DUNSTAN v DEPARTMENT OF CORRECTIONS [2023] NZHC 2602

DUNSTAN v DEPARTMENT OF CORRECTIONS [2023] NZHC 2602 [19 September 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2022-404-002159[2023] NZHC 2602BETWEEN TANYA FELICITY DUNSTANPlaintiffAND CHIEF EXECUTIVE OF DEPARTMENTOF CORRECTIONSDefendantHearing: On the papersAppearances: T Dunstan in PersonS K Shaw / H T Reid for the DefendantJudgment: 19 September 2023JUDGMENT OF ASSOCIATE JUDGE GARDINERThis judgment was delivered by me on 19 September 2023 at 3.00 p.m.pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate.......................................Solicitors:Crown Law, WellingtonCopy to: T F DunstanIntroduction[1] Ms Dunstan's claim against the defendant concerns the period between29 December 2018 and 3 January 2019 when she was held on remand in theNew Plymouth Remand Centre. The trial will take place over five days commencingon 30 October 2023.[2] On 16 May 2023, I ordered the parties to provide standard discovery underr 8.7 of the High Court Rules 2016, with affidavits of documents and open documentsexchanged by 11 July 2023. I directed that the listing and exchange protocol in Part 2of Schedule 9 to the High Court Rules was to apply unless the parties agreed otherwise.[3] On 11 July 2023, the defendant filed and served their affidavit of documents.[4] Ms Dunstan now challenges the defendant's discovery. She contends that:(a) the affidavit of documents is defective and inaccurately sworn;(b) the affidavit conceals the contents of the discovery by relying on anindex table identifying documents that have been unlawfully redactedas irrelevant; and(c) the discovery omits relevant records, including call records for29 December 2018, and surveillance footage.[5] Ms Dunstan seeks an order that all discovered documents are provided in anunredacted form, that the affidavit is sworn by another individual from the Departmentof Corrections, and for tailored discovery of the call records and surveillance footage.[6] Ms Dunstan also demands that the defendant provide affidavits from certainCorrections staff.[7] The defendant opposes the making of these orders.Legal principles[8] Standard discovery under r 8.7 requires each party to disclose the documentsthat are or have been in their control, and that are documents on which they rely, thatadversely affect their case or the other party's case or support the other party's case.[9] Documents included in discovery must be relevant to matters in issue at trial.Relevance is assessed according to the pleadings.1[10] Parties are only entitled to relevant documents in discovery. It is permissiblefor a party to redact irrelevant parts of an otherwise discoverable document.2[11] I consider each of the issues raised by Ms Dunstan in turn.Redactions made to discovery[12] On 11 July 2023, the defendant served Ms Dunstan with their affidavit ofdocuments and the open documents listed. There were 13 documents provided in thediscovery. The following five documents contained redactions, all stated to be becauseof irrelevance:(a) DUN.001.00004 - a log book dated 29 December 2018;(b) DUN.001.0007 - movement records dated 29 December 2018;(c) DUN.001.00010 - an email dated 31 December 2018;(d) DUN.001.00011 - an email dated 3 January 2019; and(e) DUN.001.00012 - offender notes dated 5 July 2019.1 New Zealand Rail Ltd v Port Marlborough New Zealand Ltd [1993] 2 NZLR 641 (CA) at 644;and Robert v Foxton Equities Ltd [2014] NZHC 726, [2015] NZAR 1351 at [8].2 See GE Capital Corporate Finance Group Ltd v Bankers Trust Co [1995] 1 WLR 172 (CA)affirmed in New Zealand by Radio Tarana (NZ) Ltd v 5TUNZ Communications Ltd [2014] NZHC1870 at [82].[13] The defendant explains through submissions that the redactions applied tothese documents fall into the following categories:(a) the names, PRNs and custody details of prisoners other thanMs Dunstan;(b) the names and phone numbers of individuals calling prisoners otherthan Ms Dunstan;(c) the names of Corrections staff members requesting the documents fromthe Corrections IT system, which appear in the top right-hand cornersof electronic documents; and(d) phone numbers of Corrections staff members.[14] The defendant submits that none of the names or personal details redacted inthe discovery are relevant to Ms Dunstan's claim. They do not go to proving ordisproving any of the matters in issue, and they neither support nor adversely affecteither party's case.