Taylor v Attorney-General

[2021] NZHC 1546

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2017-485-802

[2021] NZHC 1546

BETWEEN

ARTHUR WILLIAM TAYLOR

Applicant

AND

ATTORNEY-GENERAL

Respondent

Hearing:

8 June 2021

Appearances:

Applicant in person

S M Kinsler and V Squires for respondent

Judgment:

25 June 2021

REASONS JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

Introduction and background

[1]    In this proceeding Mr Arthur Taylor sues the Attorney-General on behalf of the Crown alleging mistreatment by the authorities during a period of imprisonment. It is unnecessary to particularise Mr Taylor’s allegations for the purposes of the present interlocutory application. Mr Taylor’s proceeding was commenced in 2019 and the interlocutory stages of the litigation have been protracted and fraught.

[2]    Mr Taylor is writing a book. The book is apparently entitled Prison Break: The Extraordinary Life & Crimes of New Zealand’s Most Infamous Escapee, and is an autobiographical account of Mr Taylor’s life. I am told the book is scheduled for release in August 2021.

[3]    In  the  course  of  discovery,  the  Crown  discovered  camera  footage  of  Mr Taylor’s transfer between Auckland and Waikeria Prisons in December 2017. One

TAYLOR v ATTORNEY-GENERAL [2021] NZHC 1546 [25 June 2021]

of Mr Taylor’s allegations is that this transfer was effected by the authorities in a way which breached his rights. The footage is therefore relevant, perhaps especially so if, as he says, Mr Taylor was unconscious for much of the time.

[4]    Whilst accepting that the footage is relevant and discoverable, the Crown wished to ensure that by discovering the same it did not compromise security at the prisons by revealing the layouts and positioning of CCTV cameras. That such a risk existed was obviously accepted by both parties because in a joint memorandum they sought confidentiality orders. The first paragraph of the memorandum was in the following terms:

This memorandum is jointly filed by the parties to seek confidentiality orders over CCTV footage and on body camera footage held by the Attorney-General. The orders sought relate to camera footage of the plaintiff’s transfer from Auckland Prison to Waikeria Prison on 20 December 2017 (The Confidential Footage). The defendant claims confidentiality in the Confidential Footage on the basis it contains sensitive information including the layout of the Auckland Prison and Waikeria Prison and the position of security cameras at those prisons.

[5]Thus, the parties clearly identified the rationale for the order being sought.

[6]    Their memorandum went on to identify the particular camera footage and other material to which it would apply, and set out the agreed restrictions:

By consent, the parties seek the following orders:

(a)The plaintiff will provide a signed undertaking to the defendant that he will treat and maintain the Confidential Footage as confidential prior to being provided with a link that provides a streamed copy of the Confidential Footage. The Confidential Footage will be watermarked as confidential. The streamed copy of the Confidential Footage is to be viewed securely by the plaintiff and only shown to such witnesses for the plaintiff as are required to prepare his case.

(b)The plaintiff undertakes that any witnesses outlined in paragraph (a) will be expressly advised that the Confidential Footage is confidential. The defendant will make a streamed copy of the Confidential Footage available to witnesses the plaintiff intends to call provided the proposed witness provides a signed undertaking to the defendant confirming that he or she has been advised of the confidentiality orders in place and that the streamed footage may not be viewed or distributed to any other person.

(c)In the event that a copy of the Confidential Footage is subsequently filed with the Court, the Confidential Footage must be identified as

confidential on the Court file and may not be searched by any person without the leave of a judge, which must be sought on notice to the parties.

(d)Any references in the evidence in this proceeding to the Confidential Footage will be subject to a confidentiality order and may not be searched on the Court file without leave of a Judge, which must be sought on notice to the parties.

(e)The parties’ written submissions (insofar as they contain references to the Confidential Footage) will be subject to a confidentiality order and may not be searched on the Court file without the leave of a Judge, which must be sought on notice to the parties.

