Hunter v N [2018] NZHC 2040 (13 August 2018)

Last Updated: 31 August 2018

ORDER PROHIBITING PUBLICATON OF THE NAMES OF THE FIRST AND SECOND DEFENDANT

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2016-454-44 [2018] NZHC 2040

BETWEEN	BRIAN HUNTER Plaintiff
AND	N First defendant J Second defendant THE ATTORNEY-GENERAL Third defendant AVRIL WARD Fourth defendant NICK EDDY Fifth defendant DAVE HARRISON Sixth defendant

Hearing:	7 August 2018
Counsel:	Mr G Minchin for plaintiff Mr S Barr for defendants
Judgment:	13 August 2018

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[1] The plaintiff sues the Attorney-General and a number of individuals connected with the Department of Corrections Probation Service in relation to assessments made in mid 2011 of the suitability of his home in the Pohangina Valley in Manawatu for

HUNTER v N [2018] NZHC 2040 [13 August 2018]

electronic monitoring. The assessment was made in order to assist the sentencing Judge in the District Court following the plaintiff’s conviction for forgery.

[2] The plaintiff alleges misfeasance in public office and negligence against the first and second defendants and negligence against the third defendant, the Attorney-General. Essentially, he says that the first and second defendants knew that the property was suitable for electronic monitoring but procured a false report saying that it was not. The result of this, the plaintiff says, was that the judge sentenced him to home detention at an address other than his own which meant that he had to move for the period of the sentence. He claims special, aggravated and exemplary damages.

[3] This judgment deals with two interlocutory applications for particular discovery which involve the plaintiff and the first, second and third defendants:

(a) an application by the first, second and third defendants dated 20 April 2018; and

(b) an application by the plaintiff dated 21 June 2018.

[4] Both applications are opposed.

[5] Orders for tailored discovery were made by Ellis J on 24 October 2018, but neither the first, second and third defendants nor the plaintiff are satisfied that they have had adequate discovery and hence these applications.

The defendants’ application

[6] The first, second and third defendants seek discovery of the following categories of documentation:

3.1 Any audio and/or visual recording of Corrections’ attendance at the Property on 30 September 2011;

3.2 Any correspondence or other record of communication, including any audio and /or visual recording, dated 27 between 27 June 2011 and 1 January 2013 between the plaintiff, or any agent of the plaintiff, Ultimate Mobile Limited in relation to cellular coverage and/or testing methods for cellular coverage at the Property;
3.3 Any reports and/or draft reports provided by Ultimate Mobile Limited to the plaintiff, or any agent, dated between 27 June 2011 and 1 January 2013 in relation to cellular coverage and/or testing methods for cellular coverage at the Property, together with any email that forwarded each report and/or draft report;

3.4 Any correspondence or other record of communication, including any audio and/or visual recording, dated on or about 15 October 2011 from the plaintiff, or any agent of the plaintiff, to Corrections in which the plaintiff provided Corrections with a report by Ultimate Mobile Limited on cellular coverage at the Property;

3.5 Any email or letter in the name of Michael O’Hara dated between 29 September 2011 and 1 January 2013 to any other person or company in relation to Corrections’ attendances at the Property 30 September 2011 and/or on 9 March 2012, and /or in relation to David Harrison;

3.6 Any medical records relating to plaintiffs’ diagnosis of PTSD for which the plaintiff has claimed medical privilege/confidentiality (subject to any conditions for inspection and/or any suppression orders that the Court may consider appropriate).

[7] I accept Mr Barr’s submission that, if it exists, documentation in all of those categories is relevant and discoverable. On that basis I propose to order the plaintiff to provide further discovery.

[8] The category of documentation referred to in sub-para 3.1 would constitute direct evidence of what transpired at the critical 30 September 2011 inspection.

[9] The plaintiff says in relation to sub-para 3.1 that there was no recording, despite evidence of him having threatened to record the inspection and subsequently asserting that he had done so.

[10] In my view, the answer to this is straight forward. The plaintiff should file a supplementary affidavit of documents saying just that.

[11] As to the categories of documentation referred to in sub-paras 3.2–3.4, the plaintiff says that the only document which he is aware of is the final Ultimate Mobile Ltd report. He says that the original of this was exhibited to an affidavit sworn by him and filed in the District Court. He says that he did not retain a copy.
[12] Again, the answer is straightforward. The plaintiff’s supplementary affidavit should explain this in clear terms.