[15] I have reviewed the documents in issue in unredacted form. I can confirm thatthe redactions are confined to the information detailed above, together with the emailaddresses of Corrections staff members. This information is irrelevant to the issues indispute in Ms Dunstan's proceeding. The redactions have been properly made.Affirmation of affidavit of documents[16] The defendant's affidavit of documents was affirmed by Tara Helm, solicitorin the national Office of the Department of Corrections. Ms Helm affirmed that shewas authorised to swear the affidavit on behalf of the Department, she understood theobligations imposed by the discovery order, and that she had diligently searched forall documents required to be discovered by the discovery order. She confirmed theprocess followed:I have arranged for a review of computer and hard copy records that relate tothe plaintiff's time in custody at the New Plymouth Remand Centre. This hasincluded materials at the Remand Centre, the plaintiff's personal files, andalso arranging an email search across the system from 29 December 2018 to3 January 2019 and with key words of any of:(i) Tanya Felicity Dunstan;(ii) Tanya Dunstan;(iii) Dunstan; or(iv) 80941827.[17] The affidavit was affirmed in Wellington before Michaela Stack, a DeputyRegistrar of the High Court of New Zealand. The substantive pages of the affidavitare initialled and signed by both Ms Helm and Ms Stack.[18] I conclude that the defendant's affidavit of documents is not defective orinaccurately sworn.Application for tailored discovery[19] Ms Dunstan has applied for tailored discovery of all call records of29 December 2018, and surveillance footage from 29 December 2018 to3 January 2019.[20] Ms Dunstan is essentially asking for an order for "particular discovery" underr 8.19, as she is claiming that the defendants have omitted relevant information fromtheir existing discovery.[21] When determining applications for particular discovery under r 8.19, the Courtusually follows a four-stage approach, which includes asking whether there aregrounds for believing that the sought documents exist.3 The grounds for belief maybe established from evidence, from the nature or circumstances of the case, or from3 Robert v Foxton Equities Ltd [2014] NZHC 726, [2015] NZAR 1351 at [8]. The four-stage testwas outlined in Assa Abloy New Zealand Ltd v Allegion (New Zealand) Ltd [2015] NZHC 2760 at[14]. Stage one asks whether the documents sought are relevant, stage two asks whether there aregrounds for belief that the documents sought exist, stage three asks whether discovery sought isproportionate and stage four involves the discretionary weighing and balancing of matters, askingwhether an order is appropriate.the documents filed. The documents must also be or have been in the parties' control.4The onus is on the applicant to establish grounds for believing that the documentsexist.5[22] In relation to call records, Ms Dunstan made the same request under thePrivacy Act 2020 in April 2022. Ms Dunstan was advised that the Department heldno records of any calls made or received by Ms Dunstan between 29 December 2018and 3 January 2019, and the Department had no records of Ms Dunstan requesting aphone call. A letter from the Department dated 24 May 2022 confirms that theDepartment has no records of any calls made or received by Ms Dunstan betweenthese dates.[23] Regarding the CCTV footage, the defendant says that it does not hold anyvideo footage from the New Plymouth Remand Centre from 29 December 2018 to3 January 2019, as sites only retain footage for approximately one month.[24] Ms Dunstan has not established grounds for believing, contrary to what thedefendant says, that that call records and surveillance footage exist.[25] Having said that, the search process described in the affidavit of documentsdescribes a review of computer and hard copy records only. I consider it appropriatefor an authorised representative of the defendant to depose that there has been adiligent search for call records over the dates in question, and the outcome of thatsearch. The defendant should also confirm that there is no surveillance footageavailable and explain why.Affidavits from Corrections staff[26] Ms Dunstan asks the Court to order the defendant to provide "affidavits fromthe witnesses the defence intends to call" and "affidavits from Susan Bennet andJack Saju".4 Lyttelton Port Company Ltd v Aon New Zealand [2016] NZHC 2996 at [13]; and Robert v FoxtonEquities Ltd [2014] NZHC 726, [2015] NZAR 1351 at [8].5 RHH Ltd v Anderson (No 2) [2018] NZHC 2032 at [13].[27] Ms Dunstan's request for affidavits from specific Corrections staff is in essencea request for the defendant's briefs of evidence. The defendant's briefs will be sharedwith Ms Dunstan prior to the trial in accordance with the timetable I have directed.Result[28] The defendant is to file and serve a further affidavit concerning the call recordsand video footage within five working days.[29] Otherwise, Ms Dunstan's application for discovery is dismissed.[30] Costs are reserved._______________________________Associate Judge Gardiner