OPAI v THE ATTORNEY-GENERAL OF NEW ZEALAND [2018] NZHC 1401

OPAI v THE ATTORNEY-GENERAL OF NEW ZEALAND [2018] NZHC 1401 [13 June 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2014-092-1026[2018] NZHC 1401BETWEEN MELISSA JEAN OPAIPlaintiffAND THE ATTORNEY-GENERAL OF NEWZEALANDDefendantHearing: On the papersAppearances: N W Woods for PlaintiffM F McClelland QC and A Todd for DefendantJudgment: 13 June 2018JUDGMENT OF LANG J[dealing with objections to passages containedin the plaintiff's brief of evidence]This judgment was delivered by me on 13 June 2018 at 3.30 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate[1] This morning I was scheduled to hear argument regarding objections raised bycounsel for the defendant to matters contained in the plaintiff's brief of evidence.Counsel have now conferred and have helpfully reached agreement regarding most ofthe issues in dispute.[2] The only remaining issue relates to the admissibility of paragraphs 278 to 307of the brief of evidence. Both counsel have filed written submissions in relation tothat issue and have agreed that I should determine the objections on the papers.The plaintiff's claim[3] The plaintiff sues the Attorney-General on behalf of the New Zealand Policein defamation. She alleges that other police officers made defamatory statementsabout her on five separate occasions. They are as follows:(a) Statements made by Senior Sergeant Culpan in the plaintiff'sperformance appraisal for the period 1 July 2012 to 30 June 2013.(b) Statements made by Senior Sergeant Culpan in a briefing paperprepared on or about 1 November 2013.(c) Statements made by Senior Sergeant Culpan in a "258 Report Form"prepared on or about 5 November 2013.(d) Oral statements made by Inspector Ann Wilkie and Senior SergeantCulpan during Section Meetings held between 26 November 2013 and20 December 2013.(e) Statements made by Senior Sergeant Culpan in a document headed"Diary Notes – Melissa Opai 2013 – 14 Performance Year" preparedbetween March and May 2014.[4] The plaintiff alleges Senior Sergeant Culpan published the documentarystatements to other named police officers between September 2013 and 2015.Approach[5] I propose to determine the objections based solely on the basis of the relevanceI consider the challenged statements have to the pleaded claims, defences and repliesto defences. For reasons that will become obvious I do not consider it necessary toconsider the remaining grounds relied on by counsel for the defendant.[6] In this context I have difficulty understanding the relevance to the plaintiff'sclaim of the allegations made in a section of the amended statement of claim headed"Malevolent campaign to Vilify". The allegations relate to actions taken by SeniorSergeant Culpan but do not relate directly to the making and publication of theallegedly defamatory statements. For the most part they read as if they relate to anemployment dispute rather than a claim in defamation. This is exemplified by thefact that the section concludes by stating "the complained about statements aresingularly and cumulatively bullying".[7] It will be a matter for the trial Judge to determine what relevance if any thissection of the amended statement of claim has to the plaintiff's claim. For presentpurposes, however, I propose to put the allegations to one side.DecisionParagraphs 278-282[8] These paragraphs relate to the preparation by Senior Sergeant Mullin of theplaintiff's performance appraisal for the 2014-2015 year. The plaintiff says she didnot become aware of the existence of the appraisal until early September 2015, andcontends she ought to have been consulted about the contents of the appraisal muchearlier. She also complains that Senior Sergeant Mullin sent a copy of the documentto another staff member in breach of police policy.[9] I make two points about this evidence. First, it concerns events that occurredafter the last of the allegedly defamatory statements made by Senior Sergeant Culpanand Inspector Wilkie. Secondly, the 2014-2015 performance appraisal was preparedby Senior Sergeant Mullin. He is not alleged to have made or published any of theallegedly defamatory statements that are the subject of the plaintiff's claim. I thereforefail to see how any issues arising out of the preparation and dissemination of the 2014-2015 performance appraisal can be relevant to either the plaintiff's claim or any of thepleaded defences and replies.[10] I therefore uphold the defendant's objection to these paragraphs.Paragraphs 283-285[11] These paragraphs relate to a personal grievance, or integrity report, the plaintiffraised against Senior Sergeant Mullin as a result of his conduct in preparing anddisseminating the 2014-2015 performance appraisal. It is irrelevant to the issuesraised by the pleadings for the same reasons as the evidence about the performanceappraisal is irrelevant.Paragraphs 286-288[12] These paragraphs also relate to the 2014-2015 performance appraisal and areirrelevant for the reasons already given.Paragraphs 289-290[13] In these paragraphs the plaintiff complains about the fact that in September2015 Senior Sergeant Mullin disseminated confidential information about the plaintiffto a person working in the Human Resources section of the New Zealand Police. Ithas no relevance to the pleaded claims, defences or replies.Paragraphs 291-292[14] These paragraphs relate to comments Senior Sergeant Mullin is said to havemade to the plaintiff between August 2014 and January 2015. The plaintiff also allegesboth Senior Sergeant Mullin and Senior Sergeant Culpan "were operating behind thescenes to ensure that, one way or the other, [the plaintiff] would be 'performancemanaged and exited'".