Wright v Attorney-General
[2021] NZHC 1478
•21 June 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 1478
BETWEEN NICHOLAS DAVID WRIGHT
Plaintiff
AND
ATTORNEY-GENERAL as representative of the NEW ZEALAND POLICE
First Defendant
AUCKLAND DISTRICT HEALTH BOARD
Second Defendant
Hearing: 17 May 2021 Appearances:
Plaintiff in person
W Potter and B Rorrison for the First Defendant
D McLellan QC and H Ifwersen for the Second DefendantJudgment:
21 June 2021
JUDGMENT OF CAMPBELL J
This judgment was delivered by me on 21 June 2021 at 4:30 pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar
WRIGHT v ATTORNEY-GENERAL as representative of the NEW ZEALAND POLICE [2021] NZHC 1478 [21
June 2021]
Introduction
[1] Mr Wright sues the first defendant, the Attorney-General in respect of the Police, for his arrest on 22 November 2009 and his arrest on 25 March 2012. He sues the second defendant, the Auckland District Health Board (the Board), for his compulsory detention and treatment as a patient, in late 2009, under Part 1 of the Mental Health (Compulsory Assessment and Treatment) Act 1992.
[2] Mr Wright began this proceeding in 2015. A trial is scheduled to begin on 4 October 2021.
[3] In June and August 2020, Mr Wright served on each defendant notices requiring them to answer interrogatories. The defendants answered some of the interrogatories but objected to others. Mr Wright challenged some of the defendants’ answers and did not accept the objections.
[4] Associate Judge Bell directed hearings to decide the various interrogatory disputes. He delivered judgment on 26 January 2021. He required the defendants to answer some, but not most, of the interrogatories that were in issue.
[5] On 4 February 2021, Mr Wright applied under s 26P of the Judicature Act 1908 to review the Associate Judge’s decision.1 On 11 March 2021, Mr Wright applied under r 8.38 for orders requiring certain interrogatories to be answered. The defendants oppose both applications.
Mr Wright’s substantive cases against the defendants
[6] At the time Associate Judge Bell heard argument, and delivered judgment, Mr Wright’s cases against the defendants were found in a third amended statement of claim dated 11 September 2017. Mr Wright has since filed a fourth amended statement of claim dated 19 March 2021.
1 Section 26P continues to apply, despite the repeal of the Judicature Act 1908 by the Senior Courts Act 2016, by reason of this proceeding’s vintage. See Senior Courts Act 2016, s 186 and sch 5, cls 10(1) and 11.
[7] Given that Mr Wright is seeking to review a judgment that was made by reference to his third amended statement of claim, I will summarise Mr Wright’s case as it was in that claim. When I address the interrogatories that remain in issue, I will consider the implications of the changes made in Mr Wright’s fourth amended statement of claim.
Third amended statement of claim
[8] Mr Wright sues the Attorney-General (in respect of the Police) for two arrests: one on 22 November 2009 and the other on 25 March 2012. He sues the Board for his detention as a patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992 (the MHCATA). That detention occurred after Mr Wright’s first arrest, from 23 November 2009 to 9 December 2009.
[9]I will summarise the circumstances of Mr Wright’s two arrests, and his
detention as a patient, as alleged by Mr Wright in his third amended statement of claim.
[10] On 22 November 2009, Mr Wright was at home with his mother, his partner and his two children. The two children usually lived with their mother, Mr Wright’s ex-wife. His mother was concerned at his behaviour and called her husband in Taupo. Her husband rang the Police. He relayed what he had been told, making clear that Mr Wright was not violent.
[11] Two Police officers came to the house. When they arrived, Mr Wright’s mother spoke to them outside. Mr Wright was in a bedroom with the children and was not aware Police had arrived. His mother told the officers that there had been no violence and no-one had been threatened. There had been an argument between her and Mr Wright, not involving the children. The situation had been defused and there was no risk to the children. However, she said she remained concerned about Mr Wright’s mental wellbeing.
[12] Mr Wright’s mother went into the house and sought to have the children come with her. Mr Wright reacted angrily and yelled at her to leave the house. Hearing this, the Police officers entered the house and went to the room where Mr Wright and his children were. Mr Wright objected to the officers’ presence. He told them any implied
licence to enter was revoked and asked them to leave. One of the Police officers placed his hand on his baton. Mr Wright asked them to leave again.
[13] One of the officers placed his hand on Mr Wright’s chest to restrain him and place him under arrest. Mr Wright pushed his hand aside. The officer responded by telling Mr Wright he was under arrest. Mr Wright was restrained, handcuffed and sprayed with pepper spray. The officer told Mr Wright he was arrested for resisting arrest.
[14] Mr Wright was taken to a Police station. He says he was held without charge and that the Police would not give him the means to record a contemporary statement.
[15] Two nurses employed by the Board interviewed Mr Wright at the Police station. Unknown to him, the nurses were undertaking an assessment as to whether to make an application under s 8A of the MHCATA to have Mr Wright assessed as a precursor to admitting him into compulsory care. One of the nurses then made an application under s 8A. This led to Mr Wright’s compulsory assessment and treatment under the MHCATA, from 23 November to 9 December 2009.
[16] Mr Wright was subsequently, on 30 November 2009, charged with assaulting a Police officer in the execution of his duty and resisting arrest. There was some delay in prosecuting the charges. The Police repeatedly sought adjournments. Eventually the Police decided not to call evidence and the charges were dismissed.
[17] The second arrest occurred a few years later, in March 2012. Mr Wright was at an inner-city petrol station at about 6.30 am. He had a disagreement with a staff member. He asked for the manager to be called. Mr Wright says he was not asked to leave or told he was unwelcome. He denies being a nuisance.
[18] Unknown to Mr Wright, the staff member contacted the Police. The Police arrived and suggested Mr Wright leave. He responded that he had not been asked to leave by an occupier and had every right to stay. He provided the Police officers with his name. A Police sergeant arrived and spoke to a manager. The sergeant told Mr Wright that “the boss man says you have to go”.
[19] Mr Wright did not leave. He said he wanted to hear that from the staff member. Mr Wright was arrested for trespass and resisting arrest. He alleges the Police handled him roughly.
[20] Mr Wright was taken to a Police station. His requests to make a statement or to have blood taken (to establish his sobriety) were refused. He was released on bail that afternoon after spending nine hours in custody. He was given the opportunity to return to the Police station and make a statement. He did so. His statement was recorded—Mr Wright alleges deceitfully—by the sergeant.
[21] Mr Wright was charged with trespass and resisting arrest. There was a trial. The sergeant did not give evidence and the Police officers who did, Mr Wright alleges, colluded in giving false evidence. The charges were dismissed. Mr Wright says he is still affected by his memory of his treatment by the Police.
[22] Mr Wright alleges that there were clear errors of fact and law rendering both arrests unauthorised. He sues the Attorney-General for breach of rights affirmed in the New Zealand Bill of Rights Act 1990 (the BORA): freedom of movement (s 18); unreasonable search and seizure (s 21); liberty of the person (s 22); rights of persons arrested or detained (s 23); rights of persons charged (s 24); right to justice (s 27).
[23] Mr Wright challenges the procedures adopted and decisions reached under the MHCATA. He sues the Board for breach of rights affirmed in the BORA: right to refuse to undergo medical treatment (s 11); freedom of movement (s 18); liberty of the person (s 22); rights of persons arrested or detained (s 23); right to justice (s 27).
