A v MINISTER OF INTERNAL AFFAIRS [2020] NZHC 287

A v MINISTER OF INTERNAL AFFAIRS [2020] NZHC 287 [26 February 2020]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2017-485-0032[2020] NZHC 287UNDER the Judicature Amendment Act 1972 andPart 30 of the High Court RulesIN THE MATTER OF an application for judicial review of thesuspension and cancellation of a passportBETWEEN AApplicantAND MINISTER OF INTERNAL AFFAIRSRespondentHearing: 20 February 2020Counsel: Applicant in person (via telephone)A L Martin and G M Taylor for respondentB J R Keith, special advocateJudgment: 26 February 2020RESERVED JUDGMENT OF DOBSON J[Application to administer interrogatories][1] In November 2018, the applicant filed and served a notice purporting to requirethe respondent to answer some 222 interrogatories. The applicant had not sought leaveto administer interrogatories. During a closed court interlocutory hearing, I reviewedwith counsel for the respondent and the special advocate how that signalled initiativeby the applicant should be dealt with. Mr Martin agreed to file a memorandumoutlining the grounds that the respondent would rely on to oppose a grant of leave toadminister interrogatories, if indeed leave was sought. That memorandum was filedand served in December 2018.[2] The proceeding then went into abeyance for a period of some 12 months,culminating in a further hearing on 14 November 2019, following which I dismissedan application for the proceeding to be struck out.1 In that judgment, I directed thatany application for leave to administer interrogatories was to be filed and served by20 January 2020.[3] That step was then taken by the applicant (the application) and wasaccompanied by a revised notice comprising 120 questions. I have subsequentlyreceived memoranda from all involved on the issues raised by the application. I thenconvened a hearing on the application, with the applicant attending by telephone andcounsel for the respondent and the special advocate in court for chambers.[4] The application was opposed by the respondent on the general ground that thequestions were intended to circumvent the constraint on the applicant having accessto otherwise discoverable material that the Court has accepted as being classifiedsecurity information (CSI).2 Further, that the questions posed went beyond what isnecessary and relevant to argue the issues raised by the application for judicial review.This argument was maintained notwithstanding the prospect of the applicant amendingher statement of claim once all forms of disclosure have been completed.[5] Interrogatories are only rarely allowed in judicial review and an applicant isrequired to satisfy the Court that the proposed questions are "appropriate, relevant andnecessary to fairly dispose of the proceedings".3[6] Mr Keith submitted that the Court should see the application as the means bywhich the applicant can engage with the case and the Court should treat the questionsas an attempt by her to clarify the nature of the matters held against her and thecircumstances in which the decisions were made.[7] With respect, the proposal to use interrogatories for that purpose is inconsistentwith the statutory process required where CSI exists in proceedings under the1 A v Minister of Internal Affairs [2019] NZHC 2992.2 Passports Act 1992, s 29AB, as in force at the relevant time.3 Deliu v New Zealand Law Society [2013] NZHC 1584 at [47], and more generally Robert Osborneand others McGechan on Procedure (online ed, Thomson Reuters) at [JR 14.08].Passports Act 1992. Resort to interrogatories cannot be seen as a means of redressingthe procedural unfairness that otherwise exists. I do not accept that thesecircumstances justify an approach to an application for leave to administerinterrogatories on a basis different from that which normally applies.[8] Part of the difficulty for the applicant in accepting this approach is that theunclassified summary of the materials available to the decision-makers leaves her tospeculate on the detail of the information relied on and the reasoning applied. That isa reflection of the statutory procedure the Court is required to adopt, and it wouldindeed subvert the process required under the Passports Act if such additions to thereasons for the decisions and circumstances in which they were made were permittedby way of interrogatory.[9] The applicant treated her questions as comprising six categories, intended toelicit:• category 1 – what was considered by the decision-makers;• category 2 – what was not considered by the decision-makers;• category 3 – clarification of the evidentiary record that was in issue bothbefore the decision-makers, and before those providing therecommendations to the Minister to cancel the applicant's passport;• category 4 – information about the scope of possible adverse consequencesof the decision to cancel the passport;• category 5 – evidence going to the alleged lack of credibility and theunreasonableness of the decision; and• category 6 – information about the mode and/or lawfulness of the gatheringof information that was relied on.[10] During the course of argument, I indicated to counsel and the applicant that Idid not accept that the need to include in any given answer information that has beenaccepted as CSI, or for which the respondent would maintain a claim to status as CSI,was of itself a sufficient ground to disallow an interrogatory on that point. Subject tomeeting the requirements for necessity and relevance, an answer that would only beavailable to the special advocate but not the applicant might still be recognised as apermissible interrogatory.[11] However, if an answer to any interrogatory that would contain CSI reflectedinformation that was already available to the special advocate, then given theinevitability it could not be shared with the applicant but was available to be used inher interests, the applicant could not make out the requirement for necessity that theinterrogatory be answered in the first place.[12] It seems likely that the position I have described in the preceding paragraphwill apply to a significant number of the interrogatories the applicant seeks toadminister. During the hearing, the special advocate suggested that an initial step inresolving the present application would be for him to confer with Crown counsel as tothe extent to which the questions sought to be asked would be answered by theprovision of CSI, and the special advocate confirming the extent to which such CSIhas been disclosed to him. Such a process would enable him to report by way ofmemorandum to the applicant, copied to Crown Law and the Court, on the extent towhich the answers to the proposed interrogatories would involve the disclosure of CSI,and the extent to which the special advocate already has access to such CSI.