Wright v Attorney-General
[2021] NZHC 2695
•1 October 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2015-404-2800
[2021] NZHC 2695
IN THE MATTER OF public tort and judicial review proceedings relating to breaches of the New Zealand Bill of Rights Act BETWEEN
NICHOLAS DAVID WRIGHT
Plaintiff/Applicant
AND
THE ATTORNEY-GENERAL
First Defendant/First Respondent
THE AUCKLAND DISTRICT HEALTH BOARD
Second Defendant/Second Respondent
Hearing: 29 September 2021
Further written submissions filed 30 September 2021
Counsel:
Plaintiff/applicant in person
W R Potter for first defendant/first respondent
A M Adams for second defendant/second respondent (abiding)Judgment:
1 October 2021
Reasons:
8 October 2021
REASONS JUDGMENT OF TOOGOOD J
This judgment was delivered by me on 8 October 2021 at 3pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Solicitors:
Meredith Connell, Auckland for defendants/respondents
Copy to:
The plaintiff/applicant
WRIGHT v THE ATTORNEY-GENERAL [2021] NZHC 2695 [8 October 2021]
Introduction
[1] This proceeding for damages under the New Zealand Bill of Rights Act 1990 (the NZBORA) and other relief is set down for a three-week trial before Campbell J, beginning on 11 October 2021. The plaintiff Mr N D Wright, who has legal qualifications, is representing himself.
[2] Mr Wright was required to serve his statements of evidence by 28 June 2021. He proposed to call evidence from six witnesses whose briefs of evidence he had not served and whom, it seemed, he would need to subpoena. On 29 September 2021, I heard oral argument on an application by Mr Wright for leave, under r 9.7(6) of the High Court Rules 2016, to call the evidence of the Solicitor-General (Una Jagose QC) and the Attorney-General (the Hon David Parker) without providing a brief. I had previously received written submissions from Mr Wright and counsel for the Attorney- General. The application for leave in respect of the other witnesses was adjourned to be addressed by the trial judge.
[3] On 1 October 2021, I delivered a result judgment in which I dismissed Mr Wright’s application to call the Solicitor-General and the Attorney-General and said I would deliver my reasons in writing as soon as possible. These are my reasons.
Factual background
The first arrest
[4] After a confrontation with Police who had been called to his Auckland home on 22 November 2009 by his mother, Mr Wright was arrested (the first arrest). He was taken into custody in handcuffs and, after being held for several hours, was then detained by employees of the Auckland District Health Board (the ADHB) under the Mental Health (Compulsory Assessment and Treatment) Act 1992 (the MHCAT Act). Mr Wright was later charged with assaulting a Police officer in the execution of his duty and resisting arrest. After nearly two years of what Mr Wright alleges was deliberate delay by the Police, on the day before the scheduled hearing of the charges in September 2011, the Police said they would offer no evidence and the charges were dismissed for want of prosecution.
The second arrest
[5] Early on the morning of 25 March 2012, Mr Wright was in the café section of a petrol station in the Auckland CBD when he became involved in an argument with a staff member. The Police were called; Mr Wright was arrested and charged with trespass and resisting arrest (the second arrest). Those charges were subsequently dismissed.
[6] Mr Wright sues the Attorney-General in respect of the Police on causes of action arising out of the first and second arrests, and the ADHB for actions related to his assessment and detention under the MHCAT Act.
The relevant procedural history
[7] This proceeding was issued in November 2015. Its regrettably complicated procedural history is demonstrated by over 200 entries in the register recording the filing of documents by the parties or judgments and minutes of the judicial officers who have had oversight of its progress to date. To understand how Mr Wright’s applications to call unbriefed witness was filed and heard only a matter of days before the intended opening of the trial, it is necessary to know something about recent interlocutory applications and decisions.
