Gilchrist v Attorney-General [2013] NZHC 146 (8 February 2013)

Last Updated: 27 February 2013

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2012-485-1814 [2013] NZHC 146

UNDER Rule 8.20 of the High Court Rules

IN THE MATTER OF Breach of Confidence, Negligence, New Zealand Bill of Rights Act 1990, and Misfeasance in a Pubilc Office

BETWEEN ROBERT GILCHRIST Applicant

AND THE ATTORNEY GENERAL First Respondent

AND DETECTIVE INSPECTOR ROBERT POPE

Second Respondent

AND DETECTIVE SUPERINTENDENT WIN VAN DER VELDE

Third Respodent

Hearing: 7 February 2013

Counsel: T Ellis for the Applicant

S McKenzie for the First Respondent

No appearance for the Second and Third Respondent

Judgment: 8 February 2013

_{JUDGMENT OF MALLON J}

Introduction

[1] Mr Gilchrist wishes to commence proceedings against the respondents in relation to his role as an informant for the Police (the first respondent is the

_{Attorney-General who is named on behalf of the New Zealand Police). He seeks an}

GILCHRIST v THE ATTORNEY GENERAL HC WN CIV 2012-485-1814 [8 February 2013]

order for discovery from the Police prior to commencing his proceeding on the grounds that it will assist him in formulating his claim. The application is opposed by the Police. I dismiss Mr Gilchrist’s application on the basis that he has not shown that it is impossible or impracticable for him to formulate his claim without reference to the wide ranging documents that he seeks and the order is not necessary at this time. My reasons follow.

The draft statement of claim

[2] A draft statement of claim for Mr Gilchrist has been prepared. As set out in that draft, from 1999 to 9 December 2008 Mr Gilchrist carried out covert surveillance and intelligence gathering in respect of various activist groups. The draft claim sets out how he was paid for this work and says that his activities were largely at the direction of the second and third respondents. He says that between October and November 2008, a person (with whom he had formed a personal relationship) inspected a laptop supplied to Mr Gilchrist and discovered Mr Gilchrist’s involvement with the Police.

[3] The draft claim alleges that:

(a) At a meeting on 9 November 2008 Mr Gilchrist was told by Mr Hager that he was aware that Mr Gilchrist had been an undercover operative for ten years, and Mr Hager produced documentation to verify his statement that Mr Gilchrist says could only have been obtained from the Police.

(b) Immediately after the meeting with Mr Hager, Mr Gilchrist told the

Police about the meeting.

(c) On 14 December 2008 an article written by Mr Hager under the heading “The activist who turned police informer” was published in the Sunday Star Times and was accompanied by photographs of Mr Gilchrist. The story was subsequently covered on TVNZ and TV3.

(d) Prior to 9 November 2008 the Police deliberately and/or recklessly leaked police job sheets and other documentation to persons unknown who passed that information to Mr Hager and/or the Sunday Star Times.

[4] His causes of action can be summarised briefly as follows:

(a) Breach of confidence: Mr Gilchrist alleges that he had a relationship of trust and confidence with the Police by virtue of his work; that he imparted confidential information to the Police on the express or implied condition it would not be disclosed; that the Police deliberately and/or recklessly leaked confidential information to the media or to persons unknown who passed it on to the media; that the Police failed to put in place safeguards to protect the confidential information; that the Police did not seek an injunction to prevent the publication of the confidential information; and that as a result Mr Gilchrist has suffered distress, embarrassment and anxiety for which damages against the police are sought.

(b) Negligence: Mr Gilchrist alleges that the Police owed a duty of care to him, by virtue of the nature of the work he carried out, to protect his identity, not to disclose confidential information and to take reasonable care for his safety; that the Police breached that duty of care in various ways including by negligently not protecting the confidential information and not providing training and development; and that as a result Mr Gilchrist has suffered harm for which damages against the Police are sought.

