High Court Ruling Greig Must Answer Bias Questions

In the High Court of New Zealand

AUCKLAND Registry

CIV.2004-404-00317

UNDER the Judicature Amendment Act 1972
AND UNDER the Declaratory Judgments Act 1908 and/or Part 7 of the High Court Rules
IN THE MATTER OF Part IVA of the Immigration Act 1987
AND IN THE MATTER OF Section 27(1) of the New Zealand Bill of Rights Act 1990
BETWEEN AHMED ZAOUI
Plaintiff

AND THE HONOURABLE LAURENCE GREIG
First Defendant

AND THE ATTORNEY-GENERAL
Second Defendant

Hearing: 27 February 2004

Appearances: R.E. Harrison Q.C. with D. Manning and R. McLeod for plaintiff
W.M. Wilson Q.C with J. Mallon for first defendant
K.L. Clark and K.M. Howard for second defendant

Judgment: 3 March 2004

Solicitors: Short & Co, P.O. Box 1153, Auckland
McLeod & Associates, Level 10, Southern Cross Building,
Victoria & High Streets, Auckland
Crown Law Office, P.O. Box 5012, Wellington
Bell Gully, P.O. Box 1291, Wellington
Copy to: R.E. Harrison Q.C, P.O. Box 1153, Auckland
W.M. Wilson Q.C, P.O. Box 3434, Wellington

Introduction

In judicial review proceedings the plaintiff alleges apparent bias on the part of the Inspector-General of Intelligence and Security (“the Inspector-General”) and seeks orders to prevent him further engaging or participating in the review (“the review”) under s.114I of the Immigration Act 1987 (“the Act”) of a security risk certificate (“the certificate”) issued in respect of the plaintiff.

This judgment concerns three interlocutory applications filed in the proceeding –

By the Inspector-General to remove the proceeding into the Court of Appeal;

By the plaintiff that the Inspector-General answer specified interrogatories (two applications filed respectively on 5 and 18 February 2004).

By the plaintiff for general discovery against the first defendant (an oral application).

The Crown supports the application for removal to the Court of Appeal but offered no submissions on the plaintiff’s applications. The plaintiff and the Inspector-General oppose the interlocutory orders sought by the other of them.

Relevant to the background of this matter is a judgment issued by Williams J dated 19 December 2003 dealing with an application for judicial review by the plaintiff which challenged a number of aspects of an “interlocutory decision” issued by the Inspector-General as to the manner in which he intended to continue and conclude the review under s.114I, of the certificate issued under s.114D of the Act. The judgment of Williams J sets out in detail the background to this matter and it is unnecessary for me to repeat it here. The judgment of Williams J is subject to appeal and cross-appeal which are set down for hearing by the Court of Appeal on 5 and 6 May 2004.

The proceeding

The statement of claim recites the history of the matter including that, the plaintiff is an Algerian national with recognised refugee status in New Zealand by virtue of a decision of the Refugee Status Appeals Authority (“RSAA”) issued on 1 August 2003; on 20 March 2003 the Director of Security (“the Director”) issued the certificate pursuant to s.114D of the Act; on 24 March 2003 the Minister of Immigration made a preliminary decision under s.114F(1) of the Act to rely on the security risk certificate; on 27 March 2003 the plaintiff applied to the Inspector-General pursuant to ss.114H and 114I of the Act for a review of the Director’s decision to make the certificate (the review); by “interlocutory decision” dated 6 October 2003 the Inspector-General made certain rulings in relation to the review which were the subject of the High Court judgment delivered on 19 December 2003 allowing the plaintiff’s judicial review application in respect of the interim rulings; the Inspector-General on a date prior to 22 November 2003 gave an interview with Mr Gordon Campbell of the “New Zealand Listener” (“the Listener interview”) which was tape recorded by the interviewer Mr Campbell, and statements made by the Inspector-General were subsequently published in the edition of the New Zealand Listener dated 29 November 2003; a complete and verbatim transcript of the Listener interview as tape recorded was subsequently placed on the New Zealand Listener website on 6 December 2003; the Inspector-General on 9 December 2003 made a further public statement or statements about the plaintiff’s case, in particular to the New Zealand Herald published on 10 December 2003; by memorandum dated 11 December 2003 the plaintiff by his counsel made a formal request that the Inspector-General withdraw and excuse himself from the conduct of the review on the grounds of apparent bias; on 15 January 2004 the Inspector-General declined in writing to excuse or disqualify himself.

The statement of claim alleges that as a consequence of the Inspector-General’s published statement concerning his role as Inspector-General, the security risk certificate review, the interim rulings, the plaintiff’s judicial review, the plaintiff’s case generally and the Inspector-General’s views on refugees, there now exists an appearance of bias on the part of the first defendant in relation to the future conduct by him of the review.