[8] On 27 August 2020, Associate Judge Bell set the proceeding down for a four- week trial beginning on 4 October 2021. At that stage, Mr Wright’s claims were comprised in a third amended statement of claim. The Associate Judge made timetable orders covering outstanding applications for answers to interrogatories and objections thereto. Associate Judge Bell directed that 17 May 2021 would be the close of pleadings date and Mr Wright was directed to serve his statements of evidence and provide a list of documents for the common bundle by 28 June 2021. The defendants’ evidence was to be served by 9 August 2021 and the common bundle was to be completed by 30 August 2021.
[9] On 26 January 2021, Associate Judge Bell issued a judgment dealing with the arguments over interrogatories and directed the defendants to file affidavits answering
certain of the interrogatories which Mr Wright had sought to administer.1 The Associate Judge also directed that Mr Wright was to file and serve a new statement of claim, by 26 February 2021, addressing a deficiency that the Judge had observed: Mr Wright had not pleaded how particular actions of Police officers on relevant occasions breached particular rights under the NZBORA. Associate Judge Bell also directed that Mr Wright should re-plead certain allegations against the ADHB. A timetable was set for the filing of statements of defence to the new statement of claim and any pleaded replies by Mr Wright.
[10] On 11 March 2021, Mr Wright made a further application for an order that the defendants should answer interrogatories and filed his fourth amended statement of claim on 19 March 2021. He also sought a review of Associate Judge Bell’s judgment on the earlier issues concerning interrogatories. The defendants were excused by order of Lang J on 8 April 2021 from filing statements of defence pending the determination of the several interlocutory applications which had been set down for hearing on 17 May 2021. Campbell J’s judgment dealing with those issues was delivered on 21 June 2021.2
[11] The judgment addressed both the review of Associate Judge Bell’s judgment on interrogatories, and Mr Wright’s new application for answers to interrogatories in light of the fourth amended statement of claim. Campbell J observed that the third amended statement of claim had confined the causes of action against the Attorney- General to the actions of the Police related to the first and second arrests. Mr Wright had not made any claim about the way in which the Attorney-General had responded to, or investigated, his complaints about the conduct of the Police, or conducted the defence to the relevant allegations in the proceeding.3 Campbell J noted that the fourth amended statement of claim included pleadings against the Attorney-General in which Mr Wright complained about the way in which the proceeding had been defended. He pleaded, for example, that various steps taken by the Attorney-General (such as applications for partial strike-out or for security for costs) had been oppressive and inappropriate. Mr Wright also alleged that the Attorney-General had never required
1 Wright v Attorney-General [2021] NZHC 18.
2 Wright v Attorney-General [2021] NZHC 1478.
3 At [89].
the Police officers to provide sworn statements and had not put Mr Wright’s allegations to the officers for a proper response.4
[12] Based on the new pleadings, Mr Wright launched a new cause of action in the fourth amended statement of claim claiming that there had been a breach of s 27 of the NZBORA, which provides that every person has the right to the observance of the principles of natural justice by “any tribunal or other public authority which has the power to make a determination in respect of that person’s rights, obligations, or interest”.5
[13] Campbell J held that Mr Wright’s inclusion of new allegations that reflected certain questions which Associate Judge Bell had ruled did not require answers, was a contrivance. Mr Wright had argued that the questions which Associate Judge Bell had held to be irrelevant had become relevant by the filing of the fourth amended statement of claim , in which he pursued causes of action against the Attorney-General based on, among other things, the charging and prosecution decisions not previously pleaded. For the reasons explained in the judgment, Campbell J considered that, notwithstanding the fourth amended statement of claim, Associate Judge Bell had been right to rule that the disputed questions need not be answered. Mr Wright had argued that he was entitled to answers to those questions because he claimed that the Crown was acting in bad faith, not only towards him but towards other citizens. Associate Judge Bell had held, however, that not only were the merits of the decision to charge Mr Wright irrelevant, this proceeding was not a general inquiry into Police charging or prosecution practices.6 Campbell J said:
[103] In his written submissions before me Mr Wright said that these questions were relevant to his claim “that the Crown has effectively abdicated its constitutional role to oversee and hold its agents to account”. At the hearing it became clear that these questions, and a number of other questions, were directed towards Mr Wright’s concern that there were ongoing systemic failings by the Police (and by the second defendant Board) in relation to the observance of rights under the [NZBORA]. It was for this reason that these and other questions were expressed generally, rather than by reference to Mr Wright’s particular circumstances.