[15] Both paragraphs are irrelevant to the issues raised in the pleadings.Paragraph 293[16] This paragraph relates to an integrity report the plaintiff raised againstAssistant Commissioner Alan Boreham on 28 November 2013. The plaintiff allegesthe Assistant Commissioner's personal assistant wrongly disclosed the report to fourother people whilst she was ignored. The paragraph has no relevance to any of theplaintiff's pleaded claims.Paragraph 294[17] This paragraph relates to an integrity report the plaintiff raised against DeputyCommissioner Viv Rickard on 16 March 2014. The plaintiff alleges she receives nodirect response to the report and her claims were ignored.[18] The evidence contained in this paragraph is irrelevant to the plaintiff's pleadedclaims.Paragraphs 295-296[19] These paragraphs relate to the plaintiff being approached by a work colleaguein July 2014. This person warned her to "watch her back" because Inspector AlisonBrand had made threats against her and / or was "gunning for her". The plaintiff saysInspector Brand had no genuine or justifiable reason to treat her in this way, and claimsit is a continuation of the campaign Senior Sergeant Culpan had begun against her ayear earlier.[20] The plaintiff does not allege Inspector Brand made or published any of theallegedly defamatory comments that form the basis of this proceeding. The paragraphstherefore have no relevance to the issues raised by the pleadings.Paragraphs 297-299[21] These paragraphs relate to concerns raised by the plaintiff when InspectorBrand was moved into her direct reporting line in March 2017. She alleges the policeadministration failed to take her concerns seriously, and that she has been seriouslydisadvantaged in her career by Inspector Brand's actions.[22] These allegations relate to events that occurred well after the allegedlydefamatory statements made by Senior Sergeant Culpan and Inspector Wilkie. Theyhave no relevance to those statements in any event given that they relate to the actionsof Inspector Brand.Paragraph 300[23] This paragraph contains an allegation that the police administration failed todeal with concerns raised by the plaintiff in accordance with its "Speak up" policy anddisciplinary process. She says this "further evidences that the Defendant has acted inflagrant disregard of [her] rights and identifies that the Defendant's attitude towardsallowing justice to take its course ought to be severely questioned given its repeatedand unjustified acts of misconduct and/or negligence". These statements may havesome relevance if this was an employment dispute but they are self-evidentlyirrelevant to the issues raised by the pleadings.Paragraphs 301-303[24] In these paragraphs the plaintiff describes another colleague, Senior SergeantPhillips, being "standoffish" with her in April 2017. When she confronted him abouthis attitude, Senior Sergeant Phillips advised her that another senior officer had toldhim Inspector Brand had issued a directive that he was not to talk to the plaintiff. Theplaintiff expresses disbelief that Inspector Brand would "continue the orchestrated andmalevolent campaign" against her, and that Inspector Brand's actions were in breachof police policy.[25] Again, these allegations may have some relevance in an employment disputebut they have no relevance to the issues raised in this proceeding.Paragraphs 304-307[26] In paragraphs 304 and 305 the plaintiff describes how Inspector Brand andSenior Sergeant Culpan were appointed to act in her direct reporting line afterInspector Shearer resigned from the police on 15 May 2017. She says this occurrednotwithstanding the fact that she had already issued court proceedings calling intoquestion the actions of those officers.[27] The plaintiff also alleges the police administration has "neglected, refused orfailed to provide [her] with a safe working environment, free from bullying andharassment", and that the appointment of Senior Sergeant Culpan is "a further clearexample that poor behaviours are being rewarded".[28] The final two paragraphs describe a restructuring exercise the plaintiff saysInspector Brand and Senior Sergeant Culpan were "driving" between April and July2017. She says the defendant has neglected, refused or failed to address concerns shehas raised about this process. She also says the police have neglected, refused or failedto manage actual or perceived conflicts of interest, thereby "setting [her] up to sufferfurther reprisal conduct at the hands of those very members [she is] challenging".[29] For reasons that will now be obvious all of these paragraphs have no relevanceto the issues raised by the pleadings.Result[30] I direct that paragraphs 278-307 are to be removed from the plaintiff's brief ofevidence because they have no relevance to the issues the Court will be required todetermine.Costs[31] If counsel cannot reach agreement regarding costs they have leave to file andserve concise memoranda dealing with that issue and I will determine it on the papers.Lang JSolicitors:Crown Law, WellingtonM McClelland QC, Wellington