(f)The publication, communication or disclosure of the Confidential Footage in whole or in part other than to the Court, counsel and the parties to this proceeding (including expert witnesses) is prohibited, other than in accordance with these, or any subsequent Court orders. For the avoidance of doubt, no copy may be made of the streamed copy of the Confidential Footage.

(g)Leave is reserved to either party to vary these confidentiality orders on notice.

(h)These orders will remain in place pending any further direction of the trial judge.

[7]The order was made by consent on 3 February 2020.

[8]    Since that date, also by consent, the order has been amended twice, but in ways that are irrelevant for present purposes.

[9]    The proceeding is set down for trial. The trial is scheduled to commence in early 2022. Pre-trial directions have been made, and the parties are working their way through these.

[10]   In the course of preparing for trial Mr Taylor has engaged an Australian GP, Dr James Freeman. Dr Freeman has viewed the discovered camera footage. He has provided a report dated 9 November 2020 that comments on the footage and Mr Taylor has proffered Dr Freeman’s report as a brief of evidence.

[11]Mr Taylor wishes to quote from Dr Freeman’s report in his book.

[12]   By interlocutory application dated 11 March 2021 Mr Taylor seeks leave to do so.  In his affidavit sworn in support of this application he has identified the passages

from the report that he wishes to quote, and these are replicated in the schedule to this judgment.

[13]   The Crown opposes this, and has filed and served a notice of opposition dated 26 March supported by affidavit evidence.

[14]   The application was argued on 8 June 2021 and on 11 June 2021 I issued a results judgment.   I granted Mr Taylor  leave to  include the seven passages from   Dr Freeman’s report in his book. In that judgment I said that I would deliver a reasons judgment in due course, and I now do so.

Discussion

[15]   Mr Taylor’s application and his written and oral submissions all proceeded on the basis that what he was doing was seeking a further variation of the 3 February 2020 order.

[16]That is not how I see it.

[17]   Paragraph 1 of the 20 December 2019 joint memorandum could not be clearer that the joint request for a confidentiality order was made because the footage was said to contain sensitive information concerning the layouts of the two prisons and the positions of security cameras in them.

[18]   I am prepared to accept that on a liberal reading of paragraphs 4 (d)-(f) the order may be said to apply to Dr Freeman’s report or brief of evidence, and the excerpts that Mr Taylor wishes to quote.

[19]   However, a purposive reading suggests that the confidentiality order cannot stand in the way of Mr Taylor doing what he wishes to do. That is because the excerpts from Dr Freeman’s brief of evidence do not contain any sensitive information concerning the layout of the prisons or the positions of CCTV cameras in them. The purpose of the confidentiality order is therefore not engaged.

[20]   Nevertheless, in my view, Mr Taylor does need leave to include the quotes from Dr Freeman’s brief of evidence in his book, not because of the existence of the confidentiality order, but as a result of two interrelated common law principles, now captured in rules rr 8.30(4) and 9.14(e) of the High Court Rules 2016, that are engaged by his application.

[21]   The first of these is the common law rule that a party to litigation obtaining documentation from another party through the mechanism of discovery may not use that documentation for any purpose other than in the litigation itself.

[22]As to this, r 8.30(4) of the High Court Rules provides:

8.30     Use of documents

…

(4)A party who obtains a document by way of inspection or who makes a copy of a document under this rule—

(a)may use that document or copy only for the purposes of the proceeding; and

(b)except for the purposes of the proceeding, must not make it available to any other person (unless it has been read out in open court).

[23]   Associate Judge Osborne (as he then was) described the underpinnings of this principle in Hally Labels Ltd v Powell.1 His Honour said:2

The courts approach to discovery and to the collateral use prohibition can be traced to a balancing of two competing public interests. First, the public interest in full disclosure so that the Court can get at the truth of a dispute. Secondly, the public interest in preserving and protecting confidential information…

[24]   In Dotcom v Attorney-General, Gilbert J explained that the protection against collateral use of discovered documents is important to maintaining confidence in the integrity of the discovery process and helps ensure that parties comply with their discovery obligations, so that:3

1      Hally Labels Ltd v Powell [2013] NZHC 900.

2      At [6]

3      Dotcom v Attorney-General [2016] NZHC 2251 at [9].

… when considering an application for a relaxation of the fundamental rule prohibiting collateral use of discovered documents in a particular case, the Court must be vigilant to ensure that the confidence that litigants are entitled to have in this important safeguard is not eroded. That would be contrary to the public interest.