4 Wright v Attorney-General, above n 2, at [90].
5 At [91].
6 At [102].
[14] Campbell J held nevertheless that the questions were so wide-ranging as to be oppressive. He noted, for example, that one question included a requirement for the Attorney-General to:7
Describe any and all examples showing how the Crown maintains practical and ongoing oversight over police prosecution decision-making.
[15] Campbell J also held that questions directed at alleged on-going systemic failings were not relevant to any matter in issue in Mr Wright’s claim. In reaching his view, the Judge relied on observations by Blanchard J in Taunoa v Attorney-General, addressing the measure of damages for breaches of the NZBORA:8
[263] Cases of breach which exemplify systemic failure, rather than individual misconduct by an official on a certain occasion or during a certain period, obviously require a greater response by the State of its own volition or as prescribed by court declaration. But when claims are made on an individual basis and when it is proper that there should be an award of damages to an individual plaintiff, the level of damages should be no more than the sum which is appropriate for that case. It should not be inflated having regard to the effect of the systemic failure upon other persons, for they may choose to make their own claims and the victim in the instant case should not have the advantage of recompense for the wrong done to them as well.
[16] Campbell J noted that Blanchard J had acknowledged in Taunoa that systemic failure might be reflected in a court declaration. Mr Wright had added a claim for declarations in the fourth amended statement of claim but, as Campbell J observed, the declarations were confined to actions Mr Wright alleged had been done to him by the defendants. After rejecting the request to answer further interrogatories in an application by Mr Wright under r 8.38 of the High Court Rules 2016, Campbell J noted that a party has no right to keep administering interrogatories for answer without the leave of the Court, noting that it would be oppressive to require the defendants to answer further interrogatories, in circumstances where they had already answered earlier interrogatories, successfully challenged many interrogatories, and now faced a trial “in just a few months”.9 Campbell J noted that apart from those discretionary matters, each question was objectionable in substance, for reasons which he gave.
7 Wright v Attorney-General, above n 2, at [104].
8 Taunoa v Attorney-General [2007] NZSC 70; [2008] 1 NZLR 429.
9 Wright v Attorney-General, above n 2, at [151].
[17] Mr Wright was undeterred by the very clear message from Campbell J disapproving his attempts to expand the nature of his proceeding to include causes of action based on allegations of systemic failure on the part of the Attorney-General, not only in his capacity as representative of the Police but also more broadly as a representative of the Crown on an unspecified basis. On 28 June 2021, he filed a fifth amended statement of claim.
[18] The latest iteration of Mr Wright’s claim added a fifth cause of action against the Attorney-General, alleging misfeasance in public office. In brief, it alleges:
(a)in receiving Mr Wright’s claim and instructing that it be defended, the Attorney-General was acting in the exercise of a public office;
(b)the Attorney-General knew there was no viable and properly arguable defence to Mr Wright’s claim and that the officers involved had acted unlawfully and contrary to Police procedures and Crown guidelines in arresting, charging and prosecuting Mr Wright in relation to the first and second arrests;
(c)the Attorney-General “deliberately chose not to investigate” Mr Wright’s claims and did not require the officers to answer Mr Wright’s allegations to the Attorney-General’s satisfaction;
(d)the Attorney-General acted in bad faith and unreasonably with inferred malice or reckless and knowing disregard to the facts and the damage Mr Wright was suffering;
(e)the manner in which the Attorney-General has conducted the defence of the proceeding has unnecessarily prolonged it and delayed justice, particularly by making a “completely unmeritorious and unjustifiable decision to seek security for costs” against Mr Wright in an effort to quash his legitimate claims;10 and
10 See Wright v Attorney-General [2019] NZHC 59 and Wright v Attorney-General [2019] NZHC 3046, decisions of Associate Judge Bell and Gault J respectively, dismissing the defendants’ applications for orders for security for costs against Mr Wright.
