UNITED FISHERIES LIMITED AND ANOR V THE CHIEF EXECUTIVE OF THE MINISTRY OF FISHERIES HC WN CIV-2008-485-2452

UNITED FISHERIES LIMITED AND ANOR V THE CHIEF EXECUTIVE OF THE MINISTRY OF FISHERIES HC WN CIV-2008-485-2452 19 February 2009IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV-2008-485-2452UNDER The Judicature Amendment Act 1972 BETWEEN UNITED FISHERIES LIMITED First Applicant AND UFL CHARTERS LIMITED Second Applicant AND THE CHIEF EXECUTIVE OF THE MINISTRY OF FISHERIES Respondent Hearing: 18 February 2009 Appearances: Mr Cooke QC with Ms Standage for the Applicants Mr Powell for the Respondent Judgment: 19 February 2009 at 3.15 pmJUDGMENT OF MALLON J Introduction[1] On 5 November 2008 officers of the respondent (MoF) entered the applicants' (United Fisheries) premises and seized documents and computers and "cloned" portions of the central server pursuant to an investigation of suspected illegal fishing. United Fisheries take the view that the search and seizure was unlawful. They have commenced a judicial review proceeding in which they seek a declaratory order that the search and seizure was unlawful and an order directing the material taken be returned. This material is presently subject to an interim order preventing MoF from taking further action in respect of it (HC WN CIV-2008-485- 2452 16 December 2008). The present issue is whether United Fisheries are to have discovery from MoF of the contemporaneous documentation generated by MoF inrelation to the search. This is opposed by MoF on the basis of the public interest that investigations should not be unduly interfered with and because the claimed need for discovery is insufficient. The application for discovery has been dealt with on an urgent basis because the substantive judicial review hearing is scheduled to commence on 23 March 2009.The legal principles[2] The parties are agreed on the relevant principles (referring to Air New Zealand Ltd v Auckland International Airport Ltd (2001) 16 PRNZ 783; Te Runanga O Ngati Awa v Attorney-General HC WN CIV-2006-485-001025 28 March 2007 and Berryman & Anor v Solicitor-General and Ors HC WN CIV-2005-485-1795 4 July 2007). Discovery is not as of right in judicial review applications. Whether it should be ordered, and its scope if it is to be ordered, are determined on a case by case basis. The Court will consider whether the discovery is necessary. Public interest considerations are relevant to the exercise of the discretion.Discussion[3] The particular order sought is in these terms:THAT the Respondent disclose by way of discovery the contemporaneous documentation generated by the Respondent's agents and employees in relation to the search and seizure exercise conducted by the Ministry on 5 November 2008, including particularly the Ministry's Operation Plan, internal briefing materials, and other documents disclosing the intended nature and breadth of the search and the beliefs held by the Fisheries Officers in terms of the statutory grounds to conduct the search and seizure exercise.[4] United Fisheries say that this is not an application for general discovery since it is directed only to discovery of a particular category of documents. However they accept that, in view of the narrow issues in the judicial review proceeding, an application for general discovery would likely result in the discovery of a similar scope of documents.[5] A key issue under the relevant provision of the Fisheries Act 1996 is the belief which the MoF officers must form in order to be permitted to conduct a search. The intended scope of the search is also an important issue because the search must be for evidence relevant to the alleged offending. [6] For the interim order application MoF filed affidavit evidence from, amongst others, Mr Robinson who is a fishery officer who was involved in the search. In that affidavit he set out the basis for the belief that an offence had been committed and the grounds for the belief that evidence relating to the commission of the offence would be found at United Fisheries premises (these are summarised at [25] and [26] of the judgment referred to at [1] above). [7] United Fisheries say that they should be permitted to examine the contemporaneous documentation to assess whether Mr Robinson's statements are correct rather than be obliged to accept what he says. They also say that there is no evidence before the Court as to the scope of the intended search and that discovery should be permitted as to what was proposed. They accept that public interest considerations are relevant but say that those must always be considered on a case- by-case basis. In this case they say that there is no real risk of interference with the investigation or future investigations and, to the extent that there is any such risk, this could be dealt with by procedures under which confidential material is redacted. [8] United Fisheries support their application primarily by reference to Attorney- General v Powerbeat International Ltd (1998) 16 CRNZ 555 (where discovery was permitted in a civil proceeding challenging the validity of a search warrant in the course of a current criminal police investigation) and Tranz Rail Ltd v Wellington District Court [2002] 3 NZLR 780 (where, in the context of an investigation