As a consequence of the alleged apparent bias of the Inspector-General and in reliance on the principles of natural justice (as mandated by s.27(1) of the New Zealand Bill of Rights Act), the plaintiff seeks the orders which would prohibit the Inspector-General from further engaging or participating in the conduct of the review and also seeks an order that the plaintiff is “not available” to conduct the balance of the review within the meaning of s.114B(2) of the Act (thereby providing a mechanism for a substitute to be appointed to conduct the review).

First Defendant’s application for removal to Court of Appeal

The relevant statutory provision is s.64 of the Judicature Act 1908 which provides –

Transfer of civil proceedings from High Court to Court of Appeal

(1) If the circumstances of a civil proceeding pending before the High Court are exceptional, the High Court may order that the proceeding be transferred to the Court of Appeal.

(2) Without limiting the generality of subsection (1), the circumstances of a proceeding may be exceptional if—

(a) A party to the proceeding intends to submit that a relevant decision of the Court of Appeal should be overruled by the Court of Appeal:

(b) The proceeding raises 1 or more issues of considerable public importance that need to be determined urgently, and those issues are unlikely to be determined urgently if the proceeding is heard and determined by both the High Court and the Court of Appeal:

(c) The proceeding does not raise any question of fact or any significant question of fact, but does raise 1 or more questions of law that are the subject of conflicting decisions of the High Court.

(3) In deciding whether to transfer a proceeding under subsection (1), a Judge must have regard to the following matters:

(a) The primary purpose of the Court of Appeal as an appellate court:

(b) The desirability of obtaining a determination at first instance and a review of that determination on appeal:

(c) Whether a Full Court of the High Court could effectively determine the question in issue:

(d) Whether the proceeding raises any question of fact or any significant question of fact:

(e) Whether the parties have agreed to the transfer of the proceeding to the Court of Appeal:

Any other matter that the Judge considers that he or she should have regard to in the public interest.

There was no dissent by the parties that the circumstances which justify transfer of civil proceedings from the High Court to the Court of Appeal must be “exceptional”, a power which McGechan on Procedure at para J64.01 in distilling helpful principles from case law (in particular Re Erebus Royal Commission: Air NZ Limited v Mahon [1981] 1 NZLR 614 (CA), Fay Richwhite v Davison [Removal to Court of Appeal] (1997) 11 PRNZ 177; [1997] NZAR 563, Black v NZ Law Practitioners Disciplinary Tribunal (1997) 11 PRNZ 213 (CA)) stated –

… should be exercised only sparingly, and only exceptionally, for reasons applicable to the particular case.

But there were differing views as to whether this case is so exceptional that the power should be exercised.

Nor was there any dispute that this judicial review proceeding needs to be determined as a matter of urgency. It is urgent because Mr Zaoui has been in custody since December 2002, because his situation has evoked a good deal of media attention and public interest and it is desirable that the whole matter be brought to a conclusion with as little delay as possible, and because the nature of the process prescribed by the Act supplemented by the Inspector-General of Intelligence and Security Act 1996 (“the Inspector-General’s Act”) contemplates and provides for an expeditious path to resolution of the matter, (e.g. an individual who receives advice that the Minister proposes to rely on a certificate must seek review of the certificate under s.114I within 5 days; any appeal to the Court of Appeal on a point of law under s.114P must be brought within 3 days of the Inspector-General’s decision). There were differing views, however, as to whether removal to the Court of Appeal would achieve a more speedy resolution overall, counsel for the Inspector-General and the Crown contemplating with some confidence that the 2 days hearing allowed before the Court of Appeal on 5 and 6 May 2004 would be adequate time to dispose of the appeal from the High Court judgment of Williams J as well as this judicial review proceeding; counsel for Mr Zaoui disagreeing with that suggestion, particularly if the Court of Appeal did not have the benefit of a first instance decision in this judicial review proceeding and noting that the judgment of Williams J addresses issues distinct from this proceeding.

In relation to the circumstances that may be exceptional specified in subsection (2) of s.64, it was common ground that (a) does not apply, but the first and second defendants argued that paragraph (b) – issues of considerable public importance that need to be determined urgently – does apply in favour of removal, that (c) – question of law that is the subject of conflicting decisions of the High Court – could apply, and that cumulatively there are special features that make this case exceptional warranting removal to the Court of Appeal.

As to (c) the defendants pointed to the uncertainty as to the test to be applied in New Zealand in relation to an allegation of apparent bias; whether the traditional test as set out in R v Gough [1993] AC 646, 670 HL or the new test as set out in Porter v McGill [2002] 2 AC 537 [103] HL or a possible alternative formulated, but not declared, by Anderson J delivering the judgment for the Court of Appeal in Erris Promotions Ltd v The Commissioner of Inland Revenue (CA. 68/03, 24 July 2003, at [32]).

However, in two recent decisions, Erris and Ngati Tahinga and Ngati Karewa Trust & Clark & Ors v Attorney-General (CA. 163/03, 24 September 2003) a new test has been formulated, and was applied in the latter case because the Court of Appeal considered it was expedient in the circumstances of that case to apply a test at a lower threshold than a test in terms of “real danger”.