(c) Undue influence and/or control: Mr Gilchrist says that the Police exercised control and influence over him such that his independence was substantially undermined; that the Police took unfair advantage of him by instructing him to carry out various activities, including to commit unlawful acts, which were to his disadvantage; and damages and other relief are sought against the Police.

(d) Unlawful search and seizure: Mr Gilchrist claims that the Police used him as a “physical embodiment of paperwork” that would normally consist of an interception warrant or a search warrant, which is contrary to s 21 of the NZBORA and which may result in damages being awarded against him in legal proceedings by activist groups; and a declaration and other relief is sought against the Police.

(e) Right to life (security of the person): Mr Gilchrist alleges that the Police have failed to respect his right to security of the person by intentionally disclosing his personal information to third parties; that as a result Mr Gilchrist has suffered damage in that he has received death threats and other harassment and suffered depression and fear; and a declaration and other relief are sought against the Police.

(f) Misfeasance in public office: Mr Gilchrist alleges that the second and third respondent managed the officer primarily responsible for handling Mr Gilchrist during the relevant periods; that they went beyond their powers and knew they were doing so or were reckless as to this, and were acting in bad faith; that through their instructions to Mr Gilchrist, they, among other things, restricted the rights of activist groups to peaceful assembly and freedom of expression, invaded their privacy, incited unlawful behaviour and committed tax and benefit fraud; and declaration and other relief are sought against the second and third respondents.

[5] The draft statement of claim runs to 45 pages. It is detailed as to the circumstances relied upon for each claim, except that some dates have been left blank.

Documents sought

[6] To support his causes of action Mr Gilchrist has requested documents from the Police containing the following information:

(a) relevant dates and details of his involvement with the Police;

(b) relevant dates and details of particular events referred to in his draft statement of claim, as well as other relevant events that he may not have considered;

(c) records of meetings and conversations that he had with his handlers, and the reports that were generated from those original notes;

(d) details of directions given to him by the Police during the course of his involvement with it that would help confirm the allegations in his statement of claim;

(e) copies of operational files held previously by the Christchurch CIS office, Auckland CIS office, and at the Police National Headquarters in relation to files that he was involved in;

(f) details of day to day administration relating to his role;

(g) records of his reports to the Police and the use to which those reports were put;

(h) names, records and contact details of activist groups and individual members of those groups that he supplied to the Police;

(i) records of meetings of activist groups from 1998 through to 2010 that he supplied to the Police;

(j) records of compensation paid to him during the course of his involvement with the Police;

(k) records of costs and expenses incurred during his involvement with the Police, including phone bills, and receipts for various expenses;

(l) bank statements and copies of credit card statements for an account he set up in conjunction with the special projects unit of Police National Headquarters with the BNZ in the name of “Urban Camouflage Company Ltd”;

(m) quotations for his disbursements when working for the Police supplied by him to the Police;

(n) internal correspondence within the Police about his involvement with the Police, which could include correspondence between various units or groups of the Police, examples of which include the Diplomatic Protection Squad, the Armed Offenders Squad and Special Tactics Group;

(o) video and audio recordings;

(p) records of telephone conversations between him and his handlers;

(q) details of interactions between the Police and third parties in respect of his involvement with the Police, including potential correspondence with parties to whom there may have been communications in breach of a duty of confidence owed by the Police to him (such as Thompson & Clark, Nicky Hager). Other third parties are identified as the New Zealand Security Intelligence Service, and American, Australian, British and Chinese security, intelligence and policing agencies and other unspecified foreign security, intelligence and policing agencies.

(r) other associated intelligence “product” relating to his involvement

with the Police.

[7] Mr Gilchrist concludes this list by saying that those documents requested are

only examples and “not exclusive” and “there [are] likely to be other documents or

records of communications or correspondence” not noted and held by the Police

which are relevant to his claims.

[8] The Police have located over 5,000 documents that may fall within the scope of the request, although they cannot be confident that there are not more documents yet to be located. The documents sought concern sensitive areas of policing that are not generally disclosed to the public. The Police have offered to provide financial records relating to Mr Gilchrist’s work for the Police but even that will involve some work because of the length of Mr Gilchrist’s involvement with the Police.