into suspected price fixing, it is apparent that the Court had before it the full details of the material filed in support of a search warrant and subjected that to a thorough review, ultimately deciding that the search was unlawful and requiring the return of the material seized). [9] MoF has responded with an affidavit in which it is said that premature disclosure "could compromise" the investigation. It is also said that it couldcompromise future investigations "as they may reveal investigative techniques, tactics, or methods of analysis". MoF further submits that United Fisheries "does not lose the right to make a full curial challenge to this exercise of power by the state", that "the expectation of privacy that s 21 [of the New Zealand Bill of Rights Act 1990] guards is much reduced" in this case (which involves a commercial organisation operating in a highly regulated industry), and that there is no patent illegality. In light of these matters, MoF submits there is no particular reason to go behind Mr Robinson's assertions in his affidavit. It says that a sufficient need for discovery has not been made out. [10] At the end of the hearing yesterday I indicated that my inclination was to grant the application. I now confirm that view. MoF accepted in its submissions that judicial review can be brought while a criminal investigation is in progress. If discovery is necessary in respect of any such application then it should be permitted if it can be given in a manner which protects against the risk of interference with the particular investigation and other investigations. This requires an assessment in the particular case that is before the Court. [11] In this case Mr Robinson has described the sources of information which have led MoF to reasonably believe there is illegal fishing and why he believes United Fisheries will have documents relevant to the alleged offending. If discovery is not ordered United Fisheries is left to accept that evidence when it is possible that the contemporaneous documentation may give a different picture. Further, United Fisheries does not have evidence as to the scope of the intended search but has legitimate concerns as to its breadth in view of the large amount of irrelevant information within the material that has been obtained. There is, in my view, a basis made out as to why the discovery is necessary to United Fisheries' application. [12] As to public interest considerations, in some cases the risk of harm to the investigation may be so high that discovery should not be permitted until the investigation is complete. I do not see this as such a case. Here, documents and a number of witness statements have been obtained, including from United Fisheries personnel. There does not appear to be any risk of disclosure of confidential sources,although if there were, procedures could be put in place. Disclosure of investigative techniques has already occurred to some extent via Mr Robinson's evidence. [13] I do, however, accept that there may be material within the documents sought that should not be made available to United Fisheries at this stage of the investigation. As Mr Powell says, there is a risk (for example) that disclosure of some material may enable personnel who may be re-interviewed to alter their responses in a way they would not without access to the material. It may also be the case that investigative techniques will be disclosed to United Fisheries in a way that could prejudice future investigations in the industry. Because there is a risk of interference with the investigation (and possibly also future investigations) the discovery is to be made in a way which protects against this risk. [14] After discussion with counsel at the hearing as to how this might best be achieved in a manner which enables the substantive hearing to proceed on 23 March 2009, the following procedure was agreed to: a) By 25 February 2009 discovery of documents within the category set out in [3] above is to be provided in the first instance to Mr Cooke QC only; b) By 4 March 2009 Mr Cooke is to review the documents to identify anything he wishes to rely on for the substantive hearing and to advise MoF accordingly; c) By 11 March 2009 MoF is to advise Mr Cooke which parts of any of the documents so identified it objects to United Fisheries and/or its solicitors viewing; d) Redacted versions in accordance with MoF's views are then to be made available to United Fisheries and its solicitors; e) Any issues concerning the extent of the redaction can be considered by the Court at the commencement of the substantive hearing.[15] United Fisheries' application for discovery is granted subject to these terms ([14] (a) to (e)). A timetable for the filing of any affidavits and any application for cross-examination was also discussed but I leave it to counsel to agree the details of this. Leave is reserved to the parties to apply for further orders in the event of any difficulties. I did not hear from counsel on costs. I reserve costs for consideration at the time the substantive hearing is determined. Mallon JSolicitors:M Logan, Oceanlaw New Zealand, PO Box 921 Nelson (ph: 03 548 4136, fax: 03 548 4195) A Powell, Crown Law Office, PO Box 2858, Wellington (ph: 04 472 1719, fax: 04 473 3482)