a judicial review action against the Attorney-General, seeking Baigent damages. The central dispute was over the issuance of subpoenas by Nuku to witnesses, including Detective Reid and Ms Temm, to produce specific documentation. The Attorney-General filed an application to set aside these subpoenas, citing issues of relevance, specificity, and the improper use of subpoenas for discovery purposes. The court, under Churchman J, was tasked with determining whether the subpoenas were appropriately issued and whether they should be set aside.

The legal issues that the court needed to decide included whether the subpoenas were relevant to the case, whether they were specific enough, and whether they were being used as a means to obtain discovery, which is impermissible. The court also had to consider whether statutory privilege applied to some of the documents sought and whether the subpoenas were being used for a collateral purpose. These issues were critical in assessing whether the subpoenas complied with the rules and the nature of judicial review proceedings.

The court ruled that the subpoenas were improperly issued. It found that they were being used for non-party discovery, which is not permissible. The court noted that judicial review proceedings are meant to be straightforward and not technical, and subpoenas should not be used as a means to obtain discovery. The subpoenas were also deemed irrelevant to the case and lacked the required specificity. Additionally, the court found that statutory privilege applied to some of the documents sought, and the subpoenas were being used for a collateral purpose. Therefore, the subpoenas were set aside.

The court ordered Nuku to provide a will-say statement for Mr Lothiem by a specified date and directed the Attorney-General to file a further discovery affidavit by another specified date. Costs were reserved for later determination. This decision underscored the importance of adhering to the proper procedures in judicial review proceedings and the limitations on the use of subpoenas.

Orders