Wright v Attorney-General
[2021] NZHC 18
•26 January 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 18
BETWEEN NICHOLAS DAVID WRIGHT
Plaintiff
AND
ATTORNEY-GENERAL sued in respect of the NEW ZEALAND POLICE
First Defendant
AUCKLAND DISTRICT HEALTH BOARD
Second Defendant
Hearing: 22 October 2020 and 17 November 2020 Appearances:
On 22 Octoberr 2020:
Plaintiff in person
Brittany Rorrison for the First Defendant
Hershla Ifwersen for the Second Defendant (to observe)On 17 November 2020:
Plaintiff in person
Brittany Rorrison for the First Defendant (to observe)Daniel McLellan QC and Hershla Ifwersen for the Second Defendant
Judgment:
26 January 2021
JUDGMENT OF ASSOCIATE JUDGE R M BELL (No.3)
This judgment was delivered by me on 26 January 2021 at 3:00pm
pursuant to Rule 11.5 of the High Court Rules
Solicitors:
………………………….
Registrar/Deputy Registrar
Meredith Connell, Auckland, for the First and Second Defendant
Copy for:
Nicholas David Wright, Auckland
Daniel McLellan QC, Auckland, for the Second Defendant
WRIGHT v ATTORNEY-GENERAL sued in respect of the NEW ZEALAND POLICE [2021] NZHC 18
[26 January 2021]
[1] This decision is about interrogatories. On 22 October 2020 I heard argument about Mr Wright’s interrogatories to the police and their answers. On 17 November 2020 I heard argument about his interrogatories to the District Health Board and its answers. This decision is given for both matters.
[2] Mr Wright is suing the Attorney-General in respect of the police for his arrest on 22 November 2009 and for a later arrest on 25 March 2012. For convenience I will refer to the first defendant as the police. He is suing the Auckland District Health Board for his compulsory detention and treatment as a patient under Part 1 of the Mental Health (Compulsory Assessment and Treatment) Act 1992. His claims are for breaches of his rights under the New Zealand Bill of Rights Act 1990. He does not sue in tort.
[3] The close of pleadings date is 21 May 2021 with a substantive hearing to begin on 4 October 2021. Mr Wright says that he wants to amend his statement of claim. Ideally there ought not to be any more interlocutory applications.
[4] In Mr Wright’s view there were and are systemic defects in the police and mental health services with regard to rights observance. He sees this proceeding as an opportunity to expose those failings. He wants to involve the Ministry of Health, although it was not involved in his treatment by the district health board. His proposed interrogatories are extensive and cover not only his arrests and compulsory treatment but also current practices and procedures. He misconceives how the common law works. It does not act as a wide-ranging commission of inquiry. Instead in a case about breaches of rights under the New Zealand Bill of Rights Act, it decides whether in the circumstances before the court the state breached the plaintiff’s rights and gives remedies appropriate to the breach. Its inquiry and orders do not go beyond the circumstances of the alleged breach. Such one-off findings may nevertheless be useful. The state can be expected to learn from adverse rulings that it has infringed rights and to alter its practices.
[5] Many of Mr Wright’s interrogatories go beyond the proper scope of the proceeding and are unnecessary. Others are not factual questions and therefore not true interrogatories. While the defendants answered only some of his interrogatories and objected to others, not all their objections were sound. I have required the defendants to answer some more, but not many.
Mr Wright’s recusal application
[6] At the start of each hearing, Mr Wright asked me to recuse myself on the ground that I was presumptively biased. He did not suggest that I was actually biased. His argument was that because of the way I have managed, heard and decided this proceeding, he cannot be confident that I will deal with him impartially.
[7] I have case-managed the proceeding since May 2016 and given most case management directions. I have given two decisions after contested hearings, one on strike-out and discovery1 and the other on security for costs.2 I have come to know Mr Wright only through this proceeding. I have no greater connection with the other parties than any other citizen. I am not aware of any inappropriate influences that would suggest that I will not deal with this case impartially and objectively.
[8]Mr Wright, however, objects to some of my decisions:
(a)In the discovery decision, I recorded that Mr Wright was satisfied that two nurses and a psychiatrist were respectively authorised and approved under the Mental Health (Compulsory Assessment and Treatment) Act.3 He says that he made no such concession.
(b)In the security for costs decision, when considering the merits of his case, I did not uphold every aspect of his case.4 He says my findings were obiter and unnecessary.
1 Wright v Attorney-General [2017] NZHC 2865.
2 Wright v Attorney-General [2019] NZHC 59.
3 Wright v Attorney-General [2017] NZHC 2865 at [34].
4 See for example Wright v Attorney-General [2019] NZHC 59 at [51]–[58].
(c)I declined his request for transcripts of seven days of banco hearings.5
In his eyes I am tainted because of these errors. When the defendants sought review of my security for costs decision (which went against them), he was not allowed to argue that my decision should be upheld for additional reasons. Because my errors were not corrected on review, I am under a continuing misapprehension as to his case. He therefore cannot expect a fair hearing from me.
[9] For the sake of argument, I assume that those matters were wrong. Even so, error does not mean bias. The test for bias is whether a fair-minded observer might reasonably apprehend that a judge might not bring an impartial mind to the resolution of the question the judge is required to decide. The fair-minded observer is presumed to be intelligent and to view matters objectively. They are neither unduly sensitive nor suspicious nor complacent about what may influence the judge’s decision.6 Such an independent observer would see that some of my decisions have gone Mr Wright’s way and others have not. The fact that one judge has managed a case and given earlier erroneous decisions does not mean that the judge should no longer have anything to do with the case. In a security for costs application, a judge reviews the merits of a case to decide whether to order security and on what terms. Statements about the merits in one interlocutory decision do not bar that judge from deciding further interlocutory applications in the same proceeding. Were it otherwise, there would be greater inefficiencies as cases would be moved from one judge to another. The independent observer aware of all of the facts would not conclude that I was biased or appeared to be biased. I confirm my refusal not to recuse myself.
Interrogatories: general
[10]In Todd Pohokura Ltd v Shell Exploration Ltd, the Court of Appeal said:7
[14]…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. Like all questions, it must be directed towards advancing one side’s case or damaging the other’s case. It must
5 Minute of 27 August 2020 at [34]–[35].
6 Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 72, [2010] 1 NZLR 35.
7 Todd Pohokura Ltd v Shell Exploration NZ Ltd [2009] NZCA 561 at [14]–[16].
accordingly be relevant to an issue raised on the pleadings or a fact in dispute for determination.
[15]An interrogatory must also, like a question in cross-examination, be precise and unequivocal, and amenable to a direct and meaningful answer from information within the knowledge of or reasonably available to the person required to answer. It must not place unnecessary or burdensome obligations on the interrogated party, or be prolix. And its purpose must not be to search or probe on the speculative basis that an answer may prove relevant (colloquially known as fishing). A question which offends these elements will fall within the general category of oppressiveness.
[16]An interrogatory is an exception to the settled manner of adducing evidence and in particular to a defendant’s right not to call evidence at trial. Accordingly the court must be satisfied that the interrogatory is necessary where an application to issue interrogatories is opposed: r 8.5 High Court Rules. A material consideration is whether briefs of evidence will be given by the party to be interrogated. Moreover, an interrogatory is not to be confused with a request for further particulars.
[11] It is common to refer to the dictum of Lockhart J in WA Pines Pty Ltd v Bannerman, as to the objects of interrogatories. 8 There is a more recent statement in Disclosure by Matthews and Malek as to the purpose of information requests. Under the English Civil Procedure Rules, information requests have taken the place of interrogatories and requests for particulars.9 Much of the old learning as to interrogatories applies to the new procedure. The text’s statement as to the object of information requests applies equally to interrogatories, namely to:
(a)obtain admissions;
(b)reveal weaknesses in the other party’s case;
(c)obtain information as to material facts which the applicant needs to prove in support of his case;
(d)ascertain details of aspects of the other party’s case so as to reduce surprise at the exchange of witness statement stage or at trial;
(e)obtain clarification of the other party’s case and to limit the other party’s ability to depart from its case as clarified; and
(f)narrow the issues between the parties and thus reduce the expense and length of trial, including the expense in earlier stages of litigation such as disclosure of documents and witness statements.
8 WA Pines Pty Ltd v Bannerman [1980] 41 FLR 175 at 190.
9 Paul Matthews and Hodge M Malek Disclosure (5th ed, Sweet and Maxwell, London, 2017) at 20.06.
[12] Interrogatories are about facts, that is, events or matters located in time and space. They are not about mixed questions of law and fact.10 They cannot be put hypothetically, asking a party to assume facts it denies.11 Interrogatories cannot ask about evidence. A party cannot ask another how it will prove its case. So in Eade v Jacobs, Cotton LJ said:12
I think that the plaintiff is entitled to a discovery of the facts upon which the defendant relies to establish his case, but not of the evidence which it is proposed to adduce.
And in Bolckow, Vaughan & Co v Fisher Brett LJ said:13
… a party to a cause cannot be asked to give the contents of his brief. That is a figurative expression, and I take it to mean that though a party may be asked with regard to certain facts he cannot be asked with regard to the evidence of those facts.
The exclusion of evidence means a party cannot be asked about detailed matters that go to establish the facts to be decided. In Marriott v Chamberlain Lord Esher MR said:14
The law with regard to interrogatories is now very sweeping. It is not permissible to ask the names of persons merely as being the witness whom the other party is going to call, and their names not forming any substantial part of the material facts; and I think we may go so far as to say that it is not permissible to ask what is mere evidence of the facts in dispute, but forms not part of the facts themselves. But with these exceptions it seems to me that pretty nearly everything that is material may now be asked. The right to interrogate is not confined to the facts directly in issue, but extends to any facts the existence or non-existence of which is relevant to the existence or non-existence of the facts directly in issue.