[13] As to the category of documentation referred to in para 3.5, there is apparently a question mark about whether the plaintiff and Mr Michael O’Hara — whose name appears in the correspondence — are one and the same person. Obviously, I am not in the position to reach any view about this on affidavit evidence. The plaintiff says that Mr O’Hara exists but that he does not propose to call him as a witness. That does not appear to me to be an adequate answer. I accept that whether the plaintiff and Mr O’Hara are one and the same person is a potential issue in the case, as it may go to veracity and credibility, and therefore that correspondence which touches on any matter connected with the pleadings and which features or purports to feature Mr O’Hara is relevant.

[14] The plaintiff’s supplementary affidavit of documents should depose either that he has produced all such documentation in his possession or power or explain why he is not able to do so.

[15] The plaintiff’s medical records are relevant first because he has already discovered some of these and second because he claims aggravated damages and expressly pleads that the defendants — or some of them — knew or ought to have known of his medical condition which made him especially vulnerable.

[16] His supplementary affidavit of documents should produce these.

[17] The plaintiff is understandably concerned about the confidentiality of his medical records and accordingly I order that these be produced in the first instance to Mr Barr. Mr Barr is to make an assessment of whether that material will have any genuine relevance at trial. He is not to share that documentation with any of the named defendants, any other witness or any third party without seeking further direction from the Court. Such directions may be sought by memorandum which of course is to be served on the plaintiff’s solicitors. I will deal with any further confidentiality issues that arise on the papers.

The plaintiff’s application

[18] The plaintiff seeks particular discovery of the following documentation:

(a) Statistical information disclosing the number of EM placements in the Pohangina Valley region in the period June 2008—June 2011;

(b) Any letters written by Garth Newman (Area Manager Probation) in response to any complaints made either by Mr Hunter or on his behalf with tracked changes and comments;

(c) Any drafts or finalised versions of PSRs or Appendix with tracked changes and comments;

(d) Any drafts or finalised memos to court with tracked changes and comments.

[19] A factual question in the case may be whether the plaintiff’s property in the Pohangina Valley is suitable for electronic monitoring. It is not difficult to see how the plaintiff may perceive that whether or not other properties in that valley have been assessed and whether other sentences have been handed down involving offenders receiving home detention in the valley. Whether, ultimately, that is a relevant consideration may be open to question. I say that because such assessments are in my experience specific to the property and not necessarily the area. Be that as it may, I am prepared to accept for the purposes of this application that such information may be relevant.

[20] The Crown’s position is that it does not have ready access to such information. Without going into any detail, the Crown says that whilst the information could be provided this would require a manual analysis of a large number of files and that this would take weeks. On that basis the Crown says that the value of the information is disproportionate to the costs involved in complying it. In relation to this I share the scepticism evident from Mr Minchin’s submission as to whether or not compiling this information would take weeks. On the other hand, nor do I accept Mr Minchin’s speculation that it would take “half a day or so”. I suspect the reality lies somewhere between the two.

[21] At this stage, I am not prepared to make the order sought.
[22] In discussions with counsel it was suggested that the better course would be for the plaintiff to interrogate the relevant defendant or defendants to obtain this information. I am confident that the Crown will respond in a helpful way to interrogatories and provide at least an estimate of the number of positive reports and sentences in the area over recent years.

[23] If the plaintiff perceives that that process has not elicited the information he requires then I reserve leave to the plaintiff to come back to the Court by memorandum in relation to this issue.

[24] In relation to items (b)–(d), either such documents exist or they do not. I am prepared to order that the first, second and third defendants arrange for the filing of a supplementary affidavit of documents sworn by the appropriate officer of the Department of Corrections Probation Service explaining the extent to which they do, and producing any such documents that have not already been discovered.

Transfer of proceeding

[25] At the joint request of the parties I order that this file be transferred from Palmerston North to Wellington.

Fixture

[26] Also at the joint request of the parties I direct the Registrar to liaise with counsel with a view to setting this proceeding down for trial. Ten days are to be allowed. Once the case is set down, counsel are to confer and file a joint memorandum proposing pre-trial directions (or separate memoranda in the unlikely event that they are unable to agree).




Associate Judge Johnston

Solicitors:

Thomas & Co, Auckland for the plaintiff