Mr Wright’s interrogatories, and the defendants’ answers
[24] Three notices of interrogatories were served by Mr Wright: two on the Attorney-General, and one on the Board. Mr Wright also attached a further set of interrogatories, directed to the Board, to his written submissions before Associate Judge Bell.
[25] The first notice served on the Attorney-General was dated 2 June 2020. Some of the interrogatories were answered by an affidavit of Glenn Wallis Boyd-Clark
affirmed 17 July 2020. The second notice was dated 24 August 2020. In an affidavit of Mr Boyd-Clark affirmed 9 September 2020, the Attorney-General objected to each of the questions.
[26] The notice served on the Board was dated 19 August 2020. The notice was answered by an affidavit of Bruce Martin Northey affirmed 1 October 2020 and a supplementary affidavit of Mr Northey affirmed 2 November 2020.
[27] Some of the defendants’ answers to Mr Wright’s interrogatories raised objections under r 8.40. The defendants did not apply under r 8.36 for orders that answers to certain interrogatories were not required. However, in case management Associate Judge Bell directed that there be hearings to decide all challenges to questions and answers.2 The first hearing, on 22 October 2020, was in respect of the Attorney-General’s questions and answers. The second hearing, on 17 November 2020, was in respect of the Board.
[28] On 12 November 2020, Mr Wright filed a reply memorandum for the hearing in respect of the Board. His memorandum attached a further set of 39 questions for the Board.
Judgment below
[29] Associate Judge Bell first dealt with an application by Mr Wright that the Judge recuse himself on the ground he was presumptively biased. Mr Wright argued that because of the way the Judge had managed, heard and decided the proceeding up to that point, Mr Wright could not be confident the Judge would deal with him impartially. The Judge refused to recuse himself. Mr Wright alleged some of the Judge’s decisions were in error. But error did not mean bias. A fair-minded observer would see that some of the Judge’s decisions had gone Mr Wright’s way and others had not.
2 Wright v Attorney-General [2021] NZHC 18 at [20].
[30] Associate Judge Bell then set out the principles relating to interrogatories. Before me, the parties generally adopted the Associate Judge’s statements of principle, subject to one matter. I will return to those principles below.
[31] The Associate Judge then addressed Mr Wright’s concern as to the persons who had answered the interrogatories for the defendants. A Police in-house lawyer affirmed the Attorney-General’s answers. The Board’s general counsel affirmed its answers. Mr Wright submitted that those with direct personal knowledge of the facts (that is, individual Police officers in respect of the Attorney-General, and nurses and doctors in respect of the Board) should answer the interrogatories. Associate Judge Bell disagreed. Those who affirmed affidavits should state what inquiries they had made, but there was no reason why other individuals should make affidavits.
[32] Associate Judge Bell then considered the interrogatories that remained in issue for Mr Wright’s case against the Attorney-General. There were 48.3 The Associate Judge required the Attorney-General to answer eight.
[33] In respect of the Board, Associate Judge Bell first dealt with the interrogatories in the notice that Mr Wright had served on 19 August 2020. Twelve remained in issue. The Associate Judge required the Board to answer four. The Associate Judge then dealt with the 39 questions that Mr Wright had posed to the Board in his reply memorandum dated 12 November 2020. He said that most questions were irrelevant and therefore objectionable. There were some that might have withstood scrutiny if they had been included in Mr Wright’s original notice. The Associate Judge noted that the Court has a discretion to order further interrogatories. In the circumstances he declined to exercise that discretion.
[34] The final group of interrogatories that the Associate Judge addressed were four directed to the Attorney-General in respect of the Ministry of Health. The Associate Judge noted that although Mr Wright had not pleaded any cause of action in respect of the Ministry of Health, the headings of his documents had started to refer to the Attorney-General “as representative of the Crown which is, in turn, the controlling
3 This does not include the interrogatories numbered 50-53, which were directed at the Attorney- General in respect of the Ministry of Health. The Judge dealt with these separately.
authority over the New Zealand Police as well as the Ministry of Health”. Mr Wright told Associate Judge Bell he would amend his claim to include a cause of action against the Ministry. The Associate Judge said he could see no basis upon which the Crown could be sued in respect of the Ministry of Health for breaches of the BORA, and that any tort claim would be time-barred. There was therefore no basis for interrogating the Crown as a party in respect of the Ministry. In any event, there were substantive reasons for rejecting each of the interrogatories.4
[35] In summary, of the 103 interrogatories in issue, Associate Judge Bell required the defendants to answer a total of 12. The Attorney-General provided further answers in a supplementary affidavit of Mr Boyd-Clark affirmed 12 February 2021. The Board provide further answers in a second supplementary affidavit of Mr Northey affirmed 12 February 2021.
[36] In the course of his judgment the Associate Judge explained that Mr Wright’s pleading was deficient, in that it did not plead how particular steps by Police officers, or by the Board, had breached particular rights under the BORA. The Associate Judge ordered Mr Wright to file and serve an amended claim that addressed those matters. He also ordered that the amended claim “not include any pleading against the Attorney-General in respect of the Ministry of Health”.5
Mr Wright’s applications
[37] As noted earlier, there were two applications before me. First, Mr Wright applied for a review of Associate Judge Bell’s judgment. Secondly, he applied under r 8.38 for orders requiring certain interrogatories to be answered.
[38] In the application for review, Mr Wright sought an order requiring the defendants to provide proper answers to all the interrogatory questions that were rejected by Associate Judge Bell (namely, 91 questions). He also sought an order recusing Associate Judge Bell from further involvement in the case management of this proceeding (on the ground of actual or presumptive bias). In the application under
4 Wright v Attorney-General [2021] NZHC 18 at [134] and [135].
5 At [136](c).
r 8.38, Mr Wright applied for an order requiring 74 interrogatories to be answered by various individuals.
[39] On the face of the applications there were, therefore, 165 questions in issue. However, it appeared that many of the questions in the r 8.38 application were identical or similar to questions that were the subject of the application for review.
[40] Mr Wright filed a synopsis in advance of the hearing of the applications, in which he advised that he was no longer pursuing about 20 questions. Mr Wright’s synopsis attached a schedule that set out the questions he still pursued.
[41] At the hearing Mr Wright advised me that, having considered the defendants’ respective synopses, there were further questions that he was no longer pursuing. He identified those questions primarily by reference to the schedule that had been attached to his synopsis. To avoid any doubt, I issued a minute recording my understanding of the questions Mr Wright was no longer pursuing.6 Mr Wright responded with a memorandum that confirmed and clarified his position.7 He was still pursuing about 70 questions.
Mr Wright files a fourth amended statement of claim
[42] On 19 March 2021 (after he had made the two applications), Mr Wright filed a fourth amended statement of claim. As noted earlier, I will consider the implications of this as I address particular interrogatories.
General principles governing interrogatories
[43] Subject to one qualification that I address later, the parties did not disagree with Associate Judge Bell’s summary of the principles governing interrogatories. What follows is based on his Honour’s careful summary.
[44] An interrogatory is a question asked before trial for the purpose of eliciting an answer on oath or affirmation which is admissible in evidence at trial.8 As the Court
6 Wright v Attorney-General HC Auckland CIV-2015-404-2800, 18 May 2021.
7 Dated 19 May 2021.
8 Todd Pohokura Ltd v Shell Exploration NZ Ltd [2009] NZCA 561 at [14].
of Appeal said in Todd Pohokura Ltd v Shell Exploration Ltd, an interrogatory accordingly must be “relevant to an issue raised on the pleadings or a fact in dispute for determination”.9
[45] This relevance requirement is fundamental. It is found in 8.34(1), which permits a party to serve a notice requiring another party to answer specified interrogatories “relating to any matter in question in the proceeding”. It is reflected also in r 8.40(1)(a): the primary basis on which a party may object to answer an interrogatory is that it “does not relate to a matter in question between the parties”. A consequence of the relevance requirement, the Court of Appeal said in Todd, is that the purpose of an interrogatory “must not be to search or probe on the speculative basis that an answer may prove relevant (colloquially known as fishing)”.10
[46] The Court of Appeal also said that an interrogatory must, like a question in cross-examination, be “precise and unequivocal, and amenable to a direct and meaningful answer”.11 If it is not, the question will be oppressive and objectionable.