(Emphasis added)
The line between facts and evidence is not clear-cut but more a matter for judgment in each case. The comments of the Court of Appeal in Price Waterhouse v Fortex Group Ltd, a case on particulars, are apposite:15
10 Attorney-General v Wang New Zealand Ltd [1990] 3 NZLR 148, (1989) 2 PRNZ 238 (CA): interrogatories about the meaning of documents not allowed.
11 Westpac Banking Corp v Hart (1987) 1 PRNZ 719 (HC).
12 Eade v Jacobs (1887) 3 Ex D 335 at 337.
13 Bolckow, Vaughan & Co v Fisher (1882) 10 QBD 161 (CA) at 170.
14 Marriott v Chamberlain (1886) 17 QBD 154 (CA).
15 Price Waterhouse v Fortex Group Ltd CA 179/98, 30 November 1998 at 18–19.
Nor, with respect, does it greatly help to talk in terms of “facts” (to be pleaded) and “evidence” (for trial) as if there were some bright-line distinction between the two. There is not. “Facts” can merge into evidence without any clear dividing line.
[13] Because interrogatories are about facts only, they cannot be used to debate or argue the merits of the case. That is instead for submission at the substantive hearing. Questions directed at making the other side justify their case on the facts they have pleaded go beyond the scope of interrogatories. I call these “Please explain” requests. Questions seeking opinions or assessments are not about facts.
[14] At the same time, interrogatories can be used to elucidate the factual basis for the other side’s case. As an example, in Duke of Sutherland v British Dominions Land Settlement Corp Ltd directors declined to register a transfer of shares under articles of association that gave a range of grounds on which registration could be declined.16 The plaintiff shareholder was allowed to interrogate the company as to the particular ground the directors applied in declining to register the transfer (but not as to their reasons). That was factual and did not require the directors to justify their refusal.
[15] In some cases the police have answered Mr Wright’s interrogatories by referring to particulars given in their statement of defence. It is sometimes suggested that interrogatories are not to be confused with particulars and that interrogatories are not to be used as a substitute for seeking particulars.17 In Duke of Sutherland Tomlin J borrowed Cotton LJ’s words from Attorney-General v Gaskill, reiterating:18
The object of the pleadings is to ascertain what the issues are, the object of interrogatories is not to learn what the issues are, but to see whether the party who interrogates cannot obtain an admission from his opponent which will make the burden of proof easier than it otherwise would have been.
Nevertheless, interrogatories may be used to find out what facts the other side asserts in support of its case. That is one of the objects Lockhart J described in W A Pines Ltd v Bannerman.19 Accordingly a party may answer an interrogatory as to the factual basis for its case by referring to facts it has pleaded. On the other hand, where the
16 Duke of Sutherland v British Dominions Land Settlement Corp Ltd [1926] Ch 746.
17 Re Securitibank Ltd (No 32) (1984) 1 PRNZ 523 (HC) at 525.
18 Attorney-General v Gaskill (1881) 20 Ch D 519 (CA) at 528, as cited in Duke of Sutherland v British Dominions Land Settlement Corp Ltd [1926] Ch 746 at 754.
19 WA Pines Pty Ltd v Bannerman (1980) 41 FLR 175 at 190.
interrogatory is directed at facts outside the pleading, a reference to the pleading is not a sufficient answer.
[16] There may be interrogatories as to the substance of conversations, but not as to exactly what was said.20
[17] A party may object to an interrogatory on the ground that it does not relate to a matter in question between the parties.21 As with discovery, relevance is decided according to the pleadings. Normally the court will not rule on the merits of an issue to decide relevance. That comes with a rider, again as with discovery.22 If the interrogating party is pursuing an issue on which it cannot hope to succeed, even if it establishes the facts in its favour, there is no point in allowing it to interrogate on the facts. That would serve no useful purpose and is unnecessary.
Some procedural aspects
[18] A party served with a notice to answer interrogatories may challenge them by applying under r 8.36:
(1)A Judge may, on the application of a party required to answer interrogatories, order that answers to interrogatories under rule 8.34 by that party—
(a)are not required; or
(b)need to be given only to specified interrogatories or classes of interrogatories or to specified matters that are in question in the proceeding.
(2)The application may be made before or after the party has been served with a notice under rule 8.34.
(3)In determining the application, the Judge must make any orders required to prevent unnecessary or oppressive interrogatories or unnecessary answers to interrogatories.
20 Attorney-General v Gaskill (1881) 20 Ch D 519 (CA) at 527.
21 High Court Rules 2016, r 8.40(1)(a).
22 For discovery examples, see McCullagh v Robt Jones Holdings Ltd [2015] NZHC 1462, (2015) 22 PRNZ 615 at [30] and [44] and Dold v Murphy [2018] NZHC 994 at [32].
On such an application, the judge may rule on objections to the interrogatory.23 The court can also give directions on interrogatories under r 8.38:
(1)A Judge may, at any stage of any proceeding, order any party to file and serve on any other party (whether the interrogating party or not) a statement prepared in accordance with rule 8.39 in answer to interrogatories specified or referred to in the order.
(2)The interrogatories must relate to matters in question in the proceeding.
(3)The order may require the statement to be verified by affidavit.
(4)The Judge must not make an order under subclause (1) unless satisfied that the order is necessary at the time when it is made.
Applications under r 8.38 may be made when a party has not responded to a notice under r 8.34 to answer interrogatories or when the answers are challenged, for example, because an objection under r 8.40 is alleged to be unsound. Under both rr 8.36(3) and 8.38(4) the court must have regard to the necessity for the interrogatories. Oppressiveness is a ground for barring interrogatories under r 8.36(3) and is also a ground for objection under r 8.40(1)(b).
[19] The necessity requirement is a control against over-exuberant use of interrogatories as well as against speculative and irrelevant interrogatories. The test is not a stringent one. The party wishing to interrogate must show that there is good reason for them.24 The scope of the proceeding, the matters in issue, whether matters have been adequately addressed in pleadings, whether the interrogating party should be held to alternative means of proving its case are relevant factors. So in Commerce Commission v Air New Zealand, Asher J commented:25
“Necessity” does not mean as is suggested in some of the submissions for the defendant airlines, that the questions relate to facts crucial to the interrogating party proving its case. The threshold is not that high. Rather, necessary questions can include questions that may indirectly prove the key facts relied on. They may establish or form a step in establishing the allegations made.
23 High Court Rules 2016, r 8.40(3).
24 While he does not say so in quite those words, that is the tenor of Master Hansen’s judgment in
Bank of New Zealand v Gardner (1990) 2 PRNZ 278.
25 Commerce Commission v Air New Zealand Ltd [2012] NZHC 2113 at [19].
[20] In this case Mr Wright served notices on the defendants to answer interrogatories. They served answers, some of which made objections under r 8.40 of the High Court Rules 2016. They did not file applications under r 8.36. In case management, I directed the hearings to decide all challenges to questions and answers together. The hearings were about both whether Mr Wright’s questions should be allowed and whether the defendants’ objections were sound. They dealt with matters that would normally be argued under both rr 8.36 and 8.38.
[21] There was no objection to the drafting of Mr Wright’s interrogatories. Someone else might have drawn them more tightly. The defendants understood the point of the questions and were able to answer them or object to them accordingly.
Who should answer the interrogatories?
[22] A police in-house lawyer swore the first defendant’s answers to Mr Wright’s interrogatories. The District Health Board’s general counsel swore its answers. On the face of it, that seems in order under r 8.41 of the High Court Rules 2016:
Who may swear affidavit verifying statement in answer to interrogatories
(1)An affidavit verifying a statement of a party in answer to interrogatories may be made as follows:
…
(c)if the person required to make the statement is a corporation or a body of persons empowered by law to sue or to be sued (whether in the name of the body or in the name of the holder of a registry), by a person who meets the requirements of rule 9.82:
(d)if the person required to make the statement is the Crown, or an officer of the Crown who sues or is sued in an official capacity, or as representing a government department, by an officer of the Crown.
(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.
As to subclause (1)(c), r 9.82 allows an affidavit on behalf of a corporation to be made by a person who knows the relevant facts and is authorised to make the affidavit. The district health board is a corporation under the rule.
[23] Mr Wright objected to the in-house lawyers giving answers to the interrogatories, as they do not have personal knowledge of the subject matter of the questions. He cited Fletcher Challenge Ltd v American Home Assurance Co Ltd, where answers had been sworn by the plaintiff’s security manager.26 Chilwell J directed that the chairman of one of the plaintiff companies also answer an interrogatory on the ground that the chairman had personal knowledge of the subject matter of that interrogatory. In Mr Wright’s submission those who had direct personal knowledge of the facts should swear answers to his questions. That may involve numbers of police officers for the first defendant and nurses and doctors for the health board.
