T v Attorney-General
[2020] NZHC 394
•4 March 2020
INTERIM ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS OR IDENTIFYING PARTICULARS OF PLAINTIFF OR IDENTIFYING PARTICULARS OF OTHER PERSONS NAMED IN THE JUDGMENT. IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2018-485-000881
[2020] NZHC 394
UNDER The New Zealand Bill of Rights Act 1990 and the Corrections Act 2004 IN THE MATTER OF
Negligence, breach of duty of care, breach of statutory duty and breach of constitutional rights
BETWEEN
T
Plaintiff
AND
ATTORNEY-GENERAL
Defendant
Hearing: 27 February 2020 Appearances:
Plaintiff in person
A Powell & L Dittrich for the Defendant
Judgment:
4 March 2020
JUDGMENT OF DOOGUE J
Introduction
[1] The plaintiff is a prisoner currently serving his sentence at Waikeria Prison. He brings a proceeding against the Attorney-General on behalf of the Department of Corrections (“Corrections”) for an alleged failure to adequately protect him from attacks by two other prisoners (Mr M and Mr N) while he was a prisoner in Whanganui Prison in 2017. The assaults (the existence of which are not contested) occurred in January, April and June of that year.
T v ATTORNEY-GENERAL [2020] NZHC 394 [4 March 2020]
[2] This proceeding involves three different causes of action: one in tort (negligence); one for alleged breaches of s 23(5) of the New Zealand Bill of Rights Act 1990 (“NZBORA”); and one for alleged breaches of s 9 of NZBORA.
[3] The plaintiff seeks aggravated and exemplary damages totalling $215,000 under the cause of action in tort. He also seeks a total of $80,000 in damages for the two NZBORA claims.
[4]There are a number of interlocutory matters for consideration:
(a)The plaintiff’s application dated 19 January 2020 for a second set of interrogatories.
(b)The plaintiff’s application dated 19 January 2020 challenging the defendant’s confidentiality claims.
(c)The plaintiff’s alternative application dated 19 January 2020 for discovery.
(d)The defendant’s application for witnesses to appear by audio-visual link (“AVL”) at the hearing.
Plaintiff’s application for further interrogatories dated 19 January 2020
[5] The plaintiff served notice to answer interrogatories on the defendant on 28 August 2019. The defendant objected to answer some of the interrogatories on the basis they contained questions of law or mixed facts and law.
[6] The plaintiff has accepted some of the defendant’s objections as valid but disputes the defendant’s objections in respect of those matters set out below in [8].
[7] As a result, he has filed an application requiring the defendant to answer a second set of interrogatories. He relies on r 8.1 of the High Court Rules 2016.
[8]The interrogatories sought are:
(a)Provide:
(i)Photographs of main gates of unit 3 and 4 of Te Moanga Unit of Whanganui Prison.
(ii)Identify the measure of any gaps within these gates, and identify whether these gaps are sufficient to allow physical interactions between prisoners through the gates (arm or leg through the gate) from both sides of the gates.
(b)How was [Mr N] able to come out of his unit and assault the plaintiff while plaintiff was using the phone in the common area of Te Moanga Unit?
(c)Did [Mr M] have a stereo on his property at any time between January 2017 and June 2017?
(d)Were there any complaints to the Department of Corrections against [Mr M] by any prisoner(s) regarding [Mr M’s] use of stereo during any of [Mr M’s] sentences of imprisonment?
(e)What is the name or names of the Corrections Officer(s) attending CCTV cameras at the time of assault occurred on 10 June 2017?
(f)Provide photo ID of [named] Corrections Officers.
[9] The defendant opposes the application on the grounds that the interrogatories (except (e)) have already been answered if relevant; where not already answered they are oppressive and irrelevant; and that it would not be in the interests of justice to require the defendant to answer them at this late stage.1
[10] The application was filed after the close of pleadings, and is the second set of interrogatories served on the defendant. Leave has not been sought as required by the High Court Rules.2 I grant leave to the plaintiff largely out of expediency in the conduct of the hearing.
The law
[11] First it is appropriate to summarise the nature, purpose and permissive scope of interrogatories. An interrogatory is a question asked before trial for the purpose of eliciting an answer which is admissible in evidence at trial. It must be relevant to an issue raised on the pleadings or a fact in dispute for determination.
1 Wilson v Broadcasting Corporation of New Zealand (1987) 1 PRNZ 368 at 372.
2 High Court Rules 2016, r 7.7.
[12]An interrogatory must be precise and:3
… amenable to a direct and meaningful answer from information within the knowledge of or reasonably available to the person required to answer. It must not place unnecessary or burdensome obligations on the interrogated party or be prolix. And its purpose must not be to search or probe on the speculative basis that an answer may prove relevant (colloquially known as fishing). A question which offends these elements will fill within the general category of oppressiveness.