In Man O’War Station Ltd v Auckland City Council [2002] 3 NZLR 577 the Privy Council noted that –

Both tests proceed from the point of view of an informed view of the facts;

Both tests concentrate on the possibility of bias;

The difference is that the adjusted test emphasises the perspective of a fair minded observer rather than the view of the Court.

(this being a reference to the approach of Lord Goff in R v Gough at p.670 that –

… the Court in cases such as these personifies the reasonable man.)

Thus, the High Court would not be without guidance and having assessed the facts, as it is important in such a case to do, it would be open to the Court to evaluate the facts and circumstances against both tests in reaching its conclusion. The following statement by the Privy Council at para [11] in the Man O’War case, demonstrates such an approach –

This is a corner of the law in which the context, and the particular circumstances, are of supreme importance. In their Lordships’ view an intense focus on the essential facts of the case, as highlighted by Gault J, convincingly shows that there is no danger or possibility of apparent bias.

That statement is particularly instructive in considering s.64(2)(c). The facts will always be of “supreme importance” in a case such as this and the Court of Appeal will be assisted by the High Court’s analysis of all relevant facts and circumstances.

I conclude that the circumstances of this case do not quality it as exceptional in terms of sub-paragraph (c).

Considering the mandatory matters in s.64(3) I comment as follows –

The primary purpose of the Court of Appeal as an appellate court. The Court of Appeal should ordinarily hear cases only after there has been a reasoned judgment at first instance. The parties are prima facie entitled to the benefit of both a determination at first instance and a review on appeal: Vector Limited v Transpower NZ Ltd (2000) 14 PRNZ 240. Mr Zaoui seeks to have this judicial review proceeding heard and determined at first instance and to preserve his right of appeal to the Court of Appeal. As his counsel pointed out, any appeal he to the Court of Appeal is as of right, while other avenues of appeal that may be open to him in relation to this matter, e.g. to the Supreme Court or from the decision on review by the Inspector-General, are limited and require leave. I regard this as a persuasive factor against removal.

The desirability of obtaining a determination at first instance and a review of that determination on appeal.

Counsel for the plaintiff emphasised the importance of the factual context and the relevance of circumstances in their entirety where apparent bias is alleged (refer the Man O’War case); that the case does not involve some “pure” question of law in the abstract but an evaluation of the Inspector-General’s statements and conduct in a detailed context. He submitted –

It cannot possibly be said that the Court of Appeal would gain no benefit from the findings and evaluation of those facts by a Judge at first instance. Indeed, it can safely be said that the Court of Appeal would positively benefit from the prior undertaking of this exercise.

He cited in support Re Erebus, Fay Richwhite v Davison (above) and BNZ v Vujnovich (1992) 6 PRNZ 544, 545.

The defendants submitted that the case can be fairly and properly disposed of by reference to the Listener article and the tape and transcript. It appears that there will be no defence affidavits. The Inspector-General seeks to narrow the factual context to the Listener article. The plaintiff seeks a wider ranging inquiry (see later in this judgment).

While the factual inquiry may have a narrow focus, the importance of that focus in a proceeding alleging apparent bias is well recognised. The Court of Appeal is likely to benefit from the High Court’s assessment of the ambit of the factual inquiry and of the relevant facts and circumstances, together with the High Court’s views as to the law applied to the facts. This factor tells against removal.

Whether a Full Court of the High Court could effectively determine the question in issue?

The questions in issue here are novel, important and realistically likely to give rise to an appeal from the decision at first instance by the unsuccessful litigant. Determination by a Full Court is unlikely to deflect the appeal process and could result in delay.

Whether the proceeding raises any question of fact or any significant question of fact?

I have dealt with this under (b) above.

Whether the parties have agreed to the transfer of the proceeding to the Court of Appeal?

The plaintiff opposes the transfer. He wishes to have this proceeding heard and determined in the High Court and to preserve his established right of appeal to the Court of Appeal. This factor tells against removal.

Any other matter that the Judge considers he or she should have regard to in the public interest.

There can be no question that the proceeding raises issues of considerable public interest and importance. There has been extensive media coverage at all stages. The public interest encompasses the factor of urgency to which I have already referred and will return.

The defendants relied on there being in this case cumulatively, special features that make it exceptional. Other grounds stated by the first defendant were that s.5(3) of the Inspector-General’s Act require that the Inspector-General be a former Judge of the High Court of New Zealand; and that in substance a review of the decision of the Inspector-General is equivalent to a review of a High Court decision and therefore appropriately conducted by the Court of Appeal.

I did not hear Mr Wilson Q.C. strongly to rely on these grounds. Rather he submitted they were factors to be considered along with all other factors in support of the defendants’ submission that this proceeding is exceptional and should be transferred to the Court of Appeal.