[24] Fletcher Challenge Ltd v American Home Assurance Co Ltd gives useful guidance. It was decided under r 286 of the High Court Rules 1985, which is in similar terms to r 8.41 of the 2016 rules. Chilwell J held that in the case of a company the affidavit should be made by the member or officer most likely to answer the interrogatories satisfactorily.27 That will usually be the officer most likely to apply his mind to his duty and to discharge it. The officer must answer not only according to his personal knowledge but must also get information from others in the company about the matters in issue. They cannot properly answer by saying that they personally know nothing about the matter. The court has a discretion in designating the person to make the answers. As to the duty of the officer making the affidavit, he cited Stanfield Properties Ltd v National Westminster Bank Plc, where Megarry V-C said:28
A director or liquidator who answers that he does not know is not answering the question; for the question is what the company knows, not merely what the director or liquidator knows. The person answering the interrogatories is accordingly bound to make all reasonable inquiries which are likely to reveal, or may reveal, what is known to the company. In order to show that this has been done, it is obviously desirable that the answers should include some statement which shows that the person swearing the answers has applied his mind to this duty and has attempted to discharge it. This, however, is all that I
26 Fletcher Challenge Ltd v American Home Assurance Co Ltd (1987) 1 PRNZ 684.
27 At 687.
28 Stanfield Properties Ltd v National Westminster Bank Plc [1983] 1 WLR 568 at 571.
think is required. I do not think that there is any duty to set out the details of the inquiries made, giving the names and addresses of all persons questioned, and specifying what questions were asked, and so on. If the answers do not at least state in general terms the person swearing to them has made diligent inquiries of all officers, servants and agents of the company who might reasonably be expected to have some knowledge relevant to the questions, the party administering the interrogatories may justifiably question whether the company has discharged its obligations in answering the questions. In particular, if any person is an obvious source of knowledge, he must be questioned. If he is not, the company should say why.
[25] A supplementary affidavit by the health board’s general counsel explains that he has had overall responsibility for the board’s internal management of this proceeding litigation since it was served. He also dealt with Mr Wright’s habeas corpus application and his judicial review proceeding, which were also about Mr Wright’s compulsory assessment and treatment. He had made inquiries of all officers, servants and agents of the board who might reasonably be expected to have some relevant knowledge about the subject matter of the interrogatories and he had assisted counsel to identify and locate relevant witnesses. That meets what Megarry V-C had in mind. I see no reason to direct someone else to swear an affidavit for the board.
[26] An officer of the Crown who makes an affidavit under r 8.41(1)(d) is in a similar position to an officer of a corporation under subclause (1)(c) and is under the same duty to make inquiries so that his answers say what the Crown knows. The officer of the Crown need not be a witness in the case. However, the affidavits by the police in-house lawyer are not as forthcoming as the health board’s. He says that he is familiar with the proceeding and is authorised to make the affidavits on behalf of the police. As an in-house lawyer he cannot be expected to have personal knowledge of the matters in issue, but he says nothing about inquiries made of others in the police who could reasonably be expected to know about Mr Wright’s questions. The answers given to the interrogatories do give reason to believe that others in the police have been asked for information to answer the interrogatories. All the same, in the absence of anything about inquiries to make sure that he has all the information, it would be safer for him to make a supplementary affidavit as to the inquiries that were made. Subject to that, it is acceptable for the in-house lawyer to make the affidavits answering interrogatories and I see no reason to order someone else to give verified answers for the police.
Mr Wright’s case against the Police
[27] Mr Wright sues the police for arresting him on 22 November 2009 and 25 March 2012.29 He claims they infringed these rights under the New Zealand Bill of Rights Act 1990:
18 Freedom of movement
(1)Everyone lawfully in New Zealand has the right to freedom of movement and residence in New Zealand.
21Unreasonable search and seizure
Everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise.
22Liberty of the person
Everyone has the right not to be arbitrarily arrested or detained.
23Rights of persons arrested or detained
(1)Everyone who is arrested or who is detained under any enactment—
(a)shall be informed at the time of the arrest or detention of the reason for it;
…
(2)Everyone who is arrested for an offence has the right to be charged promptly or to be released.
(3)Everyone who is arrested for an offence and is not released shall be brought as soon as possible before a court or competent tribunal.
…
(5)Everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person.
24Rights of persons charged
Everyone who is charged with an offence—
(a)shall be informed promptly and in detail of the nature and cause of the charge; and
29 He also sued for two other arrests. The one on 1 May 2013 has already been litigated. I struck out that claim in my security for costs decision: Wright v Attorney-General [2019] NZHC 59 at [106]–[111]. I ordered security for a claim based on a fourth arrest on 23 November 2013. Mr Wright did not put up the security. He is no longer pursuing that claim.
…
27 Right to justice
(1)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 protected or recognised by law.
[28] Mr Wright’s pleading how these rights were infringed can be improved. His statement of claim sets out a narrative of facts directed at both defendants, followed by a cause of action against the first defendant and another against the second defendant. In the cause of action against the police, there is a general plea:
The plaintiff repeats paragraphs 11 to 119 above and says that each of the… arrest events resulted in fundamental breaches of sections 18, 21 to 24 and 27 of the NZBORA…
There is, however, no pleading how particular actions of police officers breached particular rights under the New Zealand Bill of Rights Act. That should be clarified. The police statement of defence has pleaded affirmative defences that Mr Wright’s arrests were justified under s 315(2)(b) of the Crimes Act 1961 and that the officers were lawfully on his property with the express permission of Mr Wright’s mother, under s 317(2) of the Crimes Act and under the necessity doctrine. That was an appropriate way of responding to some of the alleged breaches: actions that would otherwise breach the Bill of Rights Act are justified under statute or otherwise. But Mr Wright’s complaints of rights breaches are wider. Unless he says how particular police actions breached particular rights, the police and the court will grope to understand his case. Mr Wright will appreciate that a clear exposition of his case in his pleading will assist him, the defendants and the court. I have raised this point because of difficulties in one aspect of his case, the alleged breaches of s 27.
The first arrest
[29] Most of Mr Wright’s interrogatories have to do with the first arrest. I have taken the following account from his most recent statement of claim. Two police officers arrested Mr Wright on 22 November 2009 on Summary Offences Act charges of assaulting a constable acting in the execution of his duty and resisting arrest, and took him to a police station. That led to his admission under the Mental Health
(Compulsory Assessment and Treatment) Act 1992. Later the police dropped the charges against Mr Wright. They were dismissed for want of prosecution in September 2011. He says that the police were not entitled to come onto his property, to arrest him and to charge him. They refused to take a statement from him. The police had no basis for charging him.
[30] Mr Wright was at home with his mother, his two children (who normally live with their mother, his ex-wife) and his partner. His mother was disturbed at his behaviour and rang her husband in Taupo, who in turn rang the police, telling them about his wife’s concerns but making it clear that Mr Wright was not violent. Two police officers came to the house. On their arrival Mr Wright was with the children in a bedroom, unaware of the police.
[31] Mrs Wright met the police officers outside. She told them that there had been no violence and none had been threatened; Mr Wright was peaceful; she had had an argument with him but that had not involved the children; the situation had calmed down and the children were not at risk; but she was concerned at his general mental well-being. She went into the house to get the children but Mr Wright told her to get out. The police entered the house and came to the room with Mr Wright and his children. Mr Wright says that they had no right to enter. When he saw them he revoked any implied licence to enter and told them to leave. One of the police threatened Mr Wright with his baton. Mr Wright repeated his demand that they leave. One of the officers put his hand up to stop Mr Wright advancing toward him. Mr Wright pushed his hand aside. The officer said that Mr Wright was under arrest. He was restrained, handcuffed and sprayed with pepper spray. The reason given for his arrest was resisting arrest. He was dragged out of his house. Later he was taken to a police station. He says that he was held without being charged. The police refused him pen and paper to make a statement. Nurses from the health board saw him and that led to his compulsory assessment and treatment – the subject of his claim against the district health board. The police did later charge him with assaulting a police officer in the execution of his duty as well as resisting arrest. He received a charge sheet on 30 November 2009. The matter did not go to court immediately. While the case was called in court a number of times, the police sought adjournments. Eventually the police elected not to call evidence and the charges were dismissed.
[32] While much of the case is about the police’s entry into his house and his arrest, including whether their actions were authorised under ss 315 and 317 of the Crimes Act 1961, he alleges breaches of his rights in the way he was treated after his arrest and at the police station, the failure to inform him promptly of the charges against him, and in not allowing him to make a statement. He alleges ongoing adverse treatment by the police as a result.
Mr Wright’s interrogatories for the first arrest
[33] Mr Wright initially asked the police 59 questions, some with sub-questions. He served a second notice with five more. The first 44 were for the first arrest. The police answered 1(a) (in part), 1(c), 4, 5, 18 (in part), 24, 27, 28, 32 and objected to the rest. I was advised that the police would give a fuller answer to 1(a) and would give answers to 11 and 17. Mr Wright no longer sought answers to 12–15. I am required to decide the police’s objections to the rest.
1(b)
[34] This question is about information given by a call centre operator to the officers who came to Mr Wright’s house and asks the Police to state what aspects were reliable, accurate or objective. The question seeks comment and opinion, not a factual answer, and accordingly is not appropriate for an interrogatory. In Commerce Commission v Air New Zealand, Asher J rejected as oppressive a similar interrogatory, which asked the parties answering to say whether minutes of meetings were accurate or inaccurate or incomplete.30 The Police do not need to answer it.
2
[35] This question refers to the discussion between Mr Wright’s mother and the police officers outside his home before the officers entered. It asks whether his mother advised them of certain matters, including whether Mr Wright had committed any offence, whether commission of an offence was imminent, whether he had physically threatened anyone, whether she believed the safety of anyone in the house was at
30 Commerce Commission v Air New Zealand Ltd (No 6) [2012] NZHC 2113 at [33]–[34].
serious and imminent risk. It then asks the police to provide an objective basis for the officers to reasonably conclude that statutory entry under s 317(2) of the Crimes Act was justified.
[36] The police object that this is a request for particulars and the statement of defence is adequately particularised.