[13] An interrogatory is an exception to the time-honoured practice of adducing evidence, and in particular to a defendant’s right not to call evidence, at trial. Accordingly, I must be satisfied that the interrogatory is necessary where, as here, the application to answer the second set of interrogatories is opposed, as per r 8.38 of the High Court Rules 2016.
Discussion
[14]I shall now deal with the specific interrogatories sought in [8] in turn.
8(a)(i)-(ii)
[15] I accept the defendant’s submission that it is problematic for Corrections to take photographs in the prison environment. They have however provided the plaintiff with unit plans which contain drawings of the gates and their dimensions. It is highly relevant also that Corrections does not dispute that the gaps in the gates do allow physical interactions between prisoners and that prisoners can speak to each other through these gates.
8(b)
[16] Corrections have admitted this fact. The precise details of this event will be available to the plaintiff in Mr N’s brief of evidence. He can cross-examine on this at the hearing.
3 Todd Pohokura Ltd v Shell Exploration NZ Ltd [2009] NZCA 561 at [15].
8(c) and (d)
[17] This information has been covered off in the briefs of evidence and as with 8(b), the plaintiff can cross-examine the witnesses.
8(e)
[18] This has already been responded to by Corrections in the affidavit of Michael Ramon Freedman dated 8 October 2019. Mr Freedman said Corrections could not identify the Corrections Officers attending CCTV cameras at the time the assault occurred on 10 June 2017. Since then, they have redoubled their administrative efforts to identify the person/s and hope to make him/her/them available by providing the plaintiff with a brief/s of evidence and making such person/s identified available for hearing and cross-examination.
8(f)
[19] The plaintiff explained that he required photo identification of the Corrections Officers so he knew who they were. I am satisfied that those that are being called as Corrections’ witnesses and who have already conceded their involvement in matters can adequately establish their identity on oath at the hearing.
[20] Save for 8(e) the interrogatories have been answered and 8(e) will be resolved before the hearing.
Plaintiff’s application to challenge defendant’s claims of confidentiality
[21] The plaintiff filed an application challenging the redactions made in the defendant’s discovery documents on the basis of confidentiality. The details redacted include identifying particulars such as dates of birth, PRN numbers, ethnicity, movement records (records of where the prisoners resided prior to and after the assaults) outside the claim period, security classifications outside the claim period, names of other prisoners, some information about the plaintiff’s victim, and information about Mr N and Mr M’s progress in prison and their ongoing rehabilitation. The plaintiff says these details are relevant because they provide an insight into the level and type of risk Mr M and Mr N posed to him and are necessary
to establish the foreseeability of the harm he suffered. He also seeks information about his victim.
[22] The plaintiff seeks an order to set aside all of the defendant’s confidentiality claims made in its discovery to the plaintiff on the following grounds:
(a)the information claimed to be confidential is required for the purpose of these proceedings;
(b)public interest requires that the order sought be made by the Court;
(c)principles of natural justice require that the order sought be made by the Court; and
(d)no harm would be occasioned to Mr N, Mr M, or the plaintiff’s victim by the disclosure of the redacted information.
[23]The defendant opposes the making of the order, saying:
(a)the information fails the first gateway requirement for disclosure, namely that it be relevant;
(b)if the Court finds the information is relevant, the redacted information is confidential and should remain so, due to the public interest in preventing potential harm to Mr N and Mr M; and
(c)public interest in disclosure is outweighed by preventing harm not only to prisoners in the care of Corrections, but also to the flow of information between those prisoners and Corrections.
[24] I have had the opportunity to view the documents in their unredacted form and compare them with the redacted documents.
The law
[25] The starting point under r 8.27 of the High Court Rules is that the party entitled to inspection is entitled to see documents in their entirety without redaction. The onus
is on the party seeking to make the redactions to justify the redactions. Redactions based on irrelevance can be made, but will generally only be permitted where the redacted portion does not destroy the sense of the remainder of the document or make it misleading and would otherwise assist in the proceedings in some way.4
[26] Confidentiality can operate as a shield to disclosure, but the Court retains overriding discretion pursuant to s 69 of the Evidence Act 2006 and r 8.25 of the High Court Rules to direct non-disclosure. The Court may direct non- disclosure if it is satisfied that the public interest in the disclosure in the proceeding of the communication or information is outweighed by the public interest in preventing harm to a person or relationship, or maintaining activities that contribute to or rely on the free-flow of information.5 In doing so the Court has regard to factors in s 69(3) of the Evidence Act.6
[27] Even if information is confidential, it can be required to be given in Court if it is relevant unless the Court makes a non-disclosure order.7 That decision will turn on two considerations.