[47] Interrogatories must be directed to facts. They cannot be about mixed questions of fact and law.12 They cannot ask about evidence.13
[48] Because interrogatories must be directed to facts, they cannot be used to debate or argue the merits of the case. They can be used to elucidate the factual basis for the other party’s case, but cannot be used to seek to require the other party to justify their case. An example given by Associate Judge Bell was Duke of Sutherland v British Dominions Land Settlement Corp Ltd,14 in which directors declined to register a transfer of shares under an article that gave a range of grounds on which registration could be declined. The plaintiff shareholder was allowed to interrogate the company as to the particular ground the directors relied on (that being a matter of fact), but not as to the directors’ reasons (that being a matter of justification).
9 At [14].
10 At [15].
11 At [15].
12 Attorney-General v Wang New Zealand Ltd [1990] 3 NZLR 148 (CA).
13 Eade v Jacobs (1887) 3 Ex D 335 at 337. As Associate Judge Bell acknowledged, the dividing line between facts and evidence is not always clear: Price Waterhouse v Fortex Group Ltd CA179/98, 30 November 1998 at 18-19.
14 Duke of Sutherland v British Dominions Land Settlement Corp Ltd [1926] Ch 746 at 757.
Issues on the applications
[49]On the application to review the Associate Judge’s decision, the following
issues arise:
(a)What is the scope of appellate review on this application?
(b)Did the Judge err in determining the matters in issue by reference to the pleadings?
(c)Did the Judge err in declining to order that other particular individuals answer the interrogatories?
(d)Should the first defendant have to answer any of the interrogatories?
(e)Should the second defendant have to answer any of the interrogatories?
(f)Should Associate Judge Bell be recused on the ground of bias?
[50] On the application under r 8.38, the issue is whether I should exercise my discretion to order further interrogatories.
The application to review Associate Judge Bell’s decision
What is the scope of appellate review on this application?
[51] Mr Wright’s application for review of the Associate Judge’s decision proceeds under the now repealed r 2.3(4) of the High Court Rules 2016. This provided:
2.3 Review of decision
…
(4)If the order or decision being reviewed was made following a defended hearing and is supported by documented reasons,—
(a)the review proceeds as a rehearing; and
(b)the Judge may, if he or she thinks it is in the interests of justice, rehear the whole or part of the evidence or receive further evidence.
[52] The Associate Judge’s decision was a reasoned one following a defended hearing. The review therefore proceeds as a rehearing.
[53] The parties took differing positions as to the scope of appellate review on this rehearing. Mr Wright did not address this explicitly, but his submissions proceeded on the assumption that this was a general appeal in accordance with the principles in Austin, Nichols & Co Inc v Stichting Lodestar.15 On a general appeal, the onus is on the applicant to establish there is an error. Subject to that, the appellant is entitled to judgment “in accordance with the opinion of the appellate court”.16
[54] By contrast, the written submissions of Mr McLellan QC (for the Board) and Mr Potter (for the Attorney-General) both asserted that this was an appeal against the exercise of a discretion, so that Mr Wright could succeed only if he satisfied one of the stricter criteria set out in Kacem v Bashir.17 Mr Wright therefore had to show an error of law or principle by the Associate Judge, that the Associate Judge took account of irrelevant considerations, that the Associate Judge failed to take account of a relevant consideration, or that the decision was plainly wrong.
[55] In his oral submissions Mr McLellan modified his position. He accepted that some matters the Associate Judge had decided (such as whether an interrogatory was relevant to a matter in issue) did not involve an exercise of a discretion, and were therefore subject to a general right of appeal. But his position remained that, to the extent that the Associate Judge exercised a discretion (as an example, he noted that under r 8.38 a Judge “may” order an interrogatory to be answered), his decision could be challenged only under the criteria in Kacem v Bashir.
[56] Where a review of an Associate Judge’s decision proceeds by way of rehearing (as this review does), the approach is essentially appellate. A Court reviewing the decision will generally apply the approach in Austin, Nichols, and make its own assessment as to whether that decision was wrong.18 However, that approach does not
15 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].
16 At [16].
17 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32].
18 Burmeister v O’Brien [2008] 3 NZLR 842 (HC) at [29]; Air National Corporate Ltd v Aiveo Holdings Ltd [2012] NZHC 2258, (2012) 22 PRNZ 172 at [2]; Internet Traders Ltd v Williams (No 2) [2015] NZHC 2327 at [6].
apply where (or to the extent that) the Associate Judge’s decision involves the exercise of a discretion. An example is where the decision is whether to order security for costs. The more limited criteria set out in Kacem v Bashir then apply.19
[57] The question in this case is whether any of the Associate Judge’s decisions involved the exercise of a discretion.
[58] Mr McLellan and Mr Potter relied on a judgment of Jagose J in this proceeding in which his Honour was dealing with a review of a decision by Associate Judge Bell on an application for security for costs.20 Jagose J held that a decision on an application for security for costs “is paradigmatically an exercise of a judicial discretion”.21 That appears correct, but it does not assist in determining whether the (very different) decisions presently under review were discretionary.
[59] In Kacem v Bashir, the Supreme Court said that, although the distinction between a general appeal and an appeal from a discretion is not altogether easy to describe in the abstract, “the fact that the case involves factual evaluation and a value judgment does not of itself mean the decision is discretionary”. In that case a determination of what was in the best interests of the child “was a matter of assessment and judgment not discretion”.22
[60] In my view almost every aspect of Associate Judge Bell’s decision involved a matter of assessment and judgment, rather than the exercise of a discretion. He rejected most of Mr Wright’s interrogatories by applying principles governing the permissible scope of interrogatories (for example, the requirement that interrogatories be relevant to a matter in issue). That did not involve the exercise of a discretion.23 The only decision that could be said to be discretionary was the Associate Judge’s
19 Robinson v Whangarei Heads Enterprises Ltd [2013] NZHC 2247 at [6]–[7]; Jaques v Main
[2016] NZHC 1978 at [16]–[20].
20 Wright v Attorney-General [2019] NZHC 1221.
21 At [9].
22 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32].
23 In Todd Pohokura Ltd v Shell Exploration NZ Ltd [2009] NZCA 561 at [2] the Court said that on an appeal against a decision involving interrogatories, the appellant had to show that the Judge acted on a wrong principle, failed to take account of relevant factors or took into account irrelevant factors, or was plainly wrong. But that approach appears not to have been contested, and the decision predates the Supreme Court’s clarification (and narrowing) of the scope of discretionary decisions in Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32].
decision under r 8.38 declining to require the defendants to answer Mr Wright’s further set of interrogatories. It is only that decision that is subject to the limited criteria in Kacem v Bashir. The approach in Austin, Nichols otherwise applies.
Did the Judge err in determining the matters in issue by reference to the pleadings?