[37] The context is Mr Wright’s claim that the Police were not justified in entering or staying in his house. That meant he could treat them as trespassers and they could not object to his requiring them to leave. The police run three justifications: Mrs Wright gave them permission, the necessity doctrine31 and their powers under s 317(2) of the Crimes Act 1961:
Any constable, and all persons whom he calls to his assistance, may enter on any premises, by force if necessary, to prevent the commission of any offence that would be likely to cause immediate and serious injury to any person or property, if he believes, on reasonable and probable grounds, that any such offence is about to be committed.
Mr Wright’s question probes the statutory justification. While the statement of defence gives some particulars, it does not address the matters in Mr Wright’s question. The question is relevant. It requires the police to address the factual basis for the entry under s 317(2). It may have a “put up or shut up” effect. There is good sense in the police answering it now, as it may reduce the matters in issue at trial. The police should answer. As for question 2(e), the answer should state the facts relied on to justify the entry, but not go beyond the facts.
3
[38] This question asks in relation to the statutory power why the police did not take any statement from any witnesses detailing what they were told, why the officers did not record these matters in their notebooks and why a police risk assessment identified Mr Wright as “no apparent risk”.
31 Dehn v Attorney-General [1988] 2 NZLR 564. Whether the necessity doctrine is available is a matter for trial.
[39] The police object that the interrogatory is directed at evidence to be given, rather than facts.
[40] On discovery, the police did not disclose any witness statements taken at the time. The officers’ notebooks did not record the basis for their entering the property. The question is not directed at factual matters. The facts in the question are already known. Instead Mr Wright is trying to debate matters with the police, asking them to explain their conduct. Here such a “please explain” request is not necessary. It is better left to trial. The police need not answer.
6
[41] This question asks the police to state the objective grounds that justified the statutory entry into Mr Wright’s house, and in particular (a) to state the specific offence the officers believed on reasonable and probable grounds he was about to commit, (b) why the police say those grounds were reasonable and probable as well as imminent and (c) the officers’ grounds for believing that such an offence would be likely to cause immediate and serious injury to any person or property.
[42] The police respond that they have given particulars in paragraphs 17, 19 and 21 of the statement of defence. Those paragraphs do plead facts about information given to the police officers, which could make them believe that Mr Wright could act violently and could do harm to his children, although no particular offence or class of offences are specified. If required to answer the interrogatory, I take it that the police would answer in the same terms as their pleading and would not say that there are additional facts to justify the entry. The way to deal with the matter is to hold the police to their pleading. At trial they may give evidence of what they have pleaded in paragraphs 17, 19 and 21 to justify the officers’ entry, but will not give evidence of facts they have not pleaded. As well, interrogatory 6(b) asks the police why the grounds were reasonable, probable and an offence was imminent. That goes beyond a factual inquiry. Such a “please explain” request is not a proper interrogatory.
7
[43] Interrogatory 7 asks whether the police, the Crown solicitors or any other Crown agent ever obtained sworn statements from the police officers deposing to the matters in the first six interrogatories.
[44] The police say that in initial disclosure Mr Wright was given briefs of evidence of the officers. They object to answering further on the ground of litigation privilege.32 The preparation of statements of evidence, sworn or otherwise, for this or any other proceeding (for example, Mr Wright’s judicial review proceeding) while those proceedings are contemplated or pending, is clearly subject to litigation privilege.33 Moreover, the question is not about facts in issue in the case, but about how the police will go about proving their case. That is on the evidence side of the line.
8
[45] The question asks whether affidavits of Mr Wright and his mother have been given to the officers. The police object that the question is not relevant and is subject to litigation privilege. I accept the litigation privilege objection. The question is not about facts, but about evidence, how the police will prove the facts they have pleaded or disprove evidence given for Mr Wright. It is not a proper interrogatory.
9
[46] This question is consequential to 7 and 8. If the answers are “yes”, the police are asked to detail the responses and the reasons for not providing that evidence in the police application for security for costs. As I have not required the police to answer 7 and 8, they are also not required to answer this interrogatory. Moreover, the second part is a “please explain” request and not a proper interrogatory.
32 Evidence Act 2006, s 65; High Court Rules 2016, r 8.40(1)(c).
33 Evidence Act 2006, s 56.
10
[47] This question is in the alternative to 9. If the answers to 7 and 8 are “no”, it asks on what factual basis has the police relied on to justify defending the legality of the officers’ entry under the statutory power.
[48] As I have not required the police to answer 7 and 8, they are also not required to answer 10. Besides, the police have pleaded the facts on which they rely to justify the entry. I have held that they may not give evidence of facts they have not pleaded. Whether they can prove the facts for the entry is for trial. Interrogatories are not the place to debate whether those pleaded facts are enough.
16
[49] In this question Mr Wright puts to the Police matters that he will say in evidence about the period he was held at the police station before being charged: that he requested to make a recorded statement but was ignored, that he told officers in the station that the two officers had entered his house unlawfully and had refused to leave and his arrest and detention were unlawful and that he asked for the reasons and grounds for his arrest, but was ignored. He asks whether the police deny those matters.
[50] In response the police say that the question goes to evidence rather than facts and that they have given particulars in their statement of defence, paragraphs 35 and 36.
[51] I do not accept that the question is about evidence only. Under s 23(1)(a) of the New Zealand Bill of Rights Act 1990 Mr Wright had the right of anyone arrested or detained to be informed at the time of the arrest of the reason for it. Having been arrested for an offence, under s 23(2) he had the right to be charged promptly or released. The question goes to facts relevant to whether the police breached these rights.
[52] As for the pleadings, in his statement of claim Mr Wright pleads that he was held at the police station for 6 hours without being charged and without being given
reasons for his arrest, his request to make a statement was denied and the police mocked him. After being denied pen and paper, he was later told that he could make a statement to a nurse. The police statement of defence says that Mr Wright was held at the police station for four hours and assessed by health professionals, was denied pen and paper for safety reasons because of his behaviour, and his sister-in-law was given pen and paper to take notes. Because of their concerns for his mental health, the Police did not consider it appropriate to interview him.
[53] As Mr Wright is putting to the police facts he relies on for his case, the situation is different from when he asks the police what facts they rely on for theirs, as in earlier questions. Here a reference to pleadings is not necessarily an adequate answer if the pleading does not directly answer the point of Mr Wright’s question. While the statement of defence responds to his statement of claim, to a slight extent his question goes outside his pleading: that he told officers in the station that he had been wrongly arrested and that he asked for reasons for his arrest. The statement of defence does not directly address that. The relevance of the question is that it shows that on Mr Wright’s case he was alive to his rights but that the Police ignored him. The police case appears to be that Mr Wright’s apparent mental state gave the officers good reason not to take notice of what he was saying. Even so, it would be helpful if the police could acknowledge whether Mr Wright was invoking his rights or he was telling them only about other matters. The police should answer the question in so far as it is directed at what he told officers in the station about his arrest and at his requests for reasons and grounds for his arrest.
18
[54] The question asks whether Mr Wright was ever given an explanation for the charge, and, if so, by whom and when, and what he was told. The Police answer says that he was charged with assaulting a Police officer and resisting arrest, but does not say what explanation, if any was given, by whom or when.
[55] The question is relevant to Mr Wright’s claim that his right under s 24(a) of the New Zealand Bill of Rights Act to be informed promptly and in detail of the nature
and cause of the charge was breached. The police answer is insufficient, as it does not address the substance of the interrogatory. A fresh answer is required.
19
[56] The question asks what documentation accompanied and recorded the decision to charge Mr Wright and why that has not been disclosed to him.
[57] The police respond that they have already made discovery and Mr Wright is not entitled to use interrogatories to probe the adequacy of its discovery.
[58] The question is relevant to the claim of breach of s 24(a). The first part of Mr Wright’s question is not challenging the adequacy of the police’s discovery. Where one side has made discovery of relevant documents, it can be helpful for that party to identify particular documents that support aspects of its case.34 I see no reason why the police should not identify from their discovery the documents relating to the decision to charge Mr Wright. If there are none, they should say so. If they say that the documents are privileged, they should say so, setting out the basis for the privilege. Mr Wright is not however entitled to quiz the police whether they have met their discovery obligations. The police answer is not sufficient. They should answer the first part of the question but are not required to answer the second.
20–33
[59] These can be dealt with together, as they all deal with the same matter, the quality of the decisions to charge and prosecute Mr Wright. His object is to show that the decisions were flawed and mishandled. The questions range from asking the police to state what evidence they had for charging him, the procedures for swearing informations, what training various officers had, whether the Solicitor General’s Guidelines on Prosecution and internal police guidelines and procedures had been followed. The final question asks the police to explain how the decisions to charge and prosecute were made in a manner that upheld his rights to the observance of the principles of natural justice.
34 E.g. Mo v Tamaki Homes Ltd [2020] NZHC 2492 at [41], a case with accounting issues.
[60] Paragraph 49 of Mr Wright’s statement of claim pleads the decision to charge him with assaulting a police officer and resisting arrest and goes on:
That decision was made in the face of transparent, elementary errors of both fact and law that had been made in the process of arrest. Such errors would have been apparent to police in making a charging decision, and the prosecutor on any reasonable review of the file.
Apart from the next paragraph giving the time and date he was charged, there is no further reference to the police charges until paragraph 66, where he pleads that he sought to have the charges dropped or brought to hearing, with the police eventually electing to call no evidence.
[61] The police did answer some of the questions, wholly or in part,35 and objected to the rest. In my view, they did not need to answer any.