(f)there has been no recognition or apology for the unlawful acts of the Crown’s agents and Mr Wright is accordingly unable to restore his reputation and return to his career.
[19] On the new cause of action, Mr Wright seeks general damages of $50,000 and special damages of $200,000 as well as the annulment of any costs orders made against him.
[20]In defence of this cause of action, the Attorney-General pleads that:
(a)he is sued in the proceeding only as representative of the Police; leave (which has not been given) is required to join the Attorney-General as representative of any other parts of the Crown, and he is not required to plead to allegations made in the claim against him in any capacity other than as representative of the Police;
(b)an attempt by Mr Wright to sue other parts of the Crown would require joinder and no such joinder has occurred; and
(c)he is not required to plead to allegations that would require the disclosure of privileged information about the conduct of the defence of the proceeding and that the allegations are in any event not relevant to any recognised cause of action.
[21] The Attorney-General pleads also that, to the extent that the new cause of action has arisen since the commencement of the proceeding:
(a)it requires the leave of the Court which has not been given and which would be opposed in any event; and
(b)the fourth and fifth causes of action in the fifth amended statement of claim are time-barred under the principle of limitation by analogy and/or the Limitation Act 2010.
The application to call oral evidence from the Solicitor-General and the Attorney-
General
[22] In a minute prior to the hearing of Mr Wright’s application, I required him to identify in his submissions:
(a)the elements of the cause or causes of action, and the issues arising on the pleadings, in respect of which he says the Solicitor-General and the Attorney-General must attend the Court personally to give evidence;
(b)the evidence he expects the witnesses to be able to give; and
(c)how that evidence is relevant to the elements and issues he has identified.
[23] Mr Wright referred in his submissions to particular paragraphs in the fifth amended statement of claim that he says contain matters on which either the Solicitor- General or, alternatively, the Attorney-General can give evidence personally. I summarise the allegations and the Attorney-General’s pleading in response.
Paragraphs 5 to 14 inclusive
[24] Paragraphs 5 to 14 contain, to the extent that they are relevant to the claims against the Attorney-General as first defendant, allegations that:
(a)the Crown has the constitutional role of overseeing adherence to the principles in the NZBORA;
(b)the Crown has not established any systems or delegations to ensure compliance by the Police with the Solicitor-General’s Guidelines for Prosecution and with Crown-approved Police Procedure Manuals;
(c)the Crown’s constitutional role is exercised through the offices of the Attorney-General and the Solicitor-General;
(d)no holder of the office of Attorney-General in the period since the proceeding was issued has “actually read any of the previous versions of the statement of claim” or the affidavit evidence filed in the proceeding;
(e)the Attorney-General has delegated the role of answering and defending the proceeding on behalf of the Crown without enquiring whether the claim has factual and legal merit, representing an abdication of the Attorney-General’s constitutional role and leaving Mr Wright’s claim unanswered and un-investigated for over 10 years; and
(f)the conduct of the Crown in the proceeding has been “dismissive, unethical, oppressive, and has resulted in breaches of [Mr Wright’s] natural justice rights and an unreasonable delay”.
[25] The Attorney-General’s response to these allegations is to rely on the pleading about the status of the Attorney-General as first defendant only as representative of the Police described at [20] above. He maintains that:
(a)he is not required to plead to the allegations;
(b)the pleading would require the disclosure of privileged information about the Attorney-General’s conduct of the defence of the proceeding; and
(c)the allegations are irrelevant in any event.
Paragraphs 15.7 and 15.12
[26] Paragraph 15.7 alleges that the Crown acted in bad faith in not disclosing what Mr Wright says is a knowingly false “Alert” on his Police record stating that he is “excessively aggressive, assaulted Police throughout” his arrest and “suffers from mental illness”.