[25]   In Hally Labels v Powell, Associate Judge Osborne identified that r 8.30(4) contains only one exception to the prohibition on making discovered documents available to any other person — once a document has been read out in open court — and does not explicitly provide that the Court may otherwise grant leave.4

[26]   Nonetheless, there is authority for the proposition that the Court may grant such leave.5

[27]Here is the applicable commentary from McGechan on Procedure:

A further principle pervading all aspects of the discovery process, made explicit in r 8.30(4), is that the party obtains documents on discovery is only entitled to use those documents for the purposes of the proceeding and may not use the documents for collateral or ulterior purposes: Wilson v White [2005] 3 NZLR 619, (2005) 17 PRNZ 537 (CA); Altersky v Scott [1948] 1 All

ER 469 (Ch). This undertaking or implied obligation is treated as one given to the Court, which can also release or modify it; Wilson v White; Crest Homes Plc v Marks [1987] 3 WLR 293, [1987] 2 All ER 1074 (HL).

It is binding on anyone into whose hands the documents might come if that person knows that the documents have been obtained by way of discovery: The Distillers Co (Biochemicals) Ltd v Times Newspapers Ltd [1975] QB 613, [1975] 1 All ER 41 (QB). The drift of authority is that the implied undertaking applies to any material obtained compulsorily in legal proceedings, the requirement for compulsion being one of substance not form: Wilson v White at [29]. In a comprehensive discussion of the issue, the Supreme Court of New South Wales decided in Answorth v Hanrahan (1991) 25 NSW LR 155 (SC) that a similar principle applies to information obtained by way of interrogatories. Discovered documents may not be used for a counterclaim commenced after discovery was completed, and the necessary leave would require special circumstances: Telstra NZ Ltd v Telecom NZ Ltd (2000) 14 PRNZ 541 (HC).6

[28]   The second principle is of more recent development as it applies to the process of exchanging briefs of evidence of witnesses prior to trial. Whilst, in civil litigation,

4      Hally Labels Ltd v Powell, above n 1, at [10] and [19].

5      Wilson v White [Undertaking] (2005) 17 PRNZ 537 (CA) at [47].

6      Andrew Beck and others (eds) McGechan on Procedure (online ed, Thomson Reuters) at [HRPt8 Subpt1.07].

the parties are generally required to do this, at least until such time as the witness gives evidence in open court, briefs remain confidential.

[29]This is alluded to in r 9.14(e) which provides:

9.14 Privilege and admissibility not affected by briefs

Nothing in this subpart—

…

(e)allows a brief, served under these rules, to be made available, before it is given in evidence, for use for another purpose or proceeding.

[30]   The relationship between these two principles is obvious — they both arise from a concern to ensure that the courts’ power to compel parties to disgorge information which they would not otherwise be obliged to do is not abused.

[31]   In relation to this issue, Mr Kinsler for the Crown drew my attention to the judgment of the High Court of England and Wales in Prudential Assurance Co Ltd v Fountain Page Ltd & Another.7 I accept his submission that Prudential Assurance Co is probably the fullest judicial explanation for the rationale for such rules and I quote Hobhouse J’s reasoning in full:

In respect of both documents disclosed on discovery and affidavits the relevant principle is expressed in terms of an implied undertaking arising from the compulsion of a court order requiring the opposite party, whether he wishes to or not, to disclose documentary or factual material. In the leading case, Riddick v Thames Board Mills Ltd [1977] Q.B. 881, 895, Lord Denning

M.R. adopted the statement in Bray on Discovery, 1st ed. (1885), p 238:

“A party who has obtained access to his adversary’s documents under an order for production has no right to make their contents pubic or communicate them for any collateral object … If necessary an undertaking to that effect will be made a condition of granting an order … .”