[62] The question is whether Mr Wright can challenge the merits of the decisions to charge and prosecute him in his proceeding for breach of his rights under the New Zealand Bill of Rights Act. Traditionally the courts have stood back from reviewing prosecution decisions.36 The Court of Appeal reminded Mr Wright of this in his appeal for his case against the police on his third arrest.37 At the same time the courts have recognised that judicial review is available, but only on exceptional grounds, such as whether the decision to prosecute was made in bad faith or for a collateral purpose.38 Mr Wright does not suggest any such grounds in this case. While judicial review may be available while a prosecution is pending, there are also remedies in tort, claims for malicious prosecution and abuse of process. For malicious prosecution a plaintiff must prove that they were prosecuted but were not convicted, the prosecutor had no reasonable and probable cause for bringing the case, the prosecutor acted maliciously and the plaintiff suffered damage. Abuse of process involves using the legal process for an improper or collateral purpose. Mr Wright has not sued in tort and his case does not suggest any basis for believing that the police acted maliciously or for an improper purpose. Neither judicial review nor the tort causes of action allow a claim on the sole
35 20, 24, 27, 28, 30 and 33.
36 Polynesian Spa Ltd v Osborne [2005] NZAR 408 (HC) at [61]–[62]; Osborne v Worksafe New Zealand [2017] NZCA 11, [2017] 2 NZLR 513 at [34]; Osborne v Worksafe New Zealand [2017] NZSC 175, [2018] 1 NZLR 447 at [24].
37 Wright v Bhosale [2016] NZCA 593, [2017] NZAR 203 at [26].
38 Polynesian Spa Ltd v Osborne [2005] NZAR 408 (HC) at [63]–[64].
grounds that there was no merit in the prosecution or that the prosecutor’s reasoning in deciding to bring charges was flawed. Instead the accused’s remedy is to defend the charge.39
[63] Mr Wright believes that the New Zealand Bill of Rights Act allows him to claim a breach of his rights if the decisions to charge and prosecute him were unsound on the merits. The New Zealand Bill of Rights Act does not however confer an express right not to be wrongly charged with a criminal offence. Instead it provides procedural safeguards: the rights of persons arrested or detained (s 23), the rights of persons charged (s 24) and the minimum standards of criminal procedure (s 25). These are directed in part at ensuring that those charged with offending are properly informed of the charges against them and given proper opportunity to defend them in an independent and impartial court. Those rights are available whether the charges are well-founded or not. These provisions do not help Mr Wright.
[64] I take Mr Wright’s reference in interrogatory 33 to “his rights to the observance of the principles of natural justice” to mean that he relies on s 27(1):
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 protected or recognised by law.
[65] The principles of natural justice are directed at procedural propriety. In Combined Beneficiaries Union Inc v Auckland City COGS Committee, the Court of Appeal said:40
The term “natural justice” has a long-established meaning. The two key principles of natural justice are that the parties be given adequate notice and opportunity to be heard (audi alteram partem) and that the decision maker be disinterested and unbiased (nemo debet esse judex in propria sua causa). The extent of the requirements of natural justice, however, depends on the circumstances and the nature of the decision, assessed in light of any relevant statutory provisions (see Daganayasi v Minister of Immigration [1980] 2 NZLR 130 (CA) at p 141). At common law, the obligation to observe the principles of natural justice applies to administrative authorities as well as to judicial and quasi-judicial decision makers. In our view, there would need to be a very clear indication in the remainder of s 27(1) before the term
39 Wright v Bhosale [2016] NZCA 593, [2017] NZAR 203 at [26].
40 Combined Beneficiaries Union Inc v Auckland City COGS Committee [2008] NZCA 423, [2009] 2 NZLR 56 at [11].
“natural justice” would be read down in the manner contended for by the respondents. Further, the affirmation of the rights in s 2 of the Bill of Rights Act suggests that the Bill of Rights Act is merely expressing rights that were pre-existing in the common law and that the Bill of Rights Act does not limit the ambit of such rights.
While the requirements of natural justice are context specific, they remain procedural. They do not involve review of the merits of the impugned decision or the reasons for the decision. Mr Wright therefore cannot use s 27 to challenge the merits of the decisions to charge and prosecute him.
[66] If Mr Wright’s case alleges procedural impropriety in his claim of a breach of natural justice by the police in charging him, it is misconceived. The police were not required to put their case to Mr Wright for his comments before charging him. In Wiseman v Borneman Lord Reid explained:41
Every public officer who has to decide whether to prosecute or raise proceedings ought first to decide whether there is a prima facie case, but no one supposes that justice requires that he should first seek the comments of the accused or the defendant on the material before him. So there is nothing inherently unjust in reaching such a decision in the absence of the other party.
Mr Wright does not dispute that when the police laid the informations, he had the opportunity to defend the charges in court with the associated protections under ss 24 and 25. Those protections went to the observance of the principles of natural justice. While those principles went to the procedures in court, they did not impose obligations on the police at the charging stage of the sort Mr Wright is trying to suggest.
[67] Mr Wright’s questions about the police’s charging and prosecution decisions and procedures are not about facts that go to an issue that needs to be taken seriously. His attempt to challenge the merits of the prosecution decisions or to allege breach of natural justice is misconceived. Accordingly answering his questions under this head will not serve any useful purpose. They are neither necessary nor relevant.
41 Wiseman v Borneman [1971] AC 297 (HL) at 308. See also Pearlberg v Varty [1972] 1 WLR 534 at 550 and Polynesian Spa Ltd v Osborne [2005] NZAR 408 (HC) at [83].
34–37
[68] These questions are directed at reviews of police prosecutions generally. 34 asks how the Crown reviews and audits police prosecution procedures and asks for descriptions of all examples of such Crown oversight. 35 asks for copies of all documents of Crown and police initiatives to oversee police prosecution decisions since 2000, including any surveys of the judiciary as to the quality of police prosecutors. 36 asks about standard procedures to review charging decisions when charges are withdrawn or the police elect not to call evidence.
[69] These questions reflect Mr Wright’s interest in attacking the merits of the decision to charge him. They are irrelevant to his claims of breaches of his rights. This case is not a general inquiry into police prosecution practices. The questions are also oppressive as being over-general and requiring prolonged inquiries to no useful purpose. The request for documents is not a proper subject for interrogatories. Answers are not required.
38–40
[70] Mr Wright made a complaint to the Independent Police Conduct Authority, which apparently did not uphold his complaint. Mr Wright complains that the investigation of his complaint was a whitewash. These three questions are about the investigation of his complaint. Members of the police inquired into the facts. 38 asks the police to give reasons for the Authority’s findings. 39 asks whether the police say that the investigation report was a satisfactory basis for dismissing his complaint. 40 asks about the legal training of the officers who investigated and reported.
[71] The request to give reasons for the Authority’s findings is a “please explain” request. The police should not be required to answer as to the Authority’s decisions. Nor is Mr Wright entitled to interrogate the police on their opinion on the investigation. Giving information about officers’ training will not serve any useful purpose. Overall, none of these matters are relevant to Mr Wright’s claims in this proceeding. Here Mr Wright is asking the court to decide whether his rights were breached. For that, the findings of the Independent Police Conduct Authority are irrelevant. The judge
will decide the case on the evidence and submissions given at trial. Whether the Authority made a proper investigation and reached the right conclusions is of no interest. These questions do not need to be answered.
41–44
[72] In discovery the police disclosed an “alert”, an internal record that gives information about Mr Wright. In 41 he asks who the author of the report was. In 42 he asks the police to say whether the information was accurate and fairly reflected the events of his first arrest and whether the information should be kept in place as a factual baseline for any further dealings between him and the police. In 43 he asks whether the alert remains on police records and, if so, why. 44 asks what processes are in place to audit and review the accuracy and relevance of such alerts. If so, why they have not been applied in this case. Mr Wright says that the alert is inaccurate in describing him as guilty of domestic violence, extremely violent, and mentally disordered.
[73] The alert is relevant to Mr Wright’s case. He says that because of it he has a police record for having assaulted a police officer. That stigmatises him in the eyes of the police. The alert comes from the way the police treated him in 2009. The stigma is an ongoing result of the alleged breaches of his rights. I do not however see any wider relevance.
[74] His question whether the alert remains is relevant to the relief he seeks. It may go to the nature and extent of any remedy. It should be answered. But I do not see that the other parts of his questions are relevant or necessary. If the police made the alert as a consequence of breaching his rights under the New Zealand Bill of Rights Act and that is a relevant head of damage, it will be useful to know whether it is still in place. But it is not material who wrote the alert. Nor does it matter whether the police have a system to review alerts and whether Mr Wright’s alert should or should not have been deleted. The damage will be the same. If the police want to justify the alert, that is for them at trial, but it is not necessary to require them to explain why the alert is still there, if it is. The police should answer the first part of 43 but need not answer the rest.
The second arrest
[75] In his statement of claim, Mr Wright says that early on the morning of 25 March 2012 he was in the café section of an inner city petrol station. He was not intoxicated. He had a verbal altercation with a staff member and asked for the manager so that he could complain about the staff member’s conduct. He was not asked to leave or told that he was unwelcome. He denies being a nuisance. Unknown to Mr Wright, the staff member called the police. On arrival they suggested he leave. He told them that an occupier had not asked him to leave and he was entitled to stay. He gave the officers his name. Two more officers came. One, a sergeant, spoke to the service station staff, then told Mr Wright, “The boss man says you have to go”. He did not. The officers arrested him for trespass and resisting arrest. They treated him roughly. He was taken to a police station, where he complained that he had been falsely arrested, said he wanted to make a statement and asked for a blood test to show that he was sober, but his requests were refused. He was held for nine hours and was released on bail in the afternoon. He was given the opportunity to return to make a statement. He did so, but that the officer who recorded his statement, the same sergeant who came to the petrol station, did so deceitfully. The police charged Mr Wright with trespass and resisting arrest. Mr Wright repeats his pleading for the first arrest that the decision to charge his was made in the face of transparent, elementary errors of fact and law when he was arrested. The errors would have been apparent to the police and the prosecutor on any reasonable review of the file. At the hearing in the District Court, the sergeant did not give evidence. Other officers allegedly colluded in giving false evidence. The charges were dismissed. Notwithstanding that, Mr Wright is badly affected by memories of how the police treated him. He claims breaches of the same rights as for the first arrest.