[61] I said earlier that, subject to one qualification, the parties were agreed on the general principles governing interrogatories. The one matter of principle on which the parties were apart concerned the fundamental requirement that an interrogatory be relevant to a matter in issue in the proceeding. All parties accepted that requirement. But there was a disagreement as to how to determine what matters were in issue. Associate Judge Bell had determined the matters in issue by reference to the pleadings. The defendants supported that approach. Mr Wright did not.
[62] Mr Wright said the Associate Judge had erred. He submitted that the matters in issue had to be determined from more than just the pleadings. This had implications for many of the interrogatories that Mr Wright wants answered.
[63] Mr Wright told me that, in advance of the hearings before Associate Judge Bell, he had been conscious that his third amended statement of claim did not plead a number of matters that would be in issue at trial. He said he had therefore filed a memorandum dated 19 October 2020 that contained a seven-page appendix listing the issues that he intended to bring to trial. (The memorandum in fact detailed issues only in Mr Wright’s claim against the Attorney-General.) He submitted to Associate Judge Bell that relevance should be looked at by reference to that list of issues, rather than by reference to his third amended statement of claim (which Mr Wright described to me as “somewhat threadbare” on these issues).
[64] Mr Wright also told me that he asked Associate Judge Bell to advise him (Mr Wright) if the judge was of the view that relevance should be determined by the third amended statement of claim, so that Mr Wright could address any irrelevance by filing a fourth amended statement of claim. I asked Mr Wright why he had not simply filed a fourth amended statement of claim to address these concerns. His response was that he first wanted to receive the defendants’ answers to the contested interrogatories in order to finalise his pleading.
[65] In support of this approach to relevance, Mr Wright referred me to Bank of New Zealand v Gardner,24 a decision of Master Hansen. Master Hansen followed what he referred to as the “wider” approach to relevance set out in Marriott v Chamberlain.25 Mr Wright placed particular reliance on comments of Bowen LJ in Marriott v Chamberlain that Master Hansen quoted:26
It appears to me that it is impossible, in considering what the right of a party to have discovery by interrogatories may be, to look only to the issue as apparent on the pleadings, for it may well be that at the trial the case may depend on matters not directly put in issue by the pleadings. The parties may show, and I think in this case they have shown, by the way in which they have conducted their controversy, that, when the case comes to trial, the matter will be fought out on certain lines, though such lines are not disclosed by the pleadings.
[66] Mr Wright fastened on Bowen LJ’s caution that one must not look “only to the issue as apparent on the pleadings”. But Bowen LJ was not saying that one could divine the matters in issue from outside the pleadings. His point was merely that the matters in issue might include matters not “directly” put in issue by the pleadings. The same point was made by Lord Esher MR in Marriott (a judgment with which Bowen LJ concurred) in this statement: “The right to interrogate is not confined to the facts directly in issue, but extends to any facts the existence or nonexistence of which is relevant to the existence or nonexistence of the facts in issue.”27
[67] Associate Judge Bell determined the matters in issue by reference to the pleadings before him. This was in accordance with the Court of Appeal’s judgment in Todd that an interrogatory must be relevant “to an issue raised on the pleadings or a fact in dispute for determination”. Associate Judge Bell also quoted the statement of Lord Esher MR that I have just set out.28 His Honour was aware that the right to interrogate was not limited to the facts directly in issue. I reject Mr Wright’s submission that the Associate Judge erred in his approach.
[68] I also make this observation. As noted, Mr Wright told me he wished to receive the defendants’ answers to the contested interrogatories in order to finalise his
24 Bank of New Zealand v Gardner (1990) 1 NZPC, (1990) 2 PRNZ 278.
25 Marriott v Chamberlain (1886) 17 QBD 154.
26 At 163.
27 At 163.
28 At [12] of the judgment.
pleading. This has matters around the wrong way, and suggests Mr Wright is on a “fishing” expedition. As I have already noted, the Court of Appeal in Todd emphasised that interrogatories must not be used “to search or probe on the speculative basis that an answer may prove relevant (colloquially known as fishing)”.29
Did the Judge err in declining to order that other particular individuals answer the interrogatories?
[69] Before Associate Judge Bell, Mr Wright objected to the defendants’ answers (to the first sets of interrogatories) having been affirmed by the defendants’ respective in-house lawyers. He argued that those with direct personal knowledge of the facts should swear or affirm answers to his questions.
[70] Associate Judge Bell rejected that argument. He referred to r 8.41(1), which stipulates who may make an affidavit verifying a party’s answer to interrogatories. In the case of a corporation (such as the Board) a person who meets the requirements of r 9.82 (namely, a person who knows the relevant facts and is authorised to make the affidavit) may make the affidavit. In the case of the Attorney-General, an officer of the Crown may make the affidavit. This is subject to r 8.41(2), by which a Judge may specify the person who has to make the affidavit.
[71] The Associate Judge, relying on Fletcher Challenge Ltd v American Home Assurance Co Ltd,30 said the affidavit should be made by the person most likely to answer the interrogatories satisfactorily. That will usually be the officer most likely to apply his or her mind to the duty to answer, and to discharge that duty. That person must answer not only according to his or her personal knowledge but must also make inquiries of others. Associate Judge Bell held that the in-house lawyers for the defendants were the appropriate persons to make the affidavits. He did, however, order the Police in-house lawyer to make a further affidavit as to the inquiries he had made in answering the interrogatories.
29 Todd Pohokura Ltd v Shell Exploration NZ Ltd [2009] NZCA 561 at [15]. See further Andrew Beck and others McGechan on Procedure (looseleaf ed, Brookers, updated to 6 May 2021) at [HR8.40.02].
30 Fletcher Challenge Ltd v American Home Assurance Co Ltd (1987) 1 PRNZ 684 (HC).
[72] Mr Wright submitted that the Associate Judge had erred. He made much the same argument to me as he had below. He said many of his questions were directed at the specific, personal knowledge of particular individuals (Police officers for the first defendant, nurses or doctors for the second defendant). It was appropriate in those circumstances that those individuals provide answers. He said it was necessary for the defendants to disclose the “actual facts” in the personal knowledge of its officers. He said he was concerned at being “ambushed” at trial, through witness statements of officers expanding upon answers given “on their behalf” by those who swore the affidavits.
[73] I start with a basic point. Rule 8.34 allows a party to interrogate another party by serving a notice requiring “that party” to answer the interrogatories. Under r 8.35, it is the “party” who is obliged to answer the interrogatories. Under r 8.38, a Judge may order a “party” to file and serve a statement in answer to interrogatories. These rules do not, in themselves, allow Mr Wright (or this Court) to require someone who is not a party (such as the individual Police officers, nurses or doctors) to answer interrogatories.
[74] The only vehicle through which a particular individual can be directed to make an affidavit verifying answers to interrogatories is r 8.41(2). Rule 8.41(1)(c) and (d) stipulate who may make the affidavit where, as here, the party required to answer is a corporation or is the Crown. Rule 8.41(2) then provides that in either situation a Judge may nonetheless direct who is to make the affidavit:
(2)Despite subclause (1), if paragraph (c) or (d) of that subclause applies, and if the affidavit is to be filed and served in accordance with an order, a Judge may—
(a)specify by name or otherwise the person who has to make the affidavit; or
(b)specify by description or otherwise a group or class of persons, any 1 of whom may make the affidavit.
[75] The principles governing the Court’s discretion under r 8.41(2) were addressed by Chilwell J in Fletcher Challenge Ltd v American Home Assurance Co Ltd31
31 Fletcher Challenge Ltd v American Home Assurance Co Ltd (1987) 1 PRNZ 684 (HC).
(dealing with a predecessor to r 8.41(2)). Chilwell J said, citing an 1879 case,32 that the long-recognised principle was that the affidavit should be made by the person most likely to answer the interrogatories satisfactorily. That would usually be the person most likely to apply his or her mind to the duty and to discharge it. Chilwell J held that the Court should, in exercising the discretion under what is now r 8.41(2), be guided by that principle. I respectfully agree.