[28] The first is whether the information is confidential, however there is no single definition for what amounts to “confidential” information. The basic position is that information of a requisite character will be protected as confidential where an individual has a reasonable expectation of confidentiality or privacy and the defendant (or information holder) has agreed to keep it confidential or has notice of its confidentiality.8 Put another way, information can be confidential because of a reasonable expectation of confidentiality, even in the absence of a particular kind of relationship or agreement.9
[29] If the information passes the test, the second question is whether the public interest in disclosure outweighs the public interest in the information’s
4 Bennett v Haven Vehicles Grays Road Ltd HC Wellington CIV-2009-485-242 at [12].
5 Evidence Act 2006, s 69(1)-(2); High Court Rules 2016, r 8.25(3).
6 R v X [2009] NZCA 531, [2010] 2 NZLR 181 at [28].
7 At [30].
8 At [45].
9 At [48].
confidentiality.10 The Court of Appeal has confirmed that privacy interests protected by the Privacy Act 1993 are relevant to this determination.11 A powerful factor mitigating against disclosure is where the confidential information sought is about persons with no interest in the proceeding, who have limited or no ability to decide whether they should consent to the disclosure.12 In such cases, the Court has held that it should exercise its powers conformably with other privacy principles to the maximum extent possible.13
Discussion
[30] The defendant accepts that the plaintiff has a right to use discovery to identify the identity of wrongdoers and that in this case, the names of Mr M and Mr N are relevant to these proceedings.14 They have been provided along with relevant contents of the two prisoners’ reports.
[31] However, the defendant says the identifying particulars redacted are not relevant to the plaintiff’s claim. In relation to the tort claim, I agree with the defendant’s submission that details of each prisoner’s PRN, date of birth, ethnicity and movement records do not contribute to: the determination of whether Corrections had knowledge of the threat posed by the prisoners; whether it is fair, just and reasonable to impose a duty of care; or, if a duty is imposed, what the scope and contents of the duty on Corrections should be. Nor do they assist the Court in determining whether inhumane treatment, or cruel, degrading or disproportionately severe treatment or punishment occurred in relation to the NZBORA claims.
[32] Security classifications of Mr N and Mr M at the time the assaults occurred have been provided to the plaintiff in discovery. This information is contained in the ”Prisoner Movements” records. At the time the three assaults occurred in 2017, the plaintiff and Mr N were both classified as high security. Mr M’s security classification was “Unclassified”. Unclassified prisoners are treated as high security until a
10 At [62].
11 Greenbaum v Waikato District Health Board [2018] NZHC 1273 at [45]; Greenbaum v Southern Cross Hospitals Ltd [2019] NZCA 438 at [73].
12 Greenbaum v Waikato District Health Board, above n 11, at [41]; Tozer v Attorney-General (2001) 15 PRNZ 642 at [31].
13 Tozer, above n 12, at [26], noting that that case concerned the Health Information Privacy Code.
14 G-Star Raw CV v Jeanswest Corporation (NZ) Ltd [2013] NZHC 1251 at [24].
classification is completed. As an unclassified prisoner, Mr M would therefore have been treated as high security. All of that information is relevant and germane, and has been discovered. The security classifications that were redacted in the discovery provided are Mr M and Mr N’s classifications at the time the reports were downloaded in 2019. In my view the 2019 classifications are not relevant to the incidents occurring in 2017.
[33] Some of the redacted information records information about Mr N and Mr M’s progress in prison and their rehabilitation. Both prisoners have a reasonable expectation of confidentiality in respect of this intimate information. I have reviewed this information – it is extremely limited and in both cases is largely prospective in nature, speaking of efforts both prisoners will be taking in the future. It is thus not relevant to determining the foreseeability of risk or duty of care owed by Corrections to prisoners at the time of the assaults on the plaintiff in this case.
[34] What is sought in relation to the plaintiff’s victim is not clear on the material available to me. Conceptually it seems difficult to see how such information could be relevant to the issues for determination.
The alternative orders for additional discovery
[35] If the orders sought in relation to the confidentiality redactions are not granted, the plaintiff seeks the criminal records (including sentencing notes) of the Mr M and Mr N, arguing these are relevant because they “prove the foreseeable level and type of risk” Mr M and Mr N posed to other prisoners.