[76] The police differ on factual aspects and say that the officers had good cause to suspect that Mr Wright had committed an imprisonable offence under the Trespass Act 1980.
The interrogatories for the second arrest
[77] Mr Wright has accepted the police answers or objections to answering interrogatories 45, 46 , 48 and 49. 47 is the only one in issue.
47
[78] Mr Wright says that the sergeant who took his statement attempted to pervert the course of justice by recording the statement falsely. He asks what the police did to investigate the allegation, whether the sergeant was required to make a statement in response, what that statement was and why it has not been disclosed, and if not, why not.
[79] The police object on the ground of litigation privilege, as the question is directed at evidence to be given for the police.
[80] The police statement of defence denies that the sergeant recorded Mr Wright’s statement falsely. Mr Wright’s object is not to obtain an admission that the sergeant did not record his statement accurately. His question assumes that to be the case and wants the police to address why his complaint has not been followed up. He sees the police refusal to investigate his complaint as symptomatic of the police litigation approach, which is to deny wrongdoing and delay interviewing witnesses lest any wrongdoing is exposed.
[81] The interrogatory is unsound as being based on assumed facts, which the police deny.42 Moreover, the purpose of the interrogatory is not to establish facts which will go to whether the police breached his rights, but instead to run a complaint about the way the police is running its defence. That aspect is not relevant for interrogatories. Questions as to the conduct of the defence go to evidence, not facts in issue. Questions about why a party is defending a claim in a particular way or what inquiries it has made for its defence are not necessary or relevant. The “please explain” aspects of the third and fourth sub-questions also make the interrogatory unsound. The police are not required to answer.
42 Westpac Banking Corp v Hart (1987) 1 PRNZ 719.
Interrogatories not related to either arrest
50–53
These questions are directed at the Attorney-General, sued in respect of the Ministry of Health. I deal with them later after the interrogatories to the District Health Board.
54–57
[82] 54 asks the police to describe the processes by which the Attorney-General received the statement of claim and appointed the lawyers to defend the case. Mr Wright wants to know who read the statement of claim and decided to defend the case and what delegations allowed them to decide those matters. 55 asks who authorised the police to apply for partial strike-out of his claim, security for costs and review of the security for costs decision. 56 asks for identification of the delegations to make those decisions. 57 asks for information about the Crown’s responses to overtures he has made to settle the case. Mr Wright says that he is concerned about improper delegation. He considers that he has a right to understand the processes by which the Crown authorised the defence. His wider case is that there is a question whether the Crown has acted responsibly and with due care regarding the matters he has raised. He believes that the Crown has acted arbitrarily, unlawfully and unreasonably throughout.
[83] The matters in issue are whether the police breached Mr Wright’s rights each time they arrested and charged him. The answers to these interrogatories have nothing to do with that. Inquiries how the police are conducting their defence are irrelevant. Answers are not required.
58–59
[84] 58 asks whether the Crown received service of Mr Wright’s “claim of right” of October 2013. 59 asks about the Crown’s response.
[85] These questions do not have anything to do with the issues in this case, whether the police breached Mr Wright’s rights. They are irrelevant and unnecessary.
Supplementary interrogatories 1–5
[86] On 24 August 2020 Mr Wright served a second notice requiring the Police to answer five further interrogatories. The police affidavit in response objected to all of them. The police did not formally object that Mr Wright was not entitled to serve a second notice but dealt with the questions on their merits. On the other hand the District Health Board did take the point when Mr Wright wanted it to answer extra interrogatories.
1
[87] This asks about police responses when a court decision is critical of Police actions, highlights an error or flaw in police procedures, or holds that the police acted unlawfully; what processes are used to communicate the decision to officers, to ensure that training and procedure manuals are updated and that procedures are audited.
[88] The question is broad and oppressive. It is irrelevant as the answers have no bearing on whether the police breached Mr Wright’s rights.
2
[89] This asks the police to answer 1 by reference to recent decisions, including his claim for the third arrest. Just as the first question is irrelevant, so is this one.
3
[90] When notice of a relevant court decision is circulated to police, this asks what formal requirements are imposed on officers to familiarise themselves with those communications. Again this does not deal with facts to show that the police breached Mr Wright’s rights. It is irrelevant and does not need to be answered.
4
[91] The question asks, when a prosecution fails, what steps are taken to review the processes by which an arrest took place, charges were laid and confirmed by the
prosecutor, and to add to institutional learning from such failures. This question is also irrelevant for the same reasons as for the other supplementary questions.
5
[92] This asks the police to answer 3 with reference to the failure of the charges arising out of the first and second arrests. Just as question 3 is irrelevant, so is this.
Mr Wright’s case against the District Health Board
[93] Mr Wright was a patient of the Auckland District Health Board, the second defendant, under Part 1 the Mental Health (Compulsory Assessment and Treatment) Act 1992 from 23 November 2009 to 9 December 2009. He was taken to hospital after the police had arrested him and taken him to the police station. He was an in- patient at the district health board’s adult acute mental health unit, Te Whetu Tawera, at Auckland Hospital until 7 December 2009, although he was given permission to leave on 4 December 2009 and to return on 7 December. On 7 December he became an out-patient and was transferred to the St Luke’s Community Mental Health Centre. He was discharged on 9 December 2009.
[94] Mr Wright says that in subjecting him to compulsory assessment and treatment under Part 1 of the Mental Health (Compulsory Assessment and Treatment) Act, the district health board breached these rights under the New Zealand Bill of Rights Act:
11 Right to refuse to undergo medical treatment
Everyone has the right to refuse to undergo any medical treatment.
18 Freedom of movement
(1) Everyone lawfully in New Zealand has the right to freedom of movement and residence in New Zealand.
21Unreasonable search and seizure
Everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise.
22Liberty of the person
Everyone has the right not to be arbitrarily arrested or detained.
23Rights of persons arrested or detained
(1)Everyone who is arrested or who is detained under any enactment—
(a)shall be informed at the time of the arrest or detention of the reason for it;…
(5) Everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person.
27 Right to justice
(1)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 protected or recognised by law.
[95] For his interrogatories, the focus of his case is on the procedures and decisions for his compulsory assessment and treatment under ss 8–10 of the Mental Health (Compulsory Assessment and Treatment) Act 1992, the events of 22 and early 23 November 2009. In the security for costs decision, I considered that his challenge to the substantive merits of the decisions to detain were stronger than his procedural challenges. Notwithstanding that, the procedural aspects are part of his case and cannot be disregarded. They are relevant for his interrogatories.
[96] As with his case against the police, Mr Wright’s pleading how his rights were infringed can be improved. While his narration of facts includes some allegations of invalidity, the cause of action against the health board makes a general plea of breaches of the rights referred to above. There is, however, no pleading how particular steps by the board breached particular rights. Mr Wright says that the board did not correctly follow the statutory requirements to make a valid and effective decision to detain and treat him. He should specify the relevant requirements and how the board did not comply with them. The board’s statement of defence pleads generally that his rights were not infringed, but it will be able to make a more informed response if Mr Wright says exactly how particular rights were breached.
The interrogatories to the District Health Board
[97] Mr Wright’s notice of 19 August 2020 has 21 interrogatories. The board answered 1–6, 8 and 20. Mr Wright no longer sought an answer to 21. The rest are in contention. In his reply memorandum of 12 November for the hearing, Mr Wright proposed a further 39 interrogatories. I deal with them later.
7
[98] In 6, the board replied “Yes” to Mr Wright’s question whether he refused to attend an assessment examination. 7 asks, if he did not refuse, then what legal basis did the board have for its use of the police to transport him in handcuffs. The premise of the question is that Mr Wright had not refused, whereas the board says that he did. It is not required to answer a question based on an assumption which it does not accept. The question is also unsound in asking a question of mixed law and fact. The board need not answer.
9
[99] Mr Wright asks what time and date the Director of Area Mental Health Services received the filled out s 8A application relating to him. The board’s response is that a nurse made an application in the early hours of 23 November 2009.
[100] The receipt of the application is relevant to a procedural issue. Under s 8 of the Mental Health (Compulsory Assessment and Treatment) Act 1992 an application may be made asking the Director of Area Mental Health Services for an assessment of a person believed to be suffering from a mental disorder. Under s 8(2) the application is made when the director receives it. Section 8A says what must be set out in the application. It must be accompanied by a medical practitioner’s certificate under s 8A. Section 9(1) says:
Where an application is made under section 8A, the Director of Area Mental Health Services, or a duly authorised officer acting with the authority of that Director, shall make the necessary arrangements for the proposed patient to undergo an assessment examination forthwith.
Mr Wright’s case is that in the early hours of 23 November 2009 the director would have been sound asleep. He did not receive the application then. If the director did not receive the application, there was no basis for an assessment examination under s 9. The director’s receipt was a necessary condition that was not satisfied.