The plaintiff submitted that these considerations are irrelevant and that a litigant is entitled to be heard on judicial review proceedings brought in the High Court regardless of the status of the decision-maker involved. He submitted that the role of the Inspector-General is not a judicial role but a statutory role under the Inspector-General’s Act, that his statutory role is akin to that of an ombudsman and that the requirement of s.5(3) of the Inspector-General’s Act that the Inspector-General shall have –

… previously held office as a Judge of the High Court of New Zealand

reflects the sensitivity of the material he must review, as was observed by Williams J in his judgment of 19 December 2003 at para [64]. While the position of the Inspector-General may be unique in New Zealand law as Williams J observed, that of itself is not a basis for regarding this proceeding as “exceptional” in the context of s.64 of the Judicature Act. Judges can be subject to judicial review and the status of the Inspector-General as a former High Court Judge cannot be proper or sufficient reason to deprive a litigant of his right to a first instance hearing in the High Court, being the Court upon which jurisdiction in judicial review proceedings is conferred.

Mr Harrison Q.C. for the plaintiff also referred to s.114P of the Act which provides a right of appeal to the Court of Appeal from a decision of the Inspector-General on a point of law with the leave of the Court of Appeal. Counsel submitted that the existence of the right of appeal cannot of itself be a factor in favour of removal of the present proceeding to the Court of Appeal when it is accepted, as confirmed by the judgment of Williams J, that the right of appeal does not exclude judicial review of decisions and steps taken by the Inspector-General prior to his final decision on a review which may be the subject of appeal in terms of s.114P.

The plaintiff submitted that the review function performed by the Inspector-General in relation to the Director’s decision to make the certificate replaces the right of an individual to a High Court review of the certificate because s.114H(4) of the Act provides that no review proceedings may be brought in any Court in respect of the certificate or the Director’s decision to make the certificate. The different procedures, counsel submitted reflected the need to protect “classified security information”.

On these aspects I accept the substance of the submissions by counsel for the plaintiff. While the status of the Inspector-General and the procedures provided by the Act for review by him of the Director’s decision to make a certificate, reflect the need to protect “classified security information”, those matters do not exclude the processes of the Inspector-General from judicial review. Nor do I consider they add compelling features or factors in support of removal of this proceeding to the Court of Appeal.

As I have observed above there is consensus as to urgency, which may give rise to the proceeding being regarded as “exceptional”, thus justifying transfer to the Court of Appeal within the terms of s.64(1) and (2)(b).

While the plaintiff and the defendants each levied criticism against the other of delay which it was contended could have been avoided, I do not regard any such delays as material to the issue of removal. This is a case giving rise to issues that are in some respects unique, important, and not without difficulty. Among the relevant aspects of the case are that the plaintiff is the first and only person in respect of whom a security risk certificate has been made and that the plaintiff also has recognised refugee status pursuant to the decision of the RSAA. The tension in the public mind between the plaintiff’s status as a security threat and as a refugee has fuelled the high media profile, and public concern has been expressed in a number of ways as identified by the Crown in submissions.

Mr Zaoui has been in custody since 4 December 2002. The Crown expressed in submissions the Government’s real concern to see Mr Zaoui’s personal situation resolved and the public concerns met by prompt conclusion of the legal process. The Crown emphasised that the process established by Part IVA of the Act requires the rapid processing of applications and appeals in the interests of both the individuals concerned and the Crown. Mrs Clark for the Crown referred to s.114A(f) which provides that an object of Part IVA of the Act is to –

Ensure that persons covered by this Act who pose a security risk can where necessary be effectively and quickly detained and removed or deported from New Zealand.

The need for urgency is clear. But I am not satisfied that removal of this proceeding to the Court of Appeal would best meet the requirement for urgency. The parties have differing views as to whether this proceeding on appeal could be accommodated along with the appeal and cross-appeal from the judgment of Williams J set down for 5 and 6 May 2004.

I consider it is likely that any time required before the Court of Appeal in relation to this proceeding will be minimised by a reasoned decision of this Court on the plaintiff’s application for judicial review in respect of which the Court of Appeal is required to exercise its appellate function at the behest of one of the parties following judgment in this Court.

But more fundamentally, while the factual situation is exceptional I do not consider the issues in this judicial review proceeding to be so exceptional that pursuant to s.64 the plaintiff’s clear preference for a determination of the allegation of apparent bias by the Inspector-General to be determined by this Court should be overridden. He is the individual in custody, and while there is a strong public interest in having his situation resolved urgently, that should not deny him the opportunity to pursue the proceeding in a manner which he considers will be in his best interests, albeit that in doing so he must respect the need for urgency which he acknowledges.

The first defendant’s application for removal to the Court of Appeal is declined.

Interrogatories

The plaintiff seeks to administer to the Inspector-General two sets of interrogatories dated respectively 5 February and 17 February 2004. They are set out in full in the schedule attached to this judgment. The applications are opposed in an amended notice of opposition dated 24 February 2004 which relates both to the interrogatories and to the plaintiff’s oral application for general discovery with which I shall deal with separately.

In submissions counsel for the plaintiff explained what the interrogatories seek to ascertain and to achieve.