In Crest Homes Plc. v Marks [1987] A.C. 829, 853, Lord Oliver of Aylmerton said:

“a solicitor who, in the course of discovery in an action, obtains possession of copies of documents belonging to his client’s adversary gives an implied undertaking to the court not to use that material nor to allow it to be used for any purpose other than the proper conduct of that action on behalf of his client … It must not be used for any ‘collateral or ulterior’ purpose ”

7      Prudential Assurance Co Ltd v Fountain Page Ltd [1991] 1 WLR 756 (QB) at 764-765.

This undertaking is implied whether the court expressly requires it or not. The expression of the obligation as an implied undertaking given to the court derives from the historical origin of the principle. It is now in reality a legal obligation which arises by operation of law by virtue of the circumstances under which the relevant person obtained the documents or information. However treating it as having the character of an implied undertaking continues to serve a useful purpose in that it confirms that the obligation is one which is owed to the court for the benefit of the parties, not one which is owed simply to the parties; likewise, it is an obligation which the court has the right to control and can modify or release a party from. It is an obligation which arises from legal process and therefore is within the control of the court, gives rise to direct sanctions which the court may impose (viz. contempt of court) and can be relieved or modified by an order of the court. It is thus a formulation of the obligation which has merit and convenience and enables it to be treated flexibly having regard to circumstances of any particular case. Treating the duty as one which is owed to the court and breach of which is contempt of court also involves the principle that such contempts of court can be restrained by injunction and that any person who knowingly aids a contempt or does acts which are inconsistent with the undertaking is himself in contempt and liable to sanctions: see Distillers Co. (Biochemicals) Ltd v Times Newspapers Ltd. [1975] Q.B. 613.

The rational basis for the rule is that where one party compels another, either by the enforcement of a rule of court or a specific order of the court, to disclose documents or information whether that other wishes to or not, the party obtaining the disclosure is given this power because the invasion of the other party’s rights has to give way to the need to do justice between those parties in the pending litigation between them; it follows from this that the results of such compulsion should likewise be limited to the purpose for which the order was made, namely, the purposes of that litigation then before the court between those parties and not for any other litigation or matter or any collateral purpose: see, for example, per Lord Keith of Kinkel in Home Office v Harman [1983] 1 A.C. 280, 308.

It is also to be noted that this principle is independent of any question of confidentiality. The documents produced on discovery may or may not be confidential in character; the implied undertaking and the restriction upon the use that may be made of the documents or information by the party compelling their disclosure is independent of the actual character of the document or information. Confidentiality is relevant to the principle of privilege but not to the compulsion principle.

[32]   Accordingly, for Mr Taylor to quote from Dr Freeman’s brief of evidence in his book without the Court’s leave would involve him breaching both principles discussed above.

[33]   In an  article  entitled  “Disclosure  of  Material  Obtained  on  Discovery”  Ian Eagles addresses this topic.8 Mr Eagles is critical — quite pointedly so — of what

8      Ian Eagles “Disclosure of Material Obtained on Discovery” (1984) 47 Modern Law Review 284.

he perceives to have been the historical inconsistency between the way in which the courts (of England and Wales for the most part) treat confidentiality as the touchstone principle in dealing with the interlocutory stages of litigation, and the open administration of justice and freedom of speech as the most important considerations at and after trial. I have some sympathy for Mr Eagles’ essential thesis that this approach should yield to a balancing exercise at any given stage in the litigation. He asks:9

Is discovery such a delicate flower that it will wilt if exposed to the full glare of the principles of free expression and open justice?

[34]My answer would be: hardly.

[35]   Mr Eagles was writing in 1984, and my reading of the cases, from New Zealand and elsewhere, since then suggests to me that the trend is toward an approach along the lines for which he advocates, or at least a greater recognition of the importance of open justice and freedom of expression in the analysis.