[101] The board’s response skates around the point by saying that that a nurse made an application but does not address the matter of receipt by the director. Its answer is insufficient. It should address the point of the question.
10
[102] This asks what steps the Director of Area Mental Health Services takes to ensure that the requirements of s 9 are met by officers of the board in relation to statutory assessments. The board objects that the question is irrelevant.
[103] The question is in the present tense. Current practices are not relevant to deciding what happened in 2009.
11
[104] This is in two parts. The first part is consequential on 10 and asks what guidelines and instructions the director issues to board staff making assessments under Mental Health (Compulsory Assessment and Treatment) Act 1992. If the answer is different from what was done in November 2009, then specify the changes. Again the board objects that the question is irrelevant.
[105] Again Mr Wright has not asked about guidelines and instructions in 2009. I infer that he already knows. Perhaps that came out on discovery. I can see the point of guidelines and instructions given to staff in 2009. Mr Wright’s case is that nurses and doctors did not comply with the statutory requirements. If they were not given proper guidance, that increases the risk of mistakes. The content of advice given may show whether there was room for error. But this question is not relevant to that matter.
12
[106] This asks by what specific processes the director approves psychiatrists to undertake statutory assessments under ss 9 and 10 of the Mental Health (Compulsory Assessment and Treatment) Act 1992. If the answer is different from what it was in November 2009, specify the changes. The board says that the question is irrelevant.
[107] Mr Wright has challenged whether Dr Moore, the psychiatrist who carried out the assessment on 23 November, was authorised to do so under s 9(3):
Every assessment examination shall be conducted by a medical practitioner (but not being the medical practitioner who issued the certificate under section 8B(4)(b)), being—
(a)a psychiatrist approved by the Director of Area Mental Health Services for the purposes of the assessment examination or of assessment examinations generally; or
(b)if no such psychiatrist is reasonably available, some other medical practitioner who, in the opinion of the Director of Area Mental Health Services, is suitably qualified to conduct the assessment examination or assessment examinations generally.
That issue is relevant. If Dr Moore was not authorised, she could not give a valid certificate of preliminary assessment and there was no basis for Mr Wright’s detention and treatment under s 11(1). I understand from earlier hearings that the board says that there are no discoverable documents relating to Dr Moore’s approval and that she was allowed to carry out assessments on a kind of ex officio basis. As she was a consultant psychiatrist, she could carry out assessments without the director first approving her. For the reasons I gave in my security for costs decision, I do not regard Mr Wright as having waived this objection.43 The board did not argue that it was prejudiced by any concession Mr Wright made in the discovery hearing.
[108] The first part of the question, about current procedures, is not relevant, but the second part, about 2009, is. The board should state by what processes psychiatrists were approved in 2009 to carry out assessments under ss 9 and 10 of the Mental Health (Compulsory Assessment and Treatment) Act 1992.
43 At [56]–[57].
13
[109] The board likewise objects as irrelevant Mr Wright’s question how those processes were applied in the case of Dr Moore. For the reasons given above, the question is relevant and should be answered.
14
[110] This asks what training and qualifications Dr Moore had in relation to the exercise of statutory functions under Mental Health (Compulsory Assessment and Treatment) Act 1992. Again the board objects that the question is irrelevant. It does not say that Dr Moore is not available to give the information if the interrogatory is upheld.
[111] If Dr Moore did not have training and qualifications about functions under the Mental Health (Compulsory Assessment and Treatment) Act 1992, that increased the risks of breaching patients’ rights. On the other hand, if she had been specifically trained, that would decrease the risk. The question is accordingly relevant to a matter in issue, whether she gave a valid certificate of preliminary assessment under s 10(1)(b)(ii). It should be answered.
15–17
[112] These questions are about the nurses who came to the police station to see Mr Wright at the request of the police. Having seen him, they made the application under s 8. They were “duly authorised officers” under s 93:44
(1)For the purposes of this Act, every Director of Area Mental Health Services shall—
(a)designate and authorise sufficient health professionals to perform at all times the functions and exercise the powers conferred on duly authorised officers by this Act within the area of that director; and
(b)maintain an appropriate directory listing of a telephone number to ring when information or assistance is required under this Act.
44 Affidavit of JE Whiddett of 9 August 2017, [2.1]–[2.9].
(2)No person shall be so designated and authorised under this section unless the Director of Area Mental Health Services is satisfied that the person has undergone appropriate training and has appropriate competence in dealing with persons who are mentally disordered.
(3)Every person so designated and authorised under this section shall be issued with a document that identifies the holder and states that the holder is a duly authorised officer for the purposes of this Act.
(4)Persons so designated and authorised under this section shall carry out their duties under the general direction of the Director of Area Mental Health Services.
15 asks by what processes the director approves duly authorised officers to undertake statutory assessments under s 8A and s 38, also stating any changes since 2009. 16 asks how those processes were applied to these two nurses. 17 asks what training and qualifications the nurses had in relation to statutory functions under the Mental Health (Compulsory Assessment and Treatment) Act 1992.
[113]The board objects that the questions are irrelevant.
[114] Anyone may make an application for an assessment under s 8. They do not need to be a duly authorised officer. The involvement of nurses as duly authorised officers becomes clear under s 38:
(1)Anyone who believes that a person may be suffering from a mental disorder may at any time request the assistance of a duly authorised officer.
(2)The duly authorised officer who receives the request must—
(a)investigate the matter to the extent necessary to satisfy himself or herself—
(i)that the concern expressed by the maker of the request is genuine; and
(ii)that there are reasonable grounds for believing that the person to whom the request relates may be suffering from a mental disorder; and
(b)decide, on reasonable grounds, whether or not the person needs to have a medical examination urgently in the person's own interests or the interests of any other person.
[115] While Mr Wright does not challenge that they were duly authorised officers, he wants to challenge their decisions to arrange for a medical practitioner to see him to give a certificate under s 8B and to make the application under s 8.
[116] The part of question 15 about current practices is irrelevant as Mr Wright’s case is about what happened in 2009. As for 16 and 17, I approved similar questions about Dr Moore, but for the nurses the questions are too remote from the matters in issue. For this case it does not matter whether their appointments as duly authorised officers were unsound or not or whether they had been sufficiently trained in the operation of the Mental Health (Compulsory Assessment and Treatment) Act 1992. That they were duly authorised officers was sufficient. There were safeguards against their making mistakes in the certificate under s 8B and the assessment under s 9. These questions will not serve a useful purpose and accordingly are not necessary.
18
[117] This asks what specific aspects of the Ministry of Health Guidelines relating to the Mental Health (Compulsory Assessment and Treatment) Act 1992 does the board say were relevant to Mr Wright’s assessment and detention. The board objects that the question is not relevant.
[118] This is not a question of fact but asks the board for its assessment or opinion on the guidelines. It is a way of asking the board to justify its case. It is not a proper interrogatory.
19
[119] This asks about current processes to inform and familiarise mental health staff with the guidelines and to say what changes have been made since 2009. The board objects that the question is irrelevant.
[120] The question is irrelevant as far as it is directed at current practices. As for what was done in 2009, the question is overbroad. There may be some point in seeing what guidance was given to the nurses and doctors whose conduct is in issue. That
would go to the risks of their making mistakes and breaching Mr Wright’s rights. But requiring answers about how all mental health staff were informed goes beyond what is needed for this case.
Mr Wright’s further interrogatories
[121] In his reply memorandum of 12 November 2020 Mr Wright attached an appendix of further interrogatories, which he suggested I should order under r 8.38. He accepted that he was not entitled as of right to give a second notice under r 8.34 but submitted that I had a discretion to order further interrogatories. The board objected: Mr Wright had already had his opportunity to require the board to answer his interrogatories and he should not be allowed to ask again merely because he had thought up more questions. It did not however submit on particular interrogatories. That is understandable. It could not be expected to do so at short notice and in response to a reply memorandum.
[122] The court has a discretion to order further interrogatories, as Heron J explained in Wilson v Broadcasting Corporation of New Zealand:45
I do not consider, in the less formal procedure that now prevails, there should be an insurmountable objection to 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.
[123] There are 39 questions. Mr Wright suggests that six people answer them: the board’s general counsel, the current Director of Area Mental Health Services, the Director of Area Mental Health Services in 2009, the two nurses who saw Mr Wright at the police station and Dr Moore, the psychiatrist who made the preliminary
45 Wilson v Broadcasting Corporation of New Zealand (1987) 1 PRNZ 368 (HC) at 371–2. Rules
8.34 and 8.38 are the current versions of rr 278 and 282 of the High Court Rules 1985.
assessment under s 9 of the Mental Health (Compulsory Assessment and Treatment) Act 1992. Some of them are the same or similar to questions in Mr Wright’s first notice: 9 (18 in the first notice), 10 (19), 26 (10), 33 (17). Some are irrelevant as asking about current practices and procedures as opposed to what was done in 2009: 1, 10–13, 20, 22–26. Others are objectionable as asking for comments, assessments,
opinions and justifications: 8, 9, 17, 23, 24. That leaves some which might have withstood scrutiny if they had been included in Mr Wright’s interrogatory notice of 19 August 2020.
[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 in Wilson v Broadcasting Corporation of New Zealand, 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 (not all the suggested interrogatories will survive scrutiny), fresh inquiries going back many years will be needed, and the board will not be able to recover any costs from Mr Wright for doing so (he has no funds to pay). At trial Mr Wright will be able to ask witnesses everything that he wants answered in his suggested interrogatories. Under r 8.38(4) they are not necessary.