[76] Where r 8.41(1)(c) and (d) apply, and even where r 8.41(2) is invoked, the person who makes the affidavit is verifying the statement of the party in answer to the interrogatories: r 8.41(1). In other words, the answer is that of the party, not of the person who makes the affidavit.33 This is reflected in the following passage from the judgment of Megarry V-C in Stanfield Properties Ltd v National Westminster Bank plc (emphasis added):34
Interrogatories administered to a company have, of course, the special feature that as the company is an artificial person they must be answered not by the litigant but by some human being who holds a position in relation to the company which enables him to give the answers, such as a director, or here, a liquidator. Yet throughout, the question is not what is known to the individual but what is known to the company.
[77] Mr Wright essentially argues that r 8.41(2) provides a broad vehicle by which the Court can require any number of individuals to answer interrogatories on behalf of a party that is not a natural person. I reject that argument. The foundational rules dealing with interrogatories (rr 8.34, 8.35 and 8.38) do not enable a party to require a non-party to answer interrogatories. So, for example, where a defendant is a natural person, the plaintiff cannot require the defendant’s employees or agents, who may have acted on behalf of the defendant in relation to the matters in issue, to answer interrogatories.35 There is nothing in r 8.41 to suggest that any different approach applies to parties that are not natural persons. The sole point of r 8.41(1)(c) and (d) is that someone must answer on behalf of a party who is not a natural person. Rule 8.41(2) merely gives the Court some control over who is to make the affidavit when
32 Berkeley v Standard Discount Co (1879) 13 Ch D 97.
33 Welsbach Incandescent Gas Lighting Co v New Sunlight Incandescent Co [1900] 2 Ch 1 at 15 per Collins LJ.
34 Stanfield Properties Ltd v National Westminster Bank plc [1983] 1 WLR 568 (Ch D) at 570-571.
35 The defendant would have to make proper inquiries of his or her employees and agents. This just reinforces the point that it is the party, not potential witnesses, who may be required to answer.
either r 8.41(1)(c) or (d) applies. When the Court exercises that control, the Court is to specify either “the person” who is to make the affidavit, or a group of persons, “any 1 of whom” may make the affidavit. The rule contemplates a sole deponent, not the multiple deponents sought by Mr Wright.
[78] Not only is Mr Wright’s argument inconsistent with the rules, it is inconsistent with the general principles applying to interrogatories. I accept Mr Potter’s submission that Mr Wright, by asking particular individuals to answer interrogatories by affidavits, is seeking to elicit evidence. That is impermissible.36
[79] I therefore reject Mr Wright’s argument that Associate Judge Bell erred in concluding that the in-house lawyers for the defendants had been appropriate persons to make the affidavits on behalf of the defendants.
Should the first defendant have to answer any of the interrogatories?
[80] I now address the particular interrogatories that remain in issue on the review application, starting with those directed at the Attorney-General.
Question 2(e)
[81] This question begins by referring to the Attorney-General’s concession, in his statement of defence, that prior to the first arrest Police officers met Mr Wright’s mother outside his home. It asks “Does the first defendant assert that the plaintiff’s mother during that meeting … Provide [sic] any objective basis upon which the officers could reasonably conclude that statutory entry into the plaintiff’s house under s 317(2) of the Crimes Act 1961 was justified? If so, provide details.”
[82] Associate Judge Bell held that the Attorney-General should answer question 2(e), but simply state the facts relied on to justify the entry. The Attorney-General answered the question in a further affidavit. Mr Wright says that the question was not answered as asked. The answer, he says, refers to the totality of the matters relied on
36 Eade v Jacobs (1887) 3 Ex D 335 at 337; Wilson v Broadcasting Corporation of NZ (1987) 1 PRNZ 368 (HC) at 370 (rejecting an interrogatory on the ground that it “essentially seeks a brief of evidence”).
to justify entry, and does not specify which of those matters was provided by his mother.
[83] Mr Wright’s complaint is, strictly speaking, outside the scope of his review application. I nonetheless deal with it here. The Attorney-General’s answer has to be read in context. Mr Wright’s question specifically referred to the Attorney-General’s pleading in the statement of defence. The Attorney-General pleaded at paragraph 19 that Mr Wright’s mother told the Police officers certain things when she met them outside Mr Wright’s home. In the context of that pleading, the answer makes clear that it is those matters that were provided by Mr Wright’s mother. This was confirmed by Mr Potter in his written submissions. No further answer is required.
Question 6
[84] This question asks “What does the first defendant say were the objective grounds which justified statutory entry by the officers into the plaintiff’s house?” The Attorney-General objected to answering this question on the ground that the facts relied on to justify the entry were clearly pleaded in the statement of defence. Associate Judge Bell upheld that objection.
[85] The Associate Judge was right to do so. Mr Wright was simply asking what the first defendant said were its grounds for entry. The first defendant had already pleaded those grounds. There was no point in requiring the question to be answered.
Questions 7-10
[86] Questions 7 and 8 ask whether the Attorney-General had obtained a sworn statement from the Police officers and whether the officers were provided with affidavits sworn by Mr Wright and his mother for their response. Questions 9 and 10 are follow up questions.
[87] Associate Judge Bell held that questions 7 and 8 were not relevant to facts in issue. They were about evidence. They were also subject to litigation privilege. He therefore held that they need not be answered. The follow up questions accordingly also fell away.
[88] Mr Wright submitted to me that these questions “go to the good faith or otherwise of the Crown, in particular whether reasonable and responsible enquiries were made of the relevant officers as to the full facts of the case”. He said the questions were therefore relevant. He described the Associate Judge as having refused the questions on the “spurious” ground of relevance, adding: “As if the Crown’s conduct towards the plaintiff since 2009 is not exactly what this entire case is about!”.
[89] The Associate Judge made his decision by reference to the third amended statement of claim. In that pleading, Mr Wright’s causes of action against the Attorney-General were in respect of his arrest in November 2009 and his arrest in March 2012. Mr Wright did not make any claim in respect of the way in which the Attorney-General had responded to or investigated his complaints, or conducted the defence. The Associate Judge was therefore plainly right to find that questions 7 to 10 were irrelevant in terms of Mr Wright’s then pleading.
[90] Mr Wright has since filed a fourth amended statement of claim. This includes pleadings against the Attorney-General in which Mr Wright complains about the way in which this proceeding has been defended. For example, Mr Wright pleads that various steps taken by the Attorney-General (such as applications for partial strikeout or for security for costs) have been oppressive and inappropriate. Mr Wright now also alleges the Attorney-General has never required the Police officers to provide sworn statements, or put Mr Wright’s allegations to the officers for a proper response.
[91] Mr Wright has launched a new cause of action against the Attorney-General based on these new pleadings, claiming that they represented a breach of s 27 of the BORA. Section 27 says 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 interests”.
[92] Mr Potter submitted that I should ignore Mr Wright’s new pleading. He said Mr Wright bore the onus of persuading me that there was an error in the decision made by Associate Judge Bell. That required me, Mr Potter submitted, to assess the decision by reference to the same pleading that was before the Associate Judge.