The first interrogatories arise out of a response by the Director to the ruling by Williams J in his judgment of 19 December 2003 requiring the provision to Mr Zaoui of a summary of the allegations against him and the basis for them, which underlie the making of the certificate, provided that the information does not breach the definition of “classified security information” as defined by s.114B of the Act which “cannot be divulged”.

By letter of 29 January 2004 the Crown Law Office provided to the Inspector-General a “Summary of allegations and reasoning of the Director of Security in making a security risk certificate about Mr Ahmed Zaoui”. A copy of the letter and summary is annexed to the first notice to answer interrogatories.

Without accepting that the summary of allegations meets the requirements of the judgment of Williams J, the plaintiff wishes to ascertain by the interrogatories whether the summary of allegations and reasoning of the Director were made known to the Inspector-General before he gave his interview to the Listener on 22 November 2003. The inquiry is prompted by a claimed substantial degree of correspondence between aspects of the Director’s allegations and reasoning and the Inspector-General’s remarks in the Listener interview. Counsel for the plaintiff contended that because it is the function of the Inspector-General to conduct the review of the decision of the Director to make a security risk certificate pursuant to s.114I, it is of considerable significance in terms of the assessment of his conduct in relation to the allegation of apparent bias, if the Director’s reasoning was made known to the Inspector-General before or during the conduct of the review. If the publicly espoused views of the Inspector-General as expressed in the Listener interview reflect the reasoning of the Director whose decision the Inspector-General is required to review, that is a significant factor in the arguments the plaintiff would make at the substantive hearing in support of the allegation of apparent bias.

Interrogatories 1-8 are addressed to ascertaining whether the Inspector-General was advised of the particular aspects of the Director’s reasoning and if so when.

Interrogatories 9-14 seek information in the event that the Inspector-General had received advice prior to receipt of the Director’s summary of allegations and reasoning, of his reasons or reasoning in making the security risk certificate but the reasons differed from those set out in the summary accompanying the letter of 29 January 2004. In that event the interrogatories 9-14 seek the substance of the reasons as they were actually provided to the Inspector-General by the Director.

The second interrogatories seek to ascertain whether when he gave the Listener interview, the Inspector-General was aware that the plaintiff had utilised a false passport when travelling to New Zealand in order to claim refugee status, which he had attempted to damage or destroy prior to presenting himself at the border. That situation is referred to in the Director’s summary provided on 29 January 2004 and also in the RSAA decision.

The interrogatories are opposed by the first defendant on a number of grounds including that they are inappropriate, unnecessary and irrelevant and will not assist with providing relevant information; that they have the potential to delay the efficient disposition of the proceeding which is an important consideration when all parties are agreed that the matter needs to be dealt with urgently. It was further submitted that there are no special circumstances justifying a departure from the usual approach, that in judicial review proceedings, interrogatories will usually be inappropriate.

The Inspector-General submitted that a more fundamental objection to the applications arises under s.24(1)(b) of the Inspector-General’s Act. Although the amended notice of opposition filed stated this ground of opposition to extend to and include s.19(9) and s.24(1)(a) of the Act, counsel did not rely on the two latter provisions in relation to this interlocutory application, but indicated the Inspector-General’s intention to argue in the substantive proceeding that s.19(9) and s.24 prevent the proceeding from being brought at all. In this interlocutory proceeding, he confined his submissions to s.24(1)(b).

Section 24 is headed “Proceedings Privileged”. Section 24(1)(b) provides relevantly –

Neither the Inspector-General nor any employee of the Inspector-General or any person who has held the appointment of Inspector-General or who has been an employee of the Inspector-General shall be called to give evidence in any Court, or in any proceedings of a judicial nature, in respect of anything coming to his or her knowledge in the exercise of his or her functions under this Act.

The first defendant argued that this provision was a prohibition on interrogatories being administered to the Inspector-General. The Inspector-General clearly received the information in question in the exercise of his functions under the Act and s.24(1)(b) therefore applies. The plaintiff is not entitled to use answers to interrogatories as a backdoor method to defeat s.24(1)(b). Counsel argued that the prohibition or limitation which s.24(1)(b) imposes applies both to discovery and interrogatories against the Inspector-General unless the results of these processes can be used in evidence there is no point in them. Accordingly the applications for interrogatories and discoveries are attempts to circumvent s.24(1)(b) and should be refused.

Alternatively the Court in the exercise of its discretion to order interrogatories and discovery should pay heed to s.24(1)(b) and should not make orders requiring the Inspector-General to provide answers or discover documents that he could not be required to give or produce in evidence. Accordingly neither the interrogatories nor the discovery sought is “necessary” for they could not yield information that could be used in the substantive proceedings.