[27] Paragraph 15.12 alleges that the Crown decided (in bad faith and in breach of his natural justice rights) to defend the claim in relation to the first arrest without undertaking proper or adequate investigation of the merits of his claim.
[28] In respect of each of these allegations, the Attorney-General pleads that he is not required to plead to the allegations which are in the nature of a submission.
Paragraphs 62 to 75
[29] Paragraphs 62 to 75 allege misconduct on the part of named Police officers in the context of the decisions to prosecute Mr Wright and how to respond to various proceedings taken by him pursuant to his complaints. In response, the Attorney- General either denies the submissions or explains the conduct of the persons whose actions are challenged.
Paragraphs 178.10 and 178.11
[30] Paragraphs 178.10 and 178.11 contain allegations, in summary but non- specifically:
(a)of irrational decisions by the Attorney-General to defend Mr Wright’s allegations against the Police, and
(b)that the Attorney-General acted in knowing bad faith and in abuse of the processes of the Court.
[31]The Attorney-General denies the allegations.
[32] Mr Wright does not assert any basis on which the Attorney-General or the Solicitor-General might be assumed to have direct personal knowledge of any of the matters specifically pleaded. That is unsurprising given that the functions of the Crown’s Law Officers are commonly delegated:
(a)in the first instance, by the Solicitor-General performing any function or duty imposed, or exercising a power conferred, on the Attorney-
General;11 and
(b)in the second instance, by the delegation of functions, duties and powers by the Solicitor-General to a Deputy Solicitor-General.12
Discussion of Mr Wright’s approach to pleading his claims
[33] Mr Wright characterises the fourth and fifth causes of action as general allegations of bad faith on behalf of the Crown. He claims, therefore, that he is entitled to the information he has particularised to support the general assertion of bad faith.
[34]Mr Wright says that he seeks:
a.Information confirming or rebutting the plaintiff’s allegations that evidence of wrongdoing on the part of the police was brought to the attention of the Attorney General and the Solicitor General prior to these proceedings being lodged and that this information was ignored. This information can be provided by those proposed witnesses, who can attest to what information is held on the relevant files.
b.Disclosure of the processes by which these proceedings were received on behalf of the Crown. The plaintiff in that respect has received an Official Information Act response from the Attorney General’s office confirming that that the AG at the time never read the plaintiff’s proceedings. That means that the handling of this matter was delegated. The plaintiff assumes that this delegation was made to the Solicitor General, but seeks confirmation of this. If the matter was delegated to some other officer, the plaintiff seeks transparency about that delegation. This is information that is available to the Attorney General and the Solicitor General and that they can give evidence on.
c.Disclosure of how the decision to defend these proceedings was made, including what information was taken into account in reaching that decision, and what investigations (if any) were made about the allegation made in the claim before the decision was made to defend it. This is all information which should be available on the Crown’s files.
d.More particularly, whether any effort was made on behalf of the Crown to put the allegations received to the officers involved for answer, and confirmation that a legitimate basis upon which to defend these proceedings in fact existed. That is, whether or not any basic
11 Constitution Act 1986, s 9A.
12 Section 9C.
steps were taken to check that the factual assertions made in the first defendant’s statement of defence were in fact true, and supportable on the evidence or not.
e.Disclosure of whether, and upon what basis, the Crown instructed its counsel to proceed to pursue the various interlocutory steps that have drawn these proceedings out for six years.
[35] Mr Wright does not identify a principled basis on which the current holders of the offices of Attorney-General and Solicitor-General should be compelled to give evidence personally regarding matters of complaint about the conduct of the Police officers involved in the first and second arrests and against the Crown generally for its approach to the litigation. He argues that the Crown in New Zealand has been criticised by the Office of the United Nations High Commissioner for Human Rights regarding the allegations of abuse in State care of patients at Lake Alice Hospital. He refers to the Solicitor-General’s evidence before the Royal Commission of Inquiry into Abuse in Care and submits that his proceeding questions directly whether Ms Jagose is correct in her assertions that the Crown does not adopt unfair litigation practices and that it undertakes adequate investigations into allegations of wrongdoing before deciding upon what approach to adopt to civil litigation against the Crown.
