Nuku v Attorney-General [2018] NZHC 2941 (13 November 2018)

Last Updated: 19 November 2018

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-2786 [2018] NZHC 2941

BETWEEN	KARL NUKU Plaintiff
AND	ATTORNEY-GENERAL Respondent

Teleconference:	12 November 2018
Counsel:	Plaintiff in Person S M Kinsler for Respondent
Judgment:	13 November 2018

_{JUDGMENT OF CHURCHMAN J}

[1] Mr Nuku initially started these proceedings as an application for judicial review. He subsequently added to his claim for relief a claim for Baigent damages in the sum of $20,000.

[2] Fitzgerald J, on 30 May 2018, granted leave to amend the pleadings to add claim for Baigent damages although she noted the caution previously expressed by the Court of Appeal about damages claims being brought into judicial review proceedings.¹

[3] Mr Nuku subsequently made an application seeking answers to interrogatories.

[4] On 5 September 2018, Fitzgerald J issued a further minute. By consent the proceedings were transferred for hearing from Auckland to Wellington and the scheduled mid-October 2018 hearing in Auckland was vacated.

¹ _{See Attorney-General v Dotcom [2013] NZCA 43; [2013] 2 NZLR 213 (CA) at [40]- [48].}

NUKU v ATTORNEY-GENERAL [2018] NZHC 2941 [13 November 2018]

[5] Mr Nuku had indicated that he intended issuing subpoenas including subpoenas duces tecum requiring the witness to produce documentation. The subpoenas were intended to relate to Detective Reid and Ms Temm.

[6] It was agreed that the respondent would file and serve its evidence and that after reviewing the evidence Mr Nuku would decide whether he proposed issuing subpoenas. Fitzgerald J set out a timetable for the issue of subpoenas and any application to set them aside.

[7] Mr Nuku issued subpoenas against Byron Roy Lyford Reid and Stephanie Margaret Temm. Mr Reid and Ms Temm had provided briefs of evidence and were to be called by the respondent.

[8] The respondent applied to set the subpoenas aside and relied on a variety of grounds including that:

(a) the information sought to be produced by Mr Reid was irrelevant;

(b) Mr Nuku appeared to be using the notice to produce under r 8.32 as an attempt to obtain non-party discovery from the Commissioner of Police;

(c) there was a lack of specificity in relation to documents sought by way of subpoena in relation to a Debra Gower;

(d) documents sought in respect of the Independent Police Conduct Authority (IPCA) were irrelevant and covered by statutory privilege; and

(e) documents appeared to be sought for a collateral purpose being to impugn Police and/or seek to determine Mr Nuku’s convictions.

[9] In relation to Ms Temm, it was submitted that the documents sought to be produced were irrelevant and an abuse of process given that tailored discovery orders in relation to the CCTV footage were previously made by this Court, and complied

with, and that in relation to the remaining documents referred to, the proper course was to provide further tailored discovery.

[10] The respondent indicated that it anticipated being in a position to provide such further discovery by affidavit by 30 November 2018.

[11] Both parties filed detailed written submissions and spoke to them during the course of the teleconference. The parties agreed that the Court should rule on the application to set aside the subpoenas on the basis of their written submissions and their comments during the teleconference.

[12] The third subpoena in issue related to a Mr Lothiem. He was a serving prisoner whom Mr Nuku wished to call to give evidence about what happened in Mr Nuku’s cell in relation to the events that are at the heart of the judicial review claim.

[13] The respondent did not oppose the issue of the subpoena but indicated that as

Mr Lothiem was a witness for Mr Nuku, it was appropriate that Mr Nuku file a will say statement setting out the nature of the evidence that was proposed to be called.

[14] During the course of the teleconference, Mr Nuku agreed that this was appropriate and undertook to file and serve such a statement by 27 November 2018.

[15] Mr Kinsler also undertook that the respondent would file a further discovery affidavit by 30 November which he submitted would render the subpoena in relation to Ms Temm unnecessary.

[16] However, the Court is still required to consider and rule on the issue of whether the two subpoenas should be set aside.

[17] It appears that the purpose for which Mr Nuku has issued the subpoenas is in order to obtain discovery of documentation. It is well established that it is not appropriate to issue subpoenas for that purpose.