[93] That is not quite right. This review “proceeds as a rehearing”: r 2.3(4)(a) (now repealed). In Pratt v Wanganui Education Board, Somers J explained (emphasis added):37
There is a difference between an appeal and an appeal by way of rehearing. On an appeal judgment can only be given as should have been given at the original hearing. On a rehearing judgment may be given as ought to be given if the case came at that time before the court of first instance …
[94] But for slightly different reasons, I find that the fourth amended statement of claim does not assist Mr Wright’s argument that the Attorney-General should answer questions 7 to 10. First, Mr Wright’s inclusion of new allegations that reflect these questions is a contrivance. While relevance is determined by reference to the pleadings, the Court is in these circumstances entitled to scrutinise the pleading to determine whether the matters pleaded are truly relevant.
[95] Secondly, I find that the matters covered by the questions are not relevant to the new cause of action. In investigating (or, as Mr Wright might have it, failing to investigate) Mr Wright’s complaints, neither the Attorney-General nor the Police was a “tribunal or other public authority [having] the power to make a determination in respect of [Mr Wright’s] rights, obligations, or interests”, in terms of s 27 of the BORA. Moreover, this cause of action is expressed to be against the first defendant “as representative of the Crown”. Mr Wright began this proceeding against the Attorney-General as representative of the Police. It is far from clear that the Attorney- General is a party in any other capacity.
[96] Thirdly, the fourth amended claim was filed and served on about 19 March 2021. If the effect of that amended claim was to make some previously irrelevant questions relevant (which in my view it was not), that change occurred only on the date the claim was filed and served. It was as if Mr Wright was serving a new set of interrogatories on that date. As I explain later, it is not appropriate to require either defendant to answer a further set of interrogatories.
37 Pratt v Wanganui Education Board [1977] 1 NZLR 476 (SC) at 490.
Questions 21, 23, 26, and 29-31
[97] These questions ask about the decisions made by the Police to charge and prosecute Mr Wright. In his third amended statement of claim Mr Wright made some reference to these decisions, but they did not form the basis of any cause of action against the Attorney-General. Associate Judge Bell held that they were irrelevant and need not be answered. He went further, saying that there was no basis on which the allegations could found a claim for breach of Mr Wright’s rights.
[98] Mr Wright says that his fourth amended statement of claim now pursues causes of action against the Attorney-General based on, among other things, the charging and prosecution decisions. Mr Wright therefore says that the questions are now relevant. He also takes particular issue with Associate Judge Bell having said that any claim he might bring based on the charging and prosecution decisions could not succeed. Mr Wright said no submissions were made on that at the hearing.
[99] In his fourth amended statement of claim Mr Wright pleads his first two causes of action against the first defendant “as representative of the Police”. That is the capacity in which the Attorney-General is clearly a party to this proceeding. Those causes of action, although referring to earlier paragraphs in which complaints are made about charging and prosecution decisions, each expressly allege it was the two arrests that breached Mr Wright’s rights. The charging and prosecution decisions are therefore not relevant to those causes of action.
[100] In Mr Wright’s third cause of action, he does rely on allegations that he makes about charging and prosecution decisions. But, as I have just noted, this cause of action is expressed to be against the first defendant “as representative of the Crown”, and it is not clear the Attorney-General is a party to this proceeding in that capacity. It is also difficult to see how s 27 is engaged. Finally, even if the new cause of action had cured the problems identified by Associate Judge Bell, Mr Wright was effectively serving a further set of interrogatories. It was too late for that.
Questions 34 and 36
[101] These questions are directed at Police charging and prosecution decisions in general (rather than in relation to Mr Wright), and the way in which such decisions are reviewed and audited. The questions did not specify any particular timeframe. The questions would have required the first defendant to answer by reference to decisions taken from 2009 up to the present day.
[102] Mr Wright said he was entitled to ask these questions because he claimed that the Crown was acting in bad faith not only towards him but towards other citizens. Associate Judge Bell held the questions need not be answered. Not only were the merits of the decision to charge him irrelevant, this proceeding was not a general inquiry into police charging or prosecution practices.
[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 BORA. It was for this reason that these and other questions were expressed generally, rather than by reference to Mr Wright’s particular circumstances.
[104] I find that Associate Judge Bell was right to hold that these questions need not be answered. There are two related reasons. The first is that they are so wide-ranging as to be oppressive. For example, question 34 includes:
Describe any and all examples showing how the Crown maintains practical and ongoing oversight over police prosecution decision-making.
[105] The second reason is that questions directed at alleged ongoing systemic failings are not relevant to any matter in issue in Mr Wright’s claim. When I questioned Mr Wright as to how such failings could be relevant to his claim, he referred me to the following passage in the judgment of the Court of Appeal in
Combined Beneficiaries Union Inc v Auckland City COGS Committee, addressing damages for breaches of the BORA:38
Further, an award of damages was not needed to deter future decision-makers as the breach had already been remedied for the future. Blanchard J, at [262] of Taunoa, says that the level of any award should reflect other ways the State has acknowledged the wrongdoing: for example the speed with which the conduct was brought to an end, measures put in place to prevent recurrence and whether there has been a public apology.
[106] Mr Wright said his case was that systemic failings lay behind the breaches of his rights that occurred when he was arrested, charged and prosecuted. He said the above passage showed that whether the Police had remedied those systemic failings was relevant to the damages to which he was entitled.
[107] The passage that Mr Wright relied on referred to a judgment of Blanchard J in Taunoa v Attorney-General.39 Mr Wright did not take me to that judgment. Mr McLellan did (this issue being a prominent one for the Board as well as for the Attorney-General). He submitted that it did not support Mr Wright’s argument.
[108] I accept Mr McLellan’s submission. In Taunoa, Blanchard J said, addressing the measure of damages for breaches of the BORA:40
[262] The level of the monetary sum should also reflect the other ways in which the state has acknowledged the wrongdoing: whether, and with what speed, it has brought to an end the wrongful conduct and put in place measures to prevent reoccurrence; and whether it has publicly apologised to the victim in appropriate terms.
[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.
38 Combined Beneficiaries Union Inc v Auckland City COGS Committee [2008] NZCA 423, [2009] 2 NZLR 56 at [79].
39 Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429.
40 Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429.
[109] Mr Wright relied (via his reference to the judgment of the Court of Appeal in the Combined Beneficiaries Union case) on [262] of Blanchard J’s judgment. He said this showed that it was relevant (to damages) to determine whether the state had ended the wrongful conduct and put measures in place to prevent reoccurrence. Mr Wright assumed that Blanchard J was referring to steps taken to end wrongful systemic conduct and to prevent its reoccurrence. That misreads the paragraph. By “wrongdoing” and the “wrongful conduct” Blanchard J was referring to the wrong done to the particular victim. That is clear not only from the preceding paragraphs of his Honour’s judgment, but also from the contrast with [263], where his Honour does address the possibility of systemic failings.
[110] Moreover, at [263] Blanchard J made clear that if there is systemic failure, the level of damages for an individual plaintiff is not to be inflated having regard to that systemic failure. That is the reverse of the proposition that Mr Wright put to me.
[111] Blanchard J did acknowledge that systemic failure might be reflected in a Court declaration. Mr Wright did not seek any declarations in his third amended statement of claim. He seeks declarations in his fourth amended statement of claim. But the declarations he seeks are confined to actions he alleges were done to him by the defendants.
[112] For those reasons, I agree with Associate Judge Bell that the Attorney-General is not required to answer questions 34 and 36.