[36] Mr Wright’s propositions reveal a misconception about the nature of litigation in a claim for damages. Such a proceeding is not a wide-ranging gathering of information to explain or justify a plaintiff’s sense of grievance and provide some form of vindication and redress. A civil claim for damages must be founded on established causes of action, underpinned by recognised legal principles and proved by admissible evidence. While it may have been open to the Attorney-General to apply to the Court to strike out the assertions pleaded in support of the fourth and fifth causes of action, the Crown has chosen not to do so, given the lateness of the pleadings and the imminence of the trial. The Crown’s election to address the short-comings in Mr Wright’s pleadings at trial, after recording the Attorney-General’s objections in the statement of defence to the sixth iteration of the claim, is an understandably pragmatic approach.
[37] I agree with the submission of counsel for the Attorney-General that Mr Wright’s failure to identify the matters on which the Solicitor-General and the Attorney-General have personal knowledge, and to describe the evidence that he
expects those officeholders to be able to give, is fatal to his application. I would dismiss it on that ground alone.
[38] In addition, the application is resisted by the Crown on the basis of ordinary principles applying to applications of this kind. I turn to those matters.
The applicable legal principles for an application to call oral evidence
[39] Mr Wright did not dispute the legal principles on which counsel for the Attorney-General rely. I summarise them as follows:
(a)The general structure of the High Court Rules 2016 is that the evidence- in-chief of each proposed witness in a civil trial is delivered by way of briefs of evidence filed in advance of the hearing.13
(b)Directions for further evidence to be adduced at trial are exceptional.14
(c)Rule 9.7(6) of the High Court Rules requires a party intending to call a witness who has not provided a brief to serve a notice to that effect setting out (among other things):
(i)the steps that have been taken to obtain a brief from the intended witness;
(ii)the reasons for the intended witness not providing a brief;
(iii)an explanation of the relevance of the evidence of the intended witness;
(iv)details of the evidence that the party expects the intended witness to give.
13 NZX Ltd v Ralec Commodities Pty Ltd [2016] NZHC 799 at [5].
14 At [12].
[40] It would appear that the most appropriate mechanism for the Court to receive such evidence is under r 9.10(3) which provides that the Court may make a direction that evidence be given orally.15 In any event, the Court’s leave is required for oral evidence to be called from a witness who has not provided a brief.16
[41] The test for the issuing of a subpoena requiring a witness to give oral evidence when they have not provided a brief may be distilled to two questions:
(a)whether the party seeking to call the evidence has exhausted reasonable attempts to have the witness produce a brief, which must occur before the deadline for the service of briefs unless there are exceptional circumstances;17 and
(b)whether the evidence from the proposed witness is necessary.18
[42] The question of necessity also incorporates consideration of whether the evidence would be admissible under ss 7 and 8 of the Evidence Act 2006, the essential test under those sections being whether the evidence tends to prove or disprove anything that is of consequence to the determination of the proceeding.19
Is the evidence from the proposed witnesses necessary?
[43] I am satisfied, for the reasons given on behalf of the Attorney-General, that the evidence (more properly described as “information”) that Mr Wright proposes should be given by either the Solicitor-General or the Attorney-General is not necessary for the fair disposition of the proceeding. A brief summary of the reasons is sufficient in the circumstances.
[44] Referring to the particular information sought, as set out at [34] above, most, if not all, of the evidence that might be covered by Mr Wright’s request is, or would
15 Oxygen Air Ltd v LG Electronics Australia Pty Ltd [2018] NZHC 2912 at [9]–[15] and NZX Ltd v Ralec Commodities Pty Ltd, above n 13, at [6].
16 At [13]; Oxygen Air Ltd v LG Electronics Australia Pty Ltd at [14].
17 NZX Ltd v Ralec Commodities Pty Ltd, above n 13, at [16], [17], citing O’Connell v Muharemi (No 4) HC Auckland CP546/01, 13 May 2003 at [15].