[18] Of significance in the present case is the fact that, although the Court has permitted an amendment of the pleadings to include a claim for Baigent damages,

these proceedings essentially remain judicial review proceedings. Such proceedings are supposed to be “simple, untechnical and prompt”.²

[19] Evidence in judicial review proceedings is normally given by affidavit and it is rare for there to be any cross-examination.

[20] Mr Nuku relies on r 8.32 of the High Court Rules. However, that rule facilitates production of documents or things “... for the purpose of evidence at the hearing” not as a means to obtain discovery.³

[21] By affidavit affirmed on 4 May 2018, the respondent complied with a previous tailored discovery order in these proceedings. If Mr Nuku was unhappy with compliance with the discovery order, his course was to go back to the Court to seek either compliance with it or further discovery, not to issue a subpoena.

[22] The respondent objects to the subpoena against Mr Reid on the basis that the information sought is not relevant to the pleaded case which turns on the issue of whether the Department of Corrections breached Mr Nuku’s rights during a familiarisation tour which occurred at Auckland Prison on 4 June 2014.

[23] Neither Mr Reid nor his employer the Police, are parties to these proceedings. The Court of Appeal in Livingston v Institute of Environmental Science and Research Ltd⁴ held that a witness summons procedure is not to be used as a means of obtaining discovery of documents held by third parties.

[24] I accept the respondent’s submission that, in substance, Mr Nuku’s application is an application for non-party discovery. I also accept that the documents sought are irrelevant to Mr Nuku’s claim as pleaded.

[25] I also accept that documents to be produced under r 8.35 must be specified with precision. Mr Nuku seeks orders for vague categories of documents such as “interactions and discussions with Detective Sergeant Debra Gower”. On the basis of

² The Attorney-General v Dotcom [2013] NZCA 43, [2013] 2 NZLR 213 at [39].

³ McCabe v McCabe [2016] NZHC 456 at [80].

⁴ Livingston v Institute of Environmental Science and Research Ltd [2003] NZCA 114; [2003] 20 CRNZ 253 at [63].

the case as pleaded, there is no obvious connection between internal Police correspondence and any relief sought by Mr Nuku.

[26] To the extent that the documents sought relate to the IPCA, the statutory privilege under s 33 of the IPCA Act 1988 applies.

[27] I accept the respondent’s submission that s 33 confers a broad privilege that protects “anything said or any information given or any document or thing produced by any person in the course of any investigation by, or proceedings before the Authority”.

[28] The IPCA’s decision is produced as an annexure to an affidavit filed by

Mr Nuku. That decision must speak for itself and it is not appropriate to attempt to produce documents which may sit behind it.

[29] I reject Mr Nuku’s argument that privilege has been waived. What was referred to by Mr Reid is the decision letter which is before the Court. I also accept the respondent’s submission that disclosure of the mere fact that privilege material exists is not sufficient to waive privilege.⁵

[30] I also accept that the required degree of specificity has not been met.⁶

[31] Accordingly, I grant the application by the respondent to set aside the subpoena in relation to Mr Reid.

[32] In her brief of evidence, Ms Temm referred to certain CCTV footage. Mr Nuku has submitted that if Ms Temm was unable to produce the footage then any reference to it should be struck out from her brief of evidence. The relevant footage has not been retained due to the passage of time.

[33] Even though the footage has not been retained, there is no legal reason why

_{Ms Temm is not entitled to refer to it.}

⁵ Capital & Merchant Finance Ltd v Perpetual Trust Ltd [2015] NZHC 1233.

⁶ See Perry v Molteno (1999) 13 PRNZ 546 at [35].

[34] The same arguments about relevance and specificity, as apply in relation to

Mr Reid’s evidence also apply in relation to Ms Temm’s evidence.

[35] As noted above, the respondent has agreed to file an amending affidavit providing further tailored discovery. Addressing the matter by way of discovery is the appropriate course to follow.

[36] Accordingly, I grant the respondent’s application to set aside the subpoena in relation to Ms Temm.

Outcome

[37] The subpoenas in respect of Mr Reid and Ms Temm are set aside.

[38] Mr Nuku is to provide a will say statement for Mr Lothiem by 27 November

2018.

[39] The respondent will provide a further discovery affidavit by Ms Temm by

30 November 2018.

[40] Costs are reserved.

Churchman J

Solicitors:

Meredith Connell, Wellington for Respondent

cc: K Nuku, Rimutaka Prison, Upper Hutt