Questions 50-53
[113] These questions are directed at the first defendant, but in Mr Wright’s notice of interrogatories they were headed “Questions relating to the role of the Crown in relation to the actions of the second defendant in this proceeding”. The questions related either to the Director of Area Mental Health Services (DAMHS) or to the second defendant. The questions were very wide-ranging. For example, question 52 asked:
What assurances and information has the Crown received from the second defendant that all employees or medical health officers undertaking statutory functions under MHCATA have received proper training as to how those
functions are to be exercised, in order to ensure compliance with the requirements of MHCATA?
[114] Associate Judge Bell held that the questions need not be answered. Mr Wright had brought this proceeding against the Attorney-General in respect of the Police. He had not pleaded any cause of action against the Attorney-General in respect of the Ministry of Health. Mr Wright told the Associate Judge his new claim would plead a cause of action against the Ministry. The Associate Judge decided it was efficient to deal with the interrogatories on the assumption that such a cause of action would be pleaded. Even on that assumption, he rejected the interrogatories, for two reasons.
[115] First, he could see no basis upon which the Attorney-General could be sued in respect of the Ministry for breaches of the BORA.41 Secondly, the interrogatories were in any case irrelevant and oppressive.42 Associate Judge Bell also said that Mr Wright would have to make a late application to join the Attorney-General in respect of the Ministry, but he did not deal with that in considering the interrogatories.43
[116] Mr Wright’s submissions focussed on whether the Attorney-General in respect of the Ministry was a party to this proceeding, and on whether the Attorney-General could in any event have any liability in respect of the DAHMS. He did not focus on the interrogatories themselves.
[117] Question 52, set out above, is directed at Mr Wright’s systemic concerns. For the reasons I have given above, the question is therefore irrelevant. It is in any case so wide-ranging as to be oppressive. Question 50 is in the same camp.
[118] Questions 51 and 53 are directed at Mr Wright’s particular circumstances. But the questions ask whether the first defendant asserts that the DAHMS fulfilled his statutory obligations, or whether the first defendant was satisfied with the view expressed by the DAHMS. The first defendant’s assertions in respect of, or satisfaction with, the DAHMS are not put in issue in either the third or fourth amended statement of claim. The questions are irrelevant.
41 Wright v Attorney-General [2021] NZHC 18 at [129]-[133].
42 At [135].
43 At [134].
[119] For those reasons I conclude that Associate Judge Bell did not err in not requiring answers to these questions. It is not necessary for me to express a view on the substance of Mr Wright’s claim. As to whether the Attorney-General in respect of the Ministry is a party to the proceeding, that seems doubtful, given that Mr Wright brought this proceeding against the Attorney-General in respect of the Police. I understand Mr Wright has not applied to join any other defendants. Mr Wright changing the description of the first defendant in the intituling of his documents does not effect a change in the parties.
Questions 54-59
[120] These questions relate to the first defendant’s conduct of this proceeding. For example, Mr Wright asks what Crown officer authorised various interlocutory applications brought by the first defendant, and asks whether the first defendant received details of settlement offers he made.
[121] Associate Judge Bell held that these questions were irrelevant and need not be answered.
[122] His Honour was plainly right in that decision. The manner in which the Attorney-General has conducted itself in this proceeding was not relevant to any issue raised by the third amended statement of claim. In his latest amended claim Mr Wright has included pleadings directed at these matters, but there is no explanation of how they could be relevant to the causes of action that he pleads. And, as previously stated, even if his amendment had made these matters relevant, Mr Wright was thereby effectively serving a third set of questions.
Supplementary questions 1-5
[123] These questions were in the second set of interrogatories dated 24 August 2020. Question 1 asks how the Police respond to a decision from the Court that is critical of Police actions or procedures. Questions 2 to 4 are similarly broad. Question 5 asks, by reference to the failure of the charges against Mr Wright arising from the two arrests, what steps were taken to review the processes by which the arrests took place, and to thereby gain “institutional learning” from the allegedly failed process.
[124] Associate Judge Bell held that they were irrelevant and need not be answered. He was right. The questions are all directed at Mr Wright’s concern about alleged ongoing systemic failings.
Should the second defendant have to answer any of the interrogatories?
Question 12
[125] This question asks the Board about the processes by which the DAHMS approves psychiatrists to undertake assessments under ss 9 and 10 of MCHATA. Associate Judge Bell held that the Board should answer about processes in 2009 (when Mr Wright was assessed), but not about current processes. Current processes, he held, were irrelevant.
[126] Mr Wright says current processes are relevant because they show ongoing systemic issues.
[127] As I have explained above, ongoing systemic issues are not relevant to Mr Wright’s claim against either defendant. Associate Judge Bell was right to reject this question.
Question 13
[128] Associate Judge Bell ordered the Board to answer question 13. In the schedule attached to his written synopsis, Mr Wright did not mention question 13. The Board’s submissions, unsurprisingly, did not address question 13. Then, in Mr Wright’s memorandum after the hearing, he said he sought an answer to question 13.
[129]The question was outside the scope of Mr Wright’s application, and Mr Wright
did not address it in his submissions. I have not considered it.
Question 14
[130] Associate Judge Bell ordered the Board to answer question 14, which asked what training and qualifications a particular doctor held in relation to the exercise of statutory functions under the MHCATA. The Board answered it. Mr Wright nonetheless addressed it in his submissions, saying that the Board’s answer did not answer the question.
[131] Although this was outside the scope of Mr Wright’s application, it is efficient to deal with it now. In my view the Board’s answer did answer the question. Mr Wright thinks that the training and qualifications described in the Board’s answer did not relate to the exercise of statutory functions under the MHCATA. But his disagreement with the answer does not mean the Board failed to answer the question.
Questions 15-17
[132] These questions ask about the nurses who came to the Police station to see Mr Wright at the request of the Police (after his first arrest). Having seen him, they made an application under s 8 of the MHCATA. That led to a clinical psychiatrist making an assessment of Mr Wright’s mental condition under ss 9 and 10 of the MHCATA, and his detention under that Act.
[133] Each nurse was a duly authorised officer (DAO) under the MHCATA. The questions ask about the processes by which the DAHMS approves DAOs to undertake assessments under the MHCATA, how those processes applied to the two nurses, and what training and qualifications the nurses had in relation to the exercise of functions under the MHCATA.
[134] Associate Judge Bell noted he had approved similar questions for the clinical psychiatrist who made the assessment of Mr Wright. But he held that for the nurses the questions were too remote from the matters in issue. It did not matter whether their appointments as DAOs was unsound or whether they had been sufficiently trained. There were safeguards in the MHCATA against their making mistakes. He concluded “the questions would not serve a useful purpose and accordingly are unnecessary”.
[135] Questions 15 and 16 are about the processes by which the DAHMS approves DAOs, and how those processes applied to the two nurses. The process that leads to an assessment by a clinical psychiatrist can be started by anyone, DAO or not: s 8 of the MHCATA. I go further than the Associate Judge. In my view the questions are irrelevant.
[136] Question 17 asks what training and qualifications the nurses had in relation to the exercise of functions under the MHCATA. Given the limited role played by the nurses in the process that led to Mr Wright’s detention under the MHCATA, I agree that these questions are unnecessary.
Question 19
[137] Question 19 asks by what processes are specialist mental health staff of the Board informed and familiarised with certain Ministry of Health guidelines. The question seeks an answer for both 2009 and the present. Associate Judge Bell held the question was irrelevant as far as current processes are concerned, and overbroad as far as 2009 processes were concerned. He said there may be some point in seeing what guidance was given to the nurses and doctors whose conduct is in issue. But requiring answers about how all mental health staff were informed of guidelines went beyond what was needed for Mr Wright’s case.