[36]It appears to me that the key principles involved might be:

(a)The High Court — like all courts — has inherent power (I use that word deliberately, to distinguish between inherent jurisdiction enjoyed by superior courts of record and inherent power that every court and tribunal exercises over its own processes) to control the use that parties make of information obtained through the Court’s processes;

(b)Materially, for present purposes, the High Court Rules address such matters in r 8.30(4) and r 9.14(e);

(c)The Court may grant leave to a party to take a step otherwise proscribed by those rules;

(d)Invariably, it will be the party seeking such leave who will be the applicant. However, it is not obvious to me that the onus should

9      At 293.

necessarily fall on the applicant to satisfy the court that he, she or it should be granted leave. Historically, that onus lay with the party seeking to impose restrictions. A contemporary approach may be that notions of onus should not be allowed to get in the way of the fundamental task which is to have regard to all relevant considerations and reach a balanced conclusion about the appropriateness or otherwise of the step or steps being proposed. That, naturally, leads to the most critical question, namely on what basis or bases should the Court exercise its inherent power;

(e)At the most abstract level the balancing exercise will be informed by two overarching considerations. The first is the importance of the principles of open administration of justice and freedom of speech, that is to say, the right that we have in a democratic society to impart and receive information. This common law entitlement to the latter is now captured in s 14 of the New Zealand Bill of Rights Act. This, it certainly seems to me, must be an important factor in any determination, recognising of course that that right is a qualified one. The second consideration is the principle that has been articulated by the courts in England since Altersyke v Scott that at least during the interlocutory stages of litigation the Court’s processes require parties to disclose documentation and other information that they would not normally be required to disclose and that it is an abuse of the right of a party to demand such disclosure to use it for purposes other than litigation.10 The question in any given case is likely to be whether the interests of open justice and freedom of speech must yield to the need to maintain the integrity of the court’s processes.

[37]   In my view, beyond that, it would be difficult, and ultimately unhelpful, to attempt to develop an exhaustive list of considerations, as the enquiry in every case is likely to be intensely fact dependent.

10     Altersky v Scott [1948] 1 All ER 469 (Ch).

[38]   I turn therefore to what appear to me to be the important considerations in this case.

[39]   The starting point is to focus on the material that Mr Taylor is seeking leave to include in his book, that is to say Dr Freeman’s views as to what the camera footage shows.  The most obvious observation that can  be made in  relation to this is that  Mr Taylor is not seeking leave to publish any material obtained by him on discovery, but rather Dr Freeman’s views. To the extent that Mr Taylor’s inclusion of this material in his book would offend against r 8.30(4) it would do so indirectly. Over and above that point:

(a)The source material on which Dr Freeman comments consists of images of an event that involved both parties or their representatives and is the subject of the litigation. Furthermore, the comments themselves are not inherently confidential in the sense that documentation disclosing sensitive personal or commercial information might be;

(b)To the extent that confidentiality issues relating to the disclosure of the footage have been identified by the parties themselves, these relate to the layout of the two prisons and the position of CCTV cameras in them, and Dr Freeman’s comments do not disclose any such information;

(c)Nor can there be any real concern arising from Dr Freeman’s comments concerning the involvement of third parties, as he does not identify them other than by reference to occupations (“leaders”; “guards”; “nurse”). It is true that there is a risk that individuals may be identified elsewhere in the book, but that risk exists in any event.

[40]   Mr Taylor contended — and there is some force in this — that if a party seeking leave can demonstrate an entitlement to the information that he or she seeks to impart independently of the Court’s processes (whether this relates to information acquired

by the discovery process or contained in briefs of evidence) then that would be a factor favouring the party’s entitlement to use the same for otherwise proscribed purposes.

[41]   Here, Mr Taylor contends that he was entitled to access to the footage through the Privacy Act 2020. Indeed, the undisputed evidence is that he made an application under that legislation which was broad enough in its scope to cover the footage but at that stage the Crown said that it could not provide the same.