Rule 8.20 of the High Court Rules

[9] Rule 8.20 of the High Court Rules provides for orders for particular discovery before a proceeding is commenced. Under that rule an order can be made in favour of an intending plaintiff if:

(a) the intending plaintiff is or may be entitled to relief against another person;

(b) it is impossible or impracticable for the plaintiff to formulate its claim without reference to the documents sought;

(c) there are grounds for belief that the documents may or have been in the possession of the person concerned; and

(d) the Court is satisfied that it is necessary at the time it is made.

[10] The Police say that Mr Gilchrist has not shown that he cannot formulate his claim without these documents. They say that a number of the causes of action are fundamentally defective. They say that the scope of discovery should be determined in the usual way, that is after the claim and statement of defence have been filed and any application for strike-out has been determined.

My assessment

[11] I am satisfied for present purposes that Mr Gilchrist does not presently have access to the documents of the kind that he is seeking and that the Police have documents that fall within the description of those sought. For an order to be made it must be impossible or impracticable for the intending plaintiff to formulate their claim. The intending plaintiff must be unable to plead their claim in accordance with

the requirements of the High Court Rules.[1] The order must be necessary.

[12] There are three reasons why discovery is sought at this time:

(a) First, the seriousness of the allegations and the significant time and cost that would be inflicted on the named parties if proceedings are issued are such that counsel considered it to be appropriate to proceed only with independent verification of the allegations made by Mr Gilchrist.

(b) Secondly, the discovery would assist to particularise dates and quantum in respect of all the causes of action.

(c) Thirdly, some of those causes of action (particularly those other than breach of confidence and negligence) might be significantly recast with the benefit of discovery.

[13] As to the first reason, counsel has sought to do what he sees as the proper and appropriate thing. The discovery might provide some reassurance and be desirable from that perspective, but that does not make it necessary at this time. Counsel for Mr Gilchrist accepted that if no discovery were ordered on this application he would file the proceeding in any event. I therefore consider that this reason is insufficient to order that the Police provide wide ranging discovery which will include sensitive

_{policing matters.}

[14] As to the second reason, having reviewed the draft claim it is apparent that the dates and amounts might enable some refinement on some aspects of the claim as pleaded. Some of the missing dates should be capable of approximation by reference to the nature of the events referred to. Generally the claim contains adequate detail on these topics for the purposes of filing a claim. It is not impossible or impracticable to formulate the claim without further detail on dates and amounts.

[15] As to the third reason, a number of the claims are novel and unusual. The Police have foreshadowed the possibility of a strike-out application. I accept the Police submission that discovery should occur at the usual time when the tenable causes of action have been settled. That is especially so given the wide ranging discovery that is sought and the sensitivity of the information.

[16] I discussed with counsel whether there was any middle ground that they might be able to agree upon. Counsel for Mr Gilchrist helpfully proposed that his request at this time could be narrowed to: (1) the financial records for Mr Gilchrist; (2) any employment contract or other document setting out the nature of Mr Gilchrist’s role; and (3) any Police policy document relating to the handling of police informants. Counsel for the Police did not have instructions on the second and third of these but would consider/take instructions on whether they could be made available prior to the commencement of proceedings. I leave that for the parties to pursue further should they wish to do so. I do not make any order in these terms because, although it might be helpful to the formulation of Mr Gilchrist’s case, I am satisfied that it is not necessary (meaning that the grounds for pre- commencement discovery are not made out).

Mallon J

Solicitors:

GCA Lawyers, Christchurch for the Applicant

Crown Law, Wellington for the First Respondent

Meredith Connell, Auckland for the Second Respondent

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[1] Exchange Commerce Corp Ltd v NZ News Ltd [1987] 2 NZLR 160 (CA) at 164; Hetherington

Ltd v Carpenter [1997] 1 NZLR 699 (CA) at 705.