A v The Attorney-General and Another

• Jurisdiction: New Zealand
• Judge: O'Regan P
• Judgment Date: 08 July 2013
• Neutral Citation: [2013] NZCA 289
• Docket Number: CA294/2013
• Court: Court of Appeal
• Date: 08 July 2013

Between

A

Appellant

and

The Attorney-General

First Respondent

Paula Rebstock

Second Respondent

[2013] NZCA 289

Court:

O'Regan P, Ellen France and Harrison JJ

CA294/2013

IN THE COURT OF APPEAL OF NEW ZEALAND

Appeal from High Court decision dismissing appellant's application for judicial review of second defendant's conclusions in a draft report — cross-appeal against finding that if report were to be publicly released, then further disclosure to appellant of material relied on by second defendant would be necessary in order to ensure that the rules of natural justice were complied with — report was prepared following an investigation into a possible unauthorised disclosure of Cabinet papers — report concluded that there was a strong suspicion that appellant had leaked the information — whether terms of reference establishing the inquiry allowed for a finding of a proper basis for “strong suspicion” rather than reporting proven facts — whether the proposed finding was supported by probative evidence — whether there had been adequate disclosure complying with principles of natural justice.

Counsel:

J S McHerron for Appellant

U R Jagose and C I J Fleming for Respondents

JUDGMENT OF THE COURT

A The appeal is dismissed.

B The cross-appeal is allowed. The orders made in the High Court (set out at [8] of the Reasons of the Court) are set aside.

C We make no order for costs.

D An order is made that no person other than the parties to the appeal or their counsel may have access to any documents on this Court's file without the permission of a Judge. This order is to continue in force until further order of this Court or the High Court.

REASONS OF THE COURT

(Given by O'Regan P)

Table of contents

	Para No
Introduction	[1]
Issues for determination	[10]
Factual background	[13]
Terms of reference: “strong suspicion”	[14]
Was there probative evidence supporting the finding of “strong suspicion”	[32]
Natural justice: has adequate disclosure been made to the appellant?	[45]
What disclosure has been made?	[47]
What additional disclosure is sought?	[49]
What is the entitlement?	[58]
The appellant's disclosure requests	[62]
Suppression	[71]
Result	[75]
Costs	[76]

Introduction

1 In May 2012, the opposition spokesperson on Foreign Affairs and Trade, the Hon Phil Goff, asked a question in Parliament that suggested he had obtained information from a Cabinet Committee paper that had been prepared about changes at the Ministry of Foreign Affairs and Trade (MFAT). The State Services Commissioner (the Commissioner), concerned that there appeared to have been an unauthorised disclosure of Cabinet papers, appointed the second respondent, Ms Rebstock, to “investigate and report on the relevant facts around a possible unauthorised disclosure” of the papers.

2 Ms Rebstock has undertaken that investigation and her draft report includes a statement that she finds that there is a “strong suspicion” that the appellant may have leaked the Cabinet papers. She disclosed relevant extracts from the draft report to the appellant for comment. The appellant then applied to the High Court for judicial review of the draft conclusions reached by Ms Rebstock. The Attorney-General is sued in respect of the Commissioner under s 14 of the Crown Proceedings Act 1950. So the practical position is that the judicial review application is directed against the Commissioner as appointer of Ms Rebstock and intended recipient of her report and Ms Rebstock herself.

3 The application for judicial review was given an urgent hearing in the High Court and was determined by Dobson J in a judgment delivered on 7 May 2013. 1 The judgment was initially issued only to counsel, in order to allow for submissions to be received on redactions required to allow for publication of the judgment without compromising suppression orders that had been already granted in the High Court (including an order that the appellant would be identified in all court documents as “A”). It was reissued on 15 May 2013 in redacted form, and that version was released to the public.

4 The first ground of the appellant's judicial review application was that the terms of reference for Ms Rebstock's investigation did not permit her to make a finding of a proper basis for “strong suspicion”. He argued that under the terms of reference she was limited to reporting only on proven facts. Dobson J rejected that ground of review.