Mr Harrison for the plaintiff argued for a much more restrictive interpretation of s.24(1)(b). He submitted that, using the expression somewhat loosely, s.24(1)(b) (like s.24(1)(a) and s.19(9)) is a privative clause in that it removes from a litigant the right that he or she would otherwise have to “call” a material witness to give evidence in respect of specific subject matter. It followed, counsel submitted, that the principles of natural justice and access to justice, including the protections under the Bill of Rights (particularly s.27(1)) mandate a narrow interpretation of the provision and at the very least a requirement that there be clear and express language before such fundamental rights are curtailed in a particular case. The protections of s.24 of the Inspector-General’s Act are imported into Part IVA of the Act by s.114I(6)(b) of the Act which provides that certain provisions of the Inspector-General’s Act including s.24 with any necessary modifications apply to the review to be conducted by the Inspector-General under s.114I. In that context it is clear that their purpose is to protect “classified security information”.

The information sought by the interrogatories, counsel submitted, is a far cry from the protection intended to be afforded by means of the provision in s.24(1)(b) when read in the context of Part IVA of the Act and the confidentiality the statutory scheme of Part IVA seeks to protect. The interrogatories do not seek “confidential security information” - the plaintiff accepts unreservedly that this may not be divulged - but they do seek whether and when the Director’s reasoning (information to which the plaintiff is entitled in terms of the judgment of Williams J), was made available to the Inspector-General.

Further, section 24(1)(b) does not prohibit the Inspector-General from giving evidence – he may wish to file an affidavit.

I find it unnecessary to determine the limits of the application of s.24(1)(b) for the purposes of the interlocutory applications before the Court. There are, I consider, two stages that need to be recognised. By the interrogatories sought to be administered and by general discovery, the plaintiff seeks factual information relevant to the proceeding. Whether any information obtained in response will be sought to be used by the plaintiff in the substantive proceeding remains a matter for future decision. If he does so seek to use it or part of it, then questions of admissibility may arise depending on the nature of the evidence sought to be adduced. Section 24(1)(b) may well impact on issues of admissibility which will need to be determined by the trial Judge. But I do not consider that s.24(1)(b) of itself imposes a barrier to the plaintiff seeking information by way of interrogatories and discovery if they meet the other tests. As the plaintiff pointed out, it may well be that information obtained by these processes can be adduced in evidence by means other than calling the Inspector-General, e.g. by calling the Director.

Admissibility issues will need to be determined by the trial Judge in the context in which they arise. If s.24(1)(b) is argued in opposition to evidence the plaintiff seeks to adduce, the trial Judge is likely to have the benefit of submissions by both parties in relation to both ss.24(1)(a) and (b) and their place and purpose in the context of Part IV of the Act into which they and other provisions of the Inspector-General’s Act are imported.

I revert therefore to consideration of whether the interrogatories sought to be administered, are necessary and relevant to the proceedings.

Pursuant to r.280 of the High Court Rules the Court may make orders limiting interrogatories to prevent unnecessary or oppressive interrogatories or unnecessary answers to interrogatories. The Court’s power should be exercised having regard to the need to ensure that the substantive proceeding is disposed of in an efficient and timely way without interlocutory processes becoming instruments for oppression and delay, while ensuring that the Court has all the necessary, relevant information: Air New Zealand & Ors v Auckland International Airport Ltd (unreported, Auckland High Court, M. 1634-SD00, Priestley J).

For the Inspector-General it was submitted that the proposed interrogatories are the equivalent of cross-examination in a judicial review proceeding which is rarely permitted. Counsel referred to B v Auckland District Law Society (2000) 14 PRNZ 423 (HC) at para [37] –

In an apparent bias case, the Court does not look into the mind of the person against whom apparent bias is alleged but ascertains the relevant circumstances from the factual evidence … In my view it is not necessary to cross-examine in respect of many of the matters which the plaintiffs consider should be the subject of cross-examination. In respect of other matters, the position will be relatively apparent from the further discovery.

In that case the Court considered the plaintiff’s application to cross-examine in the context of conflicting affidavit evidence. That is not the situation here, and while I accept the first defendant’s submission that cross-examination is unlikely to be in the interests of justice in an apparent bias proceeding, I do not accept that the interrogatories sought to be administered here are the equivalent of cross-examination against a background of conflicting affidavit evidence. Nor do I accept that here the inquiry is made to the Inspector-General as the “decision-maker” of a decision under review. In this proceeding it is the Inspector-General’s fitness to enter upon the review which is in issue.

The interrogatories seek to establish facts, i.e. whether, when and what reasoning of the Director was received by the Inspector-General. They do not seek to establish what was the Inspector-General’s actual state of mind, which is not relevant to the allegation of apparent bias. Apparent bias is to be assessed on facts, actions and statements. But the assessment is to be made from the perspective of the “reasonable objective observer invested with knowledge of the material facts” (whether the Court performs the part of the reasonable objective observer as in the Gough test or whether the question is asked from the perspective of an independent reasonable objective observer).

In BOC NZ Ltd v Trans Tasman Properties Ltd (1996) 10 PRNZ, the Court stated at p.205, 206 –

That leads to the question of the amount of information with which the reasonable observer is to be armed. The leading authorities are clear that he or she is to be “informed”. In the Casino case there was reference to a reasonable person knowing all the material facts. In Gough the reference is to knowledge of the relevant circumstances.