[36] The defendant says that in relation to criminal records, evidence of the past offending of Mr N and Mr M does not assist in establishing whether threats were made against the plaintiff, whether Corrections had knowledge of the threats or the specific danger (if any) the men posed to the plaintiff, and whether Corrections ought to have put measures in place to prevent them.
[37] In my view, the information concerning Mr M and Mr N’s previous convictions is relevant to the foreseeability of risk issue. I do understand and accept that if this information were physically provided to the plaintiff without restriction there is a risk
(even if inadvertent) of that information being circulated or otherwise misused. Nonetheless, it is information that the plaintiff should receive. Bearing confidentiality and misuse in mind, I do not consider that the full sentencing notes should be disclosed; only any parts of them that address risk or the assessment of risk need be disclosed.
[38] During the hearing of these applications the defendant agreed to explore ways in which the plaintiff could be apprised of the information in a way that did not carry the types of risks identified in [26]. I direct the defendant to explore this further and file a memorandum for my attention as to how this might be progressed.
[39] Counsel for the defendant will need to file a memorandum making submissions as to the form the discovery of Mr M and Mr N’s previous convictions and redacted sentencing notes should take having regard to the considerations set out in [27]-[29].
Defendant’s application for witnesses to appear by AVL at the hearing
[40] The defendant seeks an order that the defendant’s five witnesses give evidence and be cross-examined by AVL. That application is not contested.
[41] The defendant submitted an affidavit of Reti Pearse, Prison Director of Whanganui Prison, in support of the application. Mr Pearse contends that requiring the five witnesses in question to attend the hearing in person would cause significant operational issues for the Prison. Along with the difficulties posed by transport between Whanganui and Wellington, he also outlines issues with staff shortages and/or unavailability which is already making it difficult to cover the fundamental shifts of the Prison’s operation.
[42] I am satisfied that the grounds set out in ss 5 and 7 of the Courts (Remote Participation) Act 2010 have been made out and that the application should be granted.
Adjournment
[43] Regrettably, this matter was not ready for hearing on 2 March 2020 as scheduled. That is through no fault of either party. Both parties would have wished to have been ready for hearing. It was necessary to adjourn the matter.
[44] The delays are a reflection of the strictures of the plaintiff residing in prison. This limits his access to computers and time for preparing for his case. It also places some impediments in the way of the flow of information. Most relevantly in this case, although the defendant’s briefs of evidence were couriered to the plaintiff on 17 February 2020, he had not been given them at the date of this hearing and he had not had the chance to read them. In addition, counsel for the defendants had sent the plaintiff a compendium of the relevant authorities and he had been unable to read them and prepare for the hearing adequately.
[45] As a result, the plaintiff needs time to review the information referred to in the previous paragraph, prepare his own brief of evidence, prepare his opening and prepare for his cross-examination of the defendant’s witnesses.
[46] It is evident this matter will require focussed case management to bring it to hearing. For that reason, now that I am seized of the matter I shall retain the file for that purpose.
[47] The Registry is to allocate a case management conference before me in the week commencing 6 April 2020. The plaintiff shall appear by AVL.
Counsel to assist
[48] After discussions with the plaintiff and counsel for the defendant about the issues to be tried – given their novelty, their potential implications for prisoners’ rights and for the state’s obligations generally, and because the plaintiff is self-represented – I consider it is necessary to appoint counsel to assist the Court in this matter.
[49]Counsel should be highly experienced in the law of tort. The brief will be to:
(a)review authorities, both domestic and international, on the nature of a jailer’s duty to a prisoner;
(b)identify relevant matters for the Court’s consideration in evaluating whether or not a duty of care may exist and, if it does, the nature and extent of that duty; and
(c)provide submissions on (a) and (b) to the Court no later than three weeks before the hearing.
Result
[50]I make the following orders: –
(a)The plaintiff’s application for second interrogatories is declined save for answers in relation to CCTV.
(b)The plaintiff’s application for waiver of the defendant’s claimed confidentiality is declined.
(c)The plaintiff’s application for further discovery is granted to the extent referred to in [37].
(d)The defendant’s application for witnesses to appear by AVL is granted.
(e)The hearing set down for 2 March 2020 is adjourned.
(f)A case management conference is to be set down before me in the week commencing 6 April 2020.
(g)Counsel to assist the Court is appointed to
(i)review authorities, both domestic and international, on the nature of a jailer’s duty of care to a prisoner;
(ii)identify relevant matters for the Court’s consideration in evaluating whether or not a duty of care may exist and if it does the nature and extent of that duty; and
(iii)provide submissions to the Court no later than three weeks before the hearing.
Doogue J
Solicitors:
Crown Law, Wellington
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