[138]Mr Wright accepted this in his written submissions. He said he had, in his r
8.38 application, reframed the question so that it was narrowed to specific persons.
[139] In any event, I agree with the conclusion of Associate Judge Bell. Current processes relate to Mr Wright’s claim of systemic failure and are irrelevant. As to 2009 processes, the question was manifestly too broad.
Should Associate Judge Bell be recused on the ground of bias?
[140] Mr Wright seeks an order “recusing Associate Judge Bell from further involvement in the case management of this matter”. Mr Wright alleges the judgment under review was affected by actual or presumptive bias. He also claims his legitimate expectation of bringing his full claim to trial is being frustrated by the Associate Judge.
[141] Mr Wright addressed these allegations in his written submissions. He said nothing to me about them in his oral submissions. However, he did not formally withdraw this part of his application.
[142] There is nothing in these allegations. The Associate Judge’s decision was carefully reasoned. He accepted some of Mr Wright’s arguments and rejected others. There was no bias, actual or presumptive. Mr Wright’s disappointment in the result, or his view that the Judge made errors, is not a basis for alleging bias. These allegations should never have been made.
The application under r 8.38
[143] In a reply memorandum filed shortly in advance of the second hearing before Associate Judge Bell, Mr Wright attached an appendix of further interrogatories, which he invited the Associate Judge to order under r 8.38. In considering Mr Wright’s invitation, Associate Judge Bell noted that the court has a discretion to order further interrogatories. He quoted this passage from the judgment of Heron J in Wilson v Broadcasting Corporation of New Zealand:44
I do not consider, in the less formal procedure that now prevails, there should be an insurmountable objection of further interrogatories being sought simply on the ground that a r 278 notice has been delivered and complied with. Such may arise from a further consideration of the matters in issue, or they may arise as a result of objections taken, or they may arise from an inadequate drafting of the initial interrogatories. In the end it is important that the Court retains the right to allow interrogatories to be delivered in any event, in order that the trial can be shortened, the issues clarified and progress made in the disposal of the case. In my view the Court has ample discretion to ensure that further interrogatories are not used as a delaying procedure, and if necessary to exclude an interrogatory which should have been asked in the first place. But I see some advantage in retaining flexibility and allowing r 282 to be used to finally determine what questions may be delivered, and what answers should be given.
[144] Associate Judge Bell then observed that many of the proposed further interrogatories were objectionable on various substantive grounds. He said that some might have withstood scrutiny if they had been included in Mr Wright’s original notice. The Associate Judge then said:
44 Wilson v Broadcasting Corporation of New Zealand (1987) 1 PRNZ 368 (HC) at 371-372. Rules
8.34 and 8.38 are the current versions of rr 278 and 282 of the High Court Rules 1985.
[124] That does not mean that I should now order the board to answer them. It would not be right to order the board to answer more interrogatories without first giving the board a proper opportunity to reply. That would require Mr Wright to file a formal application under r 8.38, the board to file its opposition and a hearing to decide whether to order fresh interrogatories and, if so, who should answer them. A hearing will not be available until the second quarter. That will be running up against the close of pleadings date.
[125] In the circumstances I do not order further interrogatories or give directions for an application under r 8.38 for further interrogatories. Mr Wright did not provide any good reasons why he should be allowed to ask more interrogatories. With hindsight, he has thought of more, but that is not a good reason. As Heron J accepted … , interrogatories which should have been asked in the first place will not be allowed. Interrogatories put a party to considerable effort, particularly in a case where the events go back many years and involve numbers of people. It is oppressive to repeat that process, when a fresh hearing will be required …
[145] Mr Wright says he interpreted these paragraphs of the judgment as a suggestion to make an application under r 8.38 for further interrogatories. This is how Mr Wright put it:
Virtually all of the questions set out in the plaintiff’s application [under r 8.38 for further interrogatories] were also sought as orders before Associate Judge Bell, but His Honour refused to consider granting such orders because the defendants did not have sufficient notice to respond. Associate Judge Bell himself suggested, at para [124] of the Decision under review, that new or redrafted questions ought to be the subject of a fresh application, which is what the plaintiff has filed.
[146] Associate Judge Bell was making no such suggestion. In [124] the Associate Judge said that it would not be right to order the Board to answer more interrogatories without first giving the Board a proper opportunity to reply. He then explained that in order for the Board to have a proper opportunity to reply, Mr Wright would have to make a formal application under r 8.38. A hearing of that application would run up against the close of pleadings date. The Associate Judge was troubled by this prospect and for that reason, in [125], said he did not give directions for an application under r
8.38 for further interrogatories. One of his reasons was that it would be oppressive to do so, given that a fresh hearing would be required. This was the very opposite of a suggestion that Mr Wright launch a further and very late application.
[147]Yet, Mr Wright having made the application, I must now determine it.
Should I exercise my discretion to order further interrogatories?
[148] This is Mr Wright’s third set of interrogatories against the Attorney-General, and his second set against the Board (excluding the set attached to his reply memorandum). Mr Wright has no entitlement to administer more than one set, though I accept I have a discretion under r 8.38 to order further interrogatories.
[149] In the exercise of that discretion I refuse to order further interrogatories, for a combination of three reasons. First, Mr Wright did not offer any reason as to why he did not ask these questions when he first served notices on the defendants. I surmise that he has redrafted some earlier questions, and added others, first in response to objections raised by the defendants, and then in response to Associate Judge Bell’s judgment. But “it is not the Court’s function to limit or reshape an objectionable interrogatory into an acceptable form”.45 Nor is it the function of the opposing parties.
[150] Secondly, Mr Wright told me that many of the further questions in the r 8.38 application were alternatives to questions asked in the original notices, and which Associate Judge Bell had rejected. To that extent Mr Wright was seeking to relitigate matters that had already been determined against him. Mr Wright was entitled to challenge the Associate Judge’s decision by review, but he should not at the same time have been making a collateral attack on the decision through a r 8.38 application.
[151] Thirdly, it would in any event be oppressive to require the defendants to answer these further interrogatories, in circumstances where they have already answered earlier interrogatories, successfully challenged many interrogatories, and now face a trial in just a few months.
[152] Quite apart from those discretionary matters, each question is objectionable in substance. I can express my views briefly, by reference to the questions that Mr Wright still pursued.
[153] Mr Wright directs questions 2.1 to 2.6, 2.12 to 2.17, and 2.23(d) at particular Police officers. For the reasons expressed earlier, he is not entitled to do so.
45 Todd Pohukura Ltd v Shell Exploration NZ Ltd [2009] NZCA 561 at [23].
[154] Questions 2.30 to 2.37 are variations on (and alternative to) some of the original questions 54 to 59 and supplementary questions 1 to 5 directed at the first defendant. Questions 2.38 to 2.40 are variations on (and alternative to) the original questions 50 to 53 directed at the first defendant. All these questions are objectionable for the reasons I gave earlier.
[155] Mr Wright directs questions 2.56, 2.63 to 2.69, 2.71, and 2.73 to 2.74 at particular doctors or nurses. For the reasons expressed earlier, he is not entitled to do so. Most of the questions are also all variations on (and alternative to) questions I have ruled objectionable.
Result
[156]I decline each of Mr Wright’s applications.
[157] The defendants, having succeeded, are entitled to costs from Mr Wright. If the parties cannot agree costs, I direct the defendants to file and serve memoranda by 2 July 2021. Each memorandum is not to exceed two pages (excluding any schedule of costs). Mr Wright is to file any memorandum in response by 9 July 2021. His memorandum is not to exceed four pages (excluding any schedule of costs).
Campbell J
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