[42]   Although Mr Taylor pressed this point with some vigour, I do not accept his submission that he had a right to the footage independently of the process of discovery in this proceeding. It is by no means obvious to me that the Crown would, even if it had been able to locate the footage at the time, been required to provide the same to Mr Taylor. Mr Taylor points to the definition of personal information in s 7 of the Privacy Act and says — not without justification — that this footage falls within the definition of his private information. However, equally, the footage might be said to be the personal information of others who apparently feature in it. Section 53(b) of the Privacy Act provides that the holder of information may decline to provide it if the disclosure of the information would involve the unwarranted disclosure of the affairs of another individual.

[43]   The Crown’s primary concern appears to be that permitting Mr Taylor to quote from Dr Freeman’s evidence in his book will lead to the case or aspects of it being tried in the media and in what Mr Kinsler described as “a skewed way”. There is a sense in which it appears to me that this objection reveals more about the case than any other aspect. It needs to be borne in mind that Mr Taylor is not applying for leave to publish his book. His application is much more narrowly focussed than that. It concerns only Dr Freeman’s seven observations. Frankly, to the extent that there is a danger here of the case being tried in the media, the real concern must be the book itself. As against what Mr Taylor might be expected to say in his book, Dr Freeman’s observations are likely to pale into insignificance.

[44]   On balance I am far from satisfied that the interests of the open administration of justice and freedom of speech ought to be curtailed in this case by an order

preventing Mr Taylor from quoting the seven passages from Mr Freeman’s report in his book. For those reasons, that I granted Mr Taylor leave to do so.

[45]   Not having heard from Mr Taylor or counsel for the Crown in relation to costs, I reserve these. If the parties are unable to sort these out, as I would expect them to do, they may come back to the Court by memorandum in the usual way and I will deal with them on the papers. In case it is of any assistance my preliminary view is that Mr Taylor as the successful applicant in this interlocutory matter is entitled to recover any disbursements he may have incurred, but that, being a lay litigant, he has no entitlement to a costs award.

Associate Judge Johnston

Solicitors:

Meredith Connell, Auckland for respondent

SCHEDULE

“Mr Taylor appears to have become unconscious, the (reversible) causes of which include a cardiac arrhythmia, vaso-vagal syncope, hypotension, hypoxia, hypoglycaemia, epilepsy and pseudoseizures (putting it on).”

“It would be reasonable to assume that a significant amount of pain would be caused by a man of Mr Taylor’s weight being lifted by his arms with them handcuffed behind his back. Lifting a conscious person in such a way is a known form of torture called strappado. The origin of the pain is the progressive dislocation of the shoulder joints.”

“It seems evident there was a lack of leadership about how to attend to the problem using available resources or resources that could have been called upon. In retrieval medicine you have to do what is required to get the patient where you need them. Typically, this is put the patient onto a stretcher and carry them to a trolley and from there to an ambulance or emergency bed ie we upgrade the circumstances. I confess to being at a loss as to why Mr Taylor was moved from the carpeted office space where the incident started to a bare cell.”

“It would be reasonable to say the guards appear to have more knowledge of how to look after an unconscious person than the nurse. The examination by the nurse is neither competent nor thorough. My [sic] Taylor appears floppy. The nurse does not appear to account for his position in that she places the stethoscope (to listen to the brachial artery) over his tricep and approximately 180 degrees from where it should be (over his bicep). I would be dubious about the suggested blood pressure of 140/90.”

“The examination conducted does not meet any recognised standard for competent care. Given no reason for Mr Taylor to be unconscious was established, and therefore no reason to think “this will get better if we do nothing” it would have been prudent to call for more expert help. While a patient might start out on the floor it would be routine practice to put them on a bed and cover them with a blanket An unconscious, immobile patient will rapidly develop pressure sores if they are not on a soft surface, thus the mattress. Getting too cold can be fatal, thus the mattress. Dumping a  patient

on a vinyl floor and leaving it to the guard to try and use a towel to keep Mr Taylor warm does not meet the standards of adequate care.”

“Mr Taylor remains unconscious and unresponsive and should have been transferred to the sick bay or to a hospital for assessment by a doctor. Critical parts of his assessment that are missing are checking his blood sugar and his formal response to pain. The standard way to administer extreme pain to a person is to put a pen across the base of their nail bed and squeeze”.

“The staff appear unworried by events.”