The Court then quoted from the judgment of Dean J in R v Webb (1994) 122 ALR 41 (HCA) at p.64 –

… the fair minded observer is a hypothetical figure. While the question is not settled by any decision of the Court, it appears to me that the knowledge to be attributed to him or her is a broad knowledge of the material objective facts as ascertained by the appellate court …

The Court continued –

… nor do we see any good reason why the matter should not be tested on all available facts. It does not become a test for actual bias to consider all the circumstances. To so contend is to confuse the test with the fact situation to which the test is to be applied.

Those observations are apposite in this case. The facts sought by the interrogatories may well be material to the knowledge of the hypothetical, fair-minded, informed observer.

The interrogatories sought are specific and limited in scope. I consider they are relevant to the issues in the substantive proceeding. It is clear, and the plaintiff accepts, that if any response or responses required to the interrogatories, particularly to interrogatories 9-14, would require the disclosure of “classified security information” which cannot be divulged in terms of s.114B(1) of the Act then the Inspector-General is entitled to decline to answer the interrogatory in whole or in part, as may be appropriate.

The plaintiff’s application to administer interrogatories in terms sought is therefore granted.

However, there is an important aspect to which I draw the attention of the plaintiff and his legal advisers. At HR289.02 McGechan on Procedure states under the heading “Misuse of answers” –

Where answers to interrogatories are not tendered as evidence but are disclosed to a third party for purposes unconnected with the proceeding, the party making such disclosure is technically guilty of contempt.

As I have stated above, the issue of admissibility of any evidence the plaintiff may seek to adduce arising from responses to the interrogatories is for future determination. There can be no assumption that any such evidence will be admissible. In this case the provisions of the Act and the Inspector-General’s Act may impact on admissibility. Therefore it would be inappropriate for the plaintiff to make disclosure of the answers in response to the interrogatories or any part of them beyond the parties to the proceeding. I order that no such disclosure be made.

Discovery

The plaintiff seeks general discovery of documents to ensure he has access to all relevant documents generated by the Inspector-General both before and after the Listener interview which are relevant to the issues raised by this proceeding. The submissions outline that such documents may include communications between the Inspector-General and the Director relating to the Director’s reasoning and communications by the Inspector-General with the media, Ministers for the Crown and members of the public. Discovery will be limited to documents relating to matters in question in the “apparent bias” claim. It will not extend to discovery of documents generated by or in the course of the review which do not so relate.

The grounds of opposition to discovery – s.24(1)(b) and “unnecessary” - have already been covered in relation to interrogatories.

For the same reasons as set forth above in relation to interrogatories, s.24(1)(b) does not prohibit discovery. Nor does the fact that the allegation in this case is of apparent bias render unnecessary or irrelevant documentary evidence that would equip the hypothetical informed observer with all the relevant facts and circumstances.

The Inspector-General is entitled and indeed required to resist disclosure of “classified security information” and will appropriately raise that objection if and where applicable.

I make a like confidentiality order in relation to documentary evidence obtained on discovery as appears in para [59].

Urgency - Timetabling

The urgency associated with this matter and this proceeding has been stressed to the Court by all parties. I fix a directions conference for 9.15 a.m. on Tuesday 9 February 2004 before the assigned Judge Salmon J so that timetable orders may be made to advance discovery, inspection and interrogatories. The parties should expect the timetable to be tight. Counsel should file memoranda in advance. The conference will also address a fixture date for the hearing of the substantive proceeding. The Court will facilitate a date prior to Easter.

[66] Summary of Conclusions

The first defendant’s application that this proceeding be transferred to the Court of Appeal for hearing is declined.

The plaintiff’s applications to administer interrogatories filed on 5 February and 18 February 2004 are granted;

The plaintiff’s oral application for general discovery against the first defendant is granted.

There will be confidentiality orders in terms of paras [59] and [64].

Delivered at ______3.30______pm on ____3 March___2004.

SCHEDULE OF INTERROGATORIES

By application filed 5 February 2004 –

1. Did you receive on or about 29 January 2004 a letter from the Crown Law Office dated 29 January 2004 and an accompanying four page document signed by the Director of Security and dated 27 January 2004 (“the Director’s Summary”), copies of which are annexed hereto?

2. At any time prior to your receipt of the Director’s Summary, had you been advised of or otherwise ascertained, whether verbally or in writing, the Director of Security’s reasons for or reasoning in making the security risk certificate?

3. If the response to interrogatory no.2 is “yes”, did the Director of Security’s reasons or reasoning as advised to or ascertained by you include, in substance, that identified by way of the first bullet point in paragraph 8 of the Director’s Summary? If so, when, by whom and in what manner was this information to or otherwise ascertained by you?

4. If the response to interrogatory no.2 is “yes”, did the Director of Security’s reasons or reasoning as advised to or ascertained by you include, in substance, that identified by way of second bullet point in paragraph 8 of the Director’s Summary? If so, when, by whom and in what manner was this information advised to or otherwise ascertained by you?

5. If the response to interrogatory no.2 is “yes”, did the Director of Security’s reasons or reasoning as advised to or ascertained by you include, in substance, that identified by way of the third bullet point in paragraph 8 of the Director’s Summary? If so, when, by whom and in what manner was this information advised to or otherwise ascertained by you?

6. If the response to interrogatory no. 2 is “yes”, did the Director of Security’s reasons or reasoning as advised to or ascertained by you include, in substance, that identified by way of the fourth bullet point, first full paragraph (beginning “As part of …”) in paragraph 8 of the Director’s Summary? If so, when, by whom and in what manner was this information advised to or otherwise ascertained by you?

7. If the response to interrogatory no.2 is “yes”, did the Director of Security’s reasons or reasoning as advised to or ascertained by you include, in substance, that identified by way of the fourth bullet point, second full paragraph (beginning “If Mr ZAOUI, with his public record …”) in paragraph 8 of the Director’s Summary? If so, when, by whom and in what manner was this information advised to or otherwise ascertained by you?

8. If the response to interrogatory no 2. Is “yes, did the Director of Security’s reasons or reasoning as advised to or ascertained by you include, in substance, that identified by way of the fourth bullet point, third full paragraph (beginning “If Mr ZAOUI, or other people …”) in paragraph 8 of the Director’s Summary? If so, when, by whom and in what manner was this information advised to or otherwise ascertained by you?

9. If the response to interrogatory no. 2 is “yes” and the response to interrogatory no. 3 (first question) is “no” did the Director of Security advise you or did you otherwise ascertain records for or reasoning in making the security risk certificate which were materially different from that identified by way of the first bullet point in paragraph 8 of the Director’s Summary? If so:

9.1 What were the materially different reasons or reasoning; and

9.1 When, by whom and in what manner were they materially different reasons or reasoning advised to or otherwise ascertained by you?

10. If the response to interrogatory no. 2 is “yes” and the response to interrogatory no. 4 (first question) is “no”, did the Director of Security advise you or did you otherwise ascertain reasons for or reasoning in making the security risk certificate which were materially different from that identified by way of the second bullet point in paragraph 8 of the Director’s Summary? If so:

10.1 What were the materially different reasons or reasoning; and

10.2 When, by whom and in what manner were the materially different reasons or reasoning advised to or otherwise ascertained by you?

11. If the response to interrogatory no.2 is “yes” and the response to interrogatory no. 5 (first question) is “no”, did the Director of Security advise you or did you otherwise ascertain reasons for or reasoning in making the security risk certificate which were materially different from that identified by way of the third bullet point in paragraph 8 of the Director’s Summary? If so:

11.1 What were the materially different reasons or reasoning; and

11.2 When, by whom and in what manner were the materially different reasons or reasoning advised to or otherwise ascertained by you?

If the response to interrogatory no. 2 is “yes” and the response to interrogatory no. 6 (first question) is “no”, did the Director of Security advise you or did you otherwise ascertain reasons for or reasoning in making the security risk certificate which were materially different from that identified by way of the fourth bullet point, first full paragraph (beginning “As part of …”) in paragraph 8 of the Director’s Summary? If so:

12.1 What were the materially different reasons or reasoning; and

12.2 When, by whom and in what manner were the materially different reasons or reasoning advised to or otherwise ascertained by you?

13. If the response to interrogatory no. 2 is “yes” and the response to interrogatory no. 7 (first question) is “no”, did the Director of Security advise you or did you otherwise ascertain reasons for or reasoning in making the security risk certificate which were materially different from that identified by way of the fourth bullet point, second full paragraph (beginning “Mr Mr ZAOUI, with his public record …”) in paragraph 8 of the Director’s Summary? If so:

13.1 What were the materially different reasons or reasoning; and

13.2 When, by whom and in what manner were the materially different reasons or reasoning advised to or otherwise ascertained by you?

14. If the response to interrogatory no. 2 is “yes” and the response to interrogatory no. 8 (first question) is “no”, did the Director of Security advise you or did you otherwise ascertain reasons for or reasoning in making the security risk certificate which were materially different from that identified by way of the fourth bullet point, third full paragraph (beginning “If Mr ZAOUI, or other people …”) in paragraph 8 of the Director’s Summary? If so:

14.1 What were the materially different reasons or reasoning; and

14.2 When, by whom and in what manner were the materially different reasons or reasoning advised to or otherwise ascertained by you?

By application filed 18 February 2004 –

1. When you participated in the Listener interview, were you aware that the plaintiff had utilised a false passport, when travelling to New Zealand in order to claim refugee status?

2. When you participated in the Listener interview, were you aware that the plaintiff had attempted to damage or destroy his false passport, prior to presenting himself to immigration officials at the New Zealand border?

3. When you participated in the Listener interview, had you read the Refugee Status Appeals Authority decision referred to in paragraph 1 of the statement of claim?

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