[13] I urged counsel to co-operate along those lines as promptly as possible, andnow confirm a direction for that to occur.[14] A substantial portion of the proposed questions (certainly those within theapplicant's categories 1 and 2 plus, on her designation, some of those in category 5),seek explanations for the challenged decisions, either by way of positive reasonsexplaining why the decisions were made or in the negative sense seekingacknowledgements that certain considerations were not in fact taken into account.Given the constraint on administering interrogatories in judicial review, I would notbe prepared to grant leave for questions of this type. The challenged decisions madein exercise of statutory powers must stand on the contemporaneous record created atthe time. Questions that are the equivalent of cross-examination of the decision-makeras to why other factors were not taken into account, or challenging the reasonablenessof grounds that were taken into account, will not be relevant in a judicial review ofthis type where the Ministers' decisions must stand, without any embellishment orqualification added after the event.[15] A further category of question seeks clarification of matters in the documentsthat have been provided to the applicant and which are, on their face, inconsistent, orunclear. For example, question 73 cites discrepancies between the number of pagesof certain discovered documents, and the number of pages provided in redactedversions that have been provided to the applicant. Ms Taylor accepted that questionsof that mechanical nature should not require an interrogatory to be resolved. As inconventional proceedings, counsel for a party providing discovery should be preparedto volunteer clarification of such matters in response to informal requests. I direct thatCrown Law ought to provide responses to questions of that type by way ofcorrespondence to the applicant, copied to the special advocate.[16] I had a number of exchanges with Ms Taylor about the respondent's groundsfor opposing questions in category 4 seeking information about the scope of possibleadverse consequences of the decision to cancel the applicant's passport. Myprovisional view was that if the applicant makes out that the cancellation decision wasunlawful, then the extent of adverse consequences flowing from that may be relevantto a decision whether to grant relief and, if so, in what form. Taking a hypotheticalexample, if the New Zealand Government's practice is, say, to advise the governmentof a country or countries in respect of which the holder of a cancelled passport wasperceived to be a threat to its security, or if the government has a practice of advisingInterpol or security agencies in certain other countries of such cancellations, then theadverse consequences for the applicant may well be relevantly different from theconsequences if such consequential steps are not taken.[17] I accept that such questions may in part require disclosure of CSI, but I haveruled that factor is not of itself sufficient to disallow any given interrogatory.[18] Ms Taylor maintained the respondent's opposition to questions of this type onthe basis that the only relief sought in the judicial review is a declaration of invalidityso that any prospect of additional orders intended to correct specific forms of prejudicearising from the cancellation decision and that it would be so exceptional as not towarrant acknowledgement.[19] I accept that the applicant has numerous substantial hurdles to overcome beforesuch information becomes relevant to her judicial review, but do not accept that suchprospects should be entirely disregarded.[20] A number of the questions seek general answers as to the practice adopted bythe New Zealand Government, not necessarily confined to the specific circumstancesof the applicant's case. I am satisfied that such questions do satisfy the necessity andrelevance tests, and direct that they should be answered, subject as with all else to thelimited disclosure regime to be worked on between Crown Law and the specialadvocate.[21] After hearing argument from Ms Taylor and Mr Keith, in reply the applicantconceded that the information sought in some of the proposed questions was eitherapproached in other ways, or not appropriately pursued by way of interrogatory. Thisconcession was made in respect of questions 50, 73-77, 82, 88, 89, 105 and 118. Theapplicant also conceded that questions 27 and 28 were substantially answered.[22] I sought to avoid any repetition of the protracted iterative process that wasinvolved in settling the terms of the unclassified summary of CSI to be provided to theapplicant. However, after hearing counsel I accept that the present application mayneed to be revisited to address residual issues that arise. In the first instance, mydecision on the matters as argued thus far can be summarised as follows:(a) I disallow the proposed interrogatories in categories 1 and 2, and othersthat question reasons for considerations not taken into account in thechallenged decisions.(b) Any other proposed interrogatories, responses to which would discloseCSI, are to be the subject of dialogue between Crown Law and thespecial advocate, with the special advocate to produce a memorandumconfirming that the answers to such questions would involve disclosureof CSI, and confirming whether those items of information are CSI towhich he already has access. I invite a memorandum to this effect tobe filed by 6 March 2020, ideally reporting on completion of that taskor at least providing a progress report.(c) I accept that questions in category 4 meet the threshold of necessity andrelevance, subject to Crown Law dealing in the first instance with thespecial advocate as to the nature of the information necessarilydisclosed and providing answers to them.(d) Other matters of clarification of items disclosed to the applicant are tobe addressed by way of correspondence between the applicant andCrown Law.[23] There is no question as to costs on the application.Dobson JSolicitors:Crown Law, Wellington for respondentCopy to:The applicantB J R Keith, Wellington