Interrogatories to the Attorney-General in respect of the Ministry of Health
[126] Mr Wright’s interrogatories 50–53 in his notice of 2 June 2020 to the Attorney- General are headed, “Questions relating to the role of the Crown in relation to the actions of the second defendant in these proceedings”. 50 asks the Crown to describe in full all steps it has taken to ensure that statutory obligations on Directors of Area Mental Health Services throughout New Zealand are being met. The answer is to include references to any guidelines issued, to investigations and to quality control audits. 51 asks whether the Crown asserts that the Director of Area Mental Health Services properly fulfilled his statutory obligations in this case and if so, on what factual basis. 52 asks what assurances and information the Crown has received from the district health board that all employees or medical health officers undertaking statutory functions under the Mental Health (Compulsory Assessment and Treatment) Act 1992 have received proper training. 53 asks whether the Crown is satisfied with the view expressed by Dr Rex Fraser that a review of the file reveals no concerns on his part, and, if so, the basis for that view. Where Mr Wright refers to the Crown, he means the Ministry of Health, not the police.
[127] In Mr Wright’s view, this case involves the Ministry of Health. The headings to his documents began to refer to the Attorney-General “as representative of the Crown which is, in turn, the controlling authority over the New Zealand Police as well as the Ministry of Health.” In setting out issues, he included:
(a)Has the Crown and second defendant met their respective natural justice obligations to the plaintiff by exercising reasonable oversight over the actions of its appointees, agents and representatives; to reasonably assure itself that such persons are routinely acting in accordance with mandatory statutory requirements and the requirements of the NZBORA?
(b)Having the facts of the plaintiff’s detention and compulsory assessment before it, has the Crown and the second defendant acted reasonably and in accordance with its obligations under the NZBORA in
(i)Having their appointee, Mr Rex Fraser46 provide a sworn statement to the Court, that, in the view of the Crown: “Mr Wright’s detention by the DHB appears to be wholly in compliance with the statutory requirements and lawful.”.
46 The current Director of Area Mental Health Services.
(ii)Defending these proceedings, including seeking security for costs against the plaintiff?
(c)Having notice of the DAMHS’ and the second defendant’s:
(i)lack of regard for mandatory statutory procedures; and
(ii)deficient record keeping in relation to statutory approval processes,
is the Crown and the second defendant breaching their natural justice obligations by failing to take steps to review and address those deficiencies?
[128] There is however no pleaded cause of action in respect of the Ministry of Health. Nor was there anyone with instructions from the Ministry to respond to Mr Wright’s interrogatories. One way to deal with this is to decline the interrogatories on the basis that they do not relate to any pleaded issue. Mr Wright says however that his new statement of claim will set out a cause of action against the Ministry. His interrogatories would need to be considered once it is filed. That will require yet another interlocutory hearing with the associated expense and effort. The health board submitted against the interrogatories. The position is reasonably clear. It is more efficient to deal with the matter now.
[129] The question is whether Mr Wright can sue the Attorney-General in respect of the Ministry of Health for breaches of his rights on the basis of the issues above. Section 3 of the New Zealand Bill of Rights Act says:
This Bill of Rights applies only to acts done—
(a)by the legislative, executive, or judicial branches of the Government of New Zealand; or
(b)by any person or body in the performance of any public function, power, or duty conferred or imposed on that person or body by or pursuant to law.
For this decision, I deal only with s 3(a). The health board also performs public functions, but that aspect is secondary. The board is established under the New Zealand Public Health and Disability Act 2000.47 It is a Crown entity owned by the
47 New Zealand Public Health and Disability Act 2000, s 19 and sch 1.
Crown.48 Under the Crown Entities Act 2004 it is a “statutory entity”, in particular, a Crown agent, meaning that it must give effect to government policy when directed by the responsible ministry.49 As such, it is a separate entity under s 15 of the Crown Entities Act:
A statutory entity—
(a)is a body corporate; and
(b)is accordingly a legal entity separate from its members, office holders, employees, and the Crown; and
(c)continues in existence until it is dissolved by an Act.
[130] It is within the executive branch of the government under s 3(a) of the New Zealand Bill of Rights Act but has a separate identity. Liability for breaches of that Act is not for vicarious liability but for attributed liability.50 The board is directly liable for any conduct by doctors and nurses of the health board that breached Mr Wright’s rights. But that does not mean that the central government is also liable. The usual rule that the government is indivisible does not apply because of the board’s separate identity. There is no relevant agency which could make the ministry liable under the New Zealand Bill of Rights Act for actions of the board.51 The conduct breaching rights attributed to the board is not attributed to some other entity. There can be liability on the part of the Ministry of Health only if the ministry, including its staff, has done something to breach Mr Wright’s rights under the New Zealand Bill of Rights Act. There is nothing in the case to suggest that anyone in the ministry was involved in breaching Mr Wright’s rights. It was not complicit in a way that would make it liable as a joint wrongdoer.52 Nor were there other independent acts of the ministry breaching Mr Wright’s rights to make it a concurrent wrongdoer.
[131] Mr Wright however believes that the ministry has concurrent liability for breaches of his rights, even though no-one in the ministry did anything to infringe them. He considers that the ministry has an independent oversight responsibility to
48 New Zealand Public Health and Disability Act 2000, s 21.
49 Crown Entities Act 2004, s 7(1)(a) and sch 1 pt 1.
50 Simpson v Attorney-General (Baigent’s Case) [1994] 3 NZLR 667 (CA).
51 Ransfield v The Radio Network Ltd [2005] 1 NZLR 233 (HC) at [75].
52 The Koursk [1924] P 140 (CA); Fish & Fish Ltd v Sea Shepherd UK (The Steve Irwin) [2015] UKSC 10, [2015] 2 WLR 694: furthering a common design.
ensure that health boards meet their obligations under the New Zealand Bill of Rights Act. But that misconceives his claims for breaches of the New Zealand Bill of Rights Act. This is not a tort case and there is no duty of care question. Instead the questions will be whether Mr Wright’s rights were breached and if so, who did. But under the New Zealand Bill of Rights Act there is no separate duty on the government to oversee statutory entities to ensure rights compliance. Mr Wright did not cite any authority supporting his submission. There is nothing in the Act to support it. Only those who breach rights incur liability, not others. Of course, the government may take steps to advise and guide how Crown entities may comply with the New Zealand Bill of Rights Act, but that is a matter of good practice, not legal obligation.
[132] Some mention was made of the Director of Area Mental Health Services. He is appointed by the Director-General of Health and may be removed by him.53 He is however attached to the district health board. The current one is a board employee. He has specific functions under the Mental Health (Compulsory Assessment and Treatment Act. He is not however a ministry official and is not an agent of the ministry. His actions and inactions may be attributed to the board, but not to the ministry. I do not need to discuss here whether he is alleged to have breached Mr Wright’s rights.
[133] I can see no basis upon which the Attorney-General could be sued in respect of the Ministry of Health for breaches of the New Zealand Bill of Rights Act. Any tort claim will time-barred.54 There is no issue to be decided between Mr Wright and the ministry. As there cannot be Crown liability for the Ministry of Health, there cannot be any basis for interrogating the Crown as a party in respect of the ministry.
[134] If Mr Wright were to amend his pleadings to add a cause of action against the Attorney-General in respect of the ministry, there would be other questions about the joinder. A late joinder might put the substantive hearing at risk. I have not however dealt with that in considering Mr Wright’s interrogatories.
53 Mental Health (Compulsory Assessment and Treatment) Act 1992, s 92.
54 Limitation Act 2010, s 61, under which the Limitation Act 1950 continues to apply to acts or omissions before 1 January 2011. Under the s 4(1)(a) of the 1950 Act, there is a six-year limitation for tort actions.
[135] Even if the matters I have just dealt with were not enough to exclude these interrogatories, I would have rejected them anyway. 50 is oppressive and irrelevant in requiring extensive inquiries and research on matters that have no bearing on the case. 51 is a “please explain” request. 52 goes beyond the scope of the present case, is oppressive and serves no useful purpose. 53 is not acceptable as it seeks comment and opinion. It is also not proper to interrogate on something that is only within the knowledge of a third party.
Outcome
[136]I make these orders:
(a)The Attorney-General in respect of the Police is to file and serve an affidavit by 12 February 2021. The in-house lawyer may make the affidavit. It is to address inquiries made for answering affidavits, as directed in paragraph [26] above. The affidavit is to give answers to these interrogatories in Mr Wright’s notice of 2 June 2021: 1(a), 2 (facts only), 11, 16 (to the extent required in paragraph [53]), 17, 18, 19 (first part only) and 43 (first part only). The Attorney-General is not required to answer other interrogatories in issue in this decision.
(b)The Auckland District Health Board is to file and serve an affidavit by 12 February 2021 answering interrogatories 9, 12 (second part only), 13 and 14 of Mr Wright’s notice of 19 August 2020. The board’s general counsel may swear the affidavit. The board is not required to answer other interrogatories in issue in this decision.
(c)By 26 February 2021 Mr Wright is to file and serve a new statement of claim addressing the matters in paragraphs [28] and [96] above. The new pleading will not refer to the third and fourth arrests, which are no longer in issue. It will not include any pleading against the Attorney- General in respect of the Ministry of Health.
(d)By 12 March 2021 the defendants are to file and serve statements of defence to the new statement of claim.
(e)By 26 March 2021 Mr Wright is to file and serve any replies to the statements of defence.
(f)Leave is reserved to apply for further directions.
[137] If any party seeks costs, memoranda may be filed. Memoranda seeking costs should be filed and served by 12 February 2021. Memoranda in response should be filed and served by 26 February 2021.
…………………………………….
Associate Judge R M Bell
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