Contents

Chapter 7
Disclosure and public interest immunity

General discovery issues

Non-party discovery

7.93While the terms of section 27 clearly enable discovery in proceedings to which the Crown is a party or a third party, the position is less clear in respect of non-party discovery. Previously the High Court in Johnston v Price Waterhouse had found that the Crown was not amenable to non-party discovery, because the relevant rules came into being after the Act was passed. The Court in that case suggested that legislative amendment would be required to permit non-party discovery against the Crown.127
7.94The Court has subsequently held that the Crown Proceedings Act is subject to the changes in the rules of civil procedure that introduced non-party discovery.128 This was on the basis that section 27 should not be regarded as a code; the Crown Proceedings Act, through section 5, is subject to the Judicature Act 1908 and accordingly the High Court Rules, which fall within a schedule to that Act. Although this issue has been made clearer through the development of case law, the availability of non-party discovery against the Crown should be put beyond doubt in the new statute.

Further issues in discovery against the CrownTop

7.95Other areas of uncertainty arise from section 27 as to when the Crown is subject to the discovery obligation. First, there is a question as to whether the party against whom discovery is sought is in fact part of the Crown. The second issue relates to whether it is possible to obtain discovery against one part of the Crown when the particular party to the proceedings is a different part.

7.96In Berryman v Solicitor-General (Berryman),129 the question arose whether under section 27(1)(b) the court had jurisdiction to order discovery against the New Zealand Defence Force of materials relating to an Army Court of Inquiry. The proceedings were against the Solicitor-General. The plaintiffs in that case claimed that for the purposes of discovery under section 27, it was sufficient that one branch of the government was a party to the proceeding, and the Solicitor-General formed part of the government, so the requirements in section 27 were satisfied. The Defence Force argued that it was not a party to the proceedings, so fell outside the scope of section 27.130 The parties were agreed that the Defence Force formed part of the Crown, but the proceedings had been issued against the Solicitor-General. Accordingly the key issues were whether the Solicitor-General was part of the Crown and whether discovery could be obtained from the Defence Force, notwithstanding that they were not specifically named as a party to the proceeding.
7.97Associate Judge Gendall took the view that the Solicitor-General, as the Government’s chief legal advisor, was a part of the Crown. The Solicitor-General was a party to the proceedings and so the Crown, including all of its constituent parts, was a party. The plaintiffs were entitled to seek discovery against the Defence Force because it was simply a different part of the same single entity that was the Crown.131 The Judge noted general trends towards greater openness between parties in legal proceedings.132 In further support of his position the Judge relied on section 14(2) of the Act, which enables a plaintiff to sue the Attorney-General if there is doubt as to the appropriate department or officer to name. He considered that Parliament cannot have intended in those circumstances for a plaintiff to be entitled to very limited discovery from the Attorney-General only.133
7.98On review of the decision, Wild J held that the Associate Judge had been incorrect to find that the Solicitor-General was a party to the proceedings on the basis that the Solicitor-General was part of the Crown, which was to be considered a single, indivisible entity. Wild J disagreed with this reasoning, finding that “[t]he plaintiff’s entitlement to discovery, if any, will depend on the manifestation(s) in which the plaintiff has sued the Crown”.134 On Wild J’s analysis the Solicitor-General was not acting as a part of the Crown in the particular capacity in which he was being sued, namely exercising statutory functions under the Coroners Act 1988. The Court considered these powers were quasi-judicial and were properly to be discharged independently of the Crown, so the Solicitor-General was not part of the Crown in exercising them. The Crown was not a party and discovery was therefore not available against the Defence Force under the terms of section 27.

7.99These decisions demonstrate a lack of conceptual clarity about what roles comprise part of the Crown for the purposes of discovery. They also demonstrate some degree of misunderstanding about the correct approach when discovery orders are sought against a different part of the Crown than that named as a party to the proceedings. It is clear in our view that if one part of the Crown is a party to the proceedings then discovery can be ordered against another part of the Crown. We prefer the approach taken by the Associate Judge on this issue.

7.100Whether a party falls within the ambit of the Crown in the first place will turn on how the term is defined. In some circumstances, such as those encountered in Berryman, it seems to us that the Solicitor-General will almost certainly be acting as part of the Crown. As discussed elsewhere,135 the definition we propose for the term “Crown employee” addresses this type of problem as it is broad and includes any “other office holder of a department”. This would seem clearly to cover the Solicitor-General, regardless of the particular capacity in which the Solicitor is acting.

7.101An approach that considers certain parties to be arguably outside the definition of the Crown and, therefore, not subject to discovery orders against the Crown seems to us to be unnecessarily complex and less conceptually coherent. We consider that the better approach is for parties to be treated as falling within the Crown through a broad definition, but to provide appropriate limits on discovery through other mechanisms. In the case of the Solicitor-General acting in a quasi-judicial role, there would be room for argument that documents should be protected under grounds such as legal professional privilege or public interest immunity. It is accepted that Crown actors carry out various sensitive functions and it is sometimes necessary to prevent disclosure of documents. However, it is preferable to address this in a specific regime that takes into account appropriate considerations, rather than preventing the material being potentially subject to discovery at all.

What this Act would not affectTop

7.102Courts remain in control of the discovery process, which would be administered in accordance with the normal rules. Similarly, nothing here is intended to affect the normal rules relating to evidence in administrative review proceedings and, in particular, whether ministers can be compelled to give oral evidence.

Questions

Q10 What should the balance be between allowing the executive to make a conclusive statement that information is subject to public interest immunity and allowing the courts to consider these matters?
Q11 Should the interest of national security be approached differently to other interests?
Q12 Is there a need for a new mechanism to provide procedural safeguards for the use of sensitive information?
Q13 How could proceedings operate in order to make the sensitive information available to the court but to protect the confidentiality of that information, including the identities of intelligence officials?
Q14 Does the use of a special advocate to represent the interests of the excluded party provide sufficient protection of that party’s interests?
Q15 Do you agree that the availability of non-party discovery against the Crown should be confirmed in the new statute?
Q16 Should there be a broad definition of the Crown for the purposes of discovery?

127Johnston v Price Waterhouse (2000) 14 PRNZ 575 (HC) at [7].
128Goodship v Minister of Fisheries [2006] NZAR 360 (HC) at [22]. See High Court Rules 1985, rr 301 and 302 (see current rr 8.20 and 8.21).
129Berryman v Solicitor-General HC Wellington CIV-2003-485-1041, 17 December 2004.
130The Defence Force also submitted that ordering discovery would contravene the rule that evidence at a military court of enquiry was not admissible against any person in any other proceedings.
131At [46].
132At [48].
133At [49].
134Berryman v Solicitor-General [2006] NZAR 360 (HC) at [22].
135See cl 4.