18 At [18]; Commerce Commission v Giltrap City Ltd (2000) 14 PRNZ 450 at [6].
19 Evidence Act 2006, s 7(3).
involve disclosure of, privileged communications which the Attorney-General is not required to disclose in the proceeding. The information either amounts to communications protected under s 54 of the Evidence Act as confidential communications related to obtaining professional legal services, or under s 56 of the Evidence Act being communications or information “made, received, compiled, or prepared for the dominant purpose of preparing for a proceeding or an apprehended proceeding”, otherwise known as litigation privilege. As counsel submit, summoning the Solicitor-General or the Attorney-General to question them about such matters would serve no purpose. It may be assumed that privilege would not be waived. It follows that any evidence of either the Attorney-General’s or the Solicitor-General’s personal knowledge of the matters at issue would have no probative value in the proceeding.
[45] Moreover, to the extent that Mr Wright is seeking information not protected by privilege, his requests for leave to call the witnesses is in fact a request for discovery, which is objectionable because:
(a)it is far too late; and
(b)it amounts to no more than a fishing expedition.
[46] As Mr Wright reminded me in his submissions, the Crown has a continuing obligation to disclose relevant documents that may come to its attention at any stage of the proceeding. It may be assumed, therefore, that the Crown’s position is that it does not have any discoverable information that it has not already disclosed. To the extent that any issue arises during the trial about whether Mr Wright has been disadvantaged by the failure of the Crown to disclose discoverable documents, the matter can be addressed by the trial judge.
[47] I respectfully agree with the observation Wylie J in Hawkins v Davison (No 2) that necessity imposes a much more stringent test than mere relevance when it comes to applying for the issue of a subpoena in respect of which the evidence is likely to be adduced only by cross-examination of a witness.20 Moreover, as Mr Potter pointed
20 Hawkins v Davison (No 2) (1990) 3 PRNZ 700 (HC) at 703.
out, it is difficult to see on what basis Mr Wright would be entitled to cross-examine either the Solicitor-General or the Attorney-General whom he has called in his own case without some basis for having the witness declared hostile under s 94 of the Evidence Act.
[48] These matters appear to me to be sufficient to dispose of Mr Wright’s application.
Did Mr Wright fulfil the other requirements?
[49]Moreover, Mr Wright has not demonstrated that he has made any attempt to:
(a)set out the steps taken to obtain a brief from either of the intended witnesses;21 or
(b)identify exceptional circumstances justifying the raising of this issue so close to trial, other than to refer to the very late filing of the fifth amended statement of claim, a matter for which he is entirely responsible.22
[50] Mr Wright argues that he had expected the Crown to call either the Solicitor- General or the Attorney-General to answer his allegations and has been taken by surprise, but I agree with counsel for the Attorney-General that that was an unrealistic expectation. In the first place, there is no legitimate reason to think that either of the current Law Officers would have any relevant, admissible personal evidence that they could give and, second, it entirely misconceives the nature of litigation.
[51] As I endeavoured to explain to Mr Wright in the course of the hearing of the application, his allegations about bad faith and improper dealings on the part of the Crown are based primarily on assertions that the Crown’s agents failed to take steps of various kinds to address his complaints about the way in which he was treated by the Police during the first and second arrests. If there is any merit in those allegations, and if Mr Wright has established by admissible evidence available to him that those
21 High Court Rules 2016, r 9.7(6)(b)(ii); O’Connell v Muharemi (No 4), above n 17, at [16].
22 NZX Ltd v Ralec Commodities Pty Ltd, above n 13, at [17].
omissions are proved on a balance of probabilities, it is for the Crown to satisfy the Court that the omissions were irrelevant. That might be done by evidence contradicting Mr Wright’s assertions but whether it is led is a matter for the Crown, which has apparently elected not to engage Mr Wright over those matters but instead to argue that they are not answerable in the proceeding.
Toogood J
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