5 The second ground of review was that the finding that there was a proper basis for strong suspicion in the draft report was unsupported by probative evidence. Dobson J rejected this ground also, finding that there was a proper basis of probative evidence on which Ms Rebstock could base that finding.

6 The third ground of review was that Ms Rebstock had not made adequate disclosure to the appellant of the evidential material on which she had relied in coming to her proposed finding that there was a proper basis for strong suspicion. The appellant argued this meant that the principles of natural justice had not been complied with. Dobson J held that the level of disclosure made by Ms Rebstock was

adequate if her final report was made only to the Commissioner and not publicly released

7 However, the Judge found that if the report were to be publicly released, then further disclosure would be necessary in order to ensure that the rules of natural justice were complied with.

8 The formal orders of the Court on the substantive claim were first: 2

If Ms Rebstock intended to publish her report to the Commissioner in a form that the Commissioner would be entitled to publish, then that would involve a breach of relevant rules of natural justice because of inadequate disclosure of information relevant to A's defence of his position.

And second: 3

In the event that either or both of the respondents hereafter form the intention to produce a report intended for publication in respect of the parts addressing the position of A, then they are promptly to give A's legal advisers notice of that intention. Thereafter, the parties will have leave to apply for the definition and argument of additional issues, as they then arise.

9 The judicial review application was otherwise dismissed. A appeals against the findings set out at [4], [5] and [6] above, while the respondents cross-appeal against the finding set out at [7] above.

Issues for determination

10 The issues which we are required to address are:

• (a) Did the terms of reference establishing the inquiry allow Ms Rebstock to report that there is a basis for strong suspicion that the appellant may have been responsible for the unauthorised disclosure of the Cabinet papers? The alternative proposition suggested by the appellant is that the terms of reference limited Ms Rebstock to reporting proven facts.

• (b) Is Ms Rebstock's proposed finding supported by probative evidence?

• (c) Has adequate disclosure been made to the appellant so that the principles of natural justice have been or will be, before the completion of the report, complied with?

11 Counsel for the appellant, Mr McHerron, told us at the start of the hearing that counsel for the respondents had advised him that the Commissioner intended to publish the report after it was submitted to him by Ms Rebstock. This means that the practical emphasis of the adequacy of disclosure issue referred at [10](c) above is on the respondents' cross-appeal.

12 There was no dispute that the extracts from the draft were amenable to judicial review so we do not address that issue.

Factual background

13 It is not easy to set out a statement of the relevant facts without disclosing information that would be likely to identify the appellant and therefore compromise the suppression order made in the High Court. For that reason, we adopt the summary of facts set out in the High Court judgment and set out in an appendix to this judgment the redacted form of the relevant paragraphs from that judgment. This obviates the need for us to check with counsel as to whether this judgment includes any suppressed information.

Terms of reference: “strong suspicion”

14 Counsel for the appellant, Mr McHerron, argued in the High Court that Ms Rebstock would be acting outside the terms of reference for the investigation if she included in her final report a finding based on “mere suspicion”. He argued that the finding in the draft report that there was a proper basis for strong suspicion that the appellant may have leaked the Cabinet papers was a finding based on mere suspicion.

15 Ms Rebstock was appointed by the Commissioner under s 23 of the State Sector Act 1988 (the Act) which empowers the Commissioner to delegate his functions. 4 In this case the function that was delegated was the Commissioner's power to conduct inspections and investigations, which is set out in s 8(2) of the Act. That provision gives the Commissioner power to conduct any investigation that he considers necessary. That power is, however, limited by s 8(1). There was no dispute that the power of investigation was appropriately exercised in this case and that s 23 provided a proper statutory basis for the delegation of that power to Ms Rebstock. Nor was there any dispute that Ms Rebstock's powers in relation to